TIB BANK OF THE KEYS SALARY CONTINUATION AGREEMENT
TIB
BANK OF THE KEYS
This
Salary Continuation Agreement
(this “Agreement”) is adopted this ____ day of _______________, 200____, by and
between TIB Bank of the Keys, a state-chartered commercial bank located in
Monroe County, Florida (the “Company”), and _______________ (the
“Executive”).
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.
Article
1
Definitions
Whenever
used in this Agreement, the
following words and phrases shall have the meanings specified:
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1.1
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“Accrual
Balance” means the liability that should be accrued by the Company,
under Generally Accepted Accounting Principles (“GAAP”), for the Company’s
obligation to the Executive under this Agreement, by applying Accounting
Principles Board Opinion Number 12 as amended by Statement of Financial
Accounting Standards Number 106 and the Discount Rate. Any one
of a variety of amortization methods may be used to determine the
Accrual
Balance. However, once chosen, the method must be consistently
applied.
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1.2
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“Beneficiary”
means each designated person or entity, or the estate of the deceased
Executive, entitled to any benefits upon the death of the Executive
pursuant to Article 4.
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1.3
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“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.
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1.4
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“Benefit
Basis”
means the Executive's highest annualized Compensation from the three
(3)
years prior to Separation from Service, including the year such Separation
from Service occurs.
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1.5
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“Board”
means
the Board of Directors of the Company as from time to time
constituted.
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1.6
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“Change
in
Control” means the acquisition by any person, or persons acting as
a group within the meaning of Section 13(d) of the Securities Exchange
Act
of 1934, of fifty one percent (51%) or more of the voting securities
of
the Company or its parent, TIB Financial Corp., a Florida corporation.
The
term “person” as used herein includes an individual, corporation, bank
holding company or other legal
entity.
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1.7
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“Code”
means
the
Internal Revenue Code of 1986, as amended, and all regulations and
guidance thereunder, including such regulations and guidance as may
be
promulgated after the Effective
Date.
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1.8
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“Compensation”
means the annual cash compensation relating to services performed
during
any calendar year, excluding distributions from nonqualified deferred
compensation plans, bonuses, commissions, overtime, fringe benefits,
stock
options, relocation expenses, incentive payments, non-monetary awards,
and
other fees, and automobile and other allowances paid to the Executive
for
employment rendered (whether or not such allowances are included
in the
Executive’s gross income). Compensation shall be calculated
before reduction for compensation voluntarily deferred or contributed
by
the Executive pursuant to all qualified or non-qualified plans of
the
Company and shall be calculated to include amounts not otherwise
included
in the Executive's gross income under Code Sections 125, 402(e)(3),
402(h), or 403(b) pursuant to plans established by the Company; provided,
however, that all such amounts will be included in compensation only
to
the extent that had there been no such plan, the amount would have
been
payable in cash to the Executive.
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1.9
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“Disability”
means 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 or directors of the
Company. Medical determination of Disability may be made by
either the Social Security Administration or by the provider of disability
insurance covering employees or directors of the Company provided
that the
definition of “disability” applied under such insurance program complies
with the requirements of the preceding sentence. 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.
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1.10
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“Discount
Rate”
means the rate used by the Plan Administrator for determining the
Accrual
Balance. The initial Discount Rate is seven percent
(7%). However, the Plan Administrator, in its discretion, may
adjust the Discount Rate to maintain the rate within reasonable standards
according to GAAP and/or applicable bank regulatory
guidance.
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1.11
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“Early
Termination” means Separation from Service before attainment of
Normal Retirement Age except
when such Separation from Service occurs following a Change in Control
or
due to death, Disability or Termination for
Cause.
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1.12
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“Effective
Date”
means January 2,
2008.
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1.13
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“Inflated
Compensation” means Benefit Basis increased by four percent (4%)
annually from Separation from Service to Normal Retirement
Age.
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1.14
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“Normal
Retirement
Age” means the Executive’s age sixty-five
(65).
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1.15
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“Normal
Retirement
Date” means the later of Normal Retirement Age or Separation from
Service.
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1.16
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“Plan
Administrator” means the Board or such committee or person as the
Board shall appoint.
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1.17
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“Plan
Year”
means each twelve (12) month period commencing on January 1 and ending
on
December 31 of each year. The initial Plan Year shall commence
on the Effective Date of this Plan and end on the following December
31.
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1.18
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“Projected
Benefit” means forty percent (40%) of Inflated
Compensation.
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1.19
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“Separation
from Service” means
termination of the Executive’s employment with
the Company for reasons
other than death. Whether a Separation from Service has
occurred is determined in
accordance with the requirements of Code Section 409A based
on whether the facts and
circumstances indicate that the Company 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 employee 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 employee
or
an independent contractor) over the immediately preceding thirty-six
(36)
month period (or the full period of services to the Company if the
Executive has been providing services to the Company less than thirty-six
(36) months).
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1.20
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“Specified
Employee” means an employee who at the time of Separation from
Service is a key employee of the Company, if any stock of the Company
is
publicly traded on an established securities market or
otherwise. For purposes of this Agreement, an employee is a key
employee if the employee meets the requirements of Code Section
416(i)(1)(A)(i), (ii), or (iii) (applied in accordance with the
regulations thereunder and disregarding section 416(i)(5)) at any
time
during the twelve (12) month period ending on December 31 (the
“identification period”). If the employee is a key employee
during an identification period, the employee is treated as a key
employee
for purposes of this Agreement during the twelve (12) month period
that
begins on the first day of April following the close of the identification
period.
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1.21
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“Termination
for
Cause” means Separation from Service
for:
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(a)
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Gross
negligence or gross neglect of duties to the
Company;
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(b)
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Conviction
of a felony or of a gross misdemeanor involving moral
turpitude;
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(c)
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Fraud,
disloyalty, dishonesty or willful violation of any law or significant
Company policy committed in connection with the Executive’s employment and
resulting in a material adverse effect on the Company;
or
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(d)
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Any
termination of employment for “cause” pursuant to any employment agreement
between the Executive and the
Company.
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Article
2
Distributions
During Lifetime
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2.1
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Normal
Retirement
Benefit. Upon Separation from Service after attaining
Normal Retirement Age, the Company shall distribute to the Executive
the
benefit described in this Section 2.1 in lieu of any other benefit
under
this Article.
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2.1.1
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Amount
of
Benefit. The annual benefit under this Section 2.1 is
forty percent (40%) of Benefit Basis.
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2.1.2
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Distribution
of
Benefit. The Company shall distribute the annual benefit
to the Executive in twelve (12) equal monthly installments commencing
on
the first day of the month following the Normal Retirement
Date. The annual benefit shall be distributed to the Executive
for ten (10) years.
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2.2
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Early
Termination
Benefit. If Early Termination occurs, the Company shall
distribute to the Executive the benefit described in this Section
2.2 in
lieu of any other benefit under this Article.
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2.2.1
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Amount
of
Benefit. The benefit under this Section 2.2 is the
vested Accrual Balance determined as of the end of the Plan Year
preceding
Separation from Service subject to the Vesting Percentage. Interest
shall
be credited from Separation from Service to Normal Retirement Age
at a
rate equal to the Discount Rate in effect at the time of Separation
from
Service.
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Date
in Which Separation from Service Occurs
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Vesting
Percentage
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01/01/08
- 12/30/08
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0%
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12/31/08
- 12/30/09
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10%
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12/31/09
- 12/30/10
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20%
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12/31/10
- 12/30/11
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30%
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12/31/11
- 12/30/12
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40%
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12/31/12
- 12/30/13
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50%
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12/31/13
- 12/30/14
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60%
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12/31/14
- 12/30/15
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70%
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12/31/15
- 12/30/16
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80%
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12/31/16
- 12/30/17
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90%
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On
or After 12/31/17
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100%
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2.2.2
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Distribution
of
Benefit. The Company shall distribute the benefit to the
Executive in one hundred twenty (120) equal monthly installments
commencing on the first day of the month Normal Retirement
Age. Interest shall be credited from during the installment
period at a rate equal to the Discount Rate in effect at the time
of
Separation from Service.
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2.3
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Disability
Benefit. If
the
Executive experiences a Disability prior to Normal Retirement Age
which
results in Separation from Service, the Company shall distribute
to the
Executive the benefit described in this Section 2.3 in lieu of any
other
benefit under this Article.
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2.3.1
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Amount
of
Benefit. The benefit under this Section 2.3 is one
hundred percent (100%) of the Accrual Balance determined as of the
end of
the Plan Year preceding Separation from Service. Interest shall be
credited from Separation from Service to Normal Retirement Age at
a rate
equal to the Discount Rate in effect at the time of Separation from
Service.
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2.3.2
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Distribution
of
Benefit. The Company shall distribute the benefit to the
Executive in one hundred twenty (120) equal monthly installments
commencing on the first day of the month Normal Retirement
Age. Interest shall be credited from during the installment
period at a rate equal to the Discount Rate in effect at the time
of
Separation from Service.
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2.4
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Change
in Control
Benefit. If a Change in Control occurs, followed by
Separation from Service prior to Normal Retirement Age, the Company
shall
distribute to the Executive the benefit described in this Section
2.4 in
lieu of any other benefit under this Article.
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2.4.1
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Amount
of
Benefit. The
annual
benefit under this Section 2.4 is one hundred percent (100%) of the
Projected Benefit.
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2.4.2
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Distribution
of
Benefit.
The Company shall
distribute the benefit to the Executive in twelve (12) equal monthly
installments commencing on the first day of the month following Normal
Retirement Age. The annual benefit shall be distributed to the Executive
for ten (10) years.
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2.5
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Restriction
on
Commencement of Distributions. Notwithstanding any provision
of this Agreement to the contrary, if the Executive is considered
a
Specified Employee, the provisions of this Section 2.5 shall govern
all
distributions hereunder. If benefit distributions which would
otherwise be made to the Executive due to Separation from Service
are
limited because the Executive is a Specified Employee, then such
distributions shall not be made during the first six (6) months following
Separation from Service. Rather, any distribution which would
otherwise be paid to the Executive during such period shall be accumulated
and paid to the Executive in a lump sum on the first day of the seventh
month following Separation from Service. All subsequent
distributions shall be paid in the manner specified.
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2.6
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Distributions
Upon
Taxation of Amounts Deferred. If, pursuant to Code Section 409A,
the Federal Insurance Contributions Act or other state, local or
foreign
tax, the Executive becomes subject to tax on the amounts deferred
hereunder, then the Company may make a limited distribution to the
Executive in a manner that conforms to the requirements of Code section
409A. Any such distribution will decrease the Executive’s
benefits distributable under this Agreement.
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2.7
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Change
in Form or
Timing of Distributions. For distribution of benefits under
this Article 2, the Executive and the Company may, subject to the
terms of
Section 8.1, amend this Agreement to delay the timing or change the
form
of distributions. Any such amendment:
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(a)
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may
not accelerate the time or schedule of any distribution, except as
provided in Code Section 409A;
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(b)
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must,
for benefits distributable under Sections 2.2, 2.3 and 2.4 , be made
at
least twelve (12) months prior to the first scheduled
distribution;
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(c)
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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
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(d)
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must
take effect not less than twelve (12) months after the amendment
is
made.
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Article
3
Distribution
at Death
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3.1
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Death
During Active
Service. If the Executive dies prior to Separation from
Service, the Company shall distribute to the Beneficiary the benefit
described in this Section 3.1. This benefit shall be
distributed in lieu of any benefit under Article 2.
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3.1.1
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Amount
of
Benefit. The benefit under this Section 3.1 is one
hundred percent (100%) of the Accrual Balance determined as of the
end of
the Plan Year prior to the Executive’s death.
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3.1.2
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Distribution
of
Benefit. The Company shall distribute the benefit to the
Beneficiary in one hundred twenty (120) equal monthly installments
commencing on the first day of the fourth month following the Executive’s
death. Interest shall be credited from the date of death and during
the
installment period at a rate equal to the Discount Rate in effect
at the
time of the Executive’s death. The Beneficiary shall be required to
provide to the Company the Executive’s death certificate.
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3.2
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Death
During
Distribution of a Benefit. If the Executive dies after
any benefit distributions have commenced under this Agreement but
before
receiving all such distributions, the Company shall distribute to
the
Beneficiary the remaining benefits at the same time and in the same
amounts they would have been distributed to the Executive had the
Executive survived.
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3.3
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Death
Before Benefit
Distributions Commence. If
the Executive
is entitled to benefit distributions under this Agreement but dies
prior
to the date that commencement of said benefit distributions are scheduled
to be made under this Agreement, the Company shall distribute to
the
Beneficiary the same benefits to which the Executive was entitled
prior to
death, except that the benefit distributions shall commence on the
first
day of the fourth month following the Executive’s death. The Beneficiary
shall be required to provide to the Company the Executive’s death
certificate.
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Article
4
Beneficiaries
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4.1
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In
General. The Executive shall have the right, at any
time, to designate a Beneficiary to receive any benefit distributions
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 designated under any other plan of
the
Company in which the Executive participates.
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4.2
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Designation. 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. If the Executive names someone other
than the Executive’s spouse as a Beneficiary, the Plan Administrator may,
in its sole discretion, determine that spousal consent is required
to be
provided in a form designated by the Plan Administrator, executed
by the
Executive’s spouse and returned to the Plan Administrator. 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. 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.
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4.3
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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.
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4.4
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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, any
benefit shall be paid to the Executive's estate.
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4.5
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Facility
of
Distribution. If the Plan Administrator determines in
its discretion that a benefit is to be distributed 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 completely discharge any
liability under this Agreement for such distribution amount.
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Article
5
General
Limitations
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5.1
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Termination
for
Cause. Notwithstanding any provision of this Agreement
to the contrary, the Company shall not distribute any benefit under
this
Agreement if the Executive’s employment with the Company is terminated by
the Company or an applicable regulator due to a Termination for Cause.
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5.2
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Suicide
or
Misstatement. No benefit shall be distributed if the
Executive commits suicide within two (2) years after the Effective
Date,
or if an insurance company which issued a life insurance policy covering
the Executive and owned by the Company denies coverage (i) for material
misstatements of fact made by the Executive on an application for
such
life insurance, or (ii) for any other reason.
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5.3
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Removal. Notwithstanding
any provision of this Agreement to the contrary, the Company shall
not
distribute any benefit under this Agreement if the Executive is subject
to
a final removal or prohibition order issued by an appropriate federal
banking agency pursuant to Section 8(e) of the Federal Deposit Insurance
Act.
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5.4
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Regulatory
Restrictions. Notwithstanding anything herein to the
contrary, any payments made to the Executive pursuant to this Agreement,
or otherwise, shall be subject upon compliance with 12 U.S.C. 1828
and
FDIC Regulation 12 CFR Part 359, Golden Parachute Indemnification
Payments
and any other regulations or guidance promulgated
thereunder.
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5.5
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Forfeiture
Provision. The Company shall not pay any benefit under
this Agreement if the Executive, without the prior written consent
of the
Company, engages in, becomes interested in, directly or indirectly,
as a
sole proprietor, as a partner in a partnership, or as a substantial
shareholder in a corporation, or becomes associated with, in the
capacity
of employee, director, officer, principal, agent, trustee or in any
other
capacity whatsoever, any enterprise conducted in the trading area
(a fifty
(50) mile radius) of the business of the Company, which enterprise
is, or
may deemed to be, competitive with any business carried on by the
Company
for a period of two (2) years following Separation from
Service.
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5.6
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Change
in
Control. The forfeiture provision detailed in Section
5.5 hereof shall not be enforceable following a Change in Control.
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Article
6
Administration
of Agreement
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6.1
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Plan
Administrator
Duties. The Plan Administrator shall administer this
Agreement according to its express terms and shall also have the
discretion and authority to (i) make, amend, interpret and enforce
all
appropriate rules and regulations for the administration of this
Agreement and (ii) decide or resolve any and all questions, including
interpretations of this Agreement, as may arise in connection with
this
Agreement to the extent the exercise of such discretion and authority
does
not conflict with Code Section 409A.
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6.2
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Agents. In
the administration of this Agreement, the Plan Administrator may
employ
agents and delegate to them such administrative duties as the Plan
Administrator sees fit, including acting through a duly appointed
representative, and may from time to time consult with counsel who
may be
counsel to the Company.
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6.3
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Binding
Effect of
Decisions. Any decision or action of the Plan
Administrator with respect to any question arising out of or in connection
with the administration, interpretation or application of this Agreement
and the rules and regulations promulgated hereunder shall be final
and
conclusive and binding upon all persons having any interest in this
Agreement.
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6.4
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Indemnity
of Plan
Administrator. The Company shall indemnify and hold
harmless the Plan Administrator against any and all claims, losses,
damages, expenses or liabilities arising from any action or failure
to act
with respect to this Agreement, except in the case of willful misconduct
by the Plan Administrator.
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6.5
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Company
Information. To enable the Plan Administrator to perform
its functions, the Company shall supply full and timely information
to the
Plan Administrator on all matters relating to the date and
circumstances of the Executive’s death, Disability or Separation from
Service, and such other pertinent information as the Plan Administrator
may reasonably require.
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6.6
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Annual
Statement. The Plan Administrator shall provide to the Executive,
within one hundred twenty (120) days after the end of each Plan Year,
a
statement setting forth the benefits to be distributed under this
Agreement.
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Article
7
Claims
And Review Procedures
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7.1
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Claims
Procedure. An Executive or Beneficiary (“claimant”) who
has not received benefits under this Agreement that he or she believes
should be distributed shall make a claim for such benefits as follows:
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7.1.1
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Initiation
–
Written
Claim. The claimant initiates a claim by submitting to
the Plan Administrator a written claim for the benefits. If
such a claim relates to the contents of a notice received by the
claimant,
the claim must be made within sixty (60) days after such notice was
received by the claimant. All other claims must be made within
one hundred eighty (180) days of the date on which the event that
caused the claim to arise occurred. The claim must state with
particularity the determination desired by the claimant.
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7.1.2
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Timing
of Plan
Administrator Response. The
Plan
Administrator shall respond to such claimant within ninety (90) days
after
receiving the claim. If the Plan Administrator determines that
special circumstances require additional time for processing the
claim,
the Plan Administrator can extend the response period by an additional
ninety (90) days by notifying the claimant in writing, prior to the
end of
the initial ninety (90) day period that an additional period is
required. The notice of extension must set forth the special
circumstances and the date by which the Plan Administrator expects
to
render its decision.
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7.1.3
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Notice
of
Decision. If the Plan Administrator denies part or the
entire claim, the Plan Administrator shall notify the claimant in
writing
of such denial. The Plan Administrator shall write the
notification in a manner calculated to be understood by the
claimant. The notification shall set forth:
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(a)
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The
specific reasons for the denial;
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(b)
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A
reference to the specific provisions of this Agreement on which the
denial
is based;
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(c)
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A
description of any additional information or material necessary for
the
claimant to perfect the claim and an explanation of why it is needed;
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(d)
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An
explanation of this Agreement’s review procedures and the time limits
applicable to such procedures; and
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(e)
|
A
statement of the claimant’s right to bring a civil action under ERISA
Section 502(a) following an adverse benefit determination on review.
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7.2
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Review
Procedure. If the Plan Administrator denies part or the
entire claim, the claimant shall have the opportunity for a full
and fair
review by the Plan Administrator of the denial as follows:
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7.2.1
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Initiation
–
Written
Request. To initiate the review, the claimant, within
sixty (60) days after receiving the Plan Administrator’s notice of denial,
must file with the Plan Administrator a written request for review.
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7.2.2
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Additional
Submissions
– Information Access. The claimant shall then have the
opportunity to submit written comments, documents, records and other
information relating to the claim. The Plan Administrator shall
also provide the claimant, upon request and free of charge, reasonable
access to, and copies of, all documents, records and other information
relevant (as defined in applicable ERISA regulations) to the claimant’s
claim for benefits.
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7.2.3
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Considerations
on
Review. In considering the review, the Plan
Administrator shall take into account all materials and information
the
claimant submits relating to the claim, without regard to whether
such
information was submitted or considered in the initial benefit
determination.
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7.2.4
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Timing
of Plan
Administrator Response. The Plan Administrator shall
respond in writing to such claimant within sixty (60) days after
receiving
the request for review. If the Plan Administrator determines
that special circumstances require additional time for processing
the
claim, the Plan Administrator can extend the response period by an
additional sixty (60) days by notifying the claimant in writing,
prior to
the end of the initial sixty (60) day period that an additional period
is
required. The notice of extension must set forth the special
circumstances and the date by which the Plan Administrator expects
to
render its decision.
|
|
7.2.5
|
Notice
of
Decision. The Plan Administrator shall notify the
claimant in writing of its decision on review. The Plan
Administrator shall write the notification in a manner calculated
to be
understood by the claimant. The notification shall set forth:
|
|
|
(a)
|
The
specific reasons for the denial;
|
|
|
(b)
|
A
reference to the specific provisions of this Agreement on which the
denial
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 (as defined in applicable ERISA regulations)
to
the claimant’s claim for benefits; and
|
|
|
(d)
|
A
statement of the claimant’s right to bring a civil action under ERISA
Section 502(a).
|
Article
8
Amendments
and Termination
|
8.1
|
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 to written directives to the Company from
its
auditors or banking regulators or to comply with legislative changes
or
tax law, including without limitation Code Section
409A.
|
|
8.2
|
Plan
Termination
Generally. This Agreement may be terminated only by a
written agreement signed by the Company and the Executive. The
benefit shall be the Accrual Balance as of the date this Agreement
is
terminated. Except as provided in Section 8.3, 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.
|
|
8.3
|
Plan
Terminations
Under Code Section 409A. Notwithstanding anything to the
contrary in Section 8.2, 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
Code
Section 409A(a)(2)(A)(v), provided that all distributions are made
no
later than twelve (12) months following such termination of this
Agreement
and further provided that all the Company's arrangements which
are substantially similar to this 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 such termination;
|
|
|
(b)
|
Upon
the Company’s dissolution or with the approval of a bankruptcy court
provided that the amounts deferred under this Agreement are included
in
the Executive's gross income in the latest of (i) the calendar year
in
which this 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; the Company may distribute the Accrual Balance,
determined as of the date of the termination of this Agreement, to
the
Executive in a lump sum subject to the above
terms.
|
Article
9
Miscellaneous
|
9.1
|
Binding
Effect. This Agreement shall bind the Executive and the
Company and their beneficiaries, survivors, executors, administrators
and
transferees.
|
|
9.2
|
No
Guarantee of
Employment. This Agreement is not a contract for
employment. It does not give the Executive the right to remain
as an employee of the Company nor interfere with the Company's right
to
discharge the Executive. It 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 manner.
|
|
9.4
|
Tax
Withholding and
Reporting. The Company shall withhold any taxes that are
required to be withheld, including but not limited to taxes owed
under
Code Section 409A from the benefits provided under this
Agreement. The Executive acknowledges that the Company’s sole
liability regarding taxes is to forward any amounts withheld to the
appropriate taxing authorities. The Company shall satisfy all
applicable reporting requirements, including those under Code Section
409A.
|
|
9.5
|
Applicable
Law. This Agreement and all rights hereunder shall be
governed by the laws of the State of Florida, except to the extent
preempted by the laws of the United States of America.
|
|
9.6
|
Unfunded
Arrangement. The Executive and the Beneficiary are
general unsecured creditors of the Company for the distribution of
benefits under this Agreement. The benefits represent the mere
promise by the Company to distribute 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 or other
informal funding asset 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 bank, or reorganize,
or sell
substantially all of its assets to another bank, firm or person unless
such succeeding or continuing bank, firm or person agrees to assume
and
discharge the obligations of the Company under this
Agreement. Upon the occurrence of such an event, the term
“Company” as used in this Agreement shall be deemed to refer to the
successor or survivor entity.
|
|
9.8
|
Entire
Agreement. This
Agreement
constitutes the entire agreement between the Company and the Executive
as
to the subject matter hereof. 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 due to regulatory or other constraints, the Company or
Plan
Administrator may 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, provided that such alternative act does not violate
Code
Section 409A.
|
|
9.11
|
Headings. Article
and section headings are for convenient reference only and shall
not
control or affect the meaning or construction of any provision herein.
|
|
9.12
|
Validity. If
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 or invalid provision had never been included 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:
|
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.
|
9.14
|
Compliance
with
Section 409A. This Agreement shall be interpreted and
administered consistent with Code Section 409A.
|
IN
WITNESS WHEREOF, the Executive and a duly authorized representative of the
Company have signed this Agreement.
| EXECUTIVE | COMPANY | ||
|
By:
|
|||
|
Title:
|
|||
{
} New
Designation
{
} Change in
Designation
I,
________________, designate the following as Beneficiary under this
Agreement:
| Primary: | ||||
| % | ||||
|
|
% | |||
| Contingent: | ||||
| % | ||||
| % | ||||
|
|
Notes:
|
|
·
|
Please
PRINT CLEARLY or TYPE the names of the
beneficiaries.
|
|
·
|
To
name a trust as Beneficiary, please provide the name of the trustee(s)
and
the exact
name and date of the trust
agreement.
|
|
·
|
To
name your estate as Beneficiary, please write “Estate of [your
name]”.
|
|
·
|
Be
aware that none of the contingent beneficiaries will receive anything
unless ALL of the primary beneficiaries predecease
you.
|
I
understand that I may change these beneficiary designations by delivering a
new
written designation to the Plan Administrator, which shall be effective only
upon receipt and acknowledgment by the Plan Administrator prior to my
death. I further understand that the designations will be
automatically revoked if the Beneficiary predeceases me, or, if I have named
my
spouse as Beneficiary and our marriage is subsequently dissolved.
Name:
___________________________________________
Signature:
_______________________________________ Date:
__________________________
Received
by the Plan Administrator this __________ day of _____________________,
200___________
By: _________________________________
Title: _________________________________