TERMINATION AND WAIVER AGREEMENT
THIS TERMINATION AND WAIVER AGREEMENT (this “Termination Agreement”) is made and entered into as of this 19th day of September, 2009 (the “Effective Date”) by and between HABERSHAM BANK, as successor to Security State Bank (the “Bank”), and MICHAEL L. OWEN, a resident of the State of Georgia (the “Director”).
WHEREAS, the Bank, as successor to Security State Bank, and Director are parties to that certain Director Supplemental Retirement Plan Agreement originally effective as of March 22, 2001, as amended by that certain 409A Amendment thereto (the “SERP Agreement”).
WHEREAS, the Bank, as successor to Security State Bank, and the Director are also parties to that certain Life Insurance Endorsement Method Split Dollar Plan Agreement dated as of March 22, 2001 (the “Split Dollar Agreement”) (collectively, the SERP Agreement and the Split Dollar Agreement are referred to herein as the “Agreements”).
WHEREAS, the original purpose of the Agreements was to provide the Director with an incentive to remain in the service of the Bank by providing the Director with the opportunity to receive supplemental retirement payments and death benefits in connection with certain qualifying events.
WHEREAS, the Bank is negatively affected by the current downturn in the financial services sector of the United States economy.
WHEREAS, the Bank is under regulatory scrutiny and is in the process of seeking alternatives to increase capital and reduce expenses for the purpose of enhancing its financial position and performance.
WHEREAS, the obligations represented by the Agreements are impairing the Bank’s ability to address its financial issues.
WHEREAS, pursuant to Subparagraph VII[C] of the SERP Agreement, with the Director’s consent, the Bank desires to terminate the SERP Agreement to cease the accrual of any new benefit obligations under the SERP Agreement and, in connection with the SERP Agreement’s termination, the Bank also desires to obtain the Director’s consent to waive completely the Director’s contractual rights to all of the benefit obligations accrued under the SERP Agreement prior to the effective date of the SERP Agreement’s termination so as to improve further the capital position of the Bank and to enhance the prospects of the Bank in the face of its current financial challenges.
WHEREAS, contrary to the termination provisions under Paragraph IX of the Split Dollar Agreement, the Bank desires to terminate the Split Dollar Agreement immediately, with the consent of the Director, and to obtain a waiver by the Director of the Director’s right to require an assignment of the policy or policies subject to the Split Dollar Agreement.
WHEREAS, the Director understands and acknowledges that the prospective termination of the Agreements and the waiver of accrued obligations and rights thereunder require the Director’s consent.
WHEREAS, the Director also understands and acknowledges that the Director’s agreement to waive completely the Director’s contractual rights to all of the benefit obligations and rights accrued under the Agreements prior to the effective date of the Agreements’ termination will enhance the Director’s prospects for continuing in the service of the Board of Directors of the Bank; will help preserve the value of any existing capital investment in the Bank that the Director may have; and will mitigate the potential for involving the Director in litigation should the Bank be unsuccessful in addre