EXHIBIT 10.8
SOUTHERN COMMUNITY BANK OF SOUTHWEST FLORIDA
SALARY CONTINUATION AGREEMENT
BETWEEN
SOUTHERN COMMUNITY BANK OF SOUTHWEST FLORIDA
AND
XXXX XXXXXXXXXXX
This SALARY CONTINUATION AGREEMENT (this "Agreement") is made and entered
into as of this 11th day of July, 2001, by and between XXXX XXXXXXXXXXX, an
individual (the "Executive"), and SOUTHERN COMMUNITY BANK OF SOUTHWEST FLORIDA,
a state-chartered commercial bank located in Bonita Springs, Florida (the
"Company").
INTRODUCTION
To encourage the Executive to remain an employee of the Company, the
Company is willing to provide salary continuation benefits to the Executive. The
Company will pay the benefits from its general assets.
The Agreement is intended to be a top-hat plan (i.e., an unfunded deferred
compensation plan maintained for a member of a select group of management or
highly compensated employees) pursuant to Section 201(2), 301(a)(3), and
401(a)(1) of the Employee Retirement Income Security Act of 1974 (ERISA).
AGREEMENT
The Executive and the Company agree as follows
ARTICLE 1
DEFINITIONS
Whenever used in this Agreement, the following words and phrases shall
have the meanings specified:
1.1 "Cause" shall mean: (i) fraud; (ii) embezzlement; (iii) conviction of
the Executive of any felony; (iv) dereliction of duties; or (v) a material
breach of, or the willful failure or refusal by the Executive to perform and
discharge the Executive's duties, responsibilities and obligations under this
Agreement; (vi) any act of moral turpitude or willful misconduct by the
Executive intended to result in personal enrichment of the Executive at the
expense of the Company, or any of its affiliates or which has a material adverse
impact on the business or reputation of the Company or any of its affiliates
(such determination to be made by the Board in its reasonable judgment); (vii)
intentional material damage to the property or business of the Company; (viii)
gross negligence; or (ix) the ineligibility of the Executive to perform his
duties because of a ruling, directive or other action by any agency of the
United States or any state of the United States having regulatory authority over
the Company.
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1.2 "Change of Control" means the transfer of shares of the Company's
voting common stock such that one entity or one person acquires (or is deemed to
acquire when applying Section 318 of the Code) more than 50 percent of the
Company's outstanding voting common stock; provided, however, that the formation
by the Company of a bank holding company which acquires all or substantially all
of the shares of the Company's voting common stock shall not be deemed a Change
of Control for purposes of this Agreement.
1.3 "Code" means the Internal Revenue Code of 1986, as amended
1.4 "Disability" means the Executive's inability as a result of any
physical or mental incapacity due to injury or sickness to perform each of his
material duties for the Company on a fulltime basis for a period of six (6)
months with or without reasonable accommodation.
1.5 "Early Termination" means the Termination of Employment before Normal
Retirement Age for reasons other than death, Disability, Termination for Cause
or Termination of Employment following a Change of Control.
1.6 "Early Termination Date" means the month, day and year in which Early
Termination occurs
1.7 "Effective Date" means July 01, 2001
1.8 "Normal Retirement Age" means the last day of the Plan Year in which
the Executive's 65th birthday occurs.
1.9 "Normal Retirement Date means the later of the Normal Retirement Age
or Termination of Employment.
1.10 "Plan Year" means a twelve-month period commencing on July lst and
ending on June 30th of the following calendar year.
1.11 "Termination of Employment" means that the Executive ceases to be
employed by the Company.
1.12 "Year of Service" means a complete year of employment with the
Company subsequent to the Effective Date.
ARTICLE 2
LIFETIME BENEFITS
2.1 Normal Retirement Benefit. Upon Termination of Employment on or after
the Normal Retirement Age for reasons other than death, the Company shall pay to
the Executive the benefit described in this Section 2.1 in lieu of any other
benefit under this Agreement.
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2.1.1 Amount of Benefit. The annual benefit under this Section 2.1
is $66,547 (Sixty-six Thousand Five Hundred Forty-seven Dollars.) Any
changes in the annual benefit shall require the recalculation of Schedule
A.
2.1.2 Payment of Benefit. The Company shall pay the annual benefit
to the Executive in 12 equal monthly installments payable on the first day
of each month commencing with the month following the Executive's Normal
Retirement Date. The annual benefit shall be paid to the Executive for
fifteen (15) years.
2.1.3 Benefit Increases. Commencing on the first anniversary of the
first benefit payment, and continuing on each subsequent anniversary, the
Company's Board of Directors, in its sole discretion, may increase the
benefit.
2.2 Early Termination Benefit: Upon Early Termination, the Company shall
pay to the Executive the benefit described in this Section 2.2 in lieu of any
other benefit under this Agreement.
2.2.1 Amount of Benefit. The benefit under this Section 2.2 is the
Early Termination Annual Benefit set forth in Schedule A for the Plan Year
ending immediately prior to the Early Termination Date, determined by
vesting the Executive in ten percent (10%) of the accrual balance set
forth in Schedule A for each Year of Service until the Executive becomes
one hundred percent (100%) vested in the accrual balance for the Plan Year
most recently completed at Termination of Employment. Interest is added to
the vested accrual balance at 7.5% annual rate, compounded monthly, until
commencement of payments. The annual benefit is the total of twelve
monthly benefits. The monthly benefit is the amount required to fully
amortize the accumulated vested accrual balance and interest over the
payment term, including 7.5% annual interest, compounded monthly. Any
changes in benefit amount in Section 2.1.1 shall require the recalculation
of Schedule A.
2.2.2 Payment of Benefit. The Company shall pay the annual benefit
to the Executive in 12 equal monthly installments payable on the first day
of each month commencing with the month following the Normal Retirement
Age. The annual benefit shall be paid to the Executive for fifteen (15)
years.
2.2.3 Benefit Increases. Benefit payments may be increased as
provided in Section 2.1.3
2.3 Change of Control Benefit. Upon Termination of Employment following a
Change of Control, the Company shall pay to the Executive the benefit described
in this Section 2.3 in lieu of any other benefit under this Agreement.
2.3.1 Amount of Benefit. The annual benefit under this Section 2.3
is the Change of Control Annual Benefit set forth in Schedule A for the
Plan Year ending immediately prior to the date of Termination of
Employment, determined by vesting the Executive in one-hundred percent
(100%) of the benefit set forth in Section 2.1.1.
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12.3.2 Payment of Benefit. The Company shall pay the annual benefit
amount to the Executive in 12 equal monthly installments payable on the
first day of each month commencing with the month following the Normal
Retirement Age. The annual benefit shall be paid to the Executive for
fifteen (15) years.
2.3.3 Benefit Increases Benefit payments may be increased as
provided in Section 2.1.3.
2.4 Disability Benefit. If the Executive terminates employment due to
Disability prior to Normal Retirement Age, the Company shall pay to the
Executive the benefit described in this Section 2.4 in lieu of any other benefit
under this Agreement.
2.4.1 Amount of Benefit. The benefit under this Section 2.4 is the
Disability Annual Benefit set forth in Schedule A~ for the Plan Year
ending immediately prior to the date in which the Termination of
Employment occurs, determined by vesting the Executive in one hundred
percent (100%) of the accrual balance for the Plan Year most recently
completed at Termination of Employment. Interest is added to the accrual
balance at 7.5% annual rate, compounded monthly, until commencement of
payments. The annual benefit is the total of twelve monthly benefits. The
monthly benefit is the amount required to fully amortize the accumulated
accrual balance and interest over the payment term, including 7.5% annual
interest, compounded monthly. Any changes in benefit amount in Section
2.1.1 shall require the recalculation of Schedule A.
2.4.2 Payment of Benefit. The Company shall pay the annual benefit
amount to the Executive in 12 equal monthly installments payable on the
first day of each month commencing with the month following the Normal
Retirement Age. The annual benefit shall be paid to the Executive for
fifteen (15) years.
2.4.3 Benefit Increases. Benefit payments may be increased as
provided in Section 2.1.3.
ARTICLE 3
DEATH BENEFITS
If the Executive dies prior to the expiration of this Agreement, the
Company shall pay to the Executive's beneficiary a benefit equal to the accrual
balance set forth on Schedule A for the Plan Year most recently completed prior
to the Executive's death, in a lump sum, within 60 days following the
Executive's death. This benefit shall be paid in lieu of the Lifetime Benefits
of Article 2.
ARTICLE 4
BENEFICIARIES
4.1 Beneficiary Designations. The Executive shall designate a beneficiary
by filing a written designation with the Company. The Executive may revoke or
modify the designation at
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any time by filing a new designation. However, designations will only be
effective if signed by the Executive and accepted by the Company during the
Executive's lifetime. 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. If the Executive dies without a valid beneficiary designation, all
payments shall be made to the Executive's estate.
4.2 Facility of Payment. If a benefit is payable to a minor, to a person
declared incapacitated, or to a person incapable of handling the disposition of
his or her property, the Company may pay such benefit to the guardian, legal
representative or person having the care or custody of such minor, incapacitated
person or incapable person. The Company may require proof of incapacity,
minority or guardianship as it may deem appropriate prior to distribution of the
benefit. Such distribution shall completely discharge the Company from all
liability with respect to such benefit.
ARTICLE 5
GENERAL LIMITATIONS
5.1 Termination for Cause. Notwithstanding any provision of this Agreement
to the contrary, the Company shall not pay any benefit under this Agreement if
the Company terminates the Executive's employment for Cause.
5.2 Suicide or Misstatement. The Company shall not pay any benefit under
this Agreement if the Executive commits suicide within two years after the date
of this Agreement, or if the Executive has made any material misstatement of
fact on any application for life insurance purchased by the Company.
5.3 Competition after Termination of Employment. The Company shall not pay
any benefit, or shall cease paying benefits, 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 other federally insured
depository institution headquartered or having a physical presence in any county
in the State of Florida in which the Company or its affiliates have a physical
presence or conduct business operations, which institution is, or may deemed to
be, competitive with any business carried on by the Company, within a period of
one (1) year following Termination of Employment. In the event the Company
determines that the Executive has violated the conditions of this Section 5.3
after receiving benefits under this Agreement, the Executive shall repay to the
Company an amount equal to the benefits paid hereunder, with interest. This
Section 5.3 shall not be applicable in the case of Termination of Employment
following a Change in Control.
ARTICLE 6
CLAIMS AND REVIEW PROCEDURES
6.1 Claims Procedure. The Company shall notify any person or entity that
makes a
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claim against the Agreement (the "Claimant") in writing, within 90 days of
Claimant's written application for benefits, of his or her eligibility or
noneligibility for benefits under the Agreement. If the Company determines that
the Claimant is not eligible for benefits or full benefits, the notice shall set
forth (1) the specific reasons for such denial, (2) a specific reference to the
provisions of the Agreement on which the denial is based, (3) a description of
any additional information or material necessary for the Claimant to perfect his
or her claim, and a description of why it is needed, and (4) an explanation of
the Agreement's claims review procedure and other appropriate information as to
the steps to be taken if the Claimant wishes to have the claim reviewed. If the
Company determines that there are special circumstances requiring additional
time to make a decision, the Company shall notify the Claimant of the special
circumstances and the date by which a decision is expected to be made, and may
extend the time for up to an additional 90 days.
6.2 Review Procedure. If the Claimant is determined by the Company not to
be eligible for benefits, or if the Claimant believes that he or she is entitled
to greater or different benefits, the Claimant shall have the opportunity to
have such claim reviewed by the Company by filing a petition for review with the
Company within 60 days after receipt of the notice issued by the Company. Said
petition shall state the specific reasons which the Claimant believes entitle
him or her to benefits or to greater or different benefits. Within 60 days after
receipt by the Company of the petition, the Company shall afford the Claimant
(and counsel, if any) an opportunity to present his or her position to the
Company verbally or in writing, and the Claimant (or counsel) shall have the
right to review the pertinent documents. The Company shall notify the Claimant
of its decision in writing within the 60-day period, stating specifically the
basis of its decision, written in a manner calculated to be understood by the
Claimant and the specific provisions of the Agreement on which the decision is
based. If, because of the need for a hearing, the 60-day period is not
sufficient, the decision may be deferred for up to another 60 days at the
election of the Company, but notice of this deferral shall be given to the
Claimant.
ARTICLE 7
AMENDMENTS AND TERMINATION
This Agreement may be amended or terminated only by a written agreement
signed by the Company and the Executive.
ARTICLE 8
MISCELLANEOUS
8.1 Binding Effect. This Agreement shall bind the Executive and the
Company, and their beneficiaries, survivors, executors, successors,
administrators and transferees.
8.2 No Guarantee of Employment. This Agreement is not an employment policy
or contract. It does not give the Executive the right to remain an employee of
the Company, nor does it interfere with the Company's right to discharge the
Executive. It also does not require the Executive to remain an employee nor
interfere with the Executive's right to terminate
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employment at any time.
8.3 Non-Transferability. Benefits under this Agreement cannot be sold,
transferred, assigned, pledged, attached or encumbered in any manner.
8.4 Reorganization. The Company shall not merge or consolidate into or
with another company, or reorganize, or sell substantially all of its assets to
another company, firm, or person unless such succeeding or continuing company,
firm, or person agrees to assume and discharge the obligations of the Company
under this Agreement. Upon the occurrence of such event, the term "Company" as
used in this Agreement shall be deemed to refer to the successor or survivor
company.
8.5 Tax Withholding. The Company shall withhold any taxes that are
required to be withheld from the benefits provided under this Agreement.
8.6 Applicable Law. The 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.
8.7 Unfunded Arrangement. The Executive and beneficiary are general
unsecured creditors of the Company for the payment of benefits under this
Agreement. The benefits represent the mere promise by the Company to pay such
benefits. The rights to benefits are not subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, attachment, or
garnishment by creditors. Any insurance on the Executive's life is a general
asset of the Company to which the Executive and beneficiary have no preferred or
secured claim.
8.8 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.
8.9 Administration and Record-keeping Authority. Except as otherwise
specifically provided herein, the Company shall have the sole responsibility for
and the sole control of the operation, administration, and record-keeping of
this Agreement and shall have the power and authority to take all action and to
make all decisions and interpretations that may be necessary or appropriate in
order to administer and operate the Agreement, including, without limiting the
generality of the foregoing, the power, duty, and responsibility to:
(i) Resolve and determine all disputes or questions arising under
the Agreement, including the power to determine the rights of
the Participant and beneficiaries and their respective
benefits, and to remedy any ambiguities, inconsistencies, or
omissions in the Agreement;
(ii) Adopt such rules of procedure and regulations as in its
opinion may be necessary for the proper and efficient
administration of the Agreement and as are consistent with the
Agreement;
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(iii) Implement the Agreement in accordance with its terms;
(iv) Establish and revise the method of accounting for the
Agreement; and
(v) Maintain a record of benefit payments.
8.10 Named Fiduciary. The Company shall be the named fiduciary and plan
administrator under the Agreement. The named fiduciary may delegate to others
certain aspects of the management and operation responsibilities of the plan
including the employment of advisors and the delegation of ministerial duties to
qualified individuals.
IN WITNESS WHEREOF, the Executive and a duly authorized Company officer
have signed this Agreement.
EXECUTIVE: COMPANY:
SOUTHERN COMMUNITY BANK OF
SOUTHWEST FLORIDA
/s/ Xxxx Xxxxxxxxxxx By: /s/ Xxxxx X. Xxxxxx
------------------------------ --------------------------
XXXX XXXXXXXXXXX Title: Director
-----------------------
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Salary Continuation Agreement
Xxxx Xxxxxxxxxxx
Schedule A
Early Early
Termination Termination Change of Control Disability
Plan Benefit Accrual Vesting Vested Accrual Annual Benefit Annual Benefit Annual Benefit
Year Level Balance Schedule Balance Payable at 65 Payable at 65 Payable at 65
----- ------- ------- ----------- -------------- -------------- ----------------- --------------
1 66,547 9,259 10% 926 575 66,47 5,750
2 66,547 19,237 20% 3,847 2,217 66,547 11,085
3 66,547 29,989 30% 8,997 4,811 66,547 16,037
4 66,547 41,576 40% 16,630 8,252 66,547 20,631
5 66,547 54,063 50% 27,031 12,447 66,547 24,895
6 66,547 67,519 60% 40,511 17,311 66,547 28,851
7 66,547 82,019 70% 57,413 22,766 66,547 32,523
8 66,547 97,645 80% 78,116 28,744 66,547 35,929
9 66,547 114,485 90% 103,036 35,182 66,547 39,091
10 66,547 132,632 100% 132,632 42,025 66,547 42,025
11 66,547 152,187 100% 152,187 44,747 66,547 44,747
12 66,547 173,261 100% 173.261 47,273 66,547 47,273
13 66,547 195,970 100% 195,970 49,617 66,547 49,617
14 66,547 220,443 100% 220,443 51,793 66,547 51,793
15 66,547 246,815 100% 246,815 53,812 66,547 53,812
16 66,547 275,235 100% 275,235 55,685 66,547 55,685
17 66,547 305,861 100% 305,861 57,423 66,547 57,423
18 66,547 338,865 100% 338,865 59,036 66,547 59,036
19 66,547 374,431 100% 374,431 60,533 66,547 60,533
20 66,547 412,758 100% 412,758 61,922 66,547 61,922
21 66,547 454,060 100% 454,060 63,211 66,547 63,211
22 66,547 498,569 100% 498,569 64,407 66,547 64,407
23 66,547 546,533 100% 546,533 65,517 66,547 65,517
24 66,547 598,221 100% 598,221 66,547 66,547 66,547
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