SOUTHERN COMMUNITY BANK AND TRUST Amended & Restated Salary Continuation Agreement of Jeffrey T. Clark
Exhibit
10.2
SOUTHERN
COMMUNITY BANK AND TRUST
Amended
& Restated Salary Continuation Agreement of
Xxxxxxx
X. Xxxxx
This
Amended Salary Continuation Agreement (this “Agreement”) is entered into as of
this ________day of ____________________________, 2007, by and between Southern
Community Bank and Trust, a North Carolina-chartered bank (the “Bank”), and
Xxxxxxx X. Xxxxx, its President (the “Executive”).
WHEREAS,
the Executive has contributed substantially to the success of the Bank and
the
Bank desires that the Executive continue in its employ;
WHEREAS,
to encourage the Executive to remain an employee of the Bank, the Bank is
willing to provide salary continuation benefits to the Executive, payable from
the Bank’s general assets;
WHEREAS,
none of the conditions or events included in the definition of the term “golden
parachute payment” that is set forth in Section 18(k)(4)(A)(ii) of the Federal
Deposit Insurance Act [12U.S.C. 1828(k)(4)(A)(ii)] and in Federal Deposit
Insurance Corporation Rule 359.1(f)(1)(ii) [12 CFR 359.1(f)(1)(ii)] exists
or,
to the best knowledge of the Bank, are contemplated insofar as the Bank is
concerned;
WHEREAS,
the parties hereto intend that this Agreement shall 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 Income Security Act of 1974, as amended (“ERISA”). The
Executive is fully advised of the Bank’s financial status and understands that
he is a general creditor of the Bank;
WHEREAS,
the Bank and the Executive entered into an Executive Supplemental Retirement
Plan Executive Agreement dated as of January 25, 2002, providing for specified
retirement benefits for the Executive after termination of his
employment;
WHEREAS,
the Bank and the Executive have negotiated and agreed to miscellaneous changes
in the terms and conditions of the January 25, 2002 Executive Supplemental
Retirement Plan Executive Agreement, and
WHEREAS,
the Bank and the Executive intend that this Agreement shall amend and restate
in
its entirety the January 25, 2002 Executive Supplemental Retirement Plan
Executive Agreement effective as of January 1, 2007.
NOW
THEREFORE, in consideration of these premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
Executive and the Bank hereby agree as follows.
ARTICLE
1
DEFINITIONS
The
following words and phrases used in this Agreement have the meanings specified.
1.1
|
“Accrual
Balance” means the liability that should be accrued by the Bank under
generally accepted accounting principles (“GAAP”) for the Bank’s
obligation to the Executive under this Agreement, applying Accounting
Principles Board Opinion No. 12 as amended by Statement of Financial
Accounting Standards No. 106. The Accrual Balance shall be calculated
using a Discount Rate determined by the Plan Administrator, resulting
in
an Accrual Balance at the Executive’s Normal Retirement Age that is equal
to the present value of the normal retirement benefits assuming
commencement at Normal Retirement Date of age 62.
|
The
Executive initial Accrual Balance as of January 1, 2007 was
$54,090.
The
“Discount Rate” means the rate used by the Plan Administrator for determining
the Accrual Balance. If required by its outside auditors, the Plan Administrator
may adjust the Discount Rate to maintain the rate within reasonable standards
according to GAAP. Unless otherwise changed by the Plan Administrator the
Discount Rate shall be seven percent (7%). Any change in the Discount Rate
shall
not cause the Executive’s Account Balance to be reduced, but would only affect
the future accounting accrual.
1.2
|
“Actuarial
(Actuarially) Equivalent” means a benefit of equivalent value differing in
timing, payment period, or manner of payment to the Normal Annuity
Form
determined by generally accepted actuarial principles. The actuarial
equivalent is calculated for different purposes, as
follows:
|
(c)
|
For
Benefits Not Paid as a Lump Sum:
All alternate forms of distributions shall be Actuarially Equivalent
to
the Normal Annuity Form of distribution at a Participant’s Normal
Retirement Date. The alternative form of payment shall be based on
the
1983 Group Annuity Male Mortality Table, with an interest assumption
of
7.0%.
|
(d)
|
For
Benefits Paid in a Lump Sum:
Any lump sum payment (a form of benefit differing in time, period,
or
manner of payment from a specific benefit provided under this Agreement)
shall be computed using the “1983 Group Annuity Male Mortality Table” and
the “Applicable Interest Rate” where the “Applicable Interest Rate” shall
mean the greater of either (i) seven percent (7%), or (ii) the 30
Year US
Treasury Bond Rate in effect as of the first of the month preceding
the
month of payment.
|
1.3
|
“Beneficiary”
means each designated person, or the estate of the deceased Executive,
entitled to benefits, if any, upon the death of the Executive, determined
according to Article 4.
|
1.4
|
“Change
in Control” shall mean a change in control as defined in Internal Revenue
Code Section 409A and rules, regulations, and guidance of general
application thereunder issued by the Department of the Treasury,
including
-
|
(a)
|
Change
in ownership: A change in ownership of Southern Community Financial
Corporation occurs on the date any one person or group of persons
accumulates ownership of Southern Community Financial Corporation’s stock
constituting more than 50% of the total fair market value or total
voting
power of Southern Community Financial Corporation’s stock,
|
(b)
|
Change
in effective control: A change in effective control occurs when
either (i)
any one person or more than one person acting as a group acquires
within a
12-month period ownership of stock of Southern Community Financial
Corporation possessing 35% or more of the total voting power
of Southern
Community Financial Corporation’s stock, or (ii) a majority of Southern
Community Financial Corporation’s Board of Directors is replaced during
any 12-month period by Directors whose appointment or election
is not
endorsed in advance by a majority of Southern Community Financial
Corporation’s Board of Directors, or
|
2
(c)
|
Change
in ownership of a substantial portion of assets: A change in
the ownership
of a substantial portion of Southern Community Financial Corporation’s
assets occurs if in a 12 month period any one person or more
than one
person acting as a group acquires assets from Southern Community
Financial
Corporation having a total gross fair market value equal to
or exceeding
40% of the total gross fair market value of all of the assets
of Southern
Community Financial Corporation immediately before the acquisition
or
acquisitions. For this purpose, “gross fair market value” means the value
of Southern Community Financial Corporation’s assets, or the value of the
assets being disposed of, determined without regard to any
liabilities
associated with the assets.
|
1.5
|
“Code”
means the Internal Revenue Code of 1986, as amended, and rules,
regulations, and guidance of general application issued thereunder
by the
Department of the Treasury.
|
1.6
|
“Disability”
means that a Participant is either:
|
(a)
|
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 12 months, or
|
(b)
|
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 12 months) receiving income
replacement
benefits for a period of three (3) or more months under an accident
and
health plan covering employees of the
Employer.
|
1.7
|
“Early
Termination” means Separation from Service before Normal Retirement Age
for reasons other than death, Disability, Termination for Cause,
or after
a Change in Control.
|
1.8
“Effective
Date” means January 1, 2007.
1.9
|
“Intentional,”
for purposes of this Agreement, no act or failure to act on the part
of
the Executive shall be deemed to have been intentional if it was
due
primarily to an error in judgment or negligence. An act or failure
to act
on the Executive’s part shall be considered intentional if it is not in
good faith and if it is without a reasonable belief that the action
or
failure to act is in the best interests of the Bank.
|
1.10 “Normal
Retirement Age” means the Executive’s sixty second (62nd)
birthday.
1.11 “Plan
Administrator” or “Administrator” means the plan administrator described in
Article
8.
1.12
|
“Plan
Year” means a twelve-month period commencing on January 1 and ending on
December 31 of each year. The initial Plan Year shall commence on
January
1, 2007.
|
1.13
|
“Separation
from Service” means the Executive’s service (as an executive and/or
independent contractor to the Bank and any member of a controlled
group,
as defined in Code Section 414), terminates for any reason, other
than
because of a leave of absence approved by the Bank or the Executive’s
death. For purposes of this Agreement, if there is a dispute about
the
employment status of the Executive or the date of the Executive’s
Separation from Service, the Bank shall have the sole and absolute
right
to decide the dispute unless a Change in Control shall have occurred.
|
3
1.14
|
“Termination
for Cause” and “Cause” shall have the same meaning specified in any
effective Severance or Employment Agreement existing on the date
hereof or
hereafter entered into between the Executive and the Bank. If the
Executive is not a party to a severance or employment agreement containing
a definition of “termination for cause”, then Termination for Cause shall
mean the Bank terminated the Executive’s employment because of any of the
following reasons:
|
(a)
|
the
Executive’s gross negligence or gross neglect of duties or intentional and
material failure to perform stated duties after written notice thereof,
or
|
(b)
|
disloyalty
or dishonesty by the Executive in the performance of the Executive’s
duties, or a breach of the Executive’s fiduciary duties for personal
profit, in any case whether in the Executive’s capacity as a director or
officer, or
|
(c)
|
intentional
wrongful damage by the Executive to the business or property of the
Bank
or its affiliates, including without limitation the reputation of
the
Bank, which in the judgment of the Bank causes material harm to the
Bank
or affiliates, or
|
(d)
|
a
willful violation by the Executive of any applicable law or significant
policy of the Bank or an affiliate that, in the Bank’s judgment, results
in an adverse effect on the Bank or any affiliate, regardless of
whether
the violation leads to criminal prosecution or conviction. For purposes
of
this Agreement, applicable laws include any statute, rule, regulatory
order, statement of policy, or final cease-and-desist order of any
governmental agency or body having regulatory authority over the
Bank, or
|
(e)
|
the
Executive is removed from office or permanently prohibited from
participating in the Bank’s affairs by an order issued under Section
8(e)(4) or Section 8(g)(1) of the Federal Deposit Insurance Act,
12 U.S.C.
1818(e)(4) or (g)(1), or
|
(g)
|
conviction
of the Executive for or plea of no contest to a felony or conviction
of or
plea of no contest to a misdemeanor involving moral turpitude, or
the
actual incarceration of the Executive.
|
1.15
|
Year
of Vesting Service. Shall mean each calendar year in which the Executive
completes 1,000 or more hours of service in the employ of the Bank.
|
ARTICLE
2 LIFETIME
BENEFITS
2.1
|
Normal
Retirement Benefit. Unless a Separation from Service or a Change
in
Control occurs before Normal Retirement Age, when the Executive attains
his Normal Retirement Age the Bank shall pay to the Executive the
benefit
described in this Section 2.1(a) instead of any other benefit under
this
Agreement
|
(e)
|
Amount
of Normal Form of benefit. The annual Normal Retirement benefit under
this
Section 2.1 is $150,490, which shall be paid in monthly installments
in
the monthly amount of $12,540.83 for the Life of the Executive (Normal
Form is a Life Annuity).
|
4
(f)
|
Payment
of benefit. Subject to the six month delay provision in Section 2.7
herein, the Bank shall pay the annual benefit to the Executive in
12 equal
monthly installments payable on the first day of each month, beginning
with the month immediately after the month in which the Executive
attains
the Normal Retirement Age. The Normal Retirement monthly benefit
as
provided in Section 2.1(a) above, shall be paid to the Executive
for the
Executive’s lifetime with the last payment ceasing as of the first day of
the month preceding the Executives death.
|
.
(g)
|
Alternative
Forms of Payment. Executive may elect to receive his Normal Retirement
Benefit payable under this Agreement payable in a Form other than
a Life
Annuity (as provided above in Section 2.1(a) above), provided he
elects to
do so either on his initial Election Form or a Change of Election
Form.
Any Change of Election Form must be in accordance with IRC 409A and
such
Change of Election Form must be received by the Plan Administrator
at
least 12 months prior to the date payment of benefits are to other
commence under this Agreement.
|
Accordingly,
a Participant may elect, in lieu of a Life Annuity, to receive his Normal
Retirement Benefit in one of the following Alternative Forms of
Payment:
(i)
|
Life
Annuity with either a 120 or 180 guaranteed monthly
payments;
|
(ii)
|
Joint
and 50% (or 100%) Survivor Annuity.
|
Any
Alternative Form of Payment provide herein shall be the Actuarial Equivalent
of
the Normal Form (Life Annuity) of payment.
|
If
the Executive’s Separation from Service thereafter is a Termination for
Cause or if this Agreement terminates under Article 5, no further
benefits
shall be paid.
|
2.2
|
Early
Termination Benefit. Upon Early Termination as defined in Section
1.7, the
Bank shall pay to the Executive the benefit described in this Section
2.2(a) instead of any other benefit under this
Agreement.
|
(b)
|
Amount
of benefit. The Executive’s vested Accrual Balance as of the end of the
month preceding his Early Termination shall be converted (without
discounting for the time value of money) as of his Normal Retirement
Date
into a Life Annuity (or other Alternative Form of Payment as provided
in
Section 2.1(c) above), based on the Actuarial Equivalent of his vested
Accrual Balance as of such date.
|
(b)
|
Payment of benefit. The Bank shall commence payment of the monthly retirement benefit as computed in Section 2.2 above beginning with the later of (i) the seventh month after the Executive’s Separation from Service, or (ii) the month immediately after the month in which the Executive attains his Normal Retirement Age. The monthly benefit shall be paid to the Executive for the Executive’s lifetime, subject to any Alternative Form of Payment the Executive may have elected in accordance with Section 2.1(c) herein. |
5
(c)
|
Vesting
of Accrued Balance.
The Vested amount of a Executive’s Accrued Balance shall be determined on
the basis of the Executive’s number of Years of Vesting Service according
to the following schedule:
|
Vesting
Schedule
|
||
Years
of Vesting Service
|
|
Percent
Vested
|
Less
than 3
|
|
0%
|
3
|
|
33
1/3%
|
4
|
|
66
2/3%
|
5
or more years
|
|
100%
|
2.3
|
Disability
Benefit. Upon Separation from Service because of Disability before
Normal
Retirement Age, the Bank shall pay to the Executive the benefit described
in this Section 2.3(a) instead of any other benefit under this Agreement.
|
(b)
|
Amount
of benefit. The Executive’s vested Accrual Balance as of the end of the
month preceding the date of his Disability shall be converted (without
discounting for the time value of money) as of his Normal Retirement
Date
into a Life Annuity (or other Alternative Form of Payment as provided
in
Section 2.1(c) above), based on the Actuarial Equivalent of his vested
Accrual Balance as of such date.
|
(b)
|
Payment
of benefit. The Bank shall pay the Disability benefit to the Executive
in
12 equal monthly installments on the first day of each month beginning
with the later
of
(i) the seventh month after the Executive’s Separation from Service, or
(ii) the month immediately after the month in which the Executive
attains
his Normal Retirement Age.
|
2.4
|
Change-in-Control
Benefit. If a Change in Control occurs after the Effective Date of
this
Agreement but before the Executive’s Normal Retirement Age and before his
Separation from Service, the Bank shall pay to the Executive the
benefit
described in this Section 2.4(a) instead of any other benefit under
this
Agreement.
|
(a)
|
Amount
of benefit: The benefit under this Section 2.4 is sum
of:
|
(i)
|
the
Accrual Balance existing when the Change of Control occurs,
plus
|
(ii)
|
one-half
of the difference between the Normal Retirement Age Accrual Balance
required by Section 2.1 and the Executive’s Accrual Balance as of the date
of the Change in Control, without discounting for the time value
of money.
On the Effective Date of this Agreement, using the initial Discount
Rate
of 7 % and assuming payment of the $150,490 annual benefit under
Section
2.1 beginning with the month after the month in which the Executive
attains his Normal Retirement Age and ending when the Executive attains
age, the Normal Retirement Age Accrual Balance was $1,546,771
|
(b)
|
Payment
of benefit: The Bank shall pay the Change-in-Control benefit under
Section
2.4 of this Agreement to the Executive in a single lump sum within
ten
(10) days after the Change in Control. If the Executive receives
the
benefit under this Section 2.4 because of the occurrence of a Change
in
Control, the Executive shall not be entitled to claim additional
benefits
under Section 2.4 if an additional Change in Control occurs thereafter.
|
6
2.5
|
Occurrence
of a Change in Control: Lump-sum Payment of Normal Retirement Benefit,
Early Termination Benefit, or Disability Benefit Being Paid. If a
Change
in Control occurs at any time during the salary continuation benefit
payment period and if when the Change in Control occurs the Executive
is
receiving or is entitled to receive at his Normal Retirement Age
the
benefit provided by Sections 2.1(b), 2.2(b), or 2.3(c), the Bank
shall pay
in a lump sum the present value of the Actuarial Equivalent of any
remaining salary continuation benefits to the Executive in a single
lump
sum within ten (10) days after the Change in Control.
|
2.6
|
Contradiction
Between this Agreement and Schedule A. If there is a contradiction
between
this Agreement and Schedule
A
attached hereto concerning the amount of a particular benefit due
the
Executive under Sections 2.2, 2.3, or 2.4 hereof, then the amount
of the
benefit determined under this Agreement shall control. If the Plan
Administrator changes the Discount Rate employed for purposes of
calculating the Accrual Balance, the Plan Administrator shall prepare
or
cause to be prepared a revised Schedule A, which shall supersede
and
replace any and all Schedules A previously prepared under or attached
to
this Agreement. However, any
change in the Discount Rate shall not cause the Executive’s Account
Balance to be reduced, but would only affect the future accounting
accrual
|
2.7
|
Savings
Clause Relating to Compliance with Code Section 409A. Despite any
contrary
provision of this Agreement, if when the Executive’s employment terminates
the Executive is a Specified Employee, as defined in Code Section
409A,
and if any payments under Article 2 of this Agreement will result
in
additional tax or interest to the Executive because of Section 409A,
the
Executive will not be entitled to the payments under Article 2 until
the
earliest of:
|
(ii)
|
the
date that is at least six (6) months after termination of the Executive’s
employment for reasons other than the Executive’s death,
or
|
(ii)
the
date of the Executive’s death, or
(iii)
any
earlier date that does not result in additional tax or interest to the Executive
under Section 409A.
If
any
provision of this Agreement would subject the Executive to additional tax or
interest under Section 409A of the Code or result in a violation of Section
409A
of Code, the Bank shall reform such provision. However, the Bank shall maintain
to the maximum extent practicable the original intent of the applicable
provision without subjecting the Executive to additional tax or interest, and
the Bank shall not be required to incur any additional compensation expense
as a
result of the reformed provision. References in this Agreement to Section 409A
of the Code include rules, regulations, and guidance of general application
issued by the Department of the Treasury under Code Section 409A.
2.8
|
One
Benefit Only. Despite anything to the contrary in this Agreement,
the
Executive and Beneficiary are entitled to one benefit only under
this
Agreement, which shall be determined by the first event to occur
that is
dealt with by this Agreement. Except as provided in Section 2.5 or
Article
3, subsequent occurrence of events dealt with by this Agreement shall
not
entitle the Executive or Beneficiary to other or additional benefits
under
this Agreement.
|
ARTICLE
3
DEATH BENEFITS
3.1
|
Death
During Active Service. Except as provided in Section 5.2, if the
Executive
dies before a Separation from Service, at the Executive’s death the
Executive’s Beneficiary shall be entitled to the sum
of:
|
(iii)
|
an
amount in cash equal to the Accrual Balance existing at the time
of the
Executive’s death, unless the Change-in-Control benefit shall have
previously been paid to the Executive, plus
|
7
(iv)
|
the
benefit described in the Endorsement Split Dollar Agreement attached
to
this Agreement as Addendum
A.
|
No
benefit shall be paid to the Beneficiary under sub-paragraph (i) above, if
the
Change-in-Control benefit shall have previously been paid to the Executive.
If a
benefit is payable to the Executive’s Beneficiary under sub-paragraph (i) above,
the benefit shall be paid in a single lump sum 90 days after the Executive’s
death. However, no benefits under this Agreement or under the Endorsement Split
Dollar Agreement shall be paid or payable to the Executive or the Executive’s
Beneficiary if this Agreement is terminated under Article 5.
3.2
|
Death
after Separation from Service. If the Executive dies after a Separation
from Service and if such Separation from Service was not as a result
of a
Termination for Cause, at the Executive’s death the Executive’s
Beneficiary shall be entitled to a monthly payment based on the
Alternative Form of Payment the Executive elected in accordance with
Section 2.1(c), provided he elected a Alternative Form of Payment
in lieu
of the Normal Annuity Form which is a Life Annuity. However, no payment
shall be made to a Beneficiary under this Section 3.2 if a lump sum
payment has previously been made under the Change-in-Control benefit
payable under Section 2.5 above. However, no benefits under this
Agreement
shall be paid or payable to the Executive or the Executive’s Beneficiary
if this Agreement is terminated under Article 5.
|
ARTICLE
4
BENEFICIARIES
4.1
|
Beneficiary
Designations. The Executive shall have the right to designate at
any time
a Beneficiary to receive any benefits payable 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 benefit plan of the Bank in which the
Executive participates.
|
4.2
|
Beneficiary
Designation: Change. The Executive 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 before the Executive’s
death.
|
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.
|
8
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
personal representative of the Executive’s estate.
|
4.5
|
Facility
of Payment. If a benefit is payable to a minor, to a person declared
incapacitated, or to a person incapable of handling the disposition
of his
or her property, the Bank may pay such benefit to the guardian, legal
representative, or person having the care or custody of the minor,
incapacitated person, or incapable person. The Bank may require proof
of
incapacity, minority, or guardianship as it may deem appropriate
before
distribution of the benefit. Distribution shall completely discharge
the
Bank from all liability for the benefit.
|
ARTICLE
5
GENERAL LIMITATIONS
5.1
|
Termination
for Cause. Despite any contrary provision of this Agreement, the
Bank
shall not pay any benefit under this Agreement and this Agreement
shall
terminate if a Separation from Service is the result of Termination
for
Cause. Likewise, the Beneficiary shall not be entitled to any benefits
under the Endorsement Split Dollar Agreement attached to this Agreement
as
Addendum
A
and the Endorsement Split Dollar Agreement also shall terminate if
Separation from Service is the result of Termination for Cause.
|
5.2
|
Suicide
or Misstatement. The Bank shall not pay any benefit under this Agreement
and the Beneficiary shall be entitled to no benefits under the Endorsement
Split Dollar Agreement attached as Addendum
A
if
the Executive commits suicide within two years after the date of
this
Agreement or if the Executive makes any material misstatement of
fact on
any application or resume provided to the Bank or on any life insurance
application for benefits which death benefits would be payable to
the
Bank.
|
5.3
|
Removal.
If the Executive is removed from office or permanently prohibited
from
participating in the Bank’s affairs by an order issued under Section
8(e)(4) or (g)(1) of the Federal Deposit Insurance Act, 12 U.S.C.
1818(e)(4) or (g)(1), all obligations of the Bank under this Agreement
shall terminate as of the effective date of the order, and the Endorsement
Split Dollar Agreement also shall terminate as of the effective date
of
the order.
|
5.4
|
Default.
Notwithstanding any provision of this Agreement to the contrary,
if the
Bank is in “default” or “in danger of default,” as those terms are defined
in Section 3(x) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(x),
all obligations under this Agreement shall terminate.
|
5.5
|
FDIC
Open-Bank Assistance. All obligations under this Agreement shall
terminate, except to the extent determined that continuation of the
contract is necessary for the continued operation of the Bank, when
the
Federal Deposit Insurance Corporation enters into an agreement to
provide
assistance to or on behalf of the Bank under the authority contained
in
Federal Deposit Insurance Act Section 13(c). 12 U.S.C.
1823(c).
|
However,
rights of the parties that have already vested in accordance with Section 2.2(c)
shall not be affected by such action.
ARTICLE
6
CLAIMS
AND REVIEW PROCEDURES
6.1
|
Claims
Procedure. A person or beneficiary (“claimant”) who has not received
benefits under this Agreement that he or she believes should be paid
may
make a claim for such benefits as follows
-
|
(a)
|
Initiation
- written claim. The claimant initiates a claim by submitting to
the
Administrator a written claim for the benefits. If the claim relates
to
the contents of a notice received by the claimant, the claim must
be made
within 60 days after the notice was received by the claimant. All
other
claims must be made within 180 days after the date of the event that
caused the claim to arise. The claim must state with particularity
the
determination desired by the
claimant.
|
9
(b)
|
Timing
of Bank response. The Bank shall respond to the claimant within 90
days
after receiving the claim. If the Bank determines that special
circumstances require additional time for processing the claim, the
Bank
may extend the response period by an additional 90 days by notifying
the
claimant in writing before the end of the initial 90-day period that
an
additional period is required. The notice of extension must state
the
special circumstances and the date by which the Bank expects to render
its
decision.
|
(c)
|
Notice
of decision. If the Bank denies part or all of the claim, the Bank
shall
notify the claimant in writing of the denial. The Bank shall write
the
notification in a manner calculated to be understood by the claimant.
The
notification shall set forth -
|
(i) |
the
specific reasons for the denial,
|
(ii) |
a
reference to the specific provisions of the Agreement on which
the denial
is based,
|
(iii)
|
a
description of any additional information or material necessary for
the
claimant to perfect the claim and an explanation of why it is needed,
|
(iv)
|
an
explanation of the Agreement’s review procedures and the time limits
applicable to such procedures, and
|
(v)
|
a
statement of the claimant’s right to bring a civil action under ERISA
Section 502(a) following an adverse benefit determination on review.
|
6.2
|
Review
Procedure. If the Bank denies part or all of the claim, the claimant
shall
have the opportunity for a full and fair review by the Bank of the
denial,
as follows -
|
(a)
|
Initiation
- written request. To initiate the review, the claimant, within
60 days
after
receiving the Bank’s notice of denial, must file with the Bank a written
request
for review.
|
(b)
|
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 Bank 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.
|
10
(c)
|
Considerations
on review. In considering the review, the Bank shall take into account
all
materials and information the claimant submits relating to the claim,
without regard to whether the information was submitted or considered
in
the initial benefit determination.
|
(d)
|
Timing
of Bank response. The Bank shall respond in writing to the claimant
within
60 days after receiving the request for review. If the Bank determines
that special circumstances require additional time for processing
the
claim, the Bank may extend the response period by an additional 60
days by
notifying the claimant in writing before the end of the initial 60-day
period that an additional period is required. The notice of extension
must
state the special circumstances and the date by which the Bank expects
to
render its decision.
|
(e)
|
Notice
of decision. The Bank shall notify the claimant in writing of its
decision
on review. The Bank shall write the notification in a manner calculated
to
be understood by the claimant. The notification shall set forth -
|
(i)
|
the
specific reason for the denial,
|
(ii)
|
a
reference to the specific provisions of the Agreement on which the
denial
is based,
|
(iii)
|
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
|
(iv)
|
a
statement of the claimant’s right to bring a civil action under ERISA
Section 502(a).
|
6.3
|
Reimbursement
of Expenses. If the claimant prevails at the conclusion of the claims
and
review procedure outlined in this Article 6, including any civil
action
brought by the claimant under ERISA Section 502(a), the Bank shall
reimburse the claimant for all legal expenses incurred by the claimant
in
the claims and review procedure.
|
ARTICLE
7
MISCELLANEOUS
7.1
|
Amendments
and Termination. Subject to Section 7.15 of this Agreement, this
Agreement
may be amended solely by a written agreement signed by the Bank and
by the
Executive; and except for termination occurring under Article 5,
this
Agreement may be terminated solely by a written agreement signed
by the
Bank and by the Executive.
|
7.2
|
Binding
Effect. This Agreement shall bind the Executive, the Bank, and their
Beneficiaries, survivors, executors, successors, administrators,
and
transferees.
|
7.3
|
No
Guarantee of Employment. This Agreement is not an employment policy
or
contract. It does not give the Executive the right to remain 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
or
interfere with the Executive’s right to terminate employment at any
time.
|
11
7.4
|
Non-Transferability.
Benefits under this Agreement cannot be sold, transferred, assigned,
pledged, attached, or encumbered in any
manner.
|
7.5
|
Successors;
Binding Agreement. By an assumption agreement in form and substance
satisfactory to the Executive, the Bank shall require any successor
(whether direct or indirect, by purchase, merger, consolidation,
or
otherwise) to all or substantially all of the business or assets
of the
Bank to expressly assume and agree to perform this Agreement in the
same
manner and to the same extent that the Bank would be required to
perform
this Agreement if no such succession had
occurred.
|
7.6
|
Tax
Withholding. The Bank shall withhold any taxes that are required
to be
withheld from the benefits provided under this
Agreement.
|
7.7
|
Applicable
Law. This Agreement and all rights hereunder shall be governed by
the laws
of the State of North Carolina, except to the extent preempted by
the laws
of the United States of America.
|
7.8
|
Unfunded
Arrangement. The Executive and Beneficiary are general unsecured
creditors
of the Bank for the payment of benefits under this Agreement. The
benefits
represent the mere promise by the Bank to pay the benefits. 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 is a general asset of the
Bank to which the Executive and Beneficiary have no preferred or
secured
claim.
|
7.9
|
Entire
Agreement. This Agreement and the Endorsement Split Dollar Agreement
attached to this Agreement as Addendum
A
constitute the entire agreement between the Bank and the Executive
concerning the subject matter. No rights are granted to the Executive
under this Agreement other than those specifically set forth. This
Agreement amends and restates in its entirety the January 25, 2002
Executive Supplemental Retirement Plan Executive Agreement.
|
7.10
|
Severability.
If any provision of this Agreement is held invalid, such invalidity
shall
not affect any other provision of this Agreement not held invalid,
and
each such other provision shall continue in full force and effect
to the
full extent consistent with law. If any provision of this Agreement
is
held invalid in part, such invalidity shall not affect the remainder
of
the provision not held invalid, and the remainder of such provision
together with all other provisions of this Agreement shall continue
in
full force and effect to the full extent consistent with law.
|
7.11
|
Headings.
Caption headings and subheadings herein are included solely for
convenience of reference and shall not affect the meaning or
interpretation of any provision of this Agreement.
|
7.12
|
Notices.
All notices, requests, demands and other communications hereunder
shall be
in writing and shall be deemed to have been duly given if delivered
by
hand or mailed, certified or registered mail, return receipt requested,
with postage prepaid, to the following addresses or to such other
address
as either party may designate by like notice. If to the Bank, notice
shall
be given to:
|
Board
of
Directors
Southern
Community Bank and Trust
0000
Xxxxxxx Xxxx Xxxx
Xxxxxxx-Xxxxx,
Xxxxx Xxxxxxxx 00000
12
or
to
such other or additional person or persons as the Bank shall have designated
to
the Executive in writing. If to the Executive, notice shall be given to the
Executive at the Executive’s address appearing on the Bank’s records, or to such
other or additional person or persons as the Executive shall have designated
to
the Bank in writing.
7.13
|
Payment
of Legal Fees. The Bank is aware that after a Change in Control management
of the Bank could cause or attempt to cause the Bank to refuse to
comply
with its obligations under this Agreement, or could institute or
cause or
attempt to cause the Bank to institute litigation seeking to have
this
Agreement declared unenforceable, or could take or attempt to take
other
action to deny Executive the benefits intended under this Agreement.
In
these circumstances the purpose of this Agreement would be
frustrated.
|
It
is the
intention of the Bank that the Executive not be required to incur the expenses
associated with the enforcement of rights under this Agreement, whether by
litigation or other legal action, because the cost and expense thereof would
substantially detract from the benefits intended to be granted to the Executive
hereunder. It is the intention of the Bank that the Executive not be forced
to
negotiate settlement of rights under this Agreement under threat of incurring
expenses. Accordingly, if after a Change in Control occurs it appears to the
Executive that:
(i)
|
the
Bank has failed to comply with any of its obligations under this
Agreement, or
|
(ii)
|
the
Bank or any other person has taken any action to declare this Agreement
void or unenforceable, or instituted any litigation or other legal
action
designed to deny, diminish, or to recover from the Executive the
benefits
intended to be provided to the Executive hereunder,
|
the
Bank
irrevocably authorizes the Executive from time to time to retain counsel of
the
Executive’s choice (at the Bank’s expense as provided in this Section 7.13) to
represent the Executive in the initiation or defense of any litigation or other
legal action, whether by or against the Bank or any director, officer,
stockholder, or other person affiliated with the Bank, in any jurisdiction.
Despite
any existing or previous attorney-client relationship between the Bank and
any
counsel chosen by the Executive under this Section 7.13, the Bank irrevocably
consents to the Executive entering into an attorney-client relationship with
that counsel, and the Bank and the Executive agree that a confidential
relationship shall exist between the Executive and that counsel. The fees and
expenses of counsel selected from time to time by the Executive as provided
in
this Section shall be paid or reimbursed to the Executive by the Bank on a
regular, periodic basis upon presentation by the Executive of a statement or
statements prepared by such counsel in accordance with such counsel’s customary
practices, up to a maximum
aggregate amount of $500,000, whether suit be brought or not, and whether or
not
incurred in trial, bankruptcy, or appellate proceedings.
The
Bank’s obligation to pay the Executive’s legal fees provided by this Section
7.13 operates separately from and in addition to any legal fee reimbursement
obligation the Bank may have with the Executive under any separate employment,
severance, or other agreement between the Executive and the Bank. Despite any
contrary provision in this Section 7.13 however, the Bank shall not be required
to pay or reimburse the Executive’s legal expenses if doing so would violate
Section 18(k) of the Federal Deposit Insurance Act [12 U.S.C. 1828(k)] and
Rule
359.3 of the Federal Deposit Insurance Xxxxxxxxxxx [00 XXX 359.3].
13
7.14
|
Internal
Revenue Code Section 280G Gross Up.
|
(a)
Additional
payment to account for Excise Taxes.
If as
the result of a Change in Control the Executive becomes entitled to acceleration
of benefits under this Agreement or under any other plan or agreement of or
with
the Bank or its affiliates (together, the “Total Benefits”), and if any of the
Total Benefits will be subject to the Excise Tax as set forth in Sections 280G
and 4999 of the Internal Revenue Code of 1986 (the “Excise Tax”), the Bank shall
pay to the Executive the following additional amounts, consisting
of:
(i) a
payment
equal to the Excise Tax payable by the Executive on the Total Benefits under
Section 4999 of the Internal Revenue Code (the “Excise Tax Payment”), and
(ii)
a
payment equal to the amount necessary to provide the Excise Tax Payment net
of
all income, payroll and excise taxes.
Together,
the additional amounts described in clauses (i) and (ii) above are referred
to
in this Agreement as the “Gross-Up Payment Amount.” Payment of the Gross-Up
Payment Amount shall be made in addition to the amount set forth in Section
2.4.
Calculating
the Excise Tax.
For
purposes of determining whether any of the Total Benefits will be subject to
the
Excise Tax and for purposes of determining the amount of the Excise Tax the
following will apply:
1)
Determination
of “parachute payments” subject to the Excise Tax: Any other payments or
benefits received or to be received by the Executive in connection with a Change
in Control or the Executive’s Separation from Service (whether under the terms
of this Agreement or any other agreement or any other benefit plan or
arrangement with the Bank, any person whose actions result in a Change in
Control, or any person affiliated with the Bank or such person) shall be treated
as “parachute payments” within the meaning of Section 280G(b)(2) of the Internal
Revenue Code, and all “excess parachute payments” within the meaning of Section
280G(b)(1) shall be treated as subject to the Excise Tax, unless in the opinion
of the certified public accounting firm that is retained by the Bank as of
the
date immediately before the Change in Control (the “Accounting Firm”) such other
payments or benefits do not constitute (in whole or in part) parachute payments,
or such excess parachute payments represent (in whole or in part) reasonable
compensation for services actually rendered within the meaning of Section
280G(b)(4) of the Internal Revenue Code in excess of the base amount (as defined
in Section 280G(b)(3) of the Internal Revenue Code), or are otherwise not
subject to the Excise Tax,
2)
Calculation
of benefits subject to the Excise Tax: The amount of the Total Benefits that
shall be treated as subject to the Excise Tax shall be equal to the lesser
of:
(i)
|
the
total amount of the Total Benefits reduced by the amount of such
Total
Benefits that in the opinion of the Accounting Firm are not parachute
payments, or
|
(ii)
the
amount of excess parachute payments within the meaning of Section 280G(b)(1)
(after applying clause (1), above), and
3)
|
Value
of non-cash benefits and deferred payments: The value of any non-cash
benefits or any deferred payment or benefit shall be determined by
the
Accounting Firm in accordance with the principles of Sections 280G(d)(3)
and (4) of the Internal Revenue
Code.
|
14
Assumed
Marginal Income Tax Rate. For purposes of determining the amount of the Gross-Up
Payment Amount, the Executive shall be deemed to pay federal income taxes at
the
highest marginal rate of federal income taxation in the calendar years in which
the Gross-Up Payment Amount is to be made and state and local income taxes
at
the highest marginal rate of taxation in the state and locality of the
Executive’s residence on the date of Separation from Service, net of the
reduction in federal income taxes that can be obtained from deduction of such
state and local taxes (calculated by assuming that any reduction under Section
68 of the Internal Revenue Code in the amount of itemized deductions allowable
to the Executive applies first to reduce the amount of such state and local
income taxes that would otherwise be deductible by the Executive, and applicable
federal FICA and Medicare withholding taxes).
Return
of Reduced Excise Tax Payment or Payment of Additional Excise Tax.
If
the
Excise Tax is later determined to be less than the amount taken into account
hereunder when the Executive’s employment terminated, the Executive shall repay
to the Bank - when the amount of the reduction in Excise Tax is finally
determined - the portion of the Gross-Up Payment Amount attributable to the
reduction (plus that portion of the Gross-Up Payment Amount attributable to
the
Excise Tax, federal, state and local income taxes and FICA and Medicare
withholding taxes imposed on the Gross-Up Payment Amount being repaid by the
Executive to the extent that the repayment results in a reduction in Excise
Tax,
FICA, and Medicare withholding taxes and/or a federal, state, or local income
tax deduction).
If
the
Excise Tax is later determined to be more than the amount taken into account
hereunder when the Executive’s employment terminated (due, for example, to a
payment whose existence or amount cannot be determined at the time of the
Gross-Up Payment Amount), the Bank shall make an additional Gross-Up Payment
Amount to the Executive for that excess (plus any interest, penalties, or
additions payable by the Executive for the excess) when the amount of the excess
is finally determined.
(d) Responsibilities
of the Accounting Firm and the Bank.
Determinations
Shall Be Made by the Accounting Firm. Subject to the provisions of Section
7.14(a), all determinations required to be made under this Section 7.14(b)
-
including whether and when a Gross-Up Payment Amount is required, the amount
of
the Gross-Up Payment Amount and the assumptions to be used to arrive at the
determination (collectively, the “Determination”) - shall be made by the
Accounting Firm, which shall provide detailed supporting calculations both
to
the Bank and the Executive within 15 business days after receipt of notice
from
the Bank or the Executive that there has been a Gross-Up Payment Amount, or
such
earlier time as is requested by the Bank.
Fees
and
Expenses of the Accounting Firm and Agreement with the Accounting Firm. All
fees
and expenses of the Accounting Firm shall be borne solely by the Bank. The
Bank
shall enter into any agreement requested by the Accounting Firm in connection
with the performance of its services hereunder.
Accounting
Firm’s Opinion. If the Accounting Firm determines that no Excise Tax is payable
by the Executive, the Accounting Firm shall furnish the Executive with a written
opinion to that effect, and to the effect that failure to report Excise Tax,
if
any, on the Executive’s applicable federal income tax return will not result in
the imposition of a negligence or similar penalty.
15
Accounting
Firm’s Determination Is Binding; Underpayment and Overpayment. The Determination
by the Accounting Firm shall be binding on the Bank and the Executive. Because
of the uncertainty in determining whether any of the Total Benefits will be
subject to the Excise Tax at the time of the Determination, it is possible
that
a Gross-Up Payment Amount that should have been made will not have been made
by
the Bank (“Underpayment”), or that a Gross-Up Payment Amount will be made that
should not have been made by the Bank (“Overpayment”).
If,
after
a Determination by the Accounting Firm, the Executive is required to make a
payment of additional Excise Tax, the Accounting Firm shall determine the amount
of the Underpayment that has occurred. The Underpayment (together with interest
at the rate provided in Section 1274(d)(2)(B) of the Internal Revenue Code)
shall be paid promptly by the Bank to or for the benefit of the Executive.
If
the
Gross-Up Payment Amount exceeds the amount necessary to reimburse the Executive
for the Excise Tax according to Section 7.14(a), the Accounting Firm shall
determine the amount of the Overpayment. The Overpayment (together with interest
at the rate provided in Section 1274(d)(2)(B) of the Internal Revenue Code)
shall be paid promptly by the Executive to or for the benefit of the Bank.
Provided that the Executive’s expenses are reimbursed by the Bank, the Executive
shall cooperate with any reasonable requests by the Bank in any contests or
disputes with the Internal Revenue Service relating to the Excise Tax.
Accounting
Firm Conflict of Interest. If the Accounting Firm is serving as accountant
or
auditor for the individual, entity, or group effecting the Change in Control,
the Executive may appoint another nationally recognized public accounting firm
to make the Determinations required hereunder (in which case the term
“Accounting Firm” as used in this Agreement shall be deemed to refer to the
accounting firm appointed by the Executive under this paragraph).
7.15
|
Termination
or Modification of Agreement Because of Changes in Law, Rules or
Regulations. The Bank is entering into this Agreement on the assumption
that certain existing tax laws, rules, and regulations will continue
in
effect in their current form. If that assumption materially changes
and
the change has a material detrimental effect on this Agreement, then
the
Bank reserves the right to terminate or modify this Agreement accordingly,
subject to the written consent of the Executive, which shall not
be
unreasonably withheld. This Section 7.15 shall become null and void
effective immediately upon an event that is considered a Change in
Control.
|
ARTICLE
8
ADMINISTRATION OF AGREEMENT
8.1
|
Plan
Administrator Duties. This Agreement shall be administered by a Plan
Administrator consisting of the Bank’s Board of Directors or such
Committee or person(s) as the Board shall appoint. The Executive
may be a
member of the Plan Administrator. The Plan Administrator shall also
have
the discretion and authority to (i) make, amend, interpret, and enforce
all appropriate rules and regulations for the administration of this
Agreement and (ii) decide or resolve any and all questions, including
interpretations of this Agreement, as may arise in connection with
the
Agreement.
|
16
8.2
|
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.
|
8.3
|
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.
No
Executive or Beneficiary shall be deemed to have any right, vested
or
non-vested, regarding the continued use of any previously adopted
assumptions, including but not limited to the Discount Rate and
calculation method described in Section 1.1.
|
8.4
|
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.
|
8.5
|
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 circumstances
of the
retirement, Disability, death, or Separation from Service of the
Executive
and such other pertinent information as the Plan Administrator may
reasonably require.
|
ARTICLE
9
AGREEMENT NOT TO COMPETE
9.1
|
Covenant
Not to Compete.
|
(a)
|
Without
advance written consent of the Bank, the Executive shall not compete
directly or indirectly with the Bank for two years after Separation
from
Service, plus any period during which the Executive is in violation
of
this covenant not to compete and any period during which the Bank
seeks by
litigation to enforce this covenant not to
compete.
|
(b)
|
If
any provision of this Section or any word, phrase, clause, sentence
or
other portion thereof (including, without limitation, the geographical
and
temporal restrictions contained therein) is held to be unenforceable
or
invalid for any reason, the unenforceable or invalid provision or
portion
shall be modified or deleted so that the provisions hereof, as modified,
are legal and enforceable to the fullest extent permitted under applicable
law.
|
(c)
|
Definitions:
For purposes of this Section the following definitions shall
apply:
|
(1) “compete”
shall mean:
(a)
providing financial products or services on behalf of any financial
institution for
any
person residing in the territory,
17
(b)
|
assisting
(other than through the performance of ministerial or clerical duties)
any
financial institution in providing financial products or services
to any
person residing in the territory,
or
|
(c)
|
inducing
or attempting to induce any person who was a customer of the Bank
at the
date of the Executive’s termination of employment to seek financial
products or services from another financial
institution.
|
(2)
|
“directly
or indirectly” shall mean:
|
(a)
|
acting
as a consultant, officer, director, independent contractor, or employee
of
any financial institution in competition with the Bank in the territory,
or
|
(b)
|
communicating
to such financial institution the names or addresses or any financial
information concerning any person who was a customer of the Bank
at the
date of the Executive’s Separation from
Service.
|
(3)
|
“customer”
shall mean any person to whom the Bank is providing financial products
or
services at the date of the Executive’s Separation from
Service.
|
(4)
|
“financial
institution” shall mean any bank, savings association, or bank or savings
association hold company, or any other institution, the business
of which
is engaging in activities that are financial in nature or incidental
to
such financial activities as described in Section 4(k) of the Bank
Holding
Company Act of 1956, other than the Bank or one of its affiliated
corporations.
|
(5)
|
“financial
product or service” shall
mean any product or service that a financial institution or a financial
holding company could offer by engaging in any activity that is
financial
in nature or incidental to such a firm’s activity under Section 4(k) of
the Bank Holding Company Act of 1956 and that is offered by the
Bank or
any affiliate on the date of the Executive’s Separation from Service,
including but not limited to banking activities that are closely
related
and a proper incident to banking.
|
(6)
|
“person”
shall mean any individual or individuals, corporation, partnership,
fiduciary or association.
|
(7)
|
“territory”
shall mean all of Forsyth, Guilford, Iredell, Rockingham, Surry,
Stokes,
and Yadkin Counties in North Carolina and the area within a 15-mile
radius
of any full-service banking office of the Bank at the date of Executive’s
Separation from Service.
|
9.2
|
Remedies.
Because of the unique character of the services to be rendered by
the
Executive hereunder, the Executive understands that the Bank would
not
have an adequate remedy at law for the material breach or threatened
breach by the Executive of any one or more of the Executive’s covenants
set forth in this Article 9. Accordingly, the Executive agrees that
the
Bank’s remedies for a material breach or threatened breach of this Article
9 include but are not limited to forfeiture of benefits under this
Agreement and a suit in equity by the Bank to enjoin the Executive
from
the breach or threatened breach of such covenants. The Executive
hereby
waives the claim or defense that an adequate remedy at law is available
to
the Bank and the Executive agrees not to urge in any such action
the claim
or defense that an adequate remedy at law exists. Nothing herein
shall be
construed to prohibit the Bank from pursuing any other remedies for
the
breach or threatened breach.
|
18
9.3
|
Article
9 Survives Termination But Is Void After a Change in Control. The
rights
and obligations set forth in this Article 9 shall survive termination
of
this Employment Agreement. However, Article 9 shall become null and
void
effective immediately upon a Change in Control.
|
IN
WITNESS WHEREOF, the Executive and a duly authorized officer of the Bank have
executed this Amended Salary Continuation Agreement as of this 14th
day
of
March,
2007.
EXECUTIVE:
|
Southern
Community
Bank and Trust:
|
||
x /s/ Xxxxxxx X. Xxxxx | /s/ F. Xxxxx Xxxxx | ||
Xxxxxxx
X. Xxxxx
|
Corporate Title: Chief Executive Officer |
19