Riverside Bank Amended and Restated Salary Continuation Agreement adopted as of June 1, 2005 by and between Riverside Bank and Kessel D. Stelling, incorporated by reference to Exhibit 10.17 of Synovus' Annual Report on Form 10-K for the period ended December 31, 2011, as filed with the SEC on February 29, 2012

 

First Amendment to the Bank of North Georgia Amended and Restated Salary Continuation Agreement dated September 10, 2007, effective as of January 1, 2005, by and between Bank of North Georgia, as successor in interest to Riverside Bank, and Kessel D. Stelling, Jr., incorporated by reference to Exhibit 10.37 of Synovus' Current Report on Form 10-K for the period ended December 31, 2011, as filed with the SEC on February 29, 2012.*

 

Form of Change of Control Agreement for executive officers, incorporated by reference to Exhibit 10.17 of Synovus' Annual Report on Form 10-K for the fiscal year ended December 31, 2013, as filed with the SEC on February 28, 2014

 

 

EX-10.17 2 snv_exhibit1017x12312011.htm RIVERSIDE BANK AMENDED AND RESTATED SALARY CONTINUATION AGREEMENT

Exhibit 10.17

 

RIVERSIDE BANK

AMENDED AND RESTATED

SALARY CONTINUATION AGREEMENT

THIS AMENDED AND RESTATED SALARY CONTINUATION AGREEMENT (the “Agreement”) is adopted as of this 1st day of June, 2005 (the “Execution Date”) by and between RIVERSIDE BANK, a state-chartered commercial bank located in Marietta, Georgia (the “Company”), and Kessel D. Stelling, Jr. (the “Executive”). The Agreement supersedes in its entirety that Salary Continuation Agreement dated December 17, 2003 between the Executive and the Company (the “Original Salary Continuation Agreement”).

The purpose of this Agreement is to provide specified benefits to the Executive, a member of a select group of management or highly compensated employees who contribute materially to the continued growth, development and future business success of the Company. This Agreement shall be unfunded for tax purposes and for purposes of Title I of the Employee Retirement Income Security Act of 1974 (“ERISA”), as amended from time to time. The Company will pay the benefits from its general assets.

The Company and the Executive agree as provided herein.

Article 1

Definitions

Whenever used in this Agreement, the following words and phrases shall have the meanings specified:

1.1

Accrual Balance” means the liability accrued by the Company, under Generally Accepted Accounting Principles (“GAAP”), for the Company's obligation to the Executive under this Agreement, by applying APB 12 as amended by FAS 106 and the Discount Rate. The Accrual Balance shall be reported by the Company to the Executive On an annual basis. The Accrual Balance on the Effective Date and as reflected on Schedule A attached hereto is One Hundred Twenty Two Thousand Eight Hundred Twenty Nine Dollars and no/100's ($122,829.00).

 

1.2

Beneficiary” means each designated person, or the estate of the deceased Executive, entitled to benefits, if any, upon the death of lid Executive determined pursuant to Article 4.

 

1.3

Beneficiary Designation Form” means the form established from time to time by the Plan Administrator that the Executive completes signs and returns to the Plan Administrator to designate one or more Beneficiaries.

 

1.4

Change of Control” means the approval by the stockholders of either the Company or Riverside Bancshares, Inc. of a reorganization, merger or consolidation, with respect to which persons who were the stockholders of the Company or Riverside Bancshares, Inc.,

 

 


 

 

 

as the case may be, immediately prior to such reorganization, merger or consolidation do not, immediately thereafter, own more than fifty percent of the combined voting power entitled to vote in the election of directors of the reorganized, merged or consolidated entity's then outstanding voting securities; provided, however, that no Change of Control shall be deemed to have occurred if, immediately after the reorganization, merger or consolidation and for a period of at least one year thereafter, ABS Investors, LLC, John Williams or Kessel Stelling shall be deemed in control of the Company or the entity resulting from the transaction under the rules and regulations of the applicable primary federal and state banking regulators.

1.5

Code” means the Internal Revenue Code of 1986, as amended, and, to the extent applicable, all regulations and rulings promulgated thereunder.    

 

1.6

Disability” means the Executive's suffering a sickness, accident or injury which has been determined by the insurance carrier of any individual or group disability insurance policy covering the Executive, or by the Social Security Administration, to be a disability rendering the Executive totally and permanently disabled. The Executive must submit to the Plan Administrator proof of the insurance carrier's or Social Security Administration's determination upon the request of the Plan Administrator.

 

1.7

Discount Rate” means the rate used by the Plan Administrator for determining the Accrual Balance. The initial Discount Rate is 7.5% percent per year. However, the Plan Administrator, in its sole discretion, may adjust the Discount Rate to maintain the rate within reasonable standards according to GAAP.

 

1.8

Early Termination” means the Termination of Employment before Normal Retirement Age for reasons other than a Termination of Employment (a) due to death or Disability, (b) for Cause or (c) following a Change of Control provided such Termination of Employment following the Change of Control is for a reason or at a time described in Section 2.4.

 

1.9

Early Termination Date” means the month, day and year in which Early Termination

 

occurs.

 

1.10

Effective Date” means January 1, 2003.

 

1.11

Good Reason” means any of the following actions taken by the Company without the written consent of the Executive:

 

a)

a material modification to the Executive's job title or position of responsibility,

 

b)

a material modification of the scope of the Executive's responsibilities,

 

c)

a requirement that the Executive relocate the Executive's principal job location from the site determined as of the effective date of a Change of Control to a location more than 20 miles from that site, or

 

d)

a reduction in the Executive's base salary or level of bonus opportunity.

 

1.12 “Normal Retirement Age” means the Executive's 65th birthday.

 

 

 


 

 

 

 

1.13

Normal Retirement Date” means the later of the Normal Retirement Age or Termination of Employment.

 

1.14

Plan Administrator” means the plan administrator described in Article 8.

 

1.15

Plan Year” means each twelve-month period commencing on the Effective Date.

 

1.16

Termination for Cause” has that meaning set forth in Article 5.

 

1.17

Termination of Employment” means that the Executive experiences a separation from service with the Company and its affiliates as contemplated under Section 409A(a)(2)(A)(i) of the Code.

 

1.18

Vesting Percentage” means 100%.

 

Article 2

Benefits During Lifetime

2.1

Normal Retirement Benefit. Upon Termination of Employment on or after the Normal Retirement Age for reasons other than death, the Company shall pay to the Executive the benefit described in this Section 2.1 in lieu of any other benefit under this Article.

 

2.1.1    Amount of Benefit. The annual retirement benefit under this Section 2.1, determined as of the Execution Date, is One Hundred Twenty Two Thousand Nine Hundred Forty Dollars and no/100's ($122,940.00). On January 1, 2006, and the first day of each Plan Year thereafter until the Executive's Normal Retirement Age, the annual retirement benefit shall be increased by an amount equal to 3% of the prior year's annual retirement benefit amount. The Normal Retirement Benefit is displayed on Schedule A under the column titled “Benefit Level”.

2.1.2     Payment of Benefit, The Company shall pay the annual retirement benefit to the Executive in twelve (12) equal monthly installments commencing on the last day of the month following the Executive's Normal Retirement Date. The annual benefit shall be paid to the Executive for fifteen (15) years.

2.2

Early Termination Benefit. Upon Early Termination, the Company shall pay to the Executive the benefit described in this Section 2.2 in lieu of any other benefit under this Article,

 

2.2.1 Amount of Benefit. The benefit under this Section 2.2 is the Early Retirement Benefit set forth on Schedule A attached hereto for the Plan Year ending immediately prior to the Early Termination Date and represents the vested Accrual Balance. (The Early Retirement Benefit displayed on Schedule A is determined by multiplying the Accrual Balance for the Plan Year ending immediately prior to the Early Termination Date by the Vesting Percentage in effect as of the Early Termination Date to determine the vested Accrual Balance.)

2.2.2 Payment of Benefit. The Company shall pay the Early Retirement Benefit to the Executive in a lump sum within ninety (90) days following the Early Termination Date.

 

 


 

 

 

2.3

Disability Benefit. Upon Termination of Employment due to Disability prior to Normal Retirement Age, the Company shall pay to the Executive the benefit described in this Section 2.3 in lieu of any other benefit under this Article.

 

2.3.1

Amount of Benefit. The annual benefit under this Section 2.3 is the Disability Benefit set forth on Schedule A attached hereto for the Plan Year ending immediately prior to the date that Termination of Employment occurs. (The Disability Benefit displayed on Schedule A is determined by vesting the Executive in one hundred percent (100%) of. the Accrual. Balance increased by adding interest at the -Discount Rate, compounded monthly, to the Accrual Balance from the date that the Termination of Employment occurs to payment of the Disability Benefit under Section 2.3.2.)    .

 

2.3.2

Payment of Benefit. The Company shall pay the benefit to the Executive in a lump sum within ninety (90) days following the Executive's attainment of Normal Retirement Age.

 

2.4

Change of Control Benefit. If, subsequent to a Change of Control, the Executive experiences a Termination of Employment (other than due to death or Disability) either within twelve (12) months thereafter due to (i) action by the Company, other than pursuant to Section 5.1 below, or (ii) a resignation by the Executive for Good Reason; or at any time on or after, but not before, the first anniversary of the Change of Control, regardless of the circumstances (other than for Cause), then the Company shall pay to the Executive the benefit described in this Section 2.4 in lieu of any other benefit under this Article.

 

2.4.1

Amount of Benefit. The annual retirement benefit under this Section 2.4 is the Change of Control Benefit set forth on Schedule A attached hereto for the Plan Year during which the Termination of Employment occurs. (The Change of Control Benefit displayed on Schedule A is determined by vesting the Executive in one hundred percent (100%) of the Normal Retirement Benefit amount described in Section 2.1.1 determined as of the date on which the Termination of Employment occurs.

 

2.4.2

Payment of Benefit. The Company shall pay the benefit to the Executive in fifteen (15) annual installments commencing with the first of the month following the Executive's attainment of Normal Retirement Age.

 

2.5

Limitation on Timing of Benefit Payments. Notwithstanding any other provision of this Article 2, if the Executive is a Specified Employee at the time of any Termination of Employment pursuant to which benefits become payable in accordance with this Article 2, all benefit payments otherwise due and payable shall be suspended for a period of six (6) months following the Termination of Employment and the amounts so suspended will be paid in a lump sum as soon as practicable following the six-month anniversary of the Termination of Employment. For purposes of this Section 2.5, a “Specified Employee” is a person described in Section 409A(a)(2)(B)(i) of the Code.

 

 


 

 

 

Article 3

Death Benefits

3.1

Death During Active Service. If the Executive dies while prior to a Termination of Employment, the Company shall pay to the Beneficiary the benefit described in this Section 3.1. This benefit shall be paid in lieu of any benefits under Article 2.

 

3.1.1

Amount of Benefit. The benefit under this Section 3.1 is the Accrual Balance set forth on Schedule A attached hereto for the Plan Year in which the Executive's death occurs.

 

3.1.2

Payment of Benefit. The Company shall pay the benefit to the Beneficiary in a lump sum within sixty (60) days following the Executive's death.    

 

3.2

Death During Payment of a Benefit. If the Executive dies after any benefit payments have commenced under Article 2 of this. Agreement but before receiving all such payments, the Company shall pay the then present value of the remaining benefits, calculated using the Discount Rate, compounded monthly, to the Beneficiary in a lump sum within sixty (60) days following the Executive' S death.

 

3.3

Death After Termination of Employment But Before Payment of a Benefit Commences. If the Executive is entitled to any benefit payments under Article 2 of this Agreement; but dies prior to the commencement of said benefit payments (but after a Termination of Employment), the Company shall pay the then present value of the unpaid benefits, calculated using the Discount Rate, compounded monthly, and assuming benefit payments at the dates they would have been paid had the Executive lived to receive them, to the Beneficiary in a lump sum within sixty (60) days following the Executive's death.

 

Article

Beneficiaries

4.1

Beneficiary Designation. The Executive shall have the right, at any time, to designate a Beneficiary(ies) to receive any benefits payable under this Agreement upon the death of the Executive. The Beneficiary designated under this Agreement may be the same as or different from the beneficiary designation under any other benefit plan of the Company in which the Executive participates.

 

4.2

Beneficiary Designation: Change. The Executive shall designate a Beneficiary by completing and signing the Beneficiary Designation Form, and delivering it to the Plan Administrator or its designated agent. The Executive's Beneficiary designation shall be deemed automatically revoked if the Beneficiary predeceases the Executive or if the Executive names a spouse as Beneficiary and the marriage is subsequently dissolved. The Executive shall have the right to change a Beneficiary by completing, signing and otherwise complying with the terms of the Beneficiary Designation Form and the Plan Administrator's rules and procedures, as in effect from time to time. Upon the acceptance by the Plan Administrator of a new Beneficiary Designation Form, all Beneficiary designations previously filed shall be cancelled. The Plan Administrator shall be entitled to rely on the last Beneficiary Designation Form filed by the Executive and accepted by the Plan Administrator prior to the Executive's death.

 

 


 

 

 

4.3

Acknowledgment. No designation or change in designation of a Beneficiary shall be effective until received, accepted and acknowledged in writing by the Plan Administrator or its designated agent.

 

4.4

No Beneficiary Designation. If the Executive dies without a valid beneficiary designation, or if all designated Beneficiaries predecease the Executive, then the Executive's spouse shall be the designated Beneficiary. If the Executive has no surviving spouse, the benefits shall be made to the personal representative of the Executive's estate.

 

4.5

Facility of Payment. 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 payment 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 payment of a benefit shall be a payment for the account of the Executive and the Executive's Beneficiary, as the case may be, and shall be a complete discharge of any liability under the Agreement for such payment amount.

 

Article 5

General Limitations

5.1

Termination for Cause If the Company terminates the Executive's service for cause or good reason as contemplated by the terms of any employment agreement in effect between the Executive and the Company or, if no such employment agreement is then in effect, if the Company terminates the Executive's services for:

 

5.1.1

conduct by the Executive that amounts to gross and willful insubordination or gross and willful inattention to his duties and responsibilities;

 

5.1.2

commission by the Executive of a felony or of a gross misdemeanor involving moral turpitude;

 

5.1.3

fraud, dishonesty or willful misconduct by the Executive that results in material financial harm to the Company or Riverside Bancshares, Inc.; or

 

5.1.4

conduct by the Executive that results in removal from his position within the Company pursuant to a written order by any regulatory agency with authority or jurisdiction over the Company or Riverside Bancshares, Inc.

 

5.2

Excess Parachute Payment. Notwithstanding any provision of this Agreement to the contrary, to the extent any benefit would create an excise tax under the excess parachute rules of Section 280G of the Code, the Company shall reduce the benefit paid under this Agreement to the maximum benefit that would not result in any such excise tax.

 

 


 

 

 

Article 6

Claims And Review Procedures

6.1    Claims Procedure:

6.1.1

Notice of Denial. If the Executive or a Beneficiary is denied a claim for benefits under the Agreement, the Plan Administrator shall provide to the claimant written notice of the denial within ninety (90) days (forty-five (45) days with respect to a denial of any claim for benefits due to the Executive's Disability) after the Plan Administrator receives the claim, unless special circumstances require an extension of time for processing the claim. If such an extension of time is required, written notice of the extension shall be furnished to the claimant prior to the termination of the initial 90-day period. In no event shall the extension exceed a period of ninety (90) days (thirty (30) days with respect to a claim for benefits due to the Executives Disability) from the end of such initial period. With respect to a claim for benefits due to the Executive's Disability, an additional extension of up to thirty (30) days beyond the initial 30-day extension period may be required for processing the claim. In such event, written notice of the extension shall be furnished to the claimant within the initial 30-day extension period. Any extension notice shall indicate the special circumstances requiring the extension of time, the date by which the Plan Administrator expects to render the final decision, the standards on which entitlement to benefits are based, the unresolved issues that prevent a decision on the claim and the additional information needed to resolve those issues.

 

6.1.2

Contents of Notice of Denial. If the Executive or Beneficiary is denied a claim for benefits under the Agreement, the Plan Administrator shall provide to such claimant written notice of the denial which shall set forth:

 

(a)

the specific reasons for the denial;

 

(b)

specific references to the pertinent provisions of the Agreement on which the denial is based;    

 

(c)

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;

 

(d)

an explanation of the Agreement's claim review procedures, and the time limits applicable to such procedures, including a statement of the claimant's right to bring a civil action under Section 502(a) of ERISA following an adverse benefit determination on review;

 

(e)

in the case of a claim for benefits due to the Executive's Disability, if an internal rule, guideline, protocol or other similar criterion is relied upon in making the adverse determination, either the specific rule, guideline, protocol or other similar criterion; or a statement that such rule, guideline, protocol or other similar criterion was relied upon in making the decision and that a copy of such rule, guideline, protocol or other similar criterion will be provided free of charge upon request; and

 

 


 

 

 

(f)

in the case of a claim for benefits due to the Executive's Disability, if a denial of the claim is based on a medical necessity or experimental treatment or similar exclusion or limit, an explanation of the scientific or clinical judgment for the denial, an explanation applying the terms of the Agreement to the claimant's medical circumstances or a statement that such explanation will be provided free of charge upon request.

 

6.1.3

Right to Review. After receiving written notice of the denial of a claim, a claimant or his representative shall be entitled to:

 

(a)

request a full and fair review of the denial of the claim by written application to the Plan Administrator (or Appeals Fiduciary in the case of a claim for benefits payable due to the Executive's Disability);

 

(b)

request, free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the claim;

 

(c)

submit written comments, documents, records, and other information relating to the denied claim to the Plan Administrator or Appeals Fiduciary, as applicable; and

 

(d)

a review that takes 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.

For purposes of this Article 6, the term “Appeals Fiduciary” means an individual or group of individuals appointed to review appeals of claims for benefits payable due to the Executive's Disability.

6.1.4    Application for Review,

(a)

If a claimant wishes a review of the decision denying his claim to benefits under the Agreement, other than a claim described in clause (b) of this Section 6.1.4, he must submit the written application to the Plan Administrator within sixty (60) days after receiving written notice of the denial.

 

(b)

If the claimant wishes a review of the decision denying his claim to benefits under the Agreement due to, the Executive's Disability, he must submit the written application to the Appeals Fiduciary within one hundred eighty (180) days after receiving written notice of the denial. With respect to any such claim, in deciding an appeal of any denial based in whole or in part on a medical judgment (including determinations with regard to whether a particular treatment, drug, or other item is experimental, investigational, or not medically necessary or appropriate), the Appeals Fiduciary shall:

 

(i)

consult with a health care professional who has appropriate training and experience in the field of medicine involved in the medical judgment; and

 

(ii)

identify the medical and vocational experts whose advice was obtained on behalf of the Agreement in connection with the denial without regard to whether the advice was relied upon in making the determination to deny the claim.

 

 


 

 

 

Notwithstanding the foregoing, the health care professional consulted pursuant to this clause (b) shall be an individual who was not consulted with respect to the initial denial of the claim that is the subject of the appeal or a subordinate of such individual.

 

6.1.5

Hearing. Upon receiving such written application for review, the Plan Administrator or Appeals Fiduciary, as applicable, may schedule a hearing for purposes of reviewing the claimant's claim, which hearing shall take place not more than thirty (30) days from the date on which the Plan Administrator or Appeals Fiduciary received such written application for review.

 

6.1.6

Notice of Hearing. At least ten (10) days prior to the scheduled hearing, the claimant and his representative designated in writing by him, if any, shall receive written notice of the date, time, and place of such scheduled hearing. The claimant or his representative, if any, may request that the hearing be rescheduled, for his convenience, on another reasonable date or at another reasonable time or place.

 

6.1.7

Counsel. All claimants requesting a review of the decision denying their claim for benefits may employ counsel for purposes of the hearing.

 

6.1.8

Decision on Review. No later than sixty (60) days (forty-five (45) days with respect to a claim for benefits. due to the Executive's Disability) following the receipt of the written application for review, the Plan Administrator or the Appeals Fiduciary, as applicable, shall submit its decision on the review in writing to the claimant involved and to his representative, if any, unless the Plan Administrator or Appeals Fiduciary determines that special circumstances (such as the need to hold a hearing) require an extension of time, to a day no later than one hundred twenty (120) days (ninety (90) days with respect to a claim for benefits due to the Executive's Disability) after the date of receipt of the written application for review. If the Plan Administrator or Appeals Fiduciary determines that the extension of time is required, the Plan Administrator or Appeals Fiduciary shall furnish to the claimant written notice of the extension before the expiration of the initial sixty (60) day (forty-five (45) days with respect to a claim for benefits due to the Executive's Disability) period. The extension notice shall indicate the special circumstances requiring an extension of time and the date by which the Plan Administrator or Appeals Fiduciary expects to render its decision on review. In the case of a decision adverse to the claimant, the Plan Administrator or Appeals Fiduciary shall provide to the claimant written notice of the denial which shall include:

 

(a)

the specific reasons for the decision;

 

(b)

specific references to the pertinent provisions of the Agreement on which the decision is based;

 

(c)

a statement that the claimant is entitled to receive, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the claimant's claim for benefits;

 

(d)

an explanation of the Agreement's claim review procedures, and the time limits applicable to such procedures, including a statement of the claimant's right to bring an action under Section 502(a) of ERISA following the denial of the claim upon review;

 

 


 

 

 

(e)

in the case of a claim for benefits due to the Executive's Disability, if an internal rule, guideline, protocol or other similar criterion is relied upon in making the adverse determination, either the specific rule, guideline, protocol or other similar criterion; or a statement that such ride, guideline, protocol or other similar criterion was relied upon in making the decision and that a copy of such rule, guideline, protocol or other similar criterion Will be provided free of charge upon request;

 

(f)

in the case of a claim for benefits due to the Executive's Disability, if a denial of the claim is based on a medical necessity or experimental treatment or similar exclusion or limit, an explanation of the scientific or clinical judgment for the denial, an explanation applying the terms of the Agreement to the claimant's medical circumstances or a statement that such explanation will be provided free of charge upon request; and

 

(g)

in the case of a claim for benefits due to the Executive's Disability, a statement regarding the availability of other voluntary alternative dispute resolution options.

 

Article 7

Amendments and Termination

The Company, through its Board of Directors (or its designee to the extent it has been delegated authority), may amend or terminate the Agreement only with the consent of the Executive;

8.6

Annual Statement. The Plan Administrator shall provide to the Executive, within 120 days after the end of each Plan Year, a statement setting forth the benefits payable under this Agreement.    

 

 

Article 9

Miscellaneous

9.1

Binding Effect. This Agreement shall bind the Executive and the Company, and their beneficiaries, survivors, executors, successors, administrators and transferees.

 

9.2

No Guarantee of Employment. This Agreement is not an employment policy or contract. It does not give the Executive the right to remain an employee of the Company, nor does it interfere with the Company's right to discharge the Executive. It also does not require the Executive to remain an employee nor interfere with the Executive's right to terminate employment at any time.

 

9.3

Non-Transferability. Benefits under this Agreement cannot be sold, transferred, assigned, pledged, attached or encumbered in any mariner.

 

9.4

Tax Withholding. The Company shall withhold any taxes that, in its reasonable judgment, are required to be withheld from the benefits provided under this Agreement. To the extent withholding of tax obligations may be requited prior to benefit payments, such withholdings will reduce the benefit amounts payable to the Executive as set forth on Schedule A to this Agreement. The Executive acknowledges that the Company's sole liability regarding taxes is to forward any amounts withheld to the appropriate taxing authority(ies).

 

 


 

 

 

9.5

Applicable Law. The Agreement and all rights hereunder shall be governed by the laws of the State of Georgia, except to the extent preempted by the laws of the United States of America.

 

9.6

Unfunded Arrangement. The Executive and Beneficiary are general unsecured creditors of the Company for the payment of benefits under this Agreement. The benefits represent the mere promise by the Company to pay such benefits. The rights to benefits are not subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment, or garnishment by creditors. Any insurance on the Executive's life is a general asset of the Company to which the Executive and Beneficiary have no preferred or secured claim.

 

9.7

Reorganization. The Company shall not merge or consolidate into or with another company, or reorganize, or sell substantially all of its assets to another company, firm, or person unless such succeeding or continuing company, firm, or person agrees to assume and discharge the obligations of the Company under this Agreement. Upon the occurrence of such event, the term “Company” as used in this Agreement shall be deemed to refer to the successor or survivor company.

 

9.8

Entire Agreement. This Agreement constitutes the entire agreement between the Company and the Executive as to the subject matter hereof. This Agreement supersedes in its entirety the Original Salary Continuation Agreement and, as a result, the Original Salary Continuation Agreement becomes null and void upon the execution of this Agreement by the parties. No rights are granted to the Executive by virtue of this Agreement other than those specifically set forth herein.

 

9.9

Interpretation. Wherever the fulfillment of the intent and purpose of this Agreement requires, and the context will permit, the use of the masculine gender includes the feminine and use of the singular includes the plural.

 

9.10

Alternative Action. In the event it shall become impossible for the Company or the Plan Administrator to perform any act required by this Agreement, the Company or Plan Administrator may in its discretion perform such alternative act as most nearly carries out the intent and purpose of this Agreement and is in the best interests of the Company.

 

9.11

Headings. Article and section headings are for convenient reference only and shall not control or affect the meaning or construction of any of its provisions.

 

9.12

Validity. In case any provision of this Agreement shall be illegal or invalid for any reason, said illegality or invalidity shall not affect the remaining parts hereof, but this Agreement shall be construed and enforced as if such illegal and invalid provision has never been inserted herein.

 

9.13

Notice. Any notice or filing required or permitted to be given to the Company or Plan Administrator under this Agreement shall be sufficient if in writing and hand-delivered, or sent by registered or certified mail, to the address below:

Riverside Bank

1200 Johnson Ferry Road Marietta, Georgia 30068 Attn: Carol B. Smith

 

 


 

 

 

Such notice shall be deemed given as of the date of delivery or, if delivery is made by mail, as of the date shown on the postmark on the receipt for registration or certification,

Any notice or filing required or permitted to be given to the Executive under this Agreement shall be sufficient if in writing and hand-delivered, or sent by mail, to the last known address of the Executive as reflected by the record's of the Company.

9.14

Withholding. Executive is responsible for payment of all taxes applicable to benefits provided to Executive under this Agreement, including federal and state income tax; provided however, that the Company shall be responsible for all applicable tax withholdings, including employment (e.g., FICA) taxes due to be paid by the Company pursuant to Section 3121(v) of the Code (i.e., FICA taxes on the present value of payments hereunder which are no longer subject to vesting). Executive agrees that appropriate amounts for withholding may be deducted from the cash salary, bonus or other payments due to Executive by the Company to satisfy the employee-portion of such obligations. If insufficient cash wages are available or if Executive so desires, Executive may remit payment in cash for the withholding amounts.

IN WITNESS WHEREOF, the Executive and a duly, authorized representative of the Company have signed this Agreement.

 

EXECUTIVE:                        COMPANY:

                                                                                        

/s/ Kessel D. Stelling, Jr.                    RIVERSIDE BANK:    

Kessel D. Stelling, Jr.                    

By: /s/ Carol B. Smith        

Title: Executive Vice President

 

 

 

 

First Amendment to the Bank of North Georgia Amended and Restated Salary Continuation Agreement dated September 10, 2007, effective as of January 1, 2005, by and between Bank of North Georgia, as successor in interest to Riverside Bank, and Kessel D. Stelling, Jr., incorporated by reference to Exhibit 10.37 of Synovus' Current Report on Form 10-K for the period ended December 31, 2011, as filed with the SEC on February 29, 2012.*

 

EX-10.37 5 snv_exhibit1037x12312011.htm FIRST AMENDMENT TO THE BANK OF NORTH GEORGIA AMENDED AND RESTATED SALARY CONTINUATION AGREEMENT

 

 

Exhibit 10.37

 

FIRST AMENDMENT

TO THE

BANK OF NORTH GEORGIA

AMENDED AND RESTATED SALARY CONTINUATION AGREEMENT

DATED JUNE 1, 2005

FOR

KESSEL D. STELLING, JR.

 

THIS FIRST AMENDMENT is adopted this 10th day of September, 2007, effective as of January 1, 2005, by and between BANK OF NORTH GEORGIA (the “Company”), as successor-in-interest to Riverside Bank (“Riverside”), a state-chartered commercial bank located in Marietta, Georgia, and Kessel D. Stelling, Jr. (the “Executive”).

Riverside, as predecessor-in-interest to the Company, and the Executive executed the Amended and Restated Salary Continuation Agreement on June 1, 2005 effective as of January 1, 2003 (the “Agreement”).

The undersigned hereby amend the Agreement for the purpose of bringing the Agreement into compliance with Section 409A of the Internal Revenue Code. Therefore, the following changes shall be made:

 

 

Section 1.6 of the Agreement shall be deleted in its entirety and replaced by the following:

1.6

Disability” means Executive: (1) 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 Company. Medical determination of Disability may be made by either the Social Security Administration or by the provider of an accident or health plan covering employees of the Company. Upon the request of the Plan Administrator, the Executive must submit proof to the Plan Administrator of the Social Security Administration's or the provider's determination.

 

Section 2.2.1 of the Agreement shall be deleted in its entirety and replaced by the following:

2.2.1

Amount of Benefit. The annual benefit under this Section 2.2 is the annual Early Retirement Benefit set forth on Schedule A, attached hereto, for the Plan Year ending immediately prior to the Early Termination Date.

 

 


 

 

 

Section 2.2.2 of the Agreement shall be deleted in its entirety and replaced by the following:

2.2.2

Payment of Benefit. The Company shall pay the annual Early Retirement Benefit to the Executive in fifteen (15) annual installments commencing on the first day of the month following Normal Retirement Age.

Section 2.3 of the Agreement shall be deleted in its entirety and replaced by the following:

2.3

Disability Benefit. If the Executive experiences a Disability prior to Normal Retirement Age, the Company shall pay to the Executive the benefit described in this Section 2.3 in lieu of any other benefit under this Article.

Section 2.3.1 of the Agreement shall be deleted in its entirely and replaced by the following:

2.3.1

Amount of Benefit. The benefit under this Section 2.3 is the Disability Benefit set forth on Schedule A attached hereto for the Plan Year ending immediately prior to the date that Disability occurs. (The Disability Benefit displayed on Schedule A is determined by vesting the Executive in 100% of the Accrual balance increased by adding interest at the Discount Rate, compounded monthly, to the Accrual Balance from the date that the Disability occurs until payment of the Disability Benefit under Section 2.3.2.)

The following Sections 2.6 and 2.7 shall be added to the Agreement immediately following Section 2.5:

2.6

Distributions Upon Income Inclusion Under Section 409A of the Code. Upon the inclusion of any amount into the Executive's income as a result of the failure of this non-qualified deferred compensation plan to comply with the requirements of Section 409A of the Code, to the extent such tax liability can be covered by the Executive's vested Accrual Balance, a distribution shall be made as soon as is administratively practicable following the discovery of the plan failure.

 

2.7

Change in Form or Timing of Distributions. All changes in the form or timing of distributions hereunder must comply with the following requirements. The changes:

 

(a)

may not accelerate the time or schedule of any distribution, except as provided in Section 409A of the Cede and the regulations thereunder;

 

(b)

must, for benefits distributable under Section 2.2, 2.3 and 2.4, be made at least twelve (12) months prior to the first scheduled distribution;

 

(c)

must, for benefits distributable under Sections 2.1, 2.2, 2.3 and 2.4, delay the commencement of distributions for a minimum of five (5) years from the date the first distribution was originally scheduled to be made; and

 

(d)

must take effect not less than twelve (12) months after the election is made.

 

 


 

 

 

Article 7 of the Agreement shall be deleted in its entirety and replaced by the following:

 

Article 7

Amendments and Termination

7.1

Amendments. This Agreement may be amended only by a written agreement signed by the Company and the Executive. However, the Company may unilaterally amend this Agreement to conform with written directives to the Company from its auditors or banking regulators or to comply with legislative changes or tax law, including without limitation Section 409A of the Code and any and all Treasury regulations and guidance promulgated thereunder.

 

7.2

Plan Termination Generally. The Company may unilaterally terminate this Agreement at any time. Except as provided in Section 7.3, the termination of this Agreement shall not cause a distribution of benefits under this Agreement. Rather, upon such termination benefit distributions will be made at the earliest distribution event permitted under Article 2 or Article 3.

 

7.3

Plan Terminations Under Section 409A. Notwithstanding anything to the contrary in Section 7.2, if the Company terminates this Agreement in the following circumstances:

 

(a)

Within thirty (30) days before, or twelve (12) months after a change in the ownership or effective control of the Company, or in the ownership of a substantial portion of the assets of the Company as described in Section 409A(a)(2)(A)(v) of the. Code, provided that all distributions are made no later than twelve (12) months following such termination of the Agreement and further provided that all the Company's arrangements which are substantially similar to the Agreement are terminated so the Executive and all participants in the similar arrangements are required to receive all amounts of compensation deferred under the terminated arrangements within twelve (12) months of the termination of the arrangements;

 

(b)

Upon the Company's dissolution or with the approval of a bankruptcy court provided that the amounts deferred under the Agreement are included in the Executive's gross income in the latest of (i) the calendar year in which the Agreement terminates; (ii) the calendar year in which the amount is no longer subject to a substantial risk of forfeiture; or (iii) the first calendar year in which the distribution is administratively practical; or

 

(c)

Upon the Company's termination of this and all other arrangements that would be aggregated with this Agreement pursuant to Treasury Regulations Section 1.409A-1(c) if the Executive participated in such arrangements (“Similar Arrangements”), provided that (i the termination and liquidation does not occur proximate to a downturn in the financial health of the Company, (ii) all termination distributions are made no earlier than twelve (12) months and no later than twenty-four (24) months following such termination, and (iii) the Company does not adopt any new arrangement that would be a Similar Arrangement for a minimum of three (3) years following the date the Company takes all necessary action to irrevocably terminate and liquidate the Agreement;

4

 

 


 

 

 

the Company may distribute the vested Accrual Balance, determined as of the date of the termination of the Agreement, to the Executive in a lump sum subject to the above terms.

Section 9.10 of the Agreement shall be deleted in its entirety and replaced by the following:

9.10

Alternative Action. In the event it shall become impossible for the Company or the Plan Administrator to perform any act required by the Agreement, the Company or Plan Administrator may in its discretion perform such alternative act as most nearly carries out the intent and purpose of this Agreement and is in the best interests of the Company. Any alternative acts shall be restricted to actions which do not violate Section 409A of the Code.

The following Sections 9.15 and 9.16 shall be added to the Agreement immediately following Section 9.14:

9.15

Compliance with Section 409A. This Agreement shall at all times be administered and the provisions of this Agreement shall be interpreted consistent with the requirements of Section 409A of the Code and any and all regulations thereunder, including such regulations as may be promulgated after the Effective Date of this Agreement.

 

9.16

Rescission. Any modification to the terms of this Agreement that would inadvertently result in an additional tax liability nit the part of the Executive, shall have no effect provided the change in the terms of the plan is rescinded by the earlier of a date before the right is exercised (if the change grants a discretionary right), and the last day of the calendar year during which such change occurred.

The existing Schedule A of the Agreement shall, be deleted in its entirety and shall be replaced by new Schedule A attached hereto.

IN WITNESS OF THE ABOVE, the Executive and the Company hereby consent to this First Amendment.

Executive:

Bank of North Georgia

 

/s/ Kessel D. Stelling, Jr._______________

/s/ Donald D. Howard__________________            

 

Kessel D. Stelling, Jr.

Title: Chairman_______________________

 

 

 

 

 

 

 

Form of Change of Control Agreement for executive officers, incorporated by reference to Exhibit 10.17 of Synovus' Annual Report on Form 10-K for the fiscal year ended December 31, 2013, as filed with the SEC on February 28, 2014

 

EX-10.17 2 snv_exhibit1017x12312013.htm CHANGE OF CONTROL AGREEMENT

 

 

 

 

Exhibit 10.17

 

CHANGE OF CONTROL AGREEMENT

 

THIS AGREEMENT (“Agreement”), by and between SYNOVUS FINANCIAL CORP., a Georgia corporation (the “Company”) and ___________________ (the “Employee”) is entered into as of the ___ day of __________, 20__ (the “Effective Date”);

 

WHEREAS, the Board of Directors of the Company (the “Board”), has determined that it is in the best interests of the Company and its shareholders to assure that the Company will have the continued dedication of the Employee, notwithstanding the possibility, threat or occurrence of a Change of Control (as defined below) of the Company;

 

WHEREAS, the Board believes it is imperative to diminish the inevitable distraction of the Employee by virtue of the personal uncertainties and risks created by a pending or threatened Change of Control and to encourage the Employee’s full attention and dedication to the Company currently and in the event of any threatened or pending Change of Control, and to provide the Employee with appropriate compensation and benefits arrangements upon a Change of Control which are competitive with those of other corporations; and

 

WHEREAS, in order to accomplish these objectives, the Board has caused the Company to enter into this Agreement.

 

NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:

 

1.    Certain Definitions. (a) The “Change of Control Date” shall mean the first date during the Change of Control Period (as defined in Section 1(b)) on which a Change of Control (as defined in Section 2) occurs. Anything in this Agreement to the contrary notwithstanding, if a Change of Control occurs and if the Employee’s employment with the Company is terminated prior to the date on which the Change of Control occurs, and if it is reasonably demonstrated by Employee that such termination of employment (i) was at the request of a third party who has taken steps reasonably calculated to effect a Change of Control or (ii) otherwise arose in connection with or in anticipation of a Change of Control, then for all purposes of this Agreement the “Change of Control Date” shall mean the date immediately prior to the date of such termination of employment.

 

(b)    The “Change of Control Period” shall mean the period commencing on the Effective Date and ending on the day after the date of Employee’s termination of employment from the Company or, if earlier, the date which is two years after the Change of Control Date.

 

(c)    “Cause” shall mean:

 

(1)    the willful and continued failure of the Employee to perform substantially the Employee’s duties with the Company or one of its affiliates after a written demand for substantial performance is delivered to the Employee by the Executive Committee of the Board or the Chief Executive Officer of the Company which specifically identifies the manner in which the Executive Committee of the Board or Chief Executive Officer believes that the Employee has not substantially performed the Employee’s duties, after which Employee shall have a reasonable amount of time to remedy such failure to substantially perform his or her duties; or

 

(2)    the willful engaging by the Employee in illegal conduct or gross misconduct which is materially and demonstrably injurious to the Company.

 

For purposes of this provision, no act, or failure to act, on the part of the Employee shall be considered “willful” unless it is done, or omitted to be done, by the Employee in bad faith or without reasonable belief that the Employee’s action or omission was in the best interests of the Company. Any act, or failure to act, based upon authority given pursuant to a resolution duly adopted by the Board, or the Executive Committee of the Board, or upon the instructions of the Chief Executive Officer, or an Executive Vice President (or higher ranking officer), of the Company, or based upon the advice of counsel for the Company, shall be conclusively presumed to be done, or omitted to be done, by the Employee in good faith and in the best interests of the Company. The cessation of employment of the Employee shall not be deemed to be for Cause unless and until there shall have been delivered to the Employee a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters (3/4) of the entire membership of the Executive

 


 

 

 

 

Committee of the Board at a meeting of the Executive Committee of the Board called and held for such purpose (after reasonable notice is provided to the Employee and the Employee is given an opportunity, together with counsel, to be heard before the Executive Committee of the Board), finding that, in the good faith opinion of the Executive Committee of the Board, the Employee is guilty of the conduct described in subparagraph (1) or (2) above, and specifying the particulars thereof in detail.

 

(d)    “Good Reason” shall mean:

 

(1)    a material adverse reduction in the Employee’s position duties or responsibilities excluding for this purpose: (i) a change in the position or level of officer to whom the Employee reports, (ii) a change that is part of a policy, program or arrangement applicable to peer executives (including peer executives of any successor to the Company), or (iii) an isolated, insubstantial and inadvertent action not taken in bad faith and which is remedied by the Company promptly after receipt of notice thereof given by the Employee;

 

(2)    the Company’s requiring the Employee to be based at any office or location more than 35 miles from the location where Employee was employed on the Change of Control Date or the date which is 120 days prior to the Change of Control Date (if such earlier date is selected by Employee);

 

(3)    a material reduction in Employee’s annual base salary, target annual bonus opportunity (including, without limitation, the use of bonus goals that are not reasonable and consistent with the bonus goals established for the preceding year), or participation in employee benefit plans, as such salary, bonus and plans were in effect on either the Change of Control Date or the date which is 120 days prior to the Change of Control Date (if such earlier date is selected by Employee) unless such reduction is part of a policy, program or arrangement applicable to peer executives (including peer executives to any successor to Company) ; or

 

(4)    any failure by the Company to comply with and satisfy Section 7(c) of this Agreement.

 

For purposes of this Section 1(d), any good faith determination of “Good Reason” made by the Employee shall be conclusive.

 

(e)    “Disability” shall be defined the same as such term is defined in either, at the selection of the Employee, (a) the group long-term disability insurance plan sponsored or maintained by Company on the Change of Control Date in which Employee participates or (b) any individual long-term disability insurance arrangement in effect on the Change of Control Date, the premiums of which are paid by Company for the benefit of Employee.

 

2.    Change of Control. For the purposes of this Agreement, a “Change of Control” shall mean:

 

(a)    the acquisition by any “person” (“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”) (other than the Company or a subsidiary or any Company employee benefit plan (including its trustee), of “beneficial ownership” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 20% or more of the total number of shares of the Company’s then outstanding securities;

 

(b)    individuals who, as of the date hereof, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least two-thirds (2/3) of the Board; provided, however, that any individual becoming a director subsequent to the date hereof whose election, or nomination for election by the Company’s shareholders, was approved by a vote of at least two-thirds (2/3) of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board; or

 

(c)    consummation of a reorganization, merger or consolidation or sale or other disposition of all or substantially all of the assets or stock of the Company (a “Business Combination”), in each case, unless, following such Business Combination, (i) all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the total number of shares of the Company’s outstanding securities immediately prior to such Business

 


 

 

 

 

Combination beneficially own, directly or indirectly, more than sixty percent (60%) of, respectively, the total number of shares of the then outstanding securities of the corporation resulting from such Business Combination (including, without limitation, a corporation which as a result of such transaction owns the Company or all or substantially all of the Company’s assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership, immediately prior to such Business Combination, of the total number of shares of the Company’s outstanding securities, (ii) no Person (excluding any corporation resulting from such Business Combination, or any employee benefit plan (including its trustee) of the Company or such corporation resulting from such Business Combination, or an “Exempt Person” as defined below) beneficially owns, directly or indirectly, 20% or more of, respectively, the total number of shares of the then outstanding securities of the corporation resulting from such Business Combination except to the extent that such ownership existed prior to the Business Combination and (iii) at least two-thirds (2/3) of the members of the board of directors of the Corporation resulting from such Business Combination were members of the Incumbent Board at the time of the execution of the initial agreement, or of the action of the Board, providing for such Business Combination.

 

For purposes of this Section 2, a “Change of Control” shall not result from any transaction precipitated by the Company’s insolvency, appointment of a conservator, or determination by a regulatory agency that the Company is insolvent, nor from any transaction initiated by the Company in regard to converting from a publicly traded company to a privately held company.

 

3.    Obligations of Company Upon Termination. In the event Employee’s employment by Company is terminated before the two-year anniversary date of the Change of Control Date either (i) by the Company for any reason other than Cause or Employee’s death or Disability, or (ii) by Employee for Good Reason, then

 

(a)    The Company shall pay to Employee in a lump sum in cash on the date which is six months and one day after the date Employee has a separation from service (within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the "Code")) the aggregate of the following amounts:

 

(1)    three times the sum of: (a) Employee’s annual base salary as in effect immediately prior to Employee’s termination; plus (b) the product of (i) Employee’s annual base salary as in effect immediately prior to Employee’s termination of employment multiplied by (ii) a percentage equal to the average percentage of Employee’s annual bonus earned with respect to the three calendar years ended prior to Employee’s termination, measured as a percentage of Employee’s annual base salary for the year the bonus was earned; and

 

(2)    the product of (a) a fraction, the numerator of which is the greater of (i) six, or (ii) number of full months Employee worked in the calendar year of Employee’s termination (e.g., an October 1 termination date results in a numerator of 9) and the denominator of which is 12; multiplied by (b) the target annual bonus for which Employee was eligible immediately prior to Employee’s termination.

 

For purposes of this Agreement, “annual base salary” means Employee’s annual rate of pay excluding all other elements of compensation such as, without limitation, bonuses, perquisites, restricted stock awards, stock options, and retirement and welfare benefits.

 

(b)    For three years after Employee’s termination of employment, Employee shall continue to be eligible to receive medical and welfare benefits (including, without limitation, medical, prescription, dental, disability (both individual and group arrangements), life (both individual and group arrangements), and accidental death and dismemberment plans and programs) for Employee and Employee’s dependents at the level of coverage elected by Employee during the open enrollment period immediately preceding Employee’s termination of employment date under benefit plans that are generally equivalent to those provided generally at any time after the Effective Date to other peer employees of the Company and its affiliated companies (excluding individual disability and individual life insurance arrangements, which must continue to be provided regardless of whether provided to peer employees) and the Company shall reimburse Employee for Employee's costs or expenses for such benefits; provided, however, that if Employee becomes reemployed with another employer (specifically excluding self-employment) and is eligible to receive medical or other welfare benefits under another employer provided plan, Company shall terminate all medical and other welfare benefits being provided hereunder; and provided further, however, that, if Employee is not eligible to participate under the terms of such medical and welfare benefit plans (including COBRA continuation coverage for which Executive is eligible), Company shall pay Employee in cash on the date which is six months and one day after the date Employee has a separation from service (within the meaning of Section 409A of the Code) a lump sum amount equal to the lesser

 


 

 

 

 

of (1) two times the average monthly cost per employee to the Company to provide the benefits described in this Section 3(b) to its employees or (2) 25% of the lump sum amount payable to Employee pursuant to Section 3(a) of this Agreement.

 

(c)    The Company shall not be obligated under this Agreement to provide outplacement assistance or any other benefits and perquisites not covered above, such as a Company-provided automobile, country club and dining club dues, health club dues, retirement benefits, etc.

 

4.    Non-exclusivity of Rights. Nothing in this Agreement shall prevent or limit the Employee’s continuing or future participation in any plan, program, policy or practice provided by the Company or any of its affiliated companies and for which the Employee may qualify, nor, subject to Section 8(f), shall anything herein limit or otherwise affect such rights as the Employee may have under any contract or agreement with the Company or any of its affiliated companies. Amounts which are vested benefits or which the Employee is otherwise entitled to receive under any plan, policy, practice or program of or any contract or agreement with the Company or any of its affiliated companies at or subsequent to the date of termination shall be payable in accordance with such plan, policy, practice or program or contract or agreement except as explicitly modified by this Agreement.

 

5.    Full Settlement. The Company’s obligation to make the payments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any set-off, counterclaim, recoupment, defense or other claim, right or action which the Company may have against the Employee or others. In no event shall the Employee be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to the Employee under any of the provisions of this Agreement and, except as otherwise provided in this Agreement, such amounts shall not be reduced whether or not the Employee obtains other employment. The Company agrees to pay as incurred, to the full extent permitted by law, all legal fees and expenses which the Employee may reasonably incur as a result of any contest (regardless of the outcome thereof) by the Company, the Employee or others of the validity or enforceability of, or liability under, any provision of this Agreement or any guarantee of performance thereof (including as a result of any contest by the Employee about the amount of any payment pursuant to this Agreement), plus in each case interest on any delayed payment at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code.

 

6.    Confidential Information. The Employee shall hold in a fiduciary capacity for the benefit of the Company all secret or confidential information, knowledge or data relating to the Company or any of its affiliated companies, and their respective businesses, which shall have been obtained by the Employee during the Employee’s employment by the Company or any of its affiliated companies and which shall not be or become public knowledge (other than by acts by the Employee or representatives of the Employee in violation of this Agreement). After termination of the Employee’s employment with the Company, the Employee shall not, without the prior written consent of the Company or as may otherwise be required by law or legal process, communicate or divulge any such information, knowledge or data to anyone other than the Company and those designated by it.

 

7.    Successors.    (a)    This Agreement is personal to the Employee and without the prior written consent of the Company shall not be assignable by the Employee otherwise than by will or the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by the Employee’s legal representatives.

 

(b)    This Agreement shall inure to the benefit of and be binding upon the Company and its successors and assigns.

 

(c)    The Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to assume expressly and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. As used in this Agreement, “Company” shall mean the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by operation of law, or otherwise.

 

8.    Miscellaneous. (a)    This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia, without reference to principles of conflict of laws. The captions of this Agreement are not part of the provisions hereof and shall have no force or effect. This Agreement may not be amended or modified otherwise than by a written agreement executed by the parties hereto or their respective successors and legal representatives; provided, however, that the Company may amend, modify or terminate this Agreement without

 


 

 

 

 

Employee's consent by providing Employee with 12 months prior written notice of such amendment, modification, or termination.

 

(b)    All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by registered or certified mail, return receipt requested, postage prepaid

 

If to the Employee:

 

To the Employee’s most recent home address as filed with the Company

 

If to the Company:

 

Synovus Financial Corp.

P. O. Box 120

Columbus, GA 31902

Attention: General Counsel

 

or to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be effective when actually received by the addressee.

 

(c)    The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement.

 

(d)     The Company may withhold from any amounts payable under this Agreement such Federal, state, local or foreign taxes as shall be required to be withheld pursuant to any applicable law or regulation.

 

(e)    The Employee’s or the Company’s failure to insist upon strict compliance with any provision of this Agreement or the failure to assert any right the Employee or the Company may have hereunder, including, without limitation, the right of the Employee to terminate employment for Good Reason pursuant to Section 3 of this Agreement, shall not be deemed to be a waiver of such provision or right or any other provision or right of this Agreement.

 

(f)    The Employee and the Company acknowledge that, except as may otherwise be provided under any other written agreement between the Employee and the Company, the employment of the Employee by the Company is “at will” and, subject to Section 1(a) hereof, prior to the Change of Control Date, the Employee’s employment may be terminated by either the Employee or the Company at any time prior to the Change of Control Date, in which case the Employee and Company shall have no further rights under this Agreement. In addition, in the event Employee’s employment is terminated as a result of Employee’s death or Disability, Employee shall have no further rights under this Agreement. From and after the Effective Date this Agreement shall supersede any other agreement between the parties with respect to the subject matter hereof.

 

(g)     This Agreement cancels and supercedes any and all previous change of control agreements between Employee and Company (including without limitation all Company affiliates and subsidiaries).

 

(h)    This Agreement is executed in two counterparts, each of which shall be deemed an original and together shall constitute one and the same agreement, with one counterpart being delivered to each party hereto.

 

(i)    To the extent this Agreement is subject to Section 409A of the Code, Employee and the Company intend for all payments under this Agreement to comply with such section, and this Agreement shall, to the extent practical, be operated and administered to effect such intent. To the extent necessary to avoid adverse tax consequences under Section 409A of the Code, the timing of any payment under this Agreement shall be delayed six months and one day in a manner consistent with Section 409A(a)(2)(8)(i) of the Code.

 

IN WITNESS WHEREOF, the Employee has hereunto set the Employee’s hand and, pursuant to the authorization from its Board of Directors, the Company has caused these presents to be executed in its name on its behalf, all being done in duplicate originals, with one original being delivered to each party hereto, all as of the day and year first above written.

 

 


 

 

 

 

 

 

_________________________________

[NAME]

 

 

SYNOVUS FINANCIAL CORP.

 

 

By:    _________________________________

 

Title:    _________________________________