Amended and Restated Executive Salary Continuation Plan, dated April 2, 2018, between Origin Bancorp, Inc., and Drake Mills
EX-10.1 2 drakeamendedandrestatedexe.htm EXHIBIT 10.1 Exhibit
AMENDED AND RESTATED
EXECUTIVE SALARY CONTINUATION PLAN
THIS PLAN, made and entered into this 1st day of May, 2008, by and between Community Trust Bank, a bank organized and existing under the laws of the State of Louisiana (hereinafter referred to as the "Bank"), and Drake D. Mills, an Executive of the Bank (hereinafter referred to as the "Executive"), a member of a select group of management and highly compensated employees of the Bank, shall amend and restate the Executive Salary Continuation Agreement effective January 1, 2004.
WHEREAS, the Executive has been and continues to be a valued Executive of the Bank; and
WHEREAS, the purpose of this Plan is to further the growth and development of the Bank by providing the Executive with supplemental retirement income, and thereby encourage the Executive's productive efforts on behalf of the Bank and the Bank's shareholders, and to align the interests of the Executive and those shareholders; and
WHEREAS, it is the desire of the Bank and the Executive to enter into this Plan under which the Bank will agree to make certain payments to the Executive at retirement or the Executive's Beneficiary in the event of the Executive's death pursuant to this Plan; and
ACCORDINGLY, it is intended that the Plan be "unfunded" for purposes of the Employee Retirement Income Security Act of 1974, as amended ("BRISA'') and not be construed to provide income to the participant or beneficiary under the Internal Revenue Code of 1986, as amended (the "Code"), particularly Section 409A of the Code and guidance or regulations issued thereunder, prior to actual receipt of benefits; and
NOW THEREFORE, it is agreed as follows:
The Effective Date of this Plan shall be May 1, 2008.
The salary continuation benefits provided by this Plan are granted by the Bank as a fringe benefit to the Executive and are not part of any salary reduction plan or an arrangement deferring a bonus or a salary increase. The Executive has no option to take any current payment or bonus in lieu of these salary continuation benefits except as set forth hereinafter.
The Executive shall have the right to name a Beneficiary of the Death Benefit. The Executive shall have the right to name such Beneficiary at any time prior to the Executive's death and submit it to the Plan Administrator (or Plan Administrator's representative) on the form provided. Once received and acknowledged by the Plan Administrator, the form shall be effective. The Executive may change a Beneficiary designation at any time by submitting a new form to the Plan Administrator. Any such change shall follow the same rules as for the original Beneficiary designation and shall automatically supersede the existing Beneficiary form on file with the Plan Administrator.
If the Executive names someone other than his or her spouse as a Beneficiary, a spousal consent, in the form designated by the Plan Administrator, must be signed by that Executive's spouse and returned to the Plan Administrator.
If the Executive dies without a valid Beneficiary designation on file with the Plan Administrator, death benefits shall be paid to the Executive’s estate.
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 distribution 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 distribution of a benefit shall be a distribution for the account of the Executive and the Beneficiary, as the case may be, and shall be a complete discharge of any liability under the Plan for such distribution amount.
Change in Control:
"Change in Control" shall mean a change in ownership or control of the Bank as defined in Treasury Regulation Section 1.409A-3(i) (5) or any subsequently applicable Treasury Regulation
Disability or Disabled:
"Disability or Disabled" shall mean the Executive: (i) is unable to engage in any substantial gainful activity 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, or (ii) 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. Medical determination of Disability may be made by either the Social Security Administration or by the provider of an accident or health plan covering executives of the Bank, provided that the definition of Disability applied under such Disability insurance programs complies with the requirements of Section 409A. Upon the request of the Plan Administrator, the Executive must submit proof to the Plan Administrator of the Social Security Administration's or provider's determination.
Discharge For Cause:
The term "For Cause" shall mean any of the following that result in an adverse effect on the Bank: (i) the conviction of a felony or gross misdemeanor involving fraud or dishonesty; (ii) the willful violation of any banking law, rule, or banking regulation (other than a traffic violation or similar offense); (iii) an intentional failure to perform stated duties; or (iv) a breach of fiduciary duty involving personal profit. If a dispute arises as to discharge "For Cause," such dispute shall be resolved by arbitration as set forth in this Plan.
Normal Retirement Age:
"Normal Retirement Age" shall mean the date on which the Executive attains age sixty-five (65).
Any reference to "Plan Year" shall mean a calendar year from January 1st to December 31st. In the year of implementation, the term "Plan Year" shall mean the period from the Effective Date to December 31st of the year of the Effective Date.
Restriction on Timing of Distribution:
Notwithstanding any provision of this Plan to the contrary, distributions hereunder may not commence earlier than six (6) months after the date of a Separation from Service, as that term is used under Section 409A if, pursuant to Internal Revenue Code Section 409A, the Executive is considered a "specified employee" of the Bank under Internal Revenue Code Section 416(i), if any stock of the Bank is publicly traded on an established securities market or otherwise. In the event a distribution is delayed pursuant to this paragraph, the originally scheduled payment shall be delayed for six (6) months, and shall commence instead on the first day of the seventh month following Separation from Service. If payments are scheduled to be made in installments, the first six (6) months of installment payments shall be delayed, aggregated, and paid instead on the first day of the seventh month, after which all installment payments shall be made on their regular schedule. If payment is scheduled to be made in a lump sum, the lump sum payment shall be delayed for six (6) months and instead be made on the first day of the seventh month.
"Retirement Date" shall mean the later of the Executive's Normal Retirement Age or Separation from Service.
Separation from Service:
"Separation from Service" shall mean the Executive has experienced a termination of employment with the Bank. For purposes of this Plan, whether a termination of employment or service has occurred is determined based on whether the facts and circumstances indicate that the Bank and Executive reasonably anticipated that no further services would be performed after a certain date or that the level of bona fide services the Executive would perform after such date (whether as an Executive or as an independent contractor) would permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed (whether as an Executive or an independent contractor) over the immediately preceding thirty-six (36) month period (or the full period of services to the Bank if the Executive has been providing services to the Bank less than 36 months). Facts and circumstances to be considered in making this determination include, but are not limited to, whether the Executive continues to be treated as an Executive for other purposes (such as continuation of salary and participation in Executive benefit programs), whether similarly situated service providers have been treated consistently, and whether the Executive is permitted, and realistically available, to perform services for other service recipients in the same line of business. The Executive will be presumed not to have separated from service where the level of bona fide services performed continues at a level that is fifty percent (50%) or more of the average level of service performed by the Executive during the immediately preceding thirty-six (36) month period.
Upon attainment of the Retirement Date, the Bank shall pay the Executive an annual benefit equal to Two Hundred Sixty-Four Thousand Forty and 00/100ths Dollars ($264,040.00). For each year that the Executive or the Executive's Beneficiary shall receive a benefit, said benefit amount shall be increased by one and one-half percent (1.5%) from the previous year's benefit amount. Said benefit shall be paid in equal annual installments until the death of the Executive. Said payment shall be made the first day of the month following Separation from Service.
In the event the Executive should die at any time after the Effective Date of this Plan, the Bank will pay the accrued balance on the date of death, of the Executive's Accrued Liability Retirement Account in one (1) lump sum to the Executive's Beneficiary. Said payment due hereunder shall be made within sixty (60) days of the Executive's death.
BENEFIT ACCOUNTING/ACCRUED LIABILITY RETIREMENT ACCOUNT
The Bank shall account for this benefit using the regulatory accounting principles of the Bank's primary federal regulator. The Bank shall establish an Accrued Liability Retirement Account for the Executive on the books of the Bank into which appropriate reserves shall be accrued.
The Executive shall be ten percent (10%) vested in the Accrued Liability Retirement Account, for each year of employment with the Bank, from the Effective Date of the original Plan (February 7, 2001), to a maximum of one hundred percent (100%).
TERMINATION PRIOR TO NORMAL RETIREMENT AGE
Subject to Paragraph IX, in the event that the employment of the Executive shall terminate prior to the Normal Retirement Age, by the Executive's voluntary action, or by the Executive's discharge by the Bank without cause, the Bank shall pay to the Executive an amount of money equal to the balance of the Executive's Accrued Liability Retirement Account on the date of Separation from Service, multiplied by the Executive's cumulative vested percentage. Such balance shall be paid in three (3) annual installments, commencing the first day of the month following Separation from Service, and continuing on the following anniversary date thereof, until said annual installments are paid in full.
DISCHARGE FOR CAUSE
Notwithstanding anything to the contrary, in the event the Executive shall be discharged for Cause at any time, this Plan shall terminate and all benefits provided herein shall be forfeited.
DISABILITY OR DISABLED
In the event the Executive becomes Disabled prior to the Executive's Normal Retirement Age, the Executive shall become one hundred percent (100%) vested in the balance of the Accrued Liability Retirement Account. Said balance shall be paid in a lump sum, thirty (30) days following the Executive's Disability.
CHANGE IN CONTROL
Upon a Change in Control, the Executive shall become one hundred percent (100%) vested in the Retirement Benefit. The Executive shall receive the Retirement Benefit as if the Executive had been continuously employed by the Bank until the Executive's Normal Retirement Age. Such benefit shall be paid in accordance with Paragraph IV, commencing on the first day of the month following the Executive's Normal Retirement Age.
RESTRICTIONS ON FUNDING
The Bank shall have no obligation to set aside, earmark or entrust any fund or money with which to pay its obligations under this Plan. The Executive, their Beneficiary, or any successor in interest shall be and remain simply a general creditor of the Bank in the same manner as any other creditor having a general claim for matured and unpaid compensation.
The Bank reserves the absolute right, at its sole discretion, to either fund the obligations undertaken by this Plan or to refrain from funding the same and to determine the extent, nature and method of such funding. Should the Bank elect to fund this Plan, in whole or in part, through the purchase of life insurance, mutual funds, Disability policies or annuities, the Bank reserves the absolute right, in its sole discretion, to terminate such funding at any time, in whole or in part. At no time shall any Executive be deemed to have any lien, right, title or interest in any specific funding investment or assets of the Bank.
If the Bank elects to invest in a life insurance, Disability or annuity policy on the life of the Executive, then the Executive shall assist the Bank by freely submitting to a physical exam and supplying such additional information necessary to obtain such insurance or annuities.
Alienability and Assignment Prohibition:
Neither the Executive nor any Beneficiary under this Plan shall have any power or right to transfer, assign, anticipate, hypothecate, mortgage, commute, modify or otherwise encumber in advance any of the benefits payable hereunder nor shall any of said benefits be subject to seizure for the payment of any debts, judgments, alimony or separate maintenance owed by the Executive or the Executive's Beneficiary, nor be transferable by operation of law in the event of bankruptcy, insolvency or otherwise.
Amendment or Revocation:
Subject to Paragraph XV, during the lifetime of the Executive, this Plan may be amended or revoked at any time or times, in whole or in part only, by the mutual written consent of the Executive and the Bank. Any such amendment shall not be effective to decrease or restrict the Executive's accrued benefit under this Plan, determined as of the date of amendment, unless agreed to in writing by the Executive, and provided further, no amendment shall be made, or if made, shall be effective, if such amendment would cause the Plan to violate Internal Revenue Code Section 409A.
The validity and interpretation of this Plan shall be governed by the laws of the State of Louisiana.
Binding Obligation of the Bank and any Successor in Interest:
The Bank shall not merge or consolidate into or with another bank or sell substantially all of its assets to another bank, firm or person until such bank, firm or person expressly agrees, in writing, to assume and discharge the duties and obligations of the Bank under this Plan. This Plan shall be binding upon the parties hereto, their successors, assignees, beneficiaries, heirs and personal representatives.
Whenever in this Plan words are used in the masculine or neutral gender, they shall be read and construed as in the masculine, feminine or neutral gender, whenever they should so apply.
Headings and subheadings in this Plan are inserted for reference and convenience only and shall not be deemed a part of this Plan.
Not a Contract of Employment:
This Plan shall not be deemed to constitute a contract of employment between the parties hereto, nor shall any provision here of restrict the right of the Bank to discharge the Executive, or restrict the right of the Executive to terminate employment.
Opportunity to Consult with Independent Advisors:
The Executive acknowledges that he has been afforded the opportunity to consult with independent advisors of his choosing including, without limitation, accountants or tax advisors and legal counsel regarding both the benefits granted to him under the terms of this Plan and the: (i) terms and conditions which may affect the Executive's right to these benefits; and (ii) personal tax effects of such benefits including, without limitation, the effects of any federal or state taxes, Section 280G of the Code, Section 409A of the Code and guidance or regulations thereunder, and any other taxes, costs, expenses or liabilities whatsoever related to such benefits, which in any of the foregoing instances the Executive acknowledges and agrees shall be the sole responsibility of the Executive notwithstanding any other term or provision of this Plan. The Executive further acknowledges and agrees that the Bank shall have no liability whatsoever related to any such personal tax effects or other personal costs, expenses, or liabilities applicable to the Executive and further specifically waives any right for himself or herself, and his or her heirs, beneficiaries, legal representative, agents, successor and assign to claim or assert liability on the part of the Bank related to the matters described above in this paragraph. The Executive further acknowledges that he has read, understands and consents to all of the terms and conditions of this Plan, and that he enters into this Plan with a full understanding of its terms and conditions.
If any term, provision, covenant, or condition of this Plan is determined by an arbitrator or a court, as the case may be, to be invalid, void, or unenforceable, such determination shall not render any other term, provision, covenant, or condition invalid, void, or unenforceable, and the Plan shall remain in full force and effect notwithstanding such partial invalidity.
Permissible Acceleration Provision:
Under Treasury Regulation Section l.409A-3(j)(4), a payment of deferred compensation may not be accelerated except as provided in regulations by the Internal Revenue Code. This Plan allows all permissible payment accelerations under l.409A-3(j)(4) that include but are not limited to payments necessary to comply with a domestic relations order, payments necessary to comply with certain conflict of interest rules, payments intended to pay employment taxes, and other permissible payments are allowed as permitted by statute or regulation.
Subsequent Changes to Time and Form of Payment:
The Bank may permit subsequent changes to the time and form of payment. Any such change shall be considered made only when it becomes irrevocable under the terms of the Plan. Any subsequent time and form of payment changes will be considered irrevocable not later than thirty (30) days following acceptance of the change by the Plan Administrator, subject to the following rules:
a. the subsequent change may not take effect until at least twelve (12) months after the date on which the change is made;
b. the payment (except in the case of death, disability, or unforeseeable emergency) upon which the change is made is deferred for a period of not less than five (5) years from the date such payment would otherwise have been paid; and
c. in the case of a payment made at a specified time, the change must be made not less than twelve (12) months before the date the payment is scheduled to be paid.
The Bank shall withhold any taxes that are required to be withheld from the benefits provided under this Plan. The Executive acknowledges that the Bank's sole liability regarding taxes is to forward any amounts withheld to the appropriate taxing authority(ies).
ADMINISTRATIVE AND CLAIMS PROVISIONS
The "Plan Administrator" of this Plan shall be Community Trust Bank. As Plan Administrator, the Bank shall be responsible for the management, control and administration of the Plan. The Plan Administrator may delegate to others certain aspects of the management and operation responsibilities of the Plan including the employment of advisors and the delegation of ministerial duties to qualified individuals.
Filing a Claim for Benefits:
Any insured, Beneficiary, or other individual, ("Claimant") entitled to benefits under this Plan will file a claim request with the Plan Administrator. The Plan Administrator will, upon written request of a Claimant, make available copies of all forms and instructions necessary to file a claim for benefits or advise the Claimant where such forms and instructions may be obtained. If the claim relates to disability benefits, then the Plan Administrator shall designate a sub-committee to conduct the initial review of the claim (and applicable references below to the Plan Administrator shall mean such sub-committee).
Denial of Claim:
A claim for benefits under this Plan will be denied if the Bank determines that the Claimant is not entitled to receive benefits under the Plan. Notice of a denial shall be furnished the Claimant within a reasonable period of time after receipt of the claim for benefits by the Plan Administrator. This time period shall not exceed more than ninety (90) days after the receipt of the properly submitted claim. In the event that the claim for benefits pertains to disability, the Plan Administrator shall provide written notice within forty-five (45) days. However, if the Plan Administrator determines, in its discretion, that an extension of time for processing the claim is required, such extension shall not exceed an additional ninety (90) days. In the case of a claim for disability benefits, the forty-five (45) day review period may be extended for up to thirty (30) days if necessary due to circumstances beyond the Plan Administrator's control, and for an additional thirty (30) days, if necessary. Any extension notice shall indicate the special circumstances requiring an extension of time and the date by which the Plan Administrator expects to render the determination on review.
Content of Notice:
The Plan Administrator shall provide written notice to every Claimant who is denied a claim for benefits which notice shall set forth the following:
The specific reason or reasons for the denial;
Specific reference to pertinent Plan provisions on which the denial is based;
A description of any additional material or information necessary for the Claimant to perfect the claim, and any explanation of why such material or information is necessary; and
Any other information required by applicable regulations, including with respect to disability benefits.
The purpose of the Review Procedure is to provide a method by which a Claimant may have a reasonable opportunity to appeal a denial of a claim to the Plan Administrator for a full and fair review. The Claimant, or his duly authorized representative, may:
Request a review upon written application to the Plan Administrator. Application for review must be made within sixty (60) days of receipt of written notice of denial of claim. If the denial of claim pertains to disability, application for review must be made within one hundred eighty (180) days of receipt of written notice of the denial of claim;
Review and copy (free of charge) pertinent Plan documents, records and other information relevant to the Claimant's claim for benefits;
Submit issues and concerns in writing, as well as documents, records, and other information relating to the claim.
Decision on Review:
A decision on review of a denied claim shall be made in the following manner:
The Plan Administrator may, in its sole discretion, hold a hearing on the denied claim. If the Claimant's initial claim is for disability benefits, any review of a denied claim shall be made by members of the Plan Administrator other than the original decision maker(s) and such person(s) shall not be a subordinate of the original decision maker(s). The decision on review shall be made promptly, but generally not later than sixty (60) days after receipt of the application for review. In the event that the denied claim pertains to disability, such decision shall not be made later than forty five (45) days after receipt of the application for review. If the Plan Administrator determines that an extension of time for processing is required, written notice of the extension shall be furnished to the Claimant prior to the termination of the initial sixty (60) day period. In no event shall the extension exceed a period of sixty (60) days from the end of the initial period. In the event the denied claim pertains to disability, written notice of such extension shall be furnished to the Claimant prior to the termination of the initial forty-five (45) day period. In no event shall the extension exceed a period of thirty (30) days from the end of the initial period. The extension notice shall indicate the special circumstances requiring an extension of time and the date by which the Plan Administrator expects to render the determination on review.
The decision on review shall be in writing and shall include specific reasons for the decision written in an understandable manner with specific references to the pertinent Plan provisions upon which the decision is based.
The review will take into account all comments, documents, records and other information submitted by the Claimant relating to the claim without regard to whether such information was submitted or considered in the initial benefit determination. Additional considerations shall be required in the case of a claim for disability benefits. For example, the claim will be reviewed without deference to the initial adverse benefits determination and, if the initial adverse benefit determination was based in whole or in part on a medical judgment, the Plan Administrator will consult with a health care professional with appropriate training and experience in the field of medicine involving the medical judgment. The health care professional who is consulted on appeal will not be the same individual who was consulted during the initial determination or the subordinate of such individual. If the Plan Administrator obtained the advice of medical or vocational experts in making the initial adverse benefits determination (regardless of whether the advice was relied upon), the Plan Administrator will identify such experts.
The decision on review will include a statement that the Claimant is entitled to receive, upon request and free of charge, reasonable access to, and copies of, all documents, records or other information relevant to the Claimant's claim for benefits.
Exhaustion of Remedies:
A Claimant must follow the claims review procedures under this Plan and exhaust his or her administrative remedies before taking any further action with respect to a claim for benefits.
If claimants continue to dispute the benefit denial based upon completed performance of this Plan or the meaning and effect of the terms and conditions thereof, then claimants may submit the dispute to an Arbitrator for final arbitration. The Arbitrator shall be selected by mutual agreement of the Bank and the claimants. The Arbitrator shall operate under any generally recognized set of arbitration rules. The parties hereto agree that they and their heirs, personal representatives, successors and assigns shall be bound by the decision of such Arbitrator with respect to any controversy properly submitted to it for determination.
Where a dispute arises as to the Bank's discharge of the Executive “For Cause," such dispute shall likewise be submitted to arbitration as above described and the parties hereto agree to be bound by the decision thereunder.
TERMINATION OR MODIFICATION OF PLAN BY REASON OF CHANGES IN THE LAW, RULES OR REGULATIONS
The Bank is entering into this Plan upon the assumption that certain existing tax laws, rules and regulations will continue in effect in their current form. If any of said tax laws, rules or regulations should change and said change has a detrimental effect on this Plan, then the Bank reserves the right to terminate or modify this Plan accordingly. Any such termination or modification shall not be effective to decrease or restrict the Accrued Liability Retirement Account under this Plan, determined as of the date of amendment, unless agreed to in writing by the Executive, and provided further, no amendment shall be made, or if made, shall be effective, if such termination or modification would cause the Plan to violate Internal Revenue Code Section 409A.
IN WITNESS WHEREOF, the parties hereto acknowledge that each has carefully read this Plan and executed the original thereof effective as of the first day set forth hereinabove, and that, upon execution, each has received a conforming copy.
COMMUNITY TRUST BANK
By: /s/ Vonda B. Madden
By: /s/ Cary S. Davis EVP
(Bank Officer other than Executive) Title
By: /s/ Dianne Sullivan
By: /s/ Drake Mills
Drake D. Mills
BENEFICIARY DESIGNATION FORM FOR THE
AMENDED AND RESTATED
EXECUTIVE SALARY CONTINUATION PLAN
Person(s) as a Primary Designation:
(Please indicate the percentage for each beneficiary.)
(Street) (City) (State) (Zip)
(Street) (City) (State) (Zip)
(Street) (City) (State) (Zip)
(Street) (City) (State) (Zip)
ESTATE AND/OR TRUST AS PRIMARY DESIGNATIONS
Estate as a Primary Designation:
An Estate can still be listed even if there is no will.
My Primary Beneficiary is The Estate of _________________________________as set forth in the Last Will and Testament
(Insert full name)
dated the day of , 200 and any codicils thereto.
Trust as a Primary Designation:
Name of the Trust:
Execution Date of the Trust: Name of the Trustee:
Beneficiary of the Trust:
(please indicate the percentage for each beneficiary):
Is this an Irrevocable Life Insurance Trust? pYes pNo
(If yes and this designation is for a Joint Beneficiary Designation Agreement, an Assignment of Rights form must be completed.)