EXHIBIT 10.12
EXECUTIVE SUPPLEMENTAL RETIREMENT PLAN
EXECUTIVE AGREEMENT
THIS AGREEMENT is made and entered into this 13th day of January, 2000, by
and between Community Trust Bank, a Bank organized and existing under the laws
of the State of Georgia, (hereinafter referred to as the, "Bank"), and Xxxxxx X.
Xxxxxx, an Executive of the Bank (hereinafter referred to as the, "Executive").
WHEREAS, the Board 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 service with the Bank;
ACCORDINGLY, the Board has adopted the Community Trust Bank Executive
Supplemental Retirement Plan (hereinafter referred to as the, "Executive Plan")
and it is the desire of the Bank and the Executive to enter into this agreement
which the Bank will agree to make certain payments to the Executive upon the
Executive's retirement and 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 to 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:
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The Effective Date of the Plan shall be January 3, 2000.
B. Plan Year:
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Any reference to the "Plan Year" shall mean a calendar year from
January 1st to December 31st. In the year of implementation, the term
the "Plan Year" shall mean the period from the Effective Date to
December 31st of the year of the Effective Date.
C. Retirement Date:
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Retirement Date shall mean retirement from service with the Bank,
which becomes effective on the first day of the calendar month
following the month in which the Executive reaches age sixty-five (65)
or such later date as the Executive may actually retire.
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 Normal Retirement Age
[Subparagraph I (J)].
E. Pre-Retirement Account:
----------------------
A Pre-Retirement Account shall be established as a liability reserve
account on the books of the Bank for the benefit of the Executive.
Prior to the Executive's Retirement Date [Subparagraph I (C)], such
liability reserve account shall be increased or decreased each Plan
Year, until the aforestated event occurs, by the Index Retirement
Benefit [Subparagraph I (F)].
F. 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 (G)] for that Plan Year over the Cost of Funds Expense
[Subparagraph I (H)] for that Plan Year, divided by a factor equal to
1.03 minus the marginal tax rate.
G. Index:
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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: Southland Life Insurance Company
Policy Form: Flexible Premium Adjustable Life Policy
Policy Name: Max UL
Insured's Age and Sex: 51/Male
Riders: None
Ratings: According to the health of the proposed
insured
Option: Level
Face Amount: $1,616,025
Premiums Paid: $600,000
Number of Premium Payments: Single
Assumed Purchase Date: January 3, 2000
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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, which illustration will
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 Executives and
their 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.
H. Cost of Funds Expense:
---------------------
The Cost of Funds Expense 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 any Executive pursuant to the Executive
Plan (Paragraph II hereinafter) plus the amount of all previous years
after-tax Costs of Funds Expense, and multiplying that sum by the
Average After-Tax Cost of Funds [Subparagraph I (K)].
I. Change of Control:
-----------------
Change of Control shall be as defined in paragraph 10.03, ""Change in
---------
Control" Defined", of the Employment Agreement between Xxxxxx Xxxxxx
---------------- --------------------
and Community Trust Financial Services Corporation dated January 1,
1998 (hereinafter referred to as the, "Executive's Employment
Agreement"), attached hereto, marked as Exhibit "A", and fully
incorporated herein by reference.
J. Normal Retirement Age:
---------------------
Normal Retirement Age shall mean the date on which the Executive
attains age sixty-five (65).
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K. Average After-Tax Cost of Funds:
-------------------------------
Average After-Tax Cost of Funds means, at any particular time, a
ratio, the numerator of which is the total interest expense as set
forth on Schedule RI-Income Statement on the Bank's most recently
filed Consolidated Report of Condition and Income (the "Call Report")
and the denominator of which is an amount equal to: (i) the amount of
deposits in domestic offices (sum of total of columns A and C from
Schedule RC-E of the Call Report), plus (ii) the amount of Federal
funds purchased and securities sold under agreements to repurchase, as
set forth on Schedule RC-Balance Sheet of the Call Report.
II. INDEX BENEFITS
A. Retirement Benefits:
-------------------
Subject to Subparagraph II (D) hereinafter, an Executive who remains
in the employ of the Bank until the Normal Retirement Age
[Subparagraph I (J)] shall be entitled to receive the balance in the
Pre-Retirement Account in ten (10) equal annual installments
commencing thirty (30) days following the Executive's retirement. In
addition to these payments and commencing in conjunction therewith,
the Index Retirement Benefit [Subparagraph I (F)] for each Plan Year
subsequent to the Executive's retirement, and including the remaining
portion of the Plan Year following said retirement, shall be paid to
the Executive until the Executive's death.
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 balance in the Pre-Retirement Account that
corresponds to the age of the Executive upon the date of said
termination of service, said amount payable to the Executive in ten
(10) equal annual installments commencing thirty (30) days following
the Executive's Normal Retirement Age [Subparagraph I (J)]. In
addition to these payments and commencing in conjunction therewith,
the following percentage of the Index Retirement Benefit for each Plan
Year subsequent to the year in which the Executive attains Normal
Retirement Age (including the remaining portion of the Plan Year in
which the Executive attains Normal Retirement Age) that corresponds to
the age of the Executive at the time of the Executive's termination of
service, shall be paid to the Executive until the Executive's death.
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Vest Percentage (to a
Age of Executive maximum of 100%)
---------------- ----------------
Age 56 or younger 0%
57 14%
58 28%
59 42%
60 56%
61 70%
62 84%
63 90%
64 95%
65 or older 100%
C. Death:
-----
Should the Executive die prior to having received the balance of the
Pre-Retirement Account the Executive may be entitled to under the
terms of this Executive Plan, the entire unpaid balance of the
Executive's Pre-Retirement Account shall be paid in a lump sum to the
individual or individuals the Executive may have designated in writing
and filed with the Bank. In the absence of any effective designation
of beneficiary(ies), the unpaid balance shall be paid as set forth
herein to the duly qualified executor or administrator of the
Executive's estate. Said payment due hereunder shall be made the
first day of the second month following the decease of the Executive.
Provided, however, that anything hereinabove to the contrary
notwithstanding, no death benefit shall be payable hereunder if the
Executive dies on or before the 3rd day of January, 2002.
D. Discharge for Cause and Other Termination of this Agreement:
-----------------------------------------------------------
Notwithstanding anything herein to the contrary, should the Executive
be Discharged for Cause at any time, suffer a termination of service
prior to age fifty-seven (57), or breach any of the provisions of the
Executive's Employment Agreement, all benefits under this Executive
Plan shall be forfeited. The term for "cause" shall be as defined in
subparagraph 10.01 (c) of the Executive's Employment Agreement.
The provisions of the Executive's Employment Agreement specifically
referred to in this Subparagraph II (D) shall be, but are not limited
to: (i) Paragraph 5, "Confidentiality"; (ii) Paragraph 6,
---------------
"Solicitation of Customers, Borrowers or Depositors"; (iii)
--------------------------------------------------
Paragraph 7, "Non-Interference with Personnel Relations"; (iv)
-----------------------------------------
Paragraph 8, "Notification of Subsequent Employment"; and (v)
-------------------------------------
Xxxxxxxxx 0, "Xxxxxxxx Not to Compete".
-----------------------
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E. Death Benefit:
-------------
Except as set forth above, there is no death benefit provided under
this Agreement.
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.
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
Upon a Change of Control [Subparagraph I (I)], 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
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otherwise encumber in advance any of the benefits payable hereunder
nor shall any of said benefits be subject to seizure for the payment
of any debts, judgments, alimony or separate maintenance owed by the
Executive or the Executive's beneficiary(ies), nor be transferable by
operation of law in the event of bankruptcy, insolvency or otherwise.
In the event the Executive or any beneficiary attempts assignment,
commutation, hypothecation, transfer or disposal of the benefits
hereunder, the Bank's liabilities shall forthwith cease and terminate.
B. Binding Obligation of the Bank and any Successor in Interest:
------------------------------------------------------------
The Bank shall not merge or consolidate into or with another bank 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.
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G. Applicable Law:
--------------
The validity and interpretation of this Agreement shall be governed by
the laws of the State of Georgia.
H. 12 U.S.C. (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.
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. Employment Agreement:
--------------------
Xxxxxx Xxxxxx and Community Trust Financial Services Corporation are
parties to an Employment Agreement dated January 1, 1998. Said
Employment Agreement is attached hereto, marked as Exhibit "A", and
fully incorporated herein by reference.
VI. ERISA PROVISION
A. Named Fiduciary and Plan Administrator:
--------------------------------------
The "Named Fiduciary and Plan Administrator" of this Executive Plan
shall be Community Trust 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
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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 its 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 as more fully set forth
in paragraph 15, "Arbitration", of the Executive's Employment
-----------
Agreement.
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, then the Bank reserves the
right to terminate or modify this Agreement accordingly. Upon a Change of
Control [Subparagraph I (I)], this paragraph shall become null and void
effective immediately upon said Change of Control.
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IN WITNESS WHEREOF, the parties hereto acknowledge that each has carefully
read this Agreement and executed the original thereof on the 13th day of
January, 2000, and that, upon execution, each has received a conforming copy.
COMMUNITY TRUST BANK
Hiram, Georgia
/s/ Xxxxx Xxxx By: /s/ Xxxxxxx X. Xxxxxx, III
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Witness Title
/s/ X. X. Xxxxxx, Xx. /s/ Xxxxxx X. Xxxxxx
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Witness Xxxxxx X. Xxxxxx
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