GREER STATE BANK
Salary Continuation
Agreement
Prepared 7-18-05
GREER STATE BANK
SALARY CONTINUATION
AGREEMENT
WITH KENNETH M.
HARPER
NOTHING IN THIS AGREEMENT
SHALL BE DEEMED OR CONSTRUED TO BE AN EMPLOYMENT AGREEMENT EITHER
EXPRESS OR IMPLIED.
THIS SALARY CONTINUATION AGREEMENT
(the “Agreement”) is adopted this 12th day of August,
2005, by and between GREER STATE BANK, a state-chartered commercial
bank located in Greer, South Carolina (the “Company”),
and KENNETH M. HARPER (the “Executive”).
The purpose of this Agreement is to
provide specified benefits to the Executive, a member of a select
group of management or highly compensated employees who contribute
materially to the continued growth, development and future business
success of the Company. This Agreement shall be unfunded for tax
purposes and for purposes of Title I of the Employee Retirement
Income Security Act of 1974 (“ERISA”), as amended from
time to time. The Company will pay the benefits from its general
assets.
The Company and the Executive agree
as provided herein.
Article 1
Definitions
Whenever used in this Agreement, the
following words and phrases shall have the meanings
specified:
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1.1
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“
Accrual Balance ” means the liability that should be
accrued by the Company, under Generally Accepted Accounting
Principles (“GAAP”), for the Company’s obligation
to the Executive under this Agreement, by applying Accounting
Principles Board Opinion Number 12 (“APB 12”) as
amended by Statement of Financial Accounting Standards Number 106
(“FAS 106”) and the Discount Rate. Any one of a variety
of amortization methods may be used to determine the Accrual
Balance. However, once chosen by the Company at its sole discretion
the method must be consistently applied. The Accrual Balance shall
be reported by the Company to the Executive on Schedule
A.
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1.2
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“
Beneficiary ” means each designated person, or the
estate of the deceased Executive, entitled to benefits, if any,
upon the death of the Executive determined pursuant to Article
4.
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1.3
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“
Beneficiary Designation Form ” means the form provided
time to time by the Plan Administrator that the Executive
completes, signs and returns to the Plan Administrator to designate
one or more Beneficiaries.
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GREER STATE BANK
Salary Continuation
Agreement
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1.4
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“
Board ” or “ Board of Directors ”
means the Board of Directors of the Company.
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1.5
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“
Change in Control ” means
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(i)
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the
acquisition, directly or indirectly, (including beneficial
ownership) by any “person” as this term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended within any twelve (12) consecutive month period of the
Corporation’s or Company’s issued and outstanding
common stock representing an aggregate of fifty percent (50%) or
more of the Corporation’s or Company’s common stock;
or
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(ii)
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consummation of
merger, sale, acquisition, or liquidation of all, or substantially
all, of the Corporation’s or the Company’s assets or
outstanding stock; or
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(iii)
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the occurrence
of any other event or circumstance which is not covered by 1.5(i)
or 1.5(ii) above, which the Board determines affects the
Corporation’s or Company’s control and, to implement
the purposes of this Agreement, adopts a resolution that the event
or circumstance constitutes a Change in Control for the purposes of
this Agreement.
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(iv)
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Notwithstanding
any other provisions in this Agreement, “Change in
Control” shall not be construed to mean the formation of a
bank holding company or other entity approved in advance by the
Company’s Board of Directors or any changes in ownership of
the Company’s assets or stock as the result of the formation
of such an entity.
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1.6
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“
Code ” means the Internal Revenue Code of 1986, as
amended.
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1.7
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“
Corporation ” means Greer Bancshares
Incorporated.
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1.8
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“
Disability ” means sickness, accident, or injury
which, in the judgment of a physician appointed and paid by the
Company, prevents the Executive from performing all of the
Executive’s customary duties for the Company. As a condition
to any benefits, the Company may require the Executive to submit to
such physical or mental evaluations and tests as the
Company’s Board of Directors deems appropriate.
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1.9
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“
Discount Rate ” means the rate used by the Plan
Administrator for determining the Accrual Balance. The initial
Discount Rate is six and one-quarter percent (6.25%). However, the
Plan Administrator, in its sole discretion, may adjust the Discount
Rate to maintain the rate within reasonable standards according to
GAAP.
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1.10
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“
Early Termination ” means the Executive’s
Termination of Employment before Normal Retirement Age for reasons
other than death, Disability, Termination for Cause, or following a
Change of Control.
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1.11
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“
Early Termination Date ” means the month, day and year
in which Early Termination occurs.
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1
GREER STATE BANK
Salary Continuation
Agreement
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1.12
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“
Effective Date ” means May 1, 2005.
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1.13
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“
Normal Retirement Age ” means the Executive’s
sixty-fifth (65 th ) birthday.
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1.14
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“
Normal Retirement Date ” means the later of the Normal
Retirement Age or Termination of Employment.
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1.15
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“ Plan
Administrator ” means the Company.
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1.16
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“ Plan
Year ” means a twelve-month period commencing on November
1 and ending on October 31 of each year. The initial Plan Year
shall commence on the Effective Date of this Agreement.
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1.17
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“
Termination for Cause ” has that meaning set forth in
Article 5.
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1.18
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“
Termination of Employment ” means Executive ceasing to
be employed by the Company for any reason whatsoever other than by
reason of a leave of absence approved by the Board.
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1.19
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“
Years of Service ” means the twelve consecutive month
period beginning on Executive’s date of hire and any twelve
(12) month anniversary thereof, during the entirety of which time
the Executive is an employee of the Company. Service with a
subsidiary or other entity controlled by the Company before the
time such entity became a subsidiary or under such control shall
not be considered “credited service” unless the Plan
Administrator specifically agrees to credit such service. In
addition, the Plan Administrator in its discretion may also grant
additional Years of Service in such circumstances where it deems
such additional service appropriate.
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Article 2
Benefits During
Lifetime
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2.1
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Normal
Retirement Benefit . Upon
Termination of Employment on or after the Normal Retirement Age for
reasons other than death, the Company shall pay to the Executive
the benefit described in this Section 2.1 in lieu of any other
benefit under this Agreement.
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2.1.1
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Amount of
Benefit . The annual
benefit under this Section 2.1 is Fifty Thousand Dollars
($50,000).
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2.1.2
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Payment of
Benefit . The Company
shall pay the annual benefit to the Executive in twelve (12) equal
consecutive monthly installments commencing on the first day of the
month following the Executive’s Normal Retirement Date. The
annual benefit shall be paid to the Executive for fifteen (15)
years.
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2
GREER STATE BANK
Salary Continuation
Agreement
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2.2
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Early
Termination Benefit .
Upon Early Termination, the Company shall pay to the Executive the
benefit described in this Section 2.2 in lieu of any other benefit
under this Agreement.
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2.2.1
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Amount of
Benefit . The benefit
under this Section 2.2 is the Early Termination Benefit set forth
on Schedule A for the Plan Year during which the Early Termination
Date occurs. This benefit is determined by vesting the Executive in
ten percent (10%) of the Accrual Balance for the first Plan Year,
and an additional ten percent (10%) of said amount for each
succeeding Plan Year thereafter until the Executive becomes one
hundred percent (100%) vested in the Accrual Balance.
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2.2.2
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Payment of
Benefit . The Company
shall pay the benefit to the Executive over fifteen (15) years in
one hundred eighty (180) equal consecutive monthly installments
commencing with the first day of the month following Normal
Retirement Age.
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2.3
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Disability
Benefit .
Upon Termination of Employment due
to Disability prior to Normal Retirement Age, the Company shall pay
to the Executive the benefit described in this Section 2.3 in lieu
of any other benefit under this Agreement.
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2.3.1
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Amount of
Benefit .
The benefit under this Section 2.3
is the Disability Benefit set forth on Schedule A for the Plan Year
during which the Termination of Employment occurs. This benefit is
determined by vesting the Executive in one hundred percent (100%)
of the Accrual Balance.
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2.3.2
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Payment of
Benefit . The Company
shall pay the benefit to the Executive over fifteen (15) years in
one hundred eighty (180) equal consecutive monthly installments
commencing with the first day of the month following the
Executive’s Termination of Employment.
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2.4
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Change of
Control Benefit . Upon a
Change of Control followed by the Executive’s Termination of
Employment, the Company shall pay to the Executive the benefit
described in this Section 2.4 in lieu of any other benefit under
this Agreement.
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2.4.1
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Amount of
Benefit .
The benefit under this Section 2.4
is the Change of Control Benefit set forth on Schedule A for the
Plan Year during which the Termination of Employment occurs. This
benefit is determined by vesting the Executive in one hundred
percent (100%) of the Normal Retirement Benefit described in
Section 2.1.
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2.4.2
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Payment of
Benefit . The Company
shall pay the benefit to the Executive in a lump sum present value
payment based on the Discount Rate within sixty (60) days following
Termination of Employment.
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3
GREER STATE BANK
Salary Continuation
Agreement
Article 3
Death Benefits
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3.1
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Death During
Active Service . If the
Executive dies while employed by the Company, the Company shall pay
to the Executive’s Beneficiary the benefit described in this
Section 3.1. This benefit shall be paid in lieu of all other
benefits under this Agreement.
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3.1.1
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Amount of
Benefit . The benefit
under this Section 3.1 is the Pre-Retirement Death Benefit set
forth on Schedule A for the Plan Year during which death
occurs.
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3.1.1.1
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For the first
ten (10) Years of Service, this benefit is based upon one hundred
percent (100%) of the Accrual Balance.
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3.1.1.2
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After the
Executive has completed ten (10) Years of Service, this benefit is
based upon one hundred percent (100%) of the Normal Retirement
Benefit described in Section 2.1.
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3.1.2
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Payment of
Benefit . The Company
shall pay the benefit to the Beneficiary over fifteen (15) years in
one hundred eighty (180) equal consecutive monthly installments
commencing within thirty (30) days following the date of the
Executive’s death.
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3.2
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Death During
Payment of a Lifetime Benefit . If the Executive dies after any benefit
payments have commenced under this Agreement but before receiving
all such payments, the Company shall pay the remaining benefits to
the Executive’s Beneficiary at the same time and in the same
amounts they would have been paid to the Executive had the
Executive survived.
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3.3
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Death After
Termination of Employment But Prior to Commencement of Benefit
Payments .
If the Executive dies after
Termination of Employment, but prior to commencement of benefit
payments, the Company shall pay the same benefit payments to the
Executive’s Beneficiary that the Executive was entitled to
prior to death except that the benefit payments shall commence
within thirty (30) days following the date of the Executive’s
death.
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Article 4
Beneficiaries
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4.1
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Beneficiary
Designation . The
Executive shall have the right, at any time, to designate a
Beneficiary(ies) 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 Company in which the Executive participates.
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4
GREER STATE BANK
Salary Continuation
Agreement
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4.2
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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 prior to the
Executive’s death.
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4.3
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Acknowledgment . No designation or change in designation of a
Beneficiary shall be effective until received, accepted and
acknowledged in writing by the Plan Administrator or its designated
agent.
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4.4
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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 or
its assignee.
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4.5
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Facility of
Payment . If the Plan
Administrator determines in its discretion that a benefit is to be
paid to a minor, to a person declared incompetent, or to a person
incapable of handling the disposition of that person’s
property, the Plan Administrator may direct payment of such benefit
to the guardian, legal representative or person having the care or
custody of such minor, incompetent person or incapable person. The
Plan Administrator may require proof of incompetence, minority or
guardianship as it may deem appropriate prior to distribution of
the benefit. Any payment of a benefit shall be a payment for the
account of the Executive and the Executive’s Beneficiary, as
the case may be, and shall be a complete discharge of any liability
under the Agreement for such payment amount.
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Article 5
General
Limitations
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5.1
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Termination
for Cause .
Notwithstanding any provision of this Agreement to the contrary,
the Company shall not pay any benefit under this Agreement, and the
Executive shall irrevocably forfeit all benefits under this
Agreement, if the Company terminates the Executive’s
employment for:
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(a)
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Gross
negligence or gross neglect of duties prior to a Change in
Control;
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(b)
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Conviction of a
felony; or
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5
GREER STATE BANK
Salary Continuation
Agreement
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(c)
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Fraud,
disloyalty, or willful violation of any law or material Company
policy in connection with the Executive’s
employment.
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5.2
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Forfeiture
Provision . While
Executive is employed by the Company and during the period of time
the Executive is receiving any benefit payments pursuant to this
Agreement, the Executive will not, for himself or on behalf of, or
in conjunction with any other person or persons, company,
partnership, limited liability company, proprietorship, trust
company, bank, financial services institution, or other entity,
directly or indirectly, own, manage, operate, control, be employed
by, consult with, participate in, or be connected in any manner
with the ownership, employment, management, operation, consulting
or control of any financial services institution that competes with
the Company within Greenville County, South Carolina, Spartanburg
County, South Carolina, or any other market served by the Company
at the time payment of benefits commence. In the event of any
actual breach by the Executive of the provisions of this Section
5.2, all payments under this Agreement payable to the Executive
shall irrevocably forfeit and terminate and no further amount shall
be due or payable to the Executive pursuant to this Agreement. The
Executive specifically acknowledges that the restrictions set forth
above are reasonable and bear a valid connection with the business
operations of the Company, and specifically admits that Executive
is capable of obtaining suitable employment not in competition with
the Company. If any one of the restrictions contained herein shall
for any reason be held to be excessively broad as to duration or
geographical area, it shall be deemed amended by limiting and
reducing it so as to be valid and enforceable to the extent
compatible with applicable state law as it shall then appear.
Executive acknowledges that the Company would not have entered into
this Agreement without the provision Section 5.2 contained herein.
This Section 5.2 shall not prohibit the Executive from owning stock
in any publicly traded company provided the Executive’s stock
ownership is five percent (5%) or less of the issued and
outstanding stock of such publicly traded company and the Executive
has no corporate responsibility other than the Executive’s
rights as a stockholder.
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5.3
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Excess
Parachute Payment .
Notwithstanding anything in this Agreement to the contrary, in the
event that the benefit payable to Executive pursuant to this
Agreement should cause a “parachute payment”, as
defined in Code Section 280G(b)(2) of the Code, then such benefit
shall be reduced One Dollar ($1.00) at a time until the payment
will not constitute a parachute payment. In the event the benefit
Executive receives under this Agreement should be incorrectly
calculated so that such amount constitutes a parachute payment,
then Executive will promptly refund to Company the excess amount.
Excess amount shall mean the amount in excess of Executive’s
base amount, as defined in Code Section 280G(b)(3), multiplied by
2.999.
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5.4
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Suicide or
Misstatement . The
Company shall not pay any benefit under this Agreement if the
Executive commits suicide within two years after the Effective
Date. In addition, the Company shall not pay any benefit under this
Agreement if the Executive has made any material misstatement of
fact on any application for life insurance owned by the Company on
the Executive’s life.
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6
GREER STATE BANK
Salary Continuation
Agreement
Article 6
Claims and Review
Procedures
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6.1
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For all claims
other than Disability benefits:
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6.1.1
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Claims
Procedure . Any
individual (“Claimant”) who has not received benefits
under this Agreement that he or she believes should be paid shall
make a claim for such benefits as follows:
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6.1.1.1
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Initiation
– Written Claim .
The Claimant initiates a claim by submitting to the Company a
written claim for the benefits.
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6.1.1.2
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Timing of
Company Response . The
Company shall respond to such Claimant within 90 days after
receiving the claim. If the Company determines that special
circumstances require additional time for pr
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