1
EXHIBIT 10-12
THE BANK
DEFERRED COMPENSATION AGREEMENT
THIS AGREEMENT is made this day of 1999 by
and between The Banc Corporation, located in Birmingham, Alabama (the
"Company"), and [NAME OF DIRECTOR] (the "Director").
INTRODUCTION
To encourage the Director to remain a director of the Company, the Company
is willing to provide to the Director supplemental deferred compensation. The
Company will pay the benefits from its general assets.
AGREEMENT
The Director and the Company agree as follows:
ARTICLE 1
DEFINITIONS
Whenever used in this Agreement, the following words and phrases shall have
the meanings specified:
1.1 "Change of Control" means the transfer of 51% or more of the Company's
outstanding voting common stock.
1.2 "Deferral Account" means the account maintained on the books of the
Company as described in Section 2.2.
1.3 "Deferral Benefit" means the benefit described in Article 3.
1.4 "Effective Date" means September 1, 1999.
1.5 "Normal Retirement Age" means the Director's age
1.6 "Normal Retirement Date" means the later of the Director's Termination
of Service or Normal Retirement Age.
1.7 "Opportunity Rate" means for each Plan Year, the Federal Reserve's
discount rate on the first day of the Plan Year.
1.8 "Plan Year" means each one-year period from the Effective Date.
1.9 "Simulated Investments" mean investments specified by the Company for
use in measuring the Deferral Benefit. Once designated, the Company can change
the Simulated Investments only with the Director's written agreement. The
Simulated Investments shall be of equal initial amounts.
1.10 "Simulated Investment Rate" means the after-tax rate of return on a
Simulated Investment. If the Simulated Investment is a life insurance policy,
the Simulated Investment Rate shall not include receipt of the policy's death
benefits.
1.11 "Termination of Service" means the Director's ceasing to serve on the
Board of the Company or its successor for any reason.
2
ARTICLE 2
DEFERRAL ACCOUNT
2.1 Simulated Investments. The Company shall establish two Simulated
Investments in the amount of $ (total premium) as of the Effective Date, as
follows:
2.1.1 Simulated Investment Number One. The first shall track the cash
surrender value of one or more specified life insurance policies or a
specified portion of a specified pool of life insurance policies.
2.1.2 Simulated Investment Number Two. The second shall accumulate
the principal and net after-tax interest earnings of an investment earning
a pretax yield of the Opportunity Rate for each Plan Year. The income tax
rate selected shall be equal to the Company's highest marginal tax rate for
the previous calendar year. Interest shall accrue monthly and be compounded
at the end of each Plan Year using the Opportunity Rate in effect for the
Plan Year. Benefit payments under this agreement shall be deducted from
this simulated investment balance on the first day of the Plan Year
following payment of such benefit.
2.2 Deferral Account. The Company shall establish a Deferral Account
on its books for the Director. The Deferral Account balance as of any date
is determined by (a) taking the cash surrender value of the first simulated
investment less the balance of the second simulated investment as of such
date, and (b) dividing the net difference by the result of one minus the
Company's highest marginal tax rate for the previous calendar year.
2.3 Statement of Accounts. The Company shall provide to the Director,
within 60 days after each Plan Year, a statement setting forth the Deferral
Account balance.
2.4 Accounting Device Only. The Deferral Account and Simulated Investments
are solely devices for measuring amounts to be paid under this Agreement. They
are not a trust fund of any kind. The Director is a general unsecured creditor
of the Company for the payment of benefits. The benefits represent the mere
Company promise to pay such benefits. The Director's rights are not subject in
any manner to anticipation, alienation, transfer, assignment, pledge,
encumbrance, attachment, or garnishment by the Director's creditors.
ARTICLE 3
LIFETIME BENEFITS
3.1 Normal Retirement Benefit. Upon Termination of Service on the Normal
Retirement Date, the Company shall pay to the Director the primary and secondary
benefits described in Sections 3.1.1 and 3.1.2.
3.1.1 Primary Benefit. The benefit under this Section 3.1.1 is the
Deferral Account balance at end of the Plan Year immediately preceding the
Normal Retirement Date. The Company shall pay the primary benefit in ten
(10) equal annual installments (without adjustment for interest or earnings
during such period) commencing on the first day of the month following the
Director's Termination of Service.
3.1.2 Secondary Benefit. The benefit under this Section 3.1.2 as of
the end of each Plan Year following the Director's Termination of Service,
and continuing for a total of ten (10) Plan Years, is an amount equal to
the growth, if any, and notwithstanding any payments of the primary benefit
amounts, since the end of the preceding Plan Year, in the Deferral Account
balance. The Company shall pay the secondary benefit to the Director within
60 days of the end of each Plan Year.
3.2 Early Termination. If Termination of Service occurs prior to the
Normal Retirement Age other than for Death or following a Change of Control, the
Company shall pay to the Director, in a lump sum within sixty (60) days of the
Termination of Service, an amount equal to the Deferral Account Balance
immediately prior to the Termination of Service, in lieu of any other benefit
under this Agreement.
3.3 Change of Control Benefit. Upon Termination of Service following a
Change of Control, the Company shall pay to the Director the primary and
secondary benefits described in Sections 3.3.1 and 3.3.2.
2
3
3.3.1 Primary Benefit. The benefit under this Section 3.3.1 is the
Deferral Account balance at end of the Plan Year immediately preceding the
Director's Termination of Service. The Company shall pay the primary
benefit in ten (10) equal annual installments (without adjustment for
interest or earnings during such period) commencing on the first day of the
month following the Director's Termination of Service.
3.3.2 Secondary Benefit. The benefit under this Section 3.3.2 as of
the end of each Plan Year following the Director's Termination of Service,
and continuing for a total of ten (10) Plan Years, is an amount equal to
the growth, if any, and notwithstanding any payments of the primary benefit
amounts, since the end of the preceding Plan Year, in the Deferral Account
balance. The Company shall pay the secondary benefit to the Director within
60 days of the end of each Plan Year.
ARTICLE 4
DEATH BENEFITS
4.1 Death During Active Service. If the Director dies while in active
service on the board of the Company, the Company shall pay to the Director's
beneficiary the primary and secondary benefits described in Sections 4.1.1 and
4.1.2.
4.1.1 Primary Benefit. The benefit under this Section 4.1.1 is the
Deferral Account balance at end of the Plan Year immediately preceding the
director's death. The Company shall pay the primary benefit in ten (10)
equal annual installments (without adjustment for interest or earnings
during such period) commencing on the first day of the month following the
Director's death.
4.1.2 Secondary Benefit. The benefit under this Section 4.1.2 as of
the end of each Plan Year following the Director's death, and continuing
for a total of ten (10) Plan Years, is an amount equal to the growth, if
any, since the end of the preceding Plan Year, in the Deferral Account
balance. The Company shall pay the secondary benefit to the Director's
beneficiary within 60 days of the end of each Plan Year.
4.2 Death During Benefit Period. If the Director dies after benefit
payments have commenced under this Agreement but before receiving all such
payments, the Company shall pay the remaining benefits to the Director's
beneficiary at the same time and in the same amounts they would have been paid
to the Director had the Director survived.
4.3 Death After Termination of Service But Before Benefit Payments
Commence. If the Director is entitled to benefit payments under this Agreement,
but dies prior to the commencement of said benefit payments, the Company shall
pay the benefit payments to the Director's beneficiary that the Director was
entitled to prior to death except that the benefit payments shall commence on
the first day of the month following the date of the Director's death.
ARTICLE 5
BENEFICIARIES
5.1 Beneficiary Designations. The Director shall designate a beneficiary
by filing a written designation with the Company. The Director may revoke or
modify the designation at any time by filing a new designation. However,
designations will only be effective if signed by the Director and accepted by
the Company during the Director's lifetime. The Director's beneficiary
designation shall be deemed automatically revoked if the beneficiary predeceases
the Director, or if the Director names a spouse as beneficiary and the marriage
is subsequently dissolved. If the Director dies without a valid beneficiary
designation, all payments shall be made to the Director's surviving spouse, if
any, and if none, to the Director's surviving children and the descendants of
any deceased child by right of representation, and if no children or descendants
survive, to the Director's estate.
3
4
5.2 Facility of Payment. If a benefit is payable to a minor, to a person
declared incompetent, or to a person incapable of handling the disposition of
his or her property the Company may pay such benefit to the guardian, legal
representative or person having the care or custody of such minor, incompetent
person or incapable person. The Company may require proof of incompetence,
minority or guardianship as it may deem appropriate prior to distribution of the
benefit. Such distribution shall completely discharge the Company from all
liability with respect to such benefit.
ARTICLE 6
GENERAL LIMITATIONS
Notwithstanding any provision of this Agreement to the contrary, the
Company shall not pay any benefit under this Agreement:
6.1 Termination for Cause. If the Company terminates the Director's
service for:
6.1.1 Gross negligence or gross neglect of duties;
6.1.2 Commission of a felony or of a gross misdemeanor involving moral
turpitude; or
6.1.3 Fraud, disloyalty, dishonesty or willful violation of any law or
significant Company policy resulting in an adverse effect on the Company.
6.2 Suicide. If the Director commits suicide within two years after the
date of this Agreement, or if the Director has made any material misstatement of
fact on any application for life insurance purchased by the Company.
ARTICLE 7
CLAIMS AND REVIEW PROCEDURES
7.1 Claims Procedure. The Company shall notify the Director's beneficiary
in writing, within 90 days of his or her written application for benefits, of
his or her eligibility or noneligibility for benefits under the Agreement. If
the Company determines that the beneficiary is not eligible for benefits or full
benefits, the notice shall set forth (1) the specific reasons for such denial,
(2) a specific reference to the provisions of the Agreement on which the denial
is based, (3) a description of any additional information or material necessary
for the claimant to perfect his or her claim, and a description of why it is
needed, and (4) an explanation of the Agreement's claims review procedure and
other appropriate information as to the steps to be taken if the beneficiary
wishes to have the claim reviewed. If the Company determines that there are
special circumstances requiring additional time to make a decision, the Company
shall notify the beneficiary of the special circumstances and the date by which
a decision is expected to be made, and may extend the time for up to an
additional 90-day period.
7.2 Review Procedure. If the beneficiary is determined by the Company not
to be eligible for benefits, or if the beneficiary believes that he or she is
entitled to greater or different benefits, the beneficiary shall have the
opportunity to have such claim reviewed by the Company by filing a petition for
review with the Company within 60 days after receipt of the notice issued by the
Company. Said petition shall state the specific reasons which the beneficiary
believes entitle him or her to benefits or to greater or different benefits.
Within 60 days after receipt by the Company of the petition, the Company shall
afford the beneficiary (and counsel, if any) an opportunity to present his or
her position to the Company orally or in writing, and the beneficiary (or
counsel) shall have the right to review the pertinent documents. The Company
shall notify the beneficiary of its decision in writing within the 60-day
period, stating specifically the basis of its decision, written in a manner
calculated to be understood by the beneficiary and the specific provisions of
the Agreement on which the decision is based. If, because of the need for a
hearing, the 60-day period is not sufficient, the decision may be deferred for
up to another 60-day period at the election of the Company, but notice of this
deferral shall be given to the beneficiary.
4
5
ARTICLE 8
AMENDMENTS AND TERMINATION
This Agreement may be amended or terminated only by a written agreement
signed by the Company and the Director.
ARTICLE 9
ADMINISTRATION
9.1 Administration. Unless otherwise determined by the Company's Board of
Directors ("Board"), the Board or its designee shall be the named fiduciary and
shall act for the Company under this Agreement.
9.2 Powers of the Company. The Company shall have all powers necessary to
administer this Agreement, including, without limitation, powers:
9.2.1 to interpret the provisions of the Agreement; and
9.2.2 to establish rules for the administration of the Agreement and
to prescribe any forms required to administer the Agreement.
9.3 Actions of the Company. All determinations, interpretations, rules,
and decisions of the Company shall be conclusive and binding upon all persons
having or claiming to have any interest or right under this Agreement.
ARTICLE 10
MISCELLANEOUS
10.1 Binding Effect. This Agreement shall bind the Director and the
Company, and their beneficiaries, survivors, executors, administrators and
transferees.
10.2 Non-Transferability. Benefits under this Agreement cannot be sold,
transferred, assigned, pledged, attached or encumbered in any manner.
10.3 Tax Withholding. The Company shall withhold any taxes that are
required to be withheld from the benefits provided under this Agreement.
10.4 Applicable Law. The Agreement and all rights hereunder shall be
governed by the laws of Florida except to the extent preempted by the laws of
the United States of America.
10.5 Unfunded Arrangement. The Director is a general unsecured creditor 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 Director's life or any other asset held in
connection with this Agreement is a general asset of the Company to which the
Director has no preferred or secured claim.
10.6 Administration. The Company shall have powers which are necessary to
administer this Agreement, including but not limited to:
10.6.1 Interpreting the provisions of the Agreement;
10.6.2 Establishing and revising the method of accounting for the
Agreement;
10.6.3 Maintaining a record of benefit payments; and
10.6.4 Establishing rules and prescribing any forms necessary or
desirable to administer the Agreement.
5
6
10.7 Named Fiduciary. For purposes of the Employee Retirement Income
Security Act of 1974, if applicable, the Company shall be the named fiduciary
and plan administrator under the Agreement. The named fiduciary may delegate to
others certain aspects of the management and operation responsibilities of the
plan including the Service of advisors and the delegation of ministerial duties
to qualified individuals.
IN WITNESS WHEREOF, the Director and a duly authorized Company officer have
signed this Agreement.
DIRECTOR: COMPANY:
THE BANK
By
------------------------------------------------- -------------------------------------------------
[NAME OF DIRECTOR]
Title
-----------------------------------------------
6
7
SCHEDULE A
TO
THE BANK
DEFERRED COMPENSATION AGREEMENT
RETIREMENT CONTRIBUTION
PARTICIPANT BIRTHDATE AGE PREMIUM
----------- --------- ---------- ------------
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇., ▇▇..................................... 04-24-65 65 $195,000
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇...................................... 12-30-40 65 $200,000
▇▇▇▇▇▇, ▇▇▇▇▇ ▇............................................. 03-15-42 65 $195,000
7
