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SALARY CONTINUATION AGREEMENT

Employment Agreement

SALARY CONTINUATION AGREEMENT | Document Parties: GREER BANCSHARES INC You are currently viewing:
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GREER BANCSHARES INC

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Title: SALARY CONTINUATION AGREEMENT
Governing Law: South Carolina     Date: 8/15/2005

SALARY CONTINUATION AGREEMENT, Parties: greer bancshares inc
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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:

 

1.1

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.

 

1.2

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.

 

1.3

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.


GREER STATE BANK

Salary Continuation Agreement

 

1.4

Board ” or “ Board of Directors ” means the Board of Directors of the Company.

 

1.5

Change in Control ” means

 

 

(i)

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

 

 

(ii)

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

 

 

(iii)

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.

 

 

(iv)

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.

 

1.6

Code ” means the Internal Revenue Code of 1986, as amended.

 

1.7

Corporation ” means Greer Bancshares Incorporated.

 

1.8

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.

 

1.9

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.

 

1.10 

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.

 

1.11 

Early Termination Date ” means the month, day and year in which Early Termination occurs.

 

1


GREER STATE BANK

Salary Continuation Agreement

 

1.12 

Effective Date ” means May 1, 2005.

 

1.13 

Normal Retirement Age ” means the Executive’s sixty-fifth (65 th ) birthday.

 

1.14 

Normal Retirement Date ” means the later of the Normal Retirement Age or Termination of Employment.

 

1.15 

Plan Administrator ” means the Company.

 

1.16 

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.

 

1.17 

Termination for Cause ” has that meaning set forth in Article 5.

 

1.18 

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.

 

1.19 

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.

 

Article 2

Benefits During Lifetime

 

2.1

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.

 

 

2.1.1 

Amount of Benefit . The annual benefit under this Section 2.1 is Fifty Thousand Dollars ($50,000).

 

 

2.1.2 

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.

 

2


GREER STATE BANK

Salary Continuation Agreement

 

2.2

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.

 

 

2.2.1

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.

 

 

2.2.2

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.

 

2.3

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.

 

 

2.3.1

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.

 

 

2.3.2

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.

 

2.4

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.

 

 

2.4.1

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.

 

 

2.4.2

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.

 

3


GREER STATE BANK

Salary Continuation Agreement

 

Article 3

Death Benefits

 

3.1

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.

 

 

3.1.1

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.

 

 

3.1.1.1 

For the first ten (10) Years of Service, this benefit is based upon one hundred percent (100%) of the Accrual Balance.

 

 

3.1.1.2 

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.

 

 

3.1.2

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.

 

3.2

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.

 

3.3

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.

 

Article 4

Beneficiaries

 

4.1

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.

 

4


GREER STATE BANK

Salary Continuation Agreement

 

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 prior to 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.

 

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 or its assignee.

 

4.5

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.

 

Article 5

General Limitations

 

5.1

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:

 

 

(a)

Gross negligence or gross neglect of duties prior to a Change in Control;

 

 

(b)

Conviction of a felony; or

 

5


GREER STATE BANK

Salary Continuation Agreement

 

 

(c)

Fraud, disloyalty, or willful violation of any law or material Company policy in connection with the Executive’s employment.

 

5.2

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.

 

5.3

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.

 

5.4

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.

 

6


GREER STATE BANK

Salary Continuation Agreement

 

Article 6

Claims and Review Procedures

 

6.1

For all claims other than Disability benefits:

 

 

6.1.1

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:

 

 

6.1.1.1 

Initiation – Written Claim . The Claimant initiates a claim by submitting to the Company a written claim for the benefits.

 

 

6.1.1.2 

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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