Exhibit 10.6
FOUR OAKS BANK & TRUST COMPANY
SUPPLEMENTAL EXECUTIVE
RETIREMENT PLAN
AYDEN R. LEE, JR.
Originally Effective as of January 1, 1998
Amended and Restated as of December 12, 2008
FOUR OAKS BANK & TRUST COMPANY
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
AYDEN R. LEE, JR.
ARTICLE I
INTRODUCTION
1.1 In General. This Plan is an optional deferred compensation plan that is
intended to provide supplemental retirement benefits to Ayden R. Lee, Jr.,
President of Four Oaks Bank & Trust Company (the "Participant"), to encourage
the Participant to remain as an employee of Four Oaks Bank & Trust Company and
any successor thereto (the "Bank") and to reward him for contributing materially
to the success of the Bank. The Plan shall be construed and interpreted for
purposes of the Code and ERISA as an unfunded plan maintained primarily for the
purpose of providing deferred compensation for a select group of management or
highly compensated employees within the meaning of ERISA Section 201(2).
1.2 Name. This instrument and any amendments hereto shall be known as the
Four Oaks Bank & Trust Company Supplemental Executive Retirement Plan (herein
referred to as the "Plan").
1.3 Effective Date. The Plan was originally effective as of January 1, 1998
(the "Effective Date"). It was amended and restated effective as of December 12,
2008 to comply with the requirements of Section 409A of the Code.
ARTICLE II
DEFINITIONS
2.1 "Account Balance" means the estimated account balance in the
Participant's 401(k) plan sponsored by the Bank. The estimation assumes that the
Participant will contribute to the Bank's 401(k) plan the minimum amount
necessary at the last day of each year to receive the maximum matching
contribution from the Bank for that year. This account balance is accumulated
each year using the interest rate prescribed for employee contributions under
Section 411(c)(2)(C)(iii) of the Internal Revenue Code, as of the first day of
the plan year. For purposes of this Plan, Participant's Account Balance as of
January 1, 1998, was $228,372, to which contributions and earnings have and will
be added. It is understood and agreed to by the parties that on any given date
after the Effective Date, the Account Balance likely will not be the same amount
as the actual dollar amount of the Participant's account balance in the 401(k)
plan sponsored by the Bank.
2.2 "Actuarial Equivalence" means present values calculated using the
interest rate on 30-year treasury securities for the month prior to the first
day of the plan year, as prescribed by the Retirement Protection Act of 1994,
and the 1983 Group Annuity Mortality Tables used for lump sum purposes under the
Retirement Protection Act of 1994.
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2.3 "Average Annual Compensation" means the annual average of the
Compensation received by Participant during his three (3) consecutive years of
Service with respect to which the Participant receives the highest Compensation
that occurs within his five (5) years of Service immediately preceding his
Retirement or earlier termination of employment, or if less, the number of
complete calendar years during his period of participation.
2.4 "Beneficiary" means such person designated by the Participant in a
written instrument filed with the Board to receive any death benefit that is
payable under this Plan. In the event no valid Beneficiary designation exists at
the time of the Participant's death, the death benefit shall be payable to his
spouse or, if there is no surviving spouse, to his estate.
2.5 "Board" means the Board of Directors of the Bank.
2.6 "Change in Control" means, for purposes of this Plan, that a change
shall have occurred upon any purchase, assignment, merger, consolidation, pledge
or transfer of any kind (e.g., voluntary, involuntary or by operation of law) of
the voting securities of the Bank or FOFN, or an increase in percentage of
ownership of the Bank or FOFN resulting from a redemption of voting securities
(any of the foregoing transactions hereinafter referred to as an "Acquisition")
if, after the Acquisition, (i) the acquiring party (or parties acting in
concert) owns, controls, or holds the power to vote more than fifty percent
(50%) of the total voting power of the securities of the Bank or FOFN, as
applicable, (ii) the Bank or FOFN, as applicable, is not the surviving entity
and immediately after the Acquisition, the acquiring party (or parties acting in
concert) owns, controls, or holds the power to vote more than fifty percent
(50%) of the total voting power of the securities of the surviving entity, or
(iii) the directors of the Bank or FOFN, as applicable, immediately prior to the
Acquisition constitute less than a majority of the board of directors of the
surviving entity.
2.7 "Code" means the Internal Revenue Code of 1986, as amended, and any
successor statue thereof, as interpreted by the rules and regulations issued
thereunder, in each case as in effect from time to time.
2.8 "Compensation" means the total compensation paid by the Bank to the
employee during any plan year for services performed that would otherwise be
includible in gross income. Compensation taken into account for this purpose
shall be the compensation paid to the employee prior to any reduction under (i)
a salary reduction agreement entered into by the Participant pursuant to a plan
maintained by the Bank that qualifies under Section 401(k) of the Code, or (ii)
a salary reduction agreement entered into by the Participant pursuant to a plan
maintained by the Bank that qualifies under Section 125 of the Code.
2.9 "Disability" or "Disabled" means the Participant is, by reason of any
medically determinable physical or mental impairment which can be expected to
result in death or can be expected to last for a continuous period of not less
than twelve (12) months, receiving income replacement benefits for a period of
not less than three (3) months under an accident and health plan covering
employees of the Bank. Notwithstanding the foregoing, the Participant shall be
deemed Disabled if he is determined to be totally disabled by the Social
Security Administration.
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2.10 "Early Retirement Date" means the first day of the month (prior to the
Normal Retirement Date) coinciding or next following the date on which the
Participant or former Participant attains his 55th birthday (Early Retirement
Age).
2.11 "Employer" means the Bank, and any entity required to be aggregated
with the Bank by Sections 414(b), (c), (m), or (o) of the Code.
2.12 "ERISA" means the Employee Retirement Income Security Act of 1974 as
it may be amended from time to time.
2.13 "401(k) Offset Benefit" means the Account Balance as of the date of
retirement or other termination of employment, divided by the present value of
one dollar paid at the beginning of each year for the Participant's lifetime,
determined as of the date of retirement or termination, as the case may be,
using the definition of Actuarial Equivalence, as set forth in Section 2.2 of
this Plan.
2.14 "FOFN" means Four Oaks Fincorp, Inc., a North Carolina corporation, or
any successor thereto.
2.15 "Normal Form of Payment" means a monthly annuity payable for the
Participant's lifetime, to be paid to the Participant, or, in the case of the
Participant's death, his named beneficiary or estate.
2.16 "Normal Retirement Date" means the first day of the month coinciding
or next following the Participant's Normal Retirement Age (65th birthday).
2.17 "Service" means the Participant's period of employment with the
Employer, measured in years and completed months, beginning not earlier than the
Effective Date of this Plan.
2.18 "Social Security Benefit" means the annual Primary Insurance Amount
estimated to be payable to the Participant at age 65 under the Federal Social
Security Act assuming continued Compensation to age 65 after retirement or
termination and projected prior Compensation based on a estimated wage history
projected backwards utilizing changes in average wages from year to year as
determined by the Social Security Administration. It is understood and agreed to
by the parties that in certain circumstances, the Social Security Benefit may
result in an offset in benefits payable to the Participant under the terms of
this Plan, even though the Participant may not yet have reached the age to
receive an actual social security benefit payment from the Social Security
Administration.
2.19 "Vested" means that the benefit payable under this Plan with respect
to the Participant is nonforfeitable.
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ARTICLE III
DEFERRED COMPENSATION
3.1 Normal Retirement. Upon retirement on or after his Normal Retirement
Age, the Employer shall pay the Participant an annual supplemental retirement
benefit (which benefit is herein called his Normal Retirement Benefit), subject
to Section 3.7, equal to the sum of seventy-five percent (75%) of the
Participant's Average Final Compensation reduced by the Participant's (i) 401(k)
Offset Benefit and (ii) Social Security Benefit. The Participant shall become
fully Vested in his Normal Retirement Benefit upon attaining Normal Retirement
Age. The Normal Retirement Benefit shall be payable, according to the Normal
Form of Payment, in monthly installments commencing on the first day of the
month following the Participant's retirement on or after his Normal Retirement
Date and continuing on the first of each month thereafter for the Participant's
lifetime.
3.2 Early Retirement. Upon retirement on or after his Early Retirement Age
but prior to his Normal Retirement Date, the Employer shall pay, in lieu of a
Normal Retirement Benefit, the Participant an annual supplemental retirement
benefit (which benefit is herein called his Early Retirement Benefit), subject
to Section 3.7, of a certain percentage of the Normal Retirement Benefit, to be
determined as follows:
Early Retirement Benefit as a
Age at Retirement Percentage of Normal Retirement
----------------- -------------------------------
55 58%
56 64%
57 70%
58 76%
59 82%
60 88%
61 94%
62 100%
63 100%
64 or older 100%
The Early Retirement Benefit shall be payable, according to the Normal Form of
Payment, in monthly installments commencing on the first day of the month
following the Participant's retirement on or after his Early Retirement Date and
continuing on the first of each month thereafter for the Participant's lifetime.
3.3 Deferred Vested Benefit. Upon termination of employment from the
Employer at any time before age 55 (for any reason other than death, Disability
as defined in Section 3.5 or a Change in Control, as defined in Section 3.6),
the Participant shall not be entitled to any benefits under this Plan.
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3.4 Death Benefit. If the Participant dies before the commencement of the
payment of benefits payable under Sections 3.1, 3.2, or 3.5, the Employer shall
pay to his Beneficiary a death benefit (which benefit is herein called his
Pre-retirement Survivor Benefit). An annual vested benefit is calculated in the
same manner as the Normal Retirement Benefit, but using the Average Annual
Compensation, 401(k) Offset Benefit and Social Security Benefit as of the date
of death, multiplied by the ratio of the Participant's Service as of the date of
death over the Participant's projected Service at Normal Retirement Date. If the
Participant was eligible to retire at the date of death, in no event shall the
annual vested benefit be less than what the Participant would have received if
he had retired as of the date of his death. The annual vested benefit as
described above in this Section 3.4 shall then be converted to a lump sum by
multiplying the annual vested benefit by the present value of one dollar paid at
the beginning of each year for the Participant's life expectancy, determined
immediately before the Participant's death, using the Actuarial Equivalence
definition as stated in Section 2.2 of this Plan. The lump sum amount so
determined is hereafter referred to as the Pre-retirement Survivor Benefit, and
shall be paid to the Participant's Beneficiary in 60 equal monthly installments,
including interest, at an interest rate determined by reference to Section 2.2
of this Plan. Such monthly payments shall commence on the first day of the
second month following the date of the Participant's death and continue on the
first of each month thereafter for 59 months.
If the Participant dies after the commencement of the payment of benefits
payable under Sections 3.1, 3.2, or 3.5, the Employer shall pay to his
Beneficiary a death benefit (which benefit is herein called his Survivor
Benefit) equal to the annual vested benefit payable to the Participant
immediately prior to his death, multiplied by the present value of one dollar
paid at the beginning of each year for the Participant's life expectancy,
determined immediately before the Participant's death, using the Actuarial
Equivalence definition as stated in Section 2.2 of this Plan. The lump sum
amount hereafter referred to as the Survivor Benefit, so determined shall be
paid to the Participant's Beneficiary in 60 equal monthly installments,
including interest, at an interest rate determined by reference to Section 2.2
of this Plan. Such monthly payments shall commence on the first day of the
second month following the date of the Participant's death and continue on the
first of each month thereafter for 59 months..
3.5 Benefit Payable on Disability. In the event of the Participant's
Disability, a disability benefit shall be payable from this Plan. The annual
disability retirement benefit shall be calculated in the same manner as the
Normal Retirement Benefit, but using the Participant's Average Annual
Compensation, 401(k) Offset Benefit and Social Security Benefit as of the date
of Disability, multiplied by the ratio of the Participant's Service as of the
date of Disability over the Participant's projected Service at Normal Retirement
Date. If the Participant was eligible to retire at the date of Disability, in no
event shall this disability benefit be less than what the Participant would have
received if he had retired at the date of Disability instead. A monthly amount
(equal to 1/12th of the annual disability retirement benefit) shall be payable
as an annuity under the Normal Form of Payment, with such payments commencing on
the first day of the second month following the month in which the Participant
became Disabled and continuing on the first of each month thereafter for the
Participant's lifetime.
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3.6 Benefit Payable on Change in Control. If a Change in Control, as
defined in Section 2.7 occurs and the Participant's employment with the Employer
terminates within twenty-four (24) months thereafter for any reason (other than
termination for cause by Employer), a vested benefit shall be payable from this
Plan. The annual vested benefit is calculated in the same manner as the Normal
Retirement Benefit, but using the Average Annual Compensation, 401(k) Offset
Benefit and Social Security Benefit as of the date of vesting, multiplied by the
ratio of the Participant's Service as of the date of vesting over the
Participant's projected Service at Normal Retirement Date. If the Participant
was eligible to retire at the date of vesting, in no event shall this vested
benefit be less than what the Participant would have received if he had retired
at the date of vesting instead. The annual vested benefit shall be converted to
a lump sum by multiplying the annual vested benefit by the present value of one
dollar paid at the beginning of each year for the Participant's life expectancy,
using the Actuarial Equivalence definition as stated in Section 2.2 of this
Plan. The lump sum amount, as so determined, shall be paid to the Participant
within 30 days after the Participant's employment terminates as described above.
3.7 Limitation on Benefits. Notwithstanding anything in this Plan to the
contrary, the maximum annual benefit payable under this Plan shall not exceed
$50,000 per year, payable at the Normal Retirement Age. If, prior to the
Participant's Normal Retirement Age, a benefit is or becomes payable because of
the Participant's death, a Change in Control, the Participant's Disability, or
on or after the Participant attains Early Retirement Age, the benefit payable to
the Participant shall be determined as follows: The maximum life annuity of
$50,000 per year at Normal Retirement Age shall be reduced 5% per year for each
year (up to a maximum 10 year reduction) that the benefit becomes payable prior
to the Participant's Normal Retirement Age, so that the annual benefit at age 55
(or earlier age in the event of death, Disability or Change in Control) shall be
based upon a life annuity not to exceed $25,000 per year.
To the extent a single lump sum payment is made involving one of the above
contingencies, the single lump sum payment shall not exceed the present value of
the maximum life annuity payable as given above, using the definition of
Actuarial Equivalence, as set forth in Section 2.2 of this Plan.
ARTICLE IV
MISCELLANEOUS
4.1 Indemnification of Board. In addition to such other rights of
indemnification as they may have as directors or as members of the Committee,
the members of the Board or Committee shall be indemnified by the Employer
against the reasonable expenses, including attorneys' fees, actually and
necessarily incurred in connection with the defense of any action, suit, or
proceedings, or in connection with any appeal therein, to which they or any of
them may be a part by reason of any action taken in connection with this Plan,
and against all amounts paid by them in settlement thereof (provided such
settlement is approved by independent legal counsel selected by the Bank) or
paid by them in satisfaction of a judgment in any such action, suit, or
proceeding, except in relation to matters as to which it shall be adjudged in
such action, suit, or proceeding that such member is liable for negligence or
misconduct in the performance of his duties; provided that within sixty (60)
days after institution of any such action, suit, or proceeding a Board or
Committee member shall in writing offer the Bank the opportunity, at its own
expense, to handle and defend the same.
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4.2 Amendments. The Bank may from time to time amend or terminate, in whole
or in part, any or all of the provisions of the Plan; provided, however, no such
action shall adversely affect the existing or future rights or interests of the
Participant under this Plan without his written consent. Any such action shall
be adopted by formal action of the Board and executed by an officer, director,
or person authorized to act on behalf of the Bank.
4.3 Nonalienation. Except insofar as applicable law may otherwise require
and with respect to the designation of a Beneficiary upon death, (i) no amount
payable to or in respect of the Participant at any time shall be subject in any
manner to alienation by such Participant or his Beneficiary by anticipation,
sale, transfer, assignment, bankruptcy, pledges, attachment, charge, or
encumbrance of any kind, any attempt to so alienate, sell transfer, assign,
pledge, attach, charge, or otherwise encumber any such amount, whether presently
or thereafter payable, shall be void; and (ii) the Employer shall in no manner
be liable for or subject to the debts, liabilities, contracts, engagements, or
torts of the Participant or his Beneficiary.
4.4 Employment Relationship. Nothing contained in this Plan shall be deemed
to give the Participant or employee the right to be retained in the service of
the Employer, or to interfere with the right of the Employer to discharge the
Participant at any time regardless of the effect which such discharge shall have
upon him as the Participant under this Plan.
4.5 Participation in Other Employee Benefit Plans. Nothing contained in
this Plan shall in any manner modify, impair, or affect the existing or future
rights or interests of the Participant (i) to receive any employee benefits to
which he would otherwise be entitled, or (ii) to participate in any present or
future "employee benefit plan" (as defined in Section 3(3) of the Act) of the
Employer. Any deferred compensation payable under this Plan shall not be deemed
salary or other compensation to the Participant for the purpose of computing
benefits to which he may be entitled under any "employee benefit plan" of the
Employer.
4.6 Relationship. Notwithstanding any other provision of this Plan, this
Plan and action taken pursuant to it shall not be deemed or construed to
establish a trust or fiduciary relationship of any kind between or among the
Employer, the Participant, the Beneficiaries, or any other persons. The Plan is
intended to be unfunded for purposes of the Code and ERISA. The right of the
Participant and Beneficiaries to receive payment of deferred compensation is
strictly a contractual right to payment, and this Plan does not grant nor shall
it be deemed to grant the Participant, beneficiaries, or any other person any
interest in or right to any of the funds, property, or assets of the Employer
other than as an unsecured general creditor of the Employer.
4.7 Construction of Plan. This Plan shall be construed and enforced
according to the laws of the State of North Carolina and, to the extent
applicable, federal law. Whenever any words are used herein in the singular or
plural form, they shall be construed as though they were also used in the other
form in all cases where they would so apply. The headings and subheadings of
this Plan have been inserted for convenience of reference and are to be ignored
in any construction of the provisions hereof.
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ARTICLE V
SECTION 409A
5.1 Intent. The provisions of this Plan are intended to comply with Section
409A of the Code, and the regulations thereunder (collectively, "Section 409A")
and shall be construed in a manner consistent with the requirements for avoiding
taxes or penalties under Section 409A. If any provision of this Plan would cause
the Participant to incur any additional tax or interest under Section 409A, the
Bank shall, upon the specific request of the Participant, use its reasonable
business efforts to in good faith reform such provision to comply with Code
Section 409A; provided, that to the maximum extent practicable, the original
intent and economic benefit to the Participant and the Bank of the applicable
provision shall be maintained, and the Bank shall have no obligation to make any
changes that could create any additional economic cost or loss of benefit to the
Bank. Notwithstanding the foregoing, the Bank shall have no liability with
regard to any failure to comply with Section 409A so long as it has acted in
good faith with regard to compliance therewith.
5.2 Separation from Service. A termination of employment shall not be
deemed to have occurred for purposes of any provision of this Plan providing for
the payment of any amounts or benefits upon or following a termination of
employment unless such termination also constitutes a "Separation from Service"
within the meaning of Section 409A and, for purposes of any such provision of
this Plan, references to a "termination," "termination of employment,"
"separation from service" or like terms shall mean Separation from Service.
5.3 Separate Payments. Each installment payment required under this Plan
shall be considered a separate payment for purposes of Section 409A.
5.4 Delayed Distribution to Key Employees. If the Bank determines in
accordance with Sections 409A and 416(i) of the Code and the regulations
promulgated thereunder, in the Bank's sole discretion, that the Participant is a
Key Employee of the Bank on the date his employment with the Bank terminates and
that a delay in benefits provided under this Plan is necessary to comply with
Code Section 409A(A)(2)(B)(i), then the payment of any benefits provided for
under this Plan shall be delayed for a period of six (6) months following the
date of termination of the Participant's employment (the "409A Delay Period").
In such event, any benefits provided for under this Plan that would otherwise be
due and payable to the Participant during the 409A Delay Period shall be paid to
the Participant in a lump sum cash amount in the month following the end of the
409A Delay Period. For purposes of this Plan, "Key Employee" shall mean an
employee who, on an Identification Date ("Identification Date" shall mean each
December 31) is a key employee as defined in Section 416(i) of the Code without
regard to paragraph (5) thereof. If the Participant is identified as a Key
Employee on an Identification Date, then he shall be considered a Key Employee
for purposes of this Plan during the period beginning on the first April 1
following the Identification Date and ending on the following March 31.
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IN WITNESS WHEREOF, this amended and restated Plan document has been
executed as of the 12th day of December, 2008.
FOUR OAKS BANK & TRUST COMPANY
BY: /s/ Wanda J. Blow, V.P.
--------------------------------------------
PARTICIPANT
/s/ Ayden R. Lee, Jr.
- -------------------------------------------------
Ayden R. Lee, Jr.
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