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EXHIBIT 10.2
AMENDED AND RESTATED
EXECUTIVE SALARY CONTINUATION AGREEMENT
THIS AMENDED AND RESTATED EXECUTIVE SALARY CONTINUATION AGREEMENT, is
made and entered into this ______ day of March, 1994, but effective for all
purposes of August 17, 1992, by and between MERCANTILE BANK, a Florida
corporation organized and existing under the laws of the State of Florida,
hereinafter referred to as "Bank," and XXXXXX X. XXXXXXXX, a Key Employee and
Executive of the Bank, hereinafter referred to as "Executive."
W I T N E S S E T H :
WHEREAS, the Executive has been and continues to be a valued Executive
of the Bank and is currently serving as its President and Chief Executive
Officer; and
WHEREAS, it is the consensus of the Board of Directors that Executive's
services have been of exceptional merit and have made a substantial contribution
to the profits and position of the Bank in its industry and in the Tampa Bay
area; and
WHEREAS, the Board further believes that Executive's experience,
knowledge of the Bank's business and his reputation and contacts in the industry
and in the Tampa Bay area are of such value to Bank's continued growth and
profitability that it would suffer severe financial loss should the Executive
terminate his services; and
WHEREAS, the Bank and the Executive entered into an agreement on
December 2, 1993 (the "Agreement") pursuant to which the Bank agreed to make
certain payments to the Executive upon his severance or retirement and to his
designated beneficiary or beneficiaries in the event of his death while employed
by the Bank or while receiving the benefits provided hereunder; and
WHEREAS, the Bank and the Executive now desire to amend the Agreement
in certain respects by this Agreement and Restatement.
NOW, THEREFORE, in consideration of the Executive's past services and
those to be performed in the future, and based upon the mutual promises and
covenants herein contained, the Bank and the Executive do hereby agree that the
Executive Salary Continuation Agreement dated December 2, 1993 is hereby Amended
and Restated as follows:
I. ARTICLE ONE - DEFINITIONS
A. Effective Date:
The effective date of this Agreement shall be August 17, 1992.
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B. Normal Retirement Date:
The Normal Retirement Date shall mean the first day of the
calendar month following the month in which the Executive
reaches his seventieth (70th) birthday.
X. Xxxxxxxxx Benefits:
Severance Benefits shall mean those benefits to which the
Executive is entitled in the event he voluntarily terminates
his employment, his employment is terminated as a result of
his total disability, or he is discharged by the Bank without
cause.
II. ARTICLE TWO - EMPLOYMENT STATUS
A. Employment:
The Executive is currently employed by the Bank in the
capacity indicated above upon the terms and conditions agreed
upon by the Executive and the Bank and confirmed in a separate
employment agreement.
B. No Employment Agreement Created:
No provision of this Agreement shall be deemed to restrict or
in any way limit the existing employment agreement between the
Bank and the Executive. It is not intended that any of the
provisions of this Agreement create any specific employment
rights for the Executive or limit the right of the Bank to
discharge the Executive with or without cause.
Likewise, no provision of this Agreement shall limit the
Executive's rights to terminate his employment at any time.
III. ARTICLE THREE - BENEFITS
The following benefits provided by the Bank to the Executive are in the
nature of a fringe benefit and shall in no event be construed to have
any effect or impose any limitation on the Executive's current or
future salary increases, cash bonuses or profit-sharing distributions
or credits. The following benefits are not part of any salary reduction
plan or an arrangement deferring a bonus or a salary increase. The
Executive has no option to take any current payment or bonus in lieu of
these salary continuation benefits.
A. Retirement Benefits:
If the Executive shall remain in the employment of the Bank
until his "Normal Retirement Date," then, in that event, he
shall be entitled to receive as his "Normal
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Retirement Benefit" the monthly benefit listed on Exhibit "A"
or such other benefit amount as may have been subsequently
approved from time to time by the Board of Directors of the
Bank in accordance with the terms hereof. It is acknowledged
and agreed that this is a projected benefit and it may be
adjusted from time to time by the Board of Directors of the
Bank to reflect the historical performance of the Bank's net
yield on its United States Treasury investments. The
Executive's "Normal Retirement Benefit" shall be paid monthly
commencing on the first day of the month following his "Normal
Retirement Date" and continuing for a period of one hundred
eighty (180) months. In the event the Executive shall die
prior to the expiration of the one hundred eighty (180) month
period, the unpaid balance of his monthly retirement payments
shall continue to be paid monthly for the remainder of such
period to the beneficiary or beneficiaries designated by the
Executive in the beneficiary designation form provided by the
Bank. In the absence of or failure of the Executive to
designate a beneficiary, the remaining monthly payments shall
be paid to the personal representative of the Executive's
estate.
B. Early Retirement or Severance Benefit:
In the event the employment of the Executive by the Bank shall
terminate without cause prior to his "Normal Retirement Date,"
the Bank shall pay to the Executive as severance compensation
a monthly benefit determined by multiplying his "Normal
Retirement Benefit" by the applicable percentage from the
following table:
YEAR OF PARTICIPATION APPLICABLE PERCENTAGE
--------------------- ---------------------
Less than 1 0%
1 but less than 2 20%
2 but less than 3 30%
3 but less than 4 40%
4 but less than 5 50%
5 but less than 6 60%
6 but less than 7 70%
7 but less than 8 80%
8 but less than 9 90%
9 or more 100%
The Executive's participation years shall be deemed to have
begun on August 17, 1992. The payment of the severance benefit
shall begin on the first day of the month following the month
in which the Executive's seventieth (70th) birthday occurs.
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The severance benefits shall be payable for a period of one
hundred eighty (180) months; provided, however, that if the
Executive dies prior to the expiration of one hundred eighty
(180) months, the unpaid balance of his monthly retirement
payments shall continue to be paid monthly for the remainder
of such period to the beneficiary or beneficiaries designated
by the Executive in the beneficiary designation form provided
by the Bank. In the absence of or a failure to designate a
beneficiary, the remaining monthly payments shall be paid to
the personal representative of the Executive's estate.
C. Termination of Service:
If the Executive is discharged for cause, all of the
Executive's benefits under this Agreement shall be forfeited
and this Agreement shall become null and void. If a dispute
arises as to the Executive's discharge "for cause," such
dispute shall be resolved by arbitration as set forth in
Article IV. B.
C. Death Benefit Prior To Retirement:
In the event of the death of the Executive prior to the
commencement of the payment of his "Normal Retirement
Benefit," or severance benefit, the Bank shall pay to the
Executive's designated beneficiary or beneficiaries a monthly
benefit equal to the Executive's "Normal Retirement Benefit"
commencing on the first day of the month following the month
in which the Executive's death occurs and continuing for a
period of one hundred and eighty (180) months. In the absence
of or failure of the Executive to designate a beneficiary, the
monthly retirement payments shall be paid to the personal
representative of the Executive's estate.
In the event the Executive's death shall be the result of
suicide on or before September 11, 1994, then no death
benefits shall be payable to the Executive's designated
beneficiary or his personal representative.
IV. ARTICLE FOUR - RESTRICTIONS UPON FUNDING
The Bank shall have no obligation to set aside, earmark or entrust any
fund or money with which to pay its obligations under this Agreement.
The Executive, his beneficiaries or any successor in interest to him
shall be and remain a general creditor of the Bank in the same manner
as any other creditor having an unsecured claim against the Bank.
The Bank reserves the absolute right at its sole discretion to either
fund the obligations undertaken by this Agreement or to
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refrain from funding the same and to determine the extent, nature and
method of such funding. Should the Bank elect to fund this Agreement,
in whole or in part, through the purchase of life insurance, mutual
funds, disability policies or annuities, the Bank reserves the absolute
right, in its sole discretion, to terminate such funding at any time.
At no time shall the Executive be deemed to have any lien nor right,
title or interest in or to any specific funding investment or to any
assets of the Bank. If the Bank elects to purchase life insurance on
the life of the Executive, the Executive shall assist the Bank in
applying for such life insurance by completing the necessary
application, submitting to a physical exam, and supplying such
additional information as may be necessary to obtain such insurance.
V. ARTICLE FIVE - MISCELLANEOUS
A. Alienability and Assignment Prohibition:
Neither the Executive, his wife nor any other beneficiary
under this Agreement shall have any power or right to
transfer, assign, anticipate, hypothecate, mortgage, commute,
modify or otherwise encumber in advance any of the benefits
payable hereunder nor shall any of said benefits be subject to
seizure for the payment of any debts, judgments, alimony or
separate maintenance owed by the Executive or his beneficiary,
nor be transferrable by operation of law in the event of
bankruptcy, insolvency or otherwise. Any attempt by the
Executive or any beneficiary to assign, commute, hypothecate,
transfer or dispose of the benefits payable hereunder shall be
null and void, and the Bank shall not be obligated to make any
payments except as provided herein.
B. Binding Obligation of Bank and Any Successor In Interest:
This Agreement shall be binding upon the parties hereto, their
successors, beneficiaries, heirs and personal representatives.
C. Revocation:
It is agreed by and between the parties hereto that, during
the lifetime of the Executive, this Agreement may be amended
or revoked at any time or times, in whole or in part, by the
mutual written assent of the Executive and the Bank.
D. Effect On Other Bank Benefit Plans:
The benefits provided hereunder shall be in addition to
the Executive's annual salary as determined by the Board
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of Directors, and nothing contained in this Agreement shall
affect the right of the Executive to participate in or be
covered by any qualified or non-qualified pension,
profit-sharing, group, bonus or other supplemental
compensation or fringe benefit plan constituting a part of the
Bank's existing or future compensation structure.
E. Reorganization:
The Bank agrees that if it merges or consolidates with any
other company or organization, or permits its business
activities to be taken over by any other organization, or
ceases its business activities or terminates its existence,
other than as specified above, the Executive shall be one
hundred percent (100%) vested in the early
retirement/severance benefit to be paid to the Executive
pursuant to the provisions of Article III B., above, without
regard to his actual years of participation under this
Agreement.
F. Headings:
Headings and Subheadings in this Agreement are inserted for
reference and convenience only and shall not be deemed a part
of this Agreement.
G. Applicable Law:
The validity and interpretation of this Agreement shall be
governed by the laws of the State of Florida.
VI. ERISA PROVISIONS
A. Named Fiduciary and Plan Administrator:
The "Named Fiduciary and Plan Administrator" of this plan
shall be Mercantile Bank until its resignation or removal by
the Board of Directors. As Named Fiduciary and Administrator,
Mercantile Bank shall be responsible for the management,
control and administration of the Salary Continuation
Agreement as established herein. It may delegate to others
certain aspects of the management and operation
responsibilities of the plan including the employment of
advisors and the delegation of ministerial duties to qualified
individuals.
B. Claims Procedure and Arbitration:
In the event that benefits under this Plan Agreement are not
paid to the Executive (or to his beneficiary in the case of
the Executive's death) and such claimants feel they are
entitled to receive such benefits, then a
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written claim must be made to the Named Fiduciary and
Administrator named above within sixty (60) days from the date
payments are refused. The Plan Fiduciary and Administrator and
the Bank shall review the written claim and if the claim is
denied, in whole or in part, they shall provide in writing
within ninety (90) days of receipt of such claim their
specific reasons for such denial, reference to the provisions
of this Agreement upon which the denial is based and any
additional material or information necessary to perfect the
claim. Such written notice shall further indicate the
additional steps to be taken by claimants if a further review
of the claim denial is desired. A claim shall be deemed denied
if the Plan Fiduciary and Administrator fails to take any
action within the aforesaid ninety (90) day period.
If claimants desire a second review, they shall notify the
Plan Fiduciary and Administrator in writing within sixty (60)
days of the first claim denial. Claimants may review the Plan
Agreement or any documents relating thereto and submit any
written issues and comments they may feel appropriate. In its
sole discretion, the Plan Fiduciary and Administrator shall
then review the second claim and provide a written decision
within sixty (60) days of its receipt of such claim. This
decision shall likewise state the specific reasons for the
decision and shall include reference to specific provisions of
the Plan Agreement upon which the decision is based.
If claimants continue to dispute the benefit denial based upon
completed performance of the Agreement or the meaning and
effect of the terms and conditions thereof, then claimants may
submit the dispute to a Board of Arbitration for final
arbitration. Said Board shall consist of one member selected
by the claimant, one member selected by the Corporation and
the third member selected by the first two members. The Board
shall operate under any generally recognized set of
arbitration rules. The parties hereto agree that they and
their heirs, personal representatives, successors and assigns
shall be bound by the decision of such Board with respect to
any controversy properly submitted to it for determination.
Where a dispute arises as to the Bank's discharge of the
Executive "for cause," such dispute shall likewise be
submitted to arbitration as above described and the parties
hereby agree to be bound by the decision thereunder.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
Attest: (Corporate Seal) MERCANTILE BANK
By:
------------------------------ ---------------------------
Secretary "Bank"
Witnesses:
------------------------------ -----------------------------
XXXXXX X. XXXXXXXX
------------------------------
As to Xxxxxx X. Xxxxxxxx "Executive"
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MONTHLY RETIREMENT
BENEFIT
$4,166.67
EXHIBIT "A"
EXHIBIT "A"
10
AMENDED AND RESTATED
EXECUTIVE SALARY CONTINUATION AGREEMENT
THIS AMENDED AND RESTATED EXECUTIVE SALARY CONTINUATION AGREEMENT, is
made and entered into this ______ day of March, 1994, but effective for all
purposes of August 17, 1992, by and between MERCANTILE BANK, a Florida
corporation organized and existing under the laws of the State of Florida,
hereinafter referred to as "Bank," and XXXXX X. XXXXXX, a Key Employee and
Executive of the Bank, hereinafter referred to as "Executive."
W I T N E S S E T H :
WHEREAS, the Executive has been and continues to be a valued Executive
of the Bank and is currently serving as an Executive Vice President; and
WHEREAS, it is the consensus of the Board of Directors that Executive's
services have been of exceptional merit and have made a substantial contribution
to the profits and position of the Bank in its industry and in the Tampa Bay
area; and
WHEREAS, the Board further believes that Executive's experience,
knowledge of the Bank's business and his reputation and contacts in the industry
and in the Tampa Bay area are of such value to Bank's continued growth and
profitability that it would suffer severe financial loss should the Executive
terminate his services; and
WHEREAS, the Bank and the Executive entered into an agreement on
December 2, 1993 (the "Agreement") pursuant to which the Bank agreed to make
certain payments to the Executive upon his severance or retirement and to his
designated beneficiary or beneficiaries in the event of his death while employed
by the Bank or while receiving the benefits provided hereunder; and
WHEREAS, the Bank and the Executive now desire to amend the Agreement
in certain respects by this Agreement and Restatement.
NOW, THEREFORE, in consideration of the Executive's past services and
those to be performed in the future, and based upon the mutual promises and
covenants herein contained, the Bank and the Executive do hereby agree that the
Executive Salary Continuation Agreement dated December 2, 1993 is hereby Amended
and Restated as follows:
I. ARTICLE ONE - DEFINITIONS
A. Effective Date:
The effective date of this Agreement shall be January 1, 1994.
B. Normal Retirement Date:
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The Normal Retirement Date shall mean the first day of the
calendar month following the twentieth (20th) anniversary of
the effective date of this Agreement.
X. Xxxxxxxxx Benefits:
Severance Benefits shall mean those benefits to which the
Executive is entitled in the event he voluntarily terminates
his employment, his employment is terminated as a result of
his total disability, or he is discharged by the Bank without
cause.
II. ARTICLE TWO - EMPLOYMENT STATUS
A. Employment:
The Executive is currently employed by the Bank in the
capacity indicated above upon the terms and conditions agreed
upon by the Executive and the Bank.
B. No Employment Agreement Created:
No provision of this Agreement shall be deemed to restrict or
in any way limit the existing employment agreement between the
Bank and the Executive. It is not intended that any of the
provisions of this Agreement create any specific employment
rights for the Executive or limit the right of the Bank to
discharge the Executive with or without cause.
Likewise, no provision of this Agreement shall limit the
Executive's rights to terminate his employment at any time.
III. ARTICLE THREE - BENEFITS
The following benefits provided by the Bank to the Executive are in the
nature of a fringe benefit and shall in no event be construed to have
any effect or impose any limitation on the Executive's current or
future salary increases, cash bonuses or profit-sharing distributions
or credits. The following benefits are not part of any salary reduction
plan or an arrangement deferring a bonus or a salary increase. The
Executive has no option to take any current payment or bonus in lieu of
these salary continuation benefits.
A. Retirement Benefits:
If the Executive shall remain in the employment of the Bank
until his "Normal Retirement Date," then, in that event, he
shall be entitled to receive as his "Normal Retirement
Benefit" the monthly benefit listed on Exhibit
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"A" or such other benefit amount as may have been subsequently
approved from time to time by the Board of Directors of the
Bank in accordance with the terms hereof. It is acknowledged
and agreed that this is a projected benefit and it may be
adjusted from time to time by the Board of Directors of the
Bank to reflect the historical performance of the Bank's net
yield on its United States Treasury investments. The
Executive's "Normal Retirement Benefit" shall be paid monthly
commencing on the first day of the month following his "Normal
Retirement Date" and continuing for a period of one hundred
eighty (180) months. In the event the Executive shall die
prior to the expiration of the one hundred eighty (180) month
period, the unpaid balance of his monthly retirement payments
shall continue to be paid monthly for the remainder of such
period to the beneficiary or beneficiaries designated by the
Executive in the beneficiary designation form provided by the
Bank. In the absence of or failure of the Executive to
designate a beneficiary, the remaining monthly payments shall
be paid to the personal representative of the Executive's
estate.
B. Early Retirement or Severance Benefit:
In the event the employment of the Executive by the Bank shall
terminate without cause prior to his "Normal Retirement Date,"
the Bank shall pay to the Executive as severance compensation
a monthly benefit determined by multiplying his "Normal
Retirement Benefit" by the applicable percentage from the
following table:
YEAR OF PARTICIPATION APPLICABLE PERCENTAGE
--------------------- ---------------------
Less than 1 0%
1 but less than 2 5%
2 but less than 3 10%
3 but less than 4 15%
4 but less than 5 20%
5 but less than 6 25%
6 but less than 7 30%
7 but less than 8 35%
8 but less than 9 40%
9 but less than 10 45%
10 but less than 11 50%
11 but less than 12 55%
12 but less than 13 60%
13 but less than 14 65%
14 but less than 15 70%
15 but less than 16 75%
16 but less than 17 80%
17 but less than 18 85%
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18 but less than 19 90%
19 but less than 20 95%
20 or more 100%
The Executive's participation years shall be deemed to have
begun on January 1, 1994. The payment of the severance benefit
shall begin on the first day of the month following the month
following the twentieth anniversary of the effective date of
this Agreement.
The severance benefits shall be payable for a period of one
hundred eighty (180) months; provided, however, that if the
Executive dies prior to the expiration of one hundred eighty
(180) months, the unpaid balance of his monthly retirement
payments shall continue to be paid monthly for the remainder
of such period to the beneficiary or beneficiaries designated
by the Executive in the beneficiary designation form provided
by the Bank. In the absence of or a failure to designate a
beneficiary, the remaining monthly payments shall be paid to
the personal representative of the Executive's estate.
C. Termination of Service:
If the Executive is discharged for cause, all of the
Executive's benefits under this Agreement shall be forfeited
and this Agreement shall become null and void. If a dispute
arises as to the Executive's discharge "for cause," such
dispute shall be resolved by arbitration as set forth in
Article IV. B.
D. Death Benefit Prior To Retirement:
In the event of the death of the Executive prior to the
commencement of the payment of his "Normal Retirement
Benefit," or severance benefit, the Bank shall pay to the
Executive's designated beneficiary or beneficiaries a monthly
benefit equal to the Executive's "Normal Retirement Benefit"
commencing on the first day of the month following the month
in which the Executive's death occurs and continuing for a
period of one hundred and eighty (180) months. In the absence
of or failure of the Executive to designate a beneficiary, the
monthly retirement payments shall be paid to the personal
representative of the Executive's estate.
In the event the Executive's death shall be the result of
suicide on or before February 23, 1995, then no death benefits
shall be payable to the Executive's designated beneficiary or
his personal representative.
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IV. ARTICLE FOUR - RESTRICTIONS UPON FUNDING
The Bank shall have no obligation to set aside, earmark or entrust any
fund or money with which to pay its obligations under this Agreement.
The Executive, his beneficiaries or any successor in interest to him
shall be and remain a general creditor of the Bank in the same manner
as any other creditor having an unsecured claim against the Bank.
The Bank reserves the absolute right at its sole discretion to either
fund the obligations undertaken by this Agreement or to refrain from
funding the same and to determine the extent, nature and method of such
funding. Should the Bank elect to fund this Agreement, in whole or in
part, through the purchase of life insurance, mutual funds, disability
policies or annuities, the Bank reserves the absolute right, in its
sole discretion, to terminate such funding at any time. At no time
shall the Executive be deemed to have any lien nor right, title or
interest in or to any specific funding investment or to any assets of
the Bank. If the Bank elects to purchase life insurance on the life of
the Executive, the Executive shall assist the Bank in applying for such
life insurance by completing the necessary application, submitting to a
physical exam, and supplying such additional information as may be
necessary to obtain such insurance.
V. ARTICLE FIVE - MISCELLANEOUS
A. Alienability and Assignment Prohibition:
Neither the Executive, his wife nor any other beneficiary
under this Agreement shall have any power or right to
transfer, assign, anticipate, hypothecate, mortgage, commute,
modify or otherwise encumber in advance any of the benefits
payable hereunder nor shall any of said benefits be subject to
seizure for the payment of any debts, judgments, alimony or
separate maintenance owed by the Executive or his beneficiary,
nor be transferrable by operation of law in the event of
bankruptcy, insolvency or otherwise. Any attempt by the
Executive or any beneficiary to assign, commute, hypothecate,
transfer or dispose of the benefits payable hereunder shall be
null and void, and the Bank shall not be obligated to make any
payments except as provided herein.
B. Binding Obligation of Bank and Any Successor In Interest:
This Agreement shall be binding upon the parties hereto, their
successors, beneficiaries, heirs and personal representatives.
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C. Revocation:
It is agreed by and between the parties hereto that, during
the lifetime of the Executive, this Agreement may be amended
or revoked at any time or times, in whole or in part, by the
mutual written assent of the Executive and the Bank.
D. Effect On Other Bank Benefit Plans:
The benefits provided hereunder shall be in addition to the
Executive's annual salary as determined by the Board of
Directors, and nothing contained in this Agreement shall
affect the right of the Executive to participate in or be
covered by any qualified or non-qualified pension,
profit-sharing, group, bonus or other supplemental
compensation or fringe benefit plan constituting a part of the
Bank's existing or future compensation structure.
E. Reorganization:
The Bank agrees that if it merges or consolidates with any
other company or organization, or permits its business
activities to be taken over by any other organization, or
ceases its business activities or terminates its existence,
other than as specified above, the Executive shall be one
hundred percent (100%) vested in the early
retirement/severance benefit to be paid to the Executive
pursuant to the provisions of Article III B., above, without
regard to his actual years of participation under this
Agreement.
F. Headings:
Headings and Subheadings in this Agreement are inserted for
reference and convenience only and shall not be deemed a part
of this Agreement.
G. Applicable Law:
The validity and interpretation of this Agreement shall be
governed by the laws of the State of Florida.
VI. ERISA PROVISIONS
A. Named Fiduciary and Plan Administrator:
The "Named Fiduciary and Plan Administrator" of this plan
shall be Mercantile Bank until its resignation or removal by
the Board of Directors. As Named Fiduciary and Administrator,
Mercantile Bank shall be responsible for the management,
control and administration of the Salary
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Continuation Agreement as established herein. It may delegate
to others certain aspects of the management and operation
responsibilities of the plan including the employment of
advisors and the delegation of ministerial duties to qualified
individuals.
B. Claims Procedure and Arbitration:
In the event that benefits under this Plan Agreement are not
paid to the Executive (or to his beneficiary in the case of
the Executive's death) and such claimants feel they are
entitled to receive such benefits, then a written claim must
be made to the Named Fiduciary and Administrator named above
within sixty (60) days from the date payments are refused. The
Plan Fiduciary and Administrator and the Bank shall review the
written claim and if the claim is denied, in whole or in part,
they shall provide in writing within ninety (90) days of
receipt of such claim their specific reasons for such denial,
reference to the provisions of this Agreement upon which the
denial is based and any additional material or information
necessary to perfect the claim. Such written notice shall
further indicate the additional steps to be taken by claimants
if a further review of the claim denial is desired. A claim
shall be deemed denied if the Plan Fiduciary and Administrator
fails to take any action within the aforesaid ninety (90) day
period.
If claimants desire a second review, they shall notify the
Plan Fiduciary and Administrator in writing within sixty (60)
days of the first claim denial. Claimants may review the Plan
Agreement or any documents relating thereto and submit any
written issues and comments they may feel appropriate. In its
sole discretion, the Plan Fiduciary and Administrator shall
then review the second claim and provide a written decision
within sixty (60) days of its receipt of such claim. This
decision shall likewise state the specific reasons for the
decision and shall include reference to specific provisions of
the Plan Agreement upon which the decision is based.
If claimants continue to dispute the benefit denial based upon
completed performance of the Agreement or the meaning and
effect of the terms and conditions thereof, then claimants may
submit the dispute to a Board of Arbitration for final
arbitration. Said Board shall consist of one member selected
by the claimant, one member selected by the Corporation and
the third member selected by the first two members. The Board
shall operate under any generally recognized set of
arbitration rules. The parties hereto agree that they and
their heirs, personal representatives, successors and assigns
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shall be bound by the decision of such Board with respect to
any controversy properly submitted to it for determination.
Where a dispute arises as to the Bank's discharge of the
Executive "for cause," such dispute shall likewise be
submitted to arbitration as above described and the parties
hereby agree to be bound by the decision thereunder.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
Attest: (Corporate Seal) MERCANTILE BANK
By:
----------------------------- ----------------------------
Secretary "Bank"
Witnesses:
------------------------------ -------------------------------
XXXXX X. XXXXXX
------------------------------
As to Xxxxx X. Xxxxxx "Executive"
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MONTHLY RETIREMENT
BENEFIT
$4,166.67
EXHIBIT "A"
20
AMENDED AND RESTATED
EXECUTIVE SALARY CONTINUATION AGREEMENT
THIS AMENDED AND RESTATED EXECUTIVE SALARY CONTINUATION AGREEMENT, is
made and entered into this ______ day of March, 1994, but effective for all
purposes of August 17, 1992, by and between MERCANTILE BANK, a Florida
corporation organized and existing under the laws of the State of Florida,
hereinafter referred to as "Bank," and XXXXXX X. XXXXXXX, a Key Employee and
Executive of the Bank, hereinafter referred to as "Executive."
W I T N E S S E T H :
WHEREAS, the Executive has been and continues to be a valued Executive
of the Bank and is currently serving as a Senior Vice President; and
WHEREAS, it is the consensus of the Board of Directors that Executive's
services have been of exceptional merit and have made a substantial contribution
to the profits and position of the Bank in its industry and in the Tampa Bay
area; and
WHEREAS, the Board further believes that Executive's experience,
knowledge of the Bank's business and his reputation and contacts in the industry
and in the Tampa Bay area are of such value to Bank's continued growth and
profitability that it would suffer severe financial loss should the Executive
terminate his services; and
WHEREAS, the Bank and the Executive entered into an agreement on
December 2, 1993 (the "Agreement") pursuant to which the Bank agreed to make
certain payments to the Executive upon his severance or retirement and to his
designated beneficiary or beneficiaries in the event of his death while employed
by the Bank or while receiving the benefits provided hereunder; and
WHEREAS, the Bank and the Executive now desire to amend the Agreement
in certain respects by this Agreement and Restatement.
NOW, THEREFORE, in consideration of the Executive's past services and
those to be performed in the future, and based upon the mutual promises and
covenants herein contained, the Bank and the Executive do hereby agree that the
Executive Salary Continuation Agreement dated December 2, 1993 is hereby Amended
and Restated as follows:
I. ARTICLE ONE - DEFINITIONS
A. Effective Date:
The effective date of this Agreement shall be January 1, 1994.
B. Normal Retirement Date:
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The Normal Retirement Date shall mean the first day of the
calendar month following the twentieth (20th) anniversary of
the effective date of this Agreement.
X. Xxxxxxxxx Benefits:
Severance Benefits shall mean those benefits to which the
Executive is entitled in the event he voluntarily terminates
his employment, his employment is terminated as a result of
his total disability, or he is discharged by the Bank without
cause.
II. ARTICLE TWO - EMPLOYMENT STATUS
A. Employment:
The Executive is currently employed by the Bank in the
capacity indicated above upon the terms and conditions agreed
upon by the Executive and the Bank.
B. No Employment Agreement Created:
No provision of this Agreement shall be deemed to restrict or
in any way limit the existing employment agreement between the
Bank and the Executive. It is not intended that any of the
provisions of this Agreement create any specific employment
rights for the Executive or limit the right of the Bank to
discharge the Executive with or without cause.
Likewise, no provision of this Agreement shall limit the
Executive's rights to terminate his employment at any time.
III. ARTICLE THREE - BENEFITS
The following benefits provided by the Bank to the Executive are in the
nature of a fringe benefit and shall in no event be construed to have
any effect or impose any limitation on the Executive's current or
future salary increases, cash bonuses or profit-sharing distributions
or credits. The following benefits are not part of any salary reduction
plan or an arrangement deferring a bonus or a salary increase. The
Executive has no option to take any current payment or bonus in lieu of
these salary continuation benefits.
A. Retirement Benefits:
If the Executive shall remain in the employment of the Bank
until his "Normal Retirement Date," then, in that event, he
shall be entitled to receive as his "Normal Retirement
Benefit" the monthly benefit listed on Exhibit
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"A" or such other benefit amount as may have been subsequently
approved from time to time by the Board of Directors of the
Bank in accordance with the terms hereof. It is acknowledged
and agreed that this is a projected benefit and it may be
adjusted from time to time by the Board of Directors of the
Bank to reflect the historical performance of the Bank's net
yield on its United States Treasury investments. The
Executive's "Normal Retirement Benefit" shall be paid monthly
commencing on the first day of the month following his "Normal
Retirement Date" and continuing for a period of one hundred
eighty (180) months. In the event the Executive shall die
prior to the expiration of the one hundred eighty (180) month
period, the unpaid balance of his monthly retirement payments
shall continue to be paid monthly for the remainder of such
period to the beneficiary or beneficiaries designated by the
Executive in the beneficiary designation form provided by the
Bank. In the absence of or failure of the Executive to
designate a beneficiary, the remaining monthly payments shall
be paid to the personal representative of the Executive's
estate.
B. Early Retirement or Severance Benefit:
In the event the employment of the Executive by the Bank shall
terminate without cause prior to his "Normal Retirement Date,"
the Bank shall pay to the Executive as severance compensation
a monthly benefit determined by multiplying his "Normal
Retirement Benefit" by the applicable percentage from the
following table:
YEAR OF PARTICIPATION APPLICABLE PERCENTAGE
--------------------- ---------------------
Less than 1 0%
1 but less than 2 5%
2 but less than 3 10%
3 but less than 4 15%
4 but less than 5 20%
5 but less than 6 25%
6 but less than 7 30%
7 but less than 8 35%
8 but less than 9 40%
9 but less than 10 45%
10 but less than 11 50%
11 but less than 12 55%
12 but less than 13 60%
13 but less than 14 65%
14 but less than 15 70%
15 but less than 16 75%
16 but less than 17 80%
17 but less than 18 85%
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18 but less than 19 90%
19 but less than 20 95%
20 or more 100%
The Executive's participation years shall be deemed to have
begun on January 1, 1994. The payment of the severance benefit
shall begin on the first day of the month following the month
following the twentieth anniversary of the effective date of
this Agreement.
The severance benefits shall be payable for a period of one
hundred eighty (180) months; provided, however, that if the
Executive dies prior to the expiration of one hundred eighty
(180) months, the unpaid balance of his monthly retirement
payments shall continue to be paid monthly for the remainder
of such period to the beneficiary or beneficiaries designated
by the Executive in the beneficiary designation form provided
by the Bank. In the absence of or a failure to designate a
beneficiary, the remaining monthly payments shall be paid to
the personal representative of the Executive's estate.
C. Termination of Service:
If the Executive is discharged for cause, all of the
Executive's benefits under this Agreement shall be forfeited
and this Agreement shall become null and void. If a dispute
arises as to the Executive's discharge "for cause," such
dispute shall be resolved by arbitration as set forth in
Article IV. B.
D. Death Benefit Prior To Retirement:
In the event of the death of the Executive prior to the
commencement of the payment of his "Normal Retirement
Benefit," or severance benefit, the Bank shall pay to the
Executive's designated beneficiary or beneficiaries a monthly
benefit equal to the Executive's "Normal Retirement Benefit"
commencing on the first day of the month following the month
in which the Executive's death occurs and continuing for a
period of one hundred and eighty (180) months. In the absence
of or failure of the Executive to designate a beneficiary, the
monthly retirement payments shall be paid to the personal
representative of the Executive's estate.
In the event the Executive's death shall be the result of
suicide on or before February 23, 1995, then no death benefits
shall be payable to the Executive's designated beneficiary or
his personal representative.
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IV. ARTICLE FOUR - RESTRICTIONS UPON FUNDING
The Bank shall have no obligation to set aside, earmark or entrust any
fund or money with which to pay its obligations under this Agreement.
The Executive, his beneficiaries or any successor in interest to him
shall be and remain a general creditor of the Bank in the same manner
as any other creditor having an unsecured claim against the Bank.
The Bank reserves the absolute right at its sole discretion to either
fund the obligations undertaken by this Agreement or to refrain from
funding the same and to determine the extent, nature and method of such
funding. Should the Bank elect to fund this Agreement, in whole or in
part, through the purchase of life insurance, mutual funds, disability
policies or annuities, the Bank reserves the absolute right, in its
sole discretion, to terminate such funding at any time. At no time
shall the Executive be deemed to have any lien nor right, title or
interest in or to any specific funding investment or to any assets of
the Bank. If the Bank elects to purchase life insurance on the life of
the Executive, the Executive shall assist the Bank in applying for such
life insurance by completing the necessary application, submitting to a
physical exam, and supplying such additional information as may be
necessary to obtain such insurance.
V. ARTICLE FIVE - MISCELLANEOUS
A. Alienability and Assignment Prohibition:
Neither the Executive, his wife nor any other beneficiary
under this Agreement shall have any power or right to
transfer, assign, anticipate, hypothecate, mortgage, commute,
modify or otherwise encumber in advance any of the benefits
payable hereunder nor shall any of said benefits be subject to
seizure for the payment of any debts, judgments, alimony or
separate maintenance owed by the Executive or his beneficiary,
nor be transferrable by operation of law in the event of
bankruptcy, insolvency or otherwise. Any attempt by the
Executive or any beneficiary to assign, commute, hypothecate,
transfer or dispose of the benefits payable hereunder shall be
null and void, and the Bank shall not be obligated to make any
payments except as provided herein.
B. Binding Obligation of Bank and Any Successor In Interest:
This Agreement shall be binding upon the parties hereto, their
successors, beneficiaries, heirs and personal representatives.
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C. Revocation:
It is agreed by and between the parties hereto that, during
the lifetime of the Executive, this Agreement may be amended
or revoked at any time or times, in whole or in part, by the
mutual written assent of the Executive and the Bank.
D. Effect On Other Bank Benefit Plans:
The benefits provided hereunder shall be in addition to the
Executive's annual salary as determined by the Board of
Directors, and nothing contained in this Agreement shall
affect the right of the Executive to participate in or be
covered by any qualified or non-qualified pension,
profit-sharing, group, bonus or other supplemental
compensation or fringe benefit plan constituting a part of the
Bank's existing or future compensation structure.
E. Reorganization:
The Bank agrees that if it merges or consolidates with any
other company or organization, or permits its business
activities to be taken over by any other organization, or
ceases its business activities or terminates its existence,
other than as specified above, the Executive shall be one
hundred percent (100%) vested in the early
retirement/severance benefit to be paid to the Executive
pursuant to the provisions of Article III B., above, without
regard to his actual years of participation under this
Agreement.
F. Headings:
Headings and Subheadings in this Agreement are inserted for
reference and convenience only and shall not be deemed a part
of this Agreement.
G. Applicable Law:
The validity and interpretation of this Agreement shall be
governed by the laws of the State of Florida.
VI. ERISA PROVISIONS
A. Named Fiduciary and Plan Administrator:
The "Named Fiduciary and Plan Administrator" of this plan
shall be Mercantile Bank until its resignation or removal by
the Board of Directors. As Named Fiduciary and Administrator,
Mercantile Bank shall be responsible for the management,
control and administration of the Salary
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Continuation Agreement as established herein. It may delegate
to others certain aspects of the management and operation
responsibilities of the plan including the employment of
advisors and the delegation of ministerial duties to qualified
individuals.
B. Claims Procedure and Arbitration:
In the event that benefits under this Plan Agreement are not
paid to the Executive (or to his beneficiary in the case of
the Executive's death) and such claimants feel they are
entitled to receive such benefits, then a written claim must
be made to the Named Fiduciary and Administrator named above
within sixty (60) days from the date payments are refused. The
Plan Fiduciary and Administrator and the Bank shall review the
written claim and if the claim is denied, in whole or in part,
they shall provide in writing within ninety (90) days of
receipt of such claim their specific reasons for such denial,
reference to the provisions of this Agreement upon which the
denial is based and any additional material or information
necessary to perfect the claim. Such written notice shall
further indicate the additional steps to be taken by claimants
if a further review of the claim denial is desired. A claim
shall be deemed denied if the Plan Fiduciary and Administrator
fails to take any action within the aforesaid ninety (90) day
period.
If claimants desire a second review, they shall notify the
Plan Fiduciary and Administrator in writing within sixty (60)
days of the first claim denial. Claimants may review the Plan
Agreement or any documents relating thereto and submit any
written issues and comments they may feel appropriate. In its
sole discretion, the Plan Fiduciary and Administrator shall
then review the second claim and provide a written decision
within sixty (60) days of its receipt of such claim. This
decision shall likewise state the specific reasons for the
decision and shall include reference to specific provisions of
the Plan Agreement upon which the decision is based.
If claimants continue to dispute the benefit denial based upon
completed performance of the Agreement or the meaning and
effect of the terms and conditions thereof, then claimants may
submit the dispute to a Board of Arbitration for final
arbitration. Said Board shall consist of one member selected
by the claimant, one member selected by the Corporation and
the third member selected by the first two members. The Board
shall operate under any generally recognized set of
arbitration rules. The parties hereto agree that they and
their heirs, personal representatives, successors and assigns
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shall be bound by the decision of such Board with respect to
any controversy properly submitted to it for determination.
Where a dispute arises as to the Bank's discharge of the
Executive "for cause," such dispute shall likewise be
submitted to arbitration as above described and the parties
hereby agree to be bound by the decision thereunder.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
Attest: (Corporate Seal) MERCANTILE BANK
By:
----------------------------- -----------------------------
Secretary "Bank"
Witnesses:
------------------------------ -------------------------------
XXXXXX X. XXXXXXX
------------------------------
As to Xxxxxx X. Xxxxxxx "Executive"
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MONTHLY RETIREMENT
BENEFIT
$2,750.00
EXHIBIT "A"
