Exhibit 10.2
SOUTH
CAROLINA BANK & TRUST
Non-Employee Directors Deferred Income Plan
As Amended and Restated
Effective As Of
January 1, 2005
(A Plan of Nonqualified Deferred Compensation)
SOUTH CAROLINA BANK AND TRUST
NON-EMPLOYEE DIRECTORS DEFERRED
INCOME PLAN
AS AMENDED AND RESTATED
PREAMBLE
Whereas, South
Carolina Bank and Trust (the "Bank"), adopted the South Carolina
Bank and Trust Non-Employee Directors Deferred Income Plan (the
"Plan") effective January 1, 2005; and
Whereas, the
Bank reserved the right pursuant to Section VII of the Plan to
amend the Plan as required by law; and
Whereas, it is
necessary to amend the Plan to conform to the requirements of
Section 409A of the Internal Revenue Code of 1986, as amended,
("I.R.C.") as enacted by the American Jobs Creation Act of
2004.
Now, therefore,
the Bank hereby amends and restates the Plan, effective as of
January 1, 2005.
SECTION I -
INTRODUCTION
Effective January 1, 2005, the "Bank hereby
amends and restates the Plan for members of its Board of Directors
("Board"), who are not employees of the Bank or an Affiliate
("Non-Employee Directors"). The Plan is intended to comply in form
and operation with the requirements of Section 409A of the I.R.C.,
and shall be construed and administered accordingly at all
times.
SECTION II -
DEFINITIONS
(a) “ Account ” shall mean the
interest of a Participant in the Plan as represented by the
bookkeeping entries kept by the Bank for each Participant. Each
Participant’s interest may be divided into one or more
separate accounts or sub-accounts. The Account reflects the
contributions made, gains, losses, income and expenses allocated
thereto, as well as, distributions or any other withdrawals. The
existence of an account or bookkeeping entries for a Participant
(or his Designated Beneficiary) does not create, suggest or imply
that a Participant, Designated Beneficiary, or other person
claiming through them under the Plan, has a beneficial interest in
any assets of the Employer.
(b) “ Affiliate ” shall mean
partnership, corporation, company, joint venture or other business
entity, in which the Bank has a direct or indirect ownership
interest of more than fifty percent (50%), or the Bank is owned by
an entity that has an ownership interest in such other entity of
more than fifty percent (50%).
(c) “ Bank ” shall mean South
Carolina Bank & Trust.
(d) “ Board ” shall mean the
Bank’s Board of Directors.
(e) “ Committee ” shall mean the
compensation committee of the Board.
(f) “ Deemed Crediting Option ”
shall mean the options made available to Plan Participants by the
Bank for the purposes of determining the proper crediting of gains
and losses, and income and expenses to each Participant’s
Account, subject to procedures and requirements established by the
Plan Administrator. A Participant may reallocate his Account among
such Deemed Crediting Options periodically at such frequency and
upon such terms as the Plan Administrator may determine from time
to time. The Bank reserves the right in its sole and exclusive
discretion to substitute, eliminate and otherwise change the
options made available to Plan Participants, as well as the right
to establish rules and procedures for the selection and offering of
the Deemed Crediting Option.
(g) “ Deemed Crediting Option Election
Form ” shall mean the written agreement of a Participant
in which the Deemed Crediting Option is exercised. The Deemed
Crediting Option Election Form shall be in such form or forms as
may be prescribed by the Plan Administrator, filed with the Bank,
according to procedures and at such times as established by the
Plan Administrator.
(h) " Designated Beneficiary " or "
Beneficiary " shall mean the person, persons or trust
specifically named to be a direct or contingent recipient of all or
a portion of a Participant's benefits under the Plan in the event
the Participant's death prior to the distribution of his full
balance in his Account. Such designation of a recipient or
recipients may be made and amended, at the Participant's
discretion, on the Designated Beneficiary Form and according to the
procedures established by the Plan Administrator. No beneficiary
designation or change of Beneficiary shall become effective until
received and acknowledged by the Employer. In the event a
Participant does not have a beneficiary properly designated, the
beneficiary under the Plan shall be the Participant's
estate.
(i) “ Designated Beneficiary Form
” shall mean the written agreement of a Participant in which
the Participant elects the Designated Beneficiary. In the event
that the Participant designates someone other than their spouse as
Beneficiary for at least fifty percent (50%) of his benefits under
the Plan, the signature of such spouse is required on this form.
The Designated Beneficiary Form shall be in such form or forms as
may be prescribed by the Plan Administrator, filed with the Bank,
according to procedures and at such times as established by the
Plan Administrator.
(j) “ Distribution Election Form ”
shall mean the written agreement of a Participant in which the
Participant elects the manner in which distributions will be made
from the Account. The Distribution Election Form shall be in such
form or forms as may be prescribed by the Plan Administrator, filed
with the Bank, according to procedures and at such times as
established by the Plan Administrator.
(k) “ Deferral Election Form ”
shall mean that written agreement of a Participant. The Deferral
Election Form shall be in such form or forms as may be prescribed
by the Plan Administrator, filed with the Bank, according to
procedures and at such times as established by the Plan
Administrator. Among other information the Plan Administrator may
require of the Participant for proper administration of the Plan,
such agreement shall establish the Participant’s election to
defer Retainers and Meeting Fees for a Plan Year under the Plan and
the amount of the deferral into the Plan for the Plan
Year.
(l) “ In-Service Distribution ”
shall mean a distribution to a Participant prior to Separation from
Service.
(m) “ Meeting Fees ” shall mean
Board or Board committee meeting fees payable to a Non-Employee
Director in cash.
(n) “ Non-Employee Directors ”
shall mean members of the Board of the Bank who are not employees
of the Bank or an Affiliate.
(o) “ Participant ” shall mean a
person who (1) is a Non-Employee Director; (2) is subject to United
States income tax laws; and (3) elects to participate in the
Plan.
(p) “ Plan ” shall mean South
Carolina Bank & Trust Non-Employee Directors Deferred Income
Plan as amended and restated.
(q) “ Plan Year ” shall mean the
twelve (12) consecutive month period constituting a calendar year,
beginning on January 1 and ending on December 31. However, in any
partial year of the Plan that does not begin on January 1,
“Plan Year” shall also mean the remaining partial year
ending on December 31. If the Plan is terminated, such Plan Year
shall begin on January 1 and end on the date of
termination.
(r) “ Plan Administrator ” shall
mean the one or more employees of the Bank as so designated by the
Committee that have general operation and administration duties of
the Plan.
(s) “ Retainers ” shall mean any
retainer payable in cash for service as a Non-Employee Director,
including any such retainer for service as chairman of the Board or
as a chair or member of a Board committee.
(t) “ Separation of Service ”
shall mean ceasing to perform any type of service for the Bank or
an Affiliate, when the Bank and all Affiliates, as well as, the
Participant do not contemplate or anticipate any future service by
the Participant for the Bank or any Affiliate.
(u) “ Unforeseeable Emergency ”
shall mean a severe financial hardship of the Participant resulting
from a sudden and unexpected illness or accident of the Participant
or of a dependent (as defined in Section 152(a) of the I.R.C.) of
the Participant, loss of the Participant's property due to casualty
or other similar, extraordinary and unforeseeable circumstances
arising as a result of events beyond the control of the
Participant, or as otherwise defined under the Treasury Regulations
issues pursuant to Section 409A of the I.R.C. The circumstances
that will constitute an Unforeseeable Emergency will depend upon
the facts of each case, as determined by the Plan Administrator in
its discretion, but in any case payment may not be made, to the
extent that such hardship is or may be relieved: (i) through
reimbursement or compensation by insurance or otherwise; (ii) by
liquidation of the Participant's assets to the extent the
liquidation of such assets would not itself cause severe financial
hardship; or (iii) by cessation of deferrals under the
Plan.
SECTION III - PLAN
PARTICIPANTS
Each Non-Employee Director shall become a
Participant under the Plan by filing the written Deferral Election
Form as described in Section IV below with the Plan Administrator.
Such Deferral Election Form will designate the amount of deferral
of income with respect to the Retainers and Meeting Fees payable to
the Non-Employee Director for his services as a member of the
Board.
SECTION IV - DEFERRAL
ELECTIONS
(a) Each Participant may elect to defer receipt of
some or all of his Retainer and Meeting Fee and have the cash value
of such Retainer and Meeting Fee credited to the Account
established for him under the Plan.
(b) Each election with respect to a Retainer and
Meeting Fee for a Plan Year shall be set forth on a Deferral
Election Form provided by the Plan Administrator.
(c) A Deferral Election Form effective for a Plan
Year shall be delivered to the Plan Administrator prior to the
first day of such Plan Year. The election shall remain in effect
for subsequent Plan Years until a revised Deferral Election Form is
delivered to the Plan Administ