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Exhibit 10.28

HERITAGE BANKSHARES, INC.

SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT

WITH MICHAEL S. IVES

THIS SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT, (the “Agreement”) by and between HERITAGE BANKSHARES, INC. (together with its affiliates and successors, the “Corporation”) and MICHAEL S. IVES (“Executive”), is made effective this 23 rd day of September, 2009.

INTRODUCTION

The Corporation has entered into this Agreement with Executive for the purpose of supplementing the retirement benefits payable to Executive and in recognition of the contribution that Executive has made to the Corporation since his employment in 2005.

This Agreement is intended to be unfunded and maintained primarily for the purpose of providing deferred compensation for the Executive who is included within the definition of a “select group of management or highly compensated employees” (as such phrase is used in ERISA.) This Agreement must be administered and construed in a manner that is consistent with that intent.

This Agreement is intended to satisfy the requirements of Code section 409A and Treasury Regulations issued thereunder. Each provision and term of this Agreement should be interpreted, and each action taken hereunder should be carried out, in accordance with that intent.

This Agreement is also intended to comply with the compensation restrictions under the provisions of the Emergency Economic Stabilization Act of 2008 (“EESA”) as amended by the American Recovery and Reinvestment Act of 2009 (“AARA”) applicable to financial institutions under the Troubled Asset Relief Program (“TARP”).

ARTICLE I

DEFINITIONS

The following phrases or terms have the indicated meanings:

 

1.01

Beneficiary

Beneficiary means the person or persons designated in writing by the Executive in a form attached hereto as Schedule A. If the Executive fails to designate a beneficiary in the manner prescribed by the Board, Beneficiary means the Executive’s estate. The Executive may amend or change his Beneficiary designation by submitting a new Schedule A

 

1.02

Benefit Amount

Benefit Amount means Twenty-Five Thousand Dollars ($25,000.00), which amount shall be and is fully accrued as of the Effective Date.

 

1


1.03

Board

Board means the Board of Directors of the Corporation.

 

1.04

Change in Control

A Change in Control occurs on the first to occur of (i) the date that any one person, or more than one person, acting as a group, acquires ownership of stock of the Corporation that, together with stock held by such person or group constitutes more than 50% of the total fair market value or total voting power of the stock of the Corporation; (ii) the date that any one person or group acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) ownership of stock of the Corporation possessing 30% or more of the total voting power of the stock of the Corporation; (iii) a majority of the members of the Board’s being replaced during any 12 month period by directors whose appointment or election is not endorsed by a majority of the members of the Board before the date of the appointment or election; or (iv) the date that any one person or group acquires assets (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or group) from the Corporation that have a total gross fair market value equal to or more than 40% of the total gross fair market value of all the assets of the Corporation immediately before such acquisition. This definition of Change in Control shall be interpreted in a manner that is consistent with Treasury Regulation section 1.409A-3(i)(5).

 

1.05

Code

Code means the Internal Reve


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