AMENDED AND RESTATED
CENTURA BANKS, INC. OMNIBUS
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
THIS RESTATED PLAN, by CENTURA BANKS, INC., a North Carolina
corporation, having its principal place of business in Rocky Mount, North
Carolina ("Centura");
W I T N E S S E T H :
WHEREAS, Centura and Centura Bank (the "Bank") established the Omnibus
Supplemental Executive Retirement Plan (the "Plan") as of December 29, 1993, to
provide non-qualified retirement benefits to certain executive employees, and to
replace similar benefits provided under contracts and agreements made by
predecessors of Centura and the Bank;
WHEREAS, Centura and the Bank amended and restated the Plan on May 14,
1996, and Centura Insurance Services, Inc. and Centura Securities, Inc. adopted
the Plan, as amended and restated;
WHEREAS, Centura desires to amend and restate the Plan to incorporate
certain administrative changes and to permit Centura to procure insurance
policies to facilitate the payment of Plan benefits;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, Centura hereby amends and restates the Plan as
follows:
ARTICLE I - PURPOSE
1.1 The Plan is designed to operate as an unfunded top-hat plan for the
benefit of a select group of management or highly compensated employees of
Centura and its Subsidiaries. The primary purpose of the Plan is to provide
Eligible Employees with retirement income. All benefits under the Plan shall be
payable from the general assets of Centura or its Subsidiaries, as specified
under individual SERP Agreements.
1.2 Benefits under the Plan may be made available to Participants under
individual Participant SERP Agreements between Participants and Centura or its
Subsidiaries outlining the applicable benefits, including amount, duration,
frequency of payment, and other benefit characteristics as determined by the
Committee in its discretion.
1.3 The Plan shall be effective as of December 1, 1993. This
restatement of the Plan shall be effective as of October 1, 1998.
ARTICLE II - DEFINITIONS
Except where the context indicates otherwise, the following definitions apply:
2.1 "Centura" means Centura Banks, Inc., a North Carolina corporation
structured as a registered bank holding company under the Bank Holding Company
Act of 1956, and its successors and assigns. "Centura" also means Centura Banks,
Inc. and its Subsidiaries, unless the context clearly indicates otherwise.
2.2 "Board" means the Board of Directors of Centura Banks, Inc.
2.3 "Code" means the Internal Revenue Code of 1986, as now in effect or
as hereafter amended. (All citations to sections of the Code are to such
sections as they may from time to time be amended or renumbered.)
2.4 "Committee" means a committee consisting of Centura's Chief
Financial Officer and Centura's senior human resources officer, or such other
committee consisting of persons as may be appointed by the Compensation
Committee of the Board to administer this Plan pursuant to Article III.
2.5 "Disability" means total and permanent disability occurring prior
to Retirement or Termination of Employment, as determined by the Committee,
subject to any modifications as may be set forth in an individual Participant
SERP Agreement. A Participant shall be deemed to be Disabled (a) if he is
unable, as determined by competent medical opinion to the Committee's
satisfaction, to engage in any substantial gainful occupation for which he is
reasonably fitted by training, education, or experience, by reason of any
physical or mental impairment, and (b) such disability has continued for a
period of six consecutive months and it is reasonably anticipated that such
disability will be permanent. In no event, however, shall a Participant be
recognized as Disabled under the Plan if disability results from chronic
alcoholism, addiction to narcotics, injury occurring while engaging in a
felonious activity, intentionally inflicted injury, or injury occurring while
serving in the armed forces of any county.
2.6 "Discount Rate" means the discount rate specified in the
Participant SERP Agreement, or the then current interest rate used for
determining lump sum distributions under the Qualified Plan for the month in
which a determination is being made, if the Participant SERP Agreement fails to
specify an applicable rate or a method for determining such rate.
2.7 "Early Retirement" means Retirement from active employment with
Centura or any Subsidiary, with the express consent of the Committee, between
the ages of 60 and 65; provided, however, a Participant may be eligible for
Early Retirement as of an earlier age if the Participant SERP Agreement so
provides.
2.8 "ERISA" means the Employee Retirement Income Security Act of 1974,
as amended. (All citations to sections of ERISA are to such sections as they may
from time to time be amended or renumbered.)
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2.9 "Normal Retirement" means retirement from active employment with
Centura or any Subsidiary on or after age 65 (or such earlier age as may be
specified in the Participant SERP Agreement), and pursuant to such other
requirements relating to service with Centura or its Subsidiaries or otherwise
as may be established by the Committee and set forth in a Participant SERP
Agreement.
2.10 "Participant" means (i) a participant in the Qualified Plan whose
benefit would otherwise be restricted by Section 415 and Section 401(a)(17) of
the Code and by the fact that the definition of compensation under the Qualified
Plan included compensation deferred under any other plan of Centura which was
not otherwise included in the Qualified Plan definition of compensation, and who
is determined by the Committee to constitute one of a select group of management
or highly compensated employees of Centura or its Subsidiaries, as such terms
are defined by ERISA; or (ii) any other employee of Centura or its Subsidiaries
who is determined by the Committee to be one of a select group of management or
highly compensated employees.
2.11 "Participant SERP Agreement" means the individualized agreement
between a Participant and Centura and/or, as appropriate, its Subsidiaries,
which provides the details of the benefits to be provided to the Participant.
2.12 "Plan" means the Centura Banks, Inc. Omnibus Supplemental
Executive Retirement Plan, as amended from time to time.
2.13 "Qualified Plan" shall mean the Pension Plan for the Employees of
Centura Banks, Inc., as it may be amended from time to time or any successor
thereto.
2.14 "Retirement" means Normal or Early Retirement. The Participant's
"Retirement Date" shall be the date the Participant notifies the Committee of
his election to begin receiving Retirement benefits, as determined by the
Committee.
2.15 "Subsidiary" or "Subsidiaries" means any corporation (or
partnership, joint venture, or other enterprise) of which Centura owns or
controls, directly or indirectly, fifty percent (50%) or more of the outstanding
shares of stock normally entitled to vote for the election of directors (or
comparable equity participation and voting power).
2.16 "Termination of Employment" means the discontinuance of employment
of a Participant with Centura or its Subsidiaries for any reason other than a
Transfer. The determination of whether a Participant has discontinued employment
shall be made by the Committee in its discretion. In determining whether a
Termination of Employment has occurred, the Committee may provide that service
as a consultant or service with a business enterprise in which Centura has a
significant ownership interest shall be treated as employment with Centura.
2.17 "Transfer" means a change of employment of a Participant within
the group consisting of Centura and its Subsidiaries.
ARTICLE III - ADMINISTRATION
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3.1 This Plan shall be administered by the Committee. The Committee
shall be the plan administrator and named fiduciary of the Plan. The Committee,
in its discretion, may delegate to one or more of its members or to any officer
of Centura such of its powers as it deems appropriate. The Committee also may
limit the powers delegated.
3.2 The Committee shall meet at such times and places as it determines.
A majority of its members shall constitute a quorum, and the decision of a
majority of those present at any meeting at which a quorum is present shall
constitute the decision of the Committee. A memorandum signed by all of its
members shall constitute the decision of the Committee without necessity, in
such event, for holding an actual meeting.
3.3 The Committee shall have the exclusive right to interpret, construe
and administer the Plan. The Committee shall have the authority to make
determinations provided for or permitted to be made under the Plan, to interpret
the Plan, and to promulgate such rules and regulations, if any, as the Committee
considers necessary and appropriate. The Committee is specifically empowered to
exercise discretion in its duties regarding of the Plan. All acts,
determinations and decisions of the Committee made or taken pursuant to grants
of authority under the Plan or with respect to any questions arising in
connection with the administration, interpretation, and application of the Plan,
including the severability of any and all of the provisions thereof, shall be
conclusive, final and binding upon all Participants and their spouses and
beneficiaries.
3.4 The Committee may adopt such rules, regulations and procedures of
general application for the administration of this Plan, as it deems
appropriate.
3.5 The Compensation Committee of the Board shall have the power to
select the persons who are eligible to receive benefits under the Plan, and the
power to act in all matters pertaining to the granting of such benefits and the
contents of the Participant SERP Agreement evidencing the benefits. Each award
of benefits granted under the Plan shall be evidenced by a written Participant
SERP Agreement. Each Participant SERP Agreement shall be subject to and
incorporate, by reference or otherwise, the applicable terms and conditions of
the Plan, and any other terms and conditions not inconsistent with the Plan.
3.6 In addition to such other rights of indemnification they may have
as directors, officers or as members of the Committee, the members of the
Committee shall be indemnified by Centura against reasonable expenses, including
attorneys' fees, actually and necessarily incurred in connection with the
defense of any action, suit or proceeding, or in connection with any appeal
therein, to which they or any of them may be a party by reason of any action
taken or failure to act under or in connection with the Plan or any benefits
granted thereunder, and against all amounts paid by them in settlement thereof
(provided such settlement is approved by independent legal counsel selected by
Centura) or paid by them in satisfaction of a judgment or settlement in any such
action, suit or proceeding, except as to matters as to which the Committee
member has engaged in conduct which was known or believed by him to be clearly
in conflict with the best interests of Centura. For purposes of the foregoing
provision, and in accordance with North Carolina General Statutes Section
55-8-51(b), an individual's conduct with respect to
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the Plan for a purpose he reasonably believed to be in the interests of the
Participants in and beneficiaries of the Plan shall in no event be deemed in
conflict with the best interests of Centura.
3.7 The Committee may correct any defect, supply any omission or
reconcile any inconsistency in the Plan or any Participant SERP Agreement in the
manner and to the extent it shall deem desirable to carry the intent of the Plan
into effect. In the event Centura (or any Subsidiary, if applicable) shall
assume outstanding employee benefit obligations or the right or obligation to
provide future benefits in connection with the acquisition of another
corporation or business entity, the Compensation Committee of the Board may, in
its discretion, provide such benefits under the Plan as it shall deem
appropriate.
ARTICLE IV - RETIREMENT BENEFITS
4.1 A Participant shall be eligible to retire as of his Early or Normal
Retirement Date. If a Participant continues in the employment of Centura or any
of its Subsidiaries after his Normal Retirement Date, he shall continue to be
treated in all respects as a Participant until his actual Retirement, unless the
Participant SERP Agreement provides otherwise. No Retirement benefits hereunder
or under the Participant SERP Agreement shall be payable to a Participant until
his actual Retirement. Upon Retirement, Participant will become eligible to
receive benefits in the amount and on the terms specified in the individual
Participant SERP Agreement.
4.2 If a Participant elects retirement as of his Early Retirement Date,
Retirement benefits hereunder shall become payable as provided in the
Participant SERP Agreement. Early Retirement benefits under the Plan may be
subject to reduction in amount upon the Participant's election of Early
Retirement if so provided in the individual Participant SERP Agreement.
4.3 Retirement benefits shall become payable as of the first day of the
month coinciding with or next following Participant's Retirement Date, and shall
be payable monthly unless otherwise specified in the Participant SERP Agreement.
The Participant SERP Agreement may provide that Retirement benefit payments
shall cease upon the earlier of completion of the payment period specified in
the Participant SERP Agreement or the death of the Participant; otherwise, the
remaining provisions of this paragraph shall apply. If Participant dies before
the end of the benefit payment period specified in the Participant SERP
Agreement, the remaining payments due to Participant under the Participant SERP
Agreement shall be paid monthly to the Participant's beneficiary. If
Participant's beneficiary dies before the expiration of the benefit payment
period hereunder and under the Participant SERP Agreement, a lump sum payment
equivalent in value to the remaining payments shall be made to the beneficiary's
estate. If Participant's beneficiary predeceases Participant, upon Participant's
death after Retirement but before the expiration of the benefit payment period
hereunder and under the Participant SERP Agreement, a lump sum payment
equivalent in value to the remaining payments shall be made to the Participant's
estate. The lump sum equivalent under this paragraph shall be computed using the
Discount Rate in effect at the time of computation.
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4.4 Nothing herein shall be interpreted to require Participant to
accept the Retirement benefits provided hereunder and in the Participant SERP
Agreement upon Retirement.
ARTICLE V - DEATH BENEFITS
5.1 If a Participant dies while still employed by Centura or a
Subsidiary, and before his actual Retirement Date, Participant's beneficiary
shall receive survivor death benefit payments in amounts and over payment
periods as specified in the Participant SERP Agreement, subject to any
eligibility provisions specified therein.
5.2 The Participant SERP Agreement may provide that death benefit
payments shall cease upon the earlier of completion of the payment period
specified in the Participant SERP Agreement or the death of the beneficiary;
otherwise, the remaining provisions of this paragraph shall apply. If the
beneficiary dies before the end of the benefit payment period specified
hereunder and in the Participant SERP Agreement, the remaining payments due
under the Participant SERP Agreement shall be paid to the beneficiary's estate
in a lump sum payment equivalent in value to the remaining death benefit
payments. If Participant's beneficiary predeceases Participant, upon
Participant's death a lump sum payment equivalent in value to the death benefit
payments shall be made to the Participant's estate. The lump sum equivalent
under this paragraph shall be computed using the Discount Rate in effect at the
time of computation.
ARTICLE VI - DISABILITY
6.1 If Participant's employment with Centura or any of its Subsidiaries
is terminated as a result of Disability before attaining Retirement, the
Committee may, in its discretion, determine that the Participant is eligible to
receive Disability Benefits subject to the terms and conditions of the
Participant SERP Agreement.
6.2 The formula for calculating Disability benefits payable to a
Participant shall be specified in the Participant SERP Agreement. The
Participant SERP Agreement may provide for reduction in the benefits payable to
the extent the Participant receives offsetting benefits such as monthly pension
benefits, Social Security, disability income paid to Participant under any group
or individual disability income insurance policies paid for by Centura or any of
its Subsidiaries, or other benefits.
6.3 Disability benefits hereunder shall begin on the first day of the
month coinciding with or next following the date when Participant has been
determined by the Committee to be Disabled, or such other date as determined by
the Committee and provided in the Participant SERP Agreement. Unless otherwise
provided in the Participant SERP Agreement, Disability Benefit payments will
continue until the earliest of:
(a) The date Participant is no longer Disabled as determined by
the Committee;
(b) Participant's attainment of age 65;
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(c) The death of Participant; or
(d) Participant's refusal to submit, pursuant to the request of
the Committee, to a medical examination or to furnish such
other proof of continued Disability.
6.4 The Committee may require, not more often that once in each six
month period, that the Participant submit to a medical examination to confirm
the Participant's continuing Disability.
6.5 If the Committee determines that the Participant is Disabled, and
Disability benefits under the Participant SERP Agreement are thereafter
continuously paid to the Participant until he attains Normal Retirement age, the
Participant may, if and to the extent specified in the Participant SERP
Agreement, be eligible thereafter to receive all or a portion of the Retirement
benefits specified in the Participant SERP Agreement.
ARTICLE VII - EXCESS BENEFITS
7.1 This Article shall apply only to the extent the Participant SERP
Agreement provides that Excess Benefits shall be payable to the Participant.
7.2 In addition to the benefits payable under the Qualified Plan, a
Participant or the Participant's beneficiary, shall be entitled if so provided
in the Participant SERP Agreement, to receive a benefit, vested to the same
extent his Qualified Plan benefit is vested, equal to the amount he would have
received under the Qualified Plan if the limitations of Section 415 and Section
401(a)(17) of the Code did not apply and further calculated as if the definition
of compensation under the Qualified Plan included compensation deferred under
any other plan of Centura, or plan of a predecessor employer, as determined by
the Committee, which was not otherwise included in the Qualified Plan definition
of compensation, less his actual benefits payable under the Qualified Plan.
Benefits under this Article shall be payable at the same time and in the same
manner as benefits are payable under the Qualified Plan, as shall be determined
by the Committee in its discretion, and no specific benefit payment election
need be made under this Plan. Notwithstanding the form of payment to the
Participant from the Qualified Plan, the benefit under this Plan may be paid in
a lump sum in the sole discretion of the Committee, which lump sum payment shall
be the actuarial equivalent of the benefit otherwise payable, and the
assumptions for determining actuarial equivalence will be the same as those used
in the Qualified Plan, as determined by the Committee. Furthermore, the joint
and survivor annuity rules of the Code, including the requirement of spousal
waiver, shall not apply to the benefits provided under this Article. If this
Article applies, death benefits shall also be payable to the Qualified Plan
death beneficiary as shall be determined by the Committee, and may be payable in
a lump sum as determined by the Committee. If Section 415 prohibits any benefits
from being paid from the Qualified Plan, this Article shall if applicable
provide all the benefits the Qualified Plan would have provided under the same
conditions.
ARTICLE VIII - TERMINATION OF EMPLOYMENT
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8.1 Should the Participant terminate employment with Centura or its
Subsidiaries prior to age 60 (or such other time as may be specified in the
Participant SERP Agreement) for any reason other than (a) death, (b) Disability,
(c) termination by the Participant for "good reason" following a "change in
control", (d) termination of the Participant by Centura or its Subsidiaries
"without cause", or (e) Early Retirement by Participant with the consent of the
Committee and pursuant to the individual Participant SERP Agreement, Participant
shall forfeit any and all rights and benefits under this Plan and the
Participant SERP Agreement thereunder.
8.2 Notwithstanding Paragraph 8.1 above, termination of employment of
the Participant (a) by Centura or its Subsidiaries "without cause"; or (b) by
the Participant for "good reason" following a "change in control", shall entitle
the Participant to receive his benefits at Retirement as if the Participant had
remained employed until Retirement. Such benefits shall be paid at Participant's
Retirement as provided in Article IV. Participant may elect, however, to receive
in a lump sum his benefits payable under this Section at any time prior to
eligibility for Early or Normal Retirement, in which event the amount of such
lump sum payment shall be the actuarial equivalent of Participant's Retirement
Benefits (based on the Discount Rate) payable as of his Normal Retirement.
8.3 For purposes of this Plan, a "change in control" shall be deemed to
have occurred if, following the effective date of the Plan, (i) Centura Banks,
Inc. or Centura Bank or their assets are acquired by or combined with another
corporation (other than Centura Banks, Inc.) and less than thirty percent (30%)
of the outstanding voting shares of the surviving corporation after such
acquisition or combination, or the parent corporation of such surviving
corporation, are owned, immediately after such acquisition or combination, by
the owners of voting shares of Centura Banks, Inc. or Centura Bank, as
applicable, outstanding immediately prior to such acquisition or combination; or
(ii) any "person" (as such term is used in Section 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")), or persons
acting together or in concert is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act) of securities of Centura Banks, Inc. or
Centura Bank representing 20% or more of the combined voting power of the
then-outstanding securities of Centura Banks, Inc. or Centura Bank, respectively
other than a trustee or other fiduciary holding securities under an employee
benefit plan of Centura Banks, Inc. or Centura Bank, and, in the case of
securities of Centura Bank, other than Centura Banks, Inc., and thereafter the
membership of the board of directors of Centura Banks, Inc. or Centura Bank
becomes such that less than thirty percent (30%) of the members of either of
such boards are persons who were directors immediately prior to the change of
beneficial ownership referred to in this clause (ii).
8.4 Termination by the Participant for "Good Reason" shall mean the
voluntary termination of employment by the Participant following a change in
control because of (i) the assignment to the Participant without his express
consent, of duties inconsistent with an executive position with the new employer
or Centura; or (ii) a reduction by the new employer or Centura in the
Participant's Base salary below the annual amount in effect as of the effective
date of the Change in Control or as the same shall have been increased from time
to time following such effective date; or (iii) a reduction in the level, scope
or coverage of life insurance, medical or hospitalization insurance, disability
insurance or of similar plans or benefits (including the
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new employer's pension or other retirement plan) below that being provided by
the new employer or Centura to the Participant as of the effective date of the
Change in Control, or the elimination of any such insurance, plans or benefits,
unless such reduction or elimination applies proportionately to all salaried
employees of the new employer and Centura who participated in such benefits
prior to the Change in Control; or (iv) the failure of the new employer to
assume expressly the obligation of Centura or its Subsidiaries under this Plan
as contemplated herein; or (v) the relocation of the Participant's primary
office or job location to a location outside of North Carolina, without the
Participant's express written consent.
8.5 For purposes of the Plan, "cause" shall be defined as (i) a willful
and continued failure or habitual neglect by Participant to perform
substantially his duties with Centura in accordance with operating and personnel
policies of Bank and generally applicable to all employees (other than due to
Disability); or (ii) a material breach by Participant of his fiduciary duties of
loyalty or care to Centura; or (iii) a willful violation by Participant of any
provision of the Plan; or (iv) a conviction of, or the entering of a plea of
nolo contendere by Participant for any felony or any crime involving fraud or
dishonesty; or (v) a willful violation of any federal or state banking laws or
regulations applicable to Centura; or (vi) an act of willful misconduct of
Participant deemed by Bank to be materially injurious to Bank; or (vii) any
practice or act of the Participant which causes the Participant to no longer be
bondable under Centura's "banker's blanket bond"; or (viii) the commission by
the Participant in the course of his employment with Centura of an act of fraud,
embezzlement, theft or proven dishonesty, or any other illegal act or practice
(whether or not resulting in criminal prosecution or conviction); or (ix) such
other cause as may be specified in the Participant SERP Agreement. For purposes
of the Plan, a Participant's actions will not be considered "willful" if they
are performed in good faith and with reasonable belief that they are in the best
interests of Centura. In addition, if Participant shall terminate his employment
for good reason, in accordance with paragraph 8.1 hereof, and it is ultimately
determined that no reasonable basis existed for Participant's termination for
good reason, such event shall be deemed cause for termination by Centura.
Any notice of termination of Participant's employment with Centura for
cause shall set forth in reasonable detail the facts and circumstances claimed
to provide the basis for termination of his employment under the provisions
contained herein and the date of termination. If the cause alleged by Centura
shall be (i), (ii), (iii), (vi) or (vii) set forth above, Participant shall be
given the opportunity to cure the breach within a reasonable period of time upon
receipt of notice but in no event to exceed thirty (30) days, unless such breach
is not reasonably susceptible to being corrected within thirty (30) days, in
which case Participant shall have the opportunity to cure such breach, provided
that Participant has commenced corrective action within such thirty (30) day
period and diligently pursues such action to completion.
ARTICLE IX - PARTICIPANT COVENANTS AND FORFEITURES
9.1 While Participant is employed by Centura or any Subsidiary, and
during the ten year period following Participant's Retirement or other
Termination of Employment, Participant shall not become the owner of, nor
engage, directly or indirectly, in any business which is substantially similar
to the business of Centura or any of its Subsidiaries, either as proprietor,
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partner, officer, employee, shareholder of any interest over 5%, or as otherwise
provided in the individual Participant SERP Agreement, within a radius of 200
miles from Rocky Mount, North Carolina, or within a radius of 60 miles of any
branch of Centura or any Subsidiary, unless Bank has first consented thereto in
writing.
9.2 Upon a determination by the Committee that Participant has
materially breached the provisions of paragraph 9.1 above, the Committee may
suspend or cancel Retirement or Disability benefit payments due under the
Participant SERP Agreement during the period of Participant's breach, or may
completely eliminate such benefit payments and terminate the Participant SERP
Agreement. Determination of a material breach under Section 9.1, as well as the
required remedial action, are within the sole discretion of the Committee.
ARTICLE X - ASSIGNMENT
Neither a Participant nor his spouse, nor any other beneficiary shall
have any right to sell, transfer, assign, anticipate, hypothecate, mortgage,
commute, modify, or otherwise encumber or convey the right to receive any of the
benefits payable hereunder and under the individual Participant SERP Agreement,
which rights to benefits hereby are expressly declared to be nonassignable and
nontransferable nor shall any such right to receive benefits be subject to
seizure for the payment of any debts, judgments, alimony, equitable distribution
or separate maintenance, owed by the Participant, Participant's spouse or any
other beneficiary of Participant. The right to benefits hereunder and under the
Participant SERP Agreement shall not be transferable by operation of law in the
event of bankruptcy, insolvency, or otherwise. All benefits hereunder and under
the Participant SERP Agreement shall be forfeited and terminated upon the
attempted assignment of benefits described above.
ARTICLE XI - PARTICIPATION IN OTHER PLANS
Nothing herein shall be construed to alter, abridge or affect in any
other manner the right of Participant to participate in any pension, profit
sharing, group insurance, incentive bonus or similar employee benefit plan which
Centura or its Subsidiaries now sponsor or may hereafter adopt.
ARTICLE XII - MERGER OR CONSOLIDATION
Upon a change in control, as defined in Section 8.3, the Plan may be
assumed by the successor corporation, subject to the prior approval of Bank, and
the successor shall have all the rights, duties and obligations of Centura
hereunder and under the Participant SERP Agreement. To the extent provided in
the Participant SERP Agreement, or pursuant to the terms of applicable
agreements effectuating such change in control, a Participant's rights and
benefits shall vest immediately upon the change in control. The Participant SERP
Agreement may also provide for full vesting upon the occurrence of other
corporate events which do not constitute a change of control.
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ARTICLE XIII - CLAIM AND APPEAL PROCEDURE
13.1 Any claim by a Participant or his beneficiary (hereinafter
"Claimant") for benefits shall be submitted to the Committee. The Committee
shall be responsible for deciding whether such claim is within the scope
provided by the Plan (a "Covered Claim") and for providing full and fair review
of the decision on such claim. In addition, the Committee shall provide a full
and fair review in accordance with ERISA, including, without limitation, Section
503 thereof.
13.2 Each Claimant or other interested person shall file with the
Committee such pertinent information as the Committee may specify, and in such
manner and form as the Committee may specify or provide, and such person shall
not have any rights or be entitled to any benefits or further benefits
hereunder, as the case may be, unless such information is filed by the Claimant
or on behalf of the Claimant. Each Claimant shall supply at such times and in
such manner as may be required, written proof that Covered Claims were incurred
or that the benefit is covered under the Plan. If it is determined that a
Claimant has not incurred a Covered Claim or if the Claimant shall fail to
furnish such proof as is requested, no benefits or no further benefits
hereunder, as the case may be, shall be payable to such Claimant.
13.3 Notice of a decision by the Committee with respect to a claim
shall be furnished to the Claimant within sixty (60) days following the receipt
of the claim by the Committee (or within sixty (60) days following the
expiration of the initial sixty (60) day period, in a case where there are
special circumstances requiring extension of time for processing the claim). If
special circumstances require an extension of time for processing the claim,
written notice of the extension shall be furnished by the Committee to the
Claimant prior to the expiration of the initial sixty (60) day period. The
notice of extension shall indicate the special circumstances requiring the
extension and the date by which the notice of decisions with respect to the
claim shall be furnished. Commencement of benefit payments shall constitute
notice of approval of a claim to the extent of the amount of the approved
benefit. If such claim shall be wholly or partially denied, such notice shall be
in writing and worded in a manner calculated to be understood by the Claimant,
and shall set forth: (i) the specific reason or reasons for the denial; (ii)
specific reference to pertinent provisions of the Plan on which the denial is
based; (iii) a description of any additional material or information necessary
for the Claimant to perfect the claim and an explanation of why such material or
information is necessary; and (iv) an explanation of the Plan's claims review
procedure. If the Committee fails to notify the Claimant of the decision
regarding his claim in accordance with these "Claims Procedure" provisions, the
claim shall be deemed denied and the Claimant shall then be permitted to proceed
with the claims review procedure provided herein.
13.4 Within sixty (60) days following receipt by the Claimant of notice
of the claim denial, or within sixty (60) days following the close of the sixty
(60) day period referred to herein, if the Committee fails to notify the
Claimant of the decision within such sixty (60) day period, the Claimant may
appeal denial of the claim by filing a written application for review with the
Committee. Following such request for review, the Committee shall fully and
fairly review the decision denying the claim. The Committee may not delegate its
responsibility for
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reviewing the decision denying the claim; the entire Committee must participate
in the review process. Prior to the decision of the Committee, the Claimant
shall be given an opportunity to review pertinent documents and to submit issues
and comments in writing and request a review of the Committee of the decision
denying the claim. Such a request shall be made in writing and filed with the
Committee within sixty (60) days after delivery to the Claimant of written
notice of the decision. Such written request for review shall contain all
additional information which the Claimant wishes the Committee to consider. The
Committee may hold a hearing or conduct an independent investigation regarding
the merits of the denied claim promptly, and within sixty (60) days following
receipt by the Committee of the request for review (or within one hundred twenty
(120) days after such receipt, in a case where there are special circumstances
requiring extension of time for reviewing such denied claim) shall deliver the
decision to the Claimant in writing. If the decision on review is not furnished
within the prescribed time, the claim shall be deemed denied on review.
For all purposes under the Plan, the decision with respect to a claim
if no review is requested and the decision with respect to a claim if review is
requested shall be final, binding and conclusive on all interested parties as to
participation relating to the Plan.
13.5 All decisions on claims by Participants under the Plan will be
made by the Committee or its delegates (subject to the provisions of Section
13.4 requiring the full Committee to review appealed decisions). The Committee
shall determine claims in accordance with the terms of the Plan and shall have
the power to exercise its discretion in determining all questions arising in
connection with the administration, interpretation and application of the Plan.
The decision of the Committee on matters within its jurisdiction shall be final,
binding and conclusive upon the Claimant, his spouse, any beneficiary of
Participant, and any other person or party interested or concerned.
ARTICLE XIV - GENERAL PROVISIONS
14.1 Centura may procure one or more policies of life insurance on
participants or may take any other action to provide for payment of benefits
under this Plan and any individual Participant SERP Agreements. No such policy
shall be deemed to be held under any trust for the benefit of the Participant or
his or her beneficiary or to be collateral security for the performance of the
obligations of Centura or its Subsidiaries, and any such policy shall be and
remain subject to the claims of the general creditors of Centura and its
Subsidiaries.
14.2 Nothing in the Plan shall confer upon any Participant any right to
continue in the employ of Centura or its Subsidiaries (or to serve as a director
thereof) or interfere in any way with the right of Centura or its Subsidiaries
to terminate his or her employment at any time. Unless specifically provided
otherwise, no benefits granted under the Plan shall be deemed salary or
compensation for the purpose of computing benefits under any employee benefit
plan or other arrangement of Centura or its Subsidiaries for the benefit of its
employees unless the Committee shall determine otherwise. No Participant shall
have any claim to any benefit hereunder until it is actually granted under the
Plan pursuant to a Participant SERP Agreement. To the extent that any person
acquires a right to receive payments from Centura under the Plan, such right
shall,
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except as otherwise provided by the Committee, be no greater than the right of
an unsecured general creditor of Centura. All payments to be made hereunder
shall be paid from the general funds of Centura or its Subsidiaries, and no
special or separate fund shall be established and no segregation of assets shall
be made to assure payment of such amounts, except as provided above and except
as otherwise provided by the Committee.
14.3 Participants who are currently eligible to receive benefits under
the Centura Banks, Inc. Excess Benefit Plan ("Excess Benefit Plan") or any other
non-qualified plan of deferred compensation may elect, to the extent authorized
by the Committee, to exchange such benefits for comparable benefits under this
Plan. By signing the individual Participant SERP Agreement, any such Participant
shall relinquish all entitlement to benefits under the Excess Benefit Plan or
other non-qualified plan.
14.4 Centura may make such provisions and take such steps as it may
deem necessary or appropriate for the withholding of any taxes which Centura is
required by any law or regulation of any governmental authority, whether
federal, state or local, domestic or foreign, to withhold in connection with any
benefits provided hereunder, including, but not limited to, the withholding of
payment of all or any portion of such benefits under this Plan until the
Participant reimburses Centura or its Subsidiaries for the amount Centura or its
Subsidiaries is required to withhold with respect to such taxes, or canceling
any portion of such benefits under this Plan in an amount sufficient to
reimburse itself for the amount it is required to so withhold, or selling any
property contingently credited by Centura for the purpose of paying such
benefits under this Plan, in order to withhold or reimburse itself for the
amount it is required to so withhold.
14.4 The Plan shall be construed in accordance with the laws of the
state of North Carolina to the extent not preempted by the laws of the United
States of America, including ERISA.
14.5 The Compensation Committee of the Board, in its sole discretion,
may unilaterally amend the Plan from time to time. Any such amendment shall be
made effective by an instrument signed by the Chairman of the Compensation
Committee or by an officer of Centura designated by the Compensation Committee
to act on its behalf. No such amendment shall reduce a Participant's or a
beneficiary's benefits under the Plan and under the Participant SERP Agreement
to an amount less than an amount that he would have been entitled to under the
Plan on the later of the date the amendment is adopted or made effective, as if
the Plan had been terminated on that date. The amount so determined shall be
considered the Participant's accrued benefit. Participant's accrued benefits
under the Plan and under the Participant SERP Agreement can be amended only with
Participant's written consent.
14.6 Although the Plan is intended to be permanent, notwithstanding any
provision herein, Centura may terminate this Plan, and a Subsidiary may
terminate its participation herein, at any time. Upon such termination, the sole
amount payable to a Participant shall be determined in accordance with
termination provisions specified in the Participant SERP Agreement. In the
absence of such provisions, the sole amount payable to a Participant shall be
calculated as if the Participant terminated employment on the date the Plan
terminated, and shall be paid in a lump
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sum as the actuarial equivalent of the accrued benefit, determined using the
Discount Rate, as soon as administratively possible after the termination of the
Plan.
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IN WITNESS WHEREOF, Centura, by its duly authorized officer, has
executed this Amended and Restated Omnibus Supplemental Executive Retirement
Plan, under seal, on this 24th day of December, 1998.
CENTURA BANKS, INC.
ATTEST
/s/ Lynn O. Parrish By: /s/ Frank L. Pattillo
- -------------------------- ----------------------------------
(Corporate Seal)
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