EXHIBIT 10.9 - FORM OF EXECUTIVE OFFICER SPLIT DOLLAR AGREEMENT
TIB BANK OF THE KEYS
SPLIT DOLLAR AGREEMENT
THIS AGREEMENT is made and entered into this _______ day of
_________________, 2001, by and between TIB BANK OF THE KEYS, a state-chartered
commercial bank located in Key Largo, Florida (the "Company"), and
_____________ (the "Executive"). This Agreement shall append the Split Dollar
Endorsement entered into on __________________, 2000, as amended, by and
between the aforementioned parties.
INTRODUCTION
To encourage the Executive to remain an employee of the Company, the
Company is willing to divide the death proceeds of a life insurance policy on
the Executive's life. The Company will pay life insurance premiums from its
general assets.
ARTICLE 1
GENERAL DEFINITIONS
The following terms shall have the meanings specified:
1.1 "Change of 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 or more of the voting securities of
the Company, or its parent, TIB Financial Corp., a Florida corporation, or of
any lesser percentage of the voting securities of the Company if the Board of
Directors of the Company, the Comptroller of Florida, the FDIC, or the Federal
Reserve Bank makes a determination that such acquisition constitutes or will
constitute control of the Company. The term "person" as used herein includes
and individual, corporation, bank holding company or any other legal entity.
1.2 "Insurer" means _________.
1.3 "Policy" means insurance policy number __________ issued by
the Insurer.
1.4 "Insured" means the Executive.
1.5 "Normal Retirement Age" means the earlier of the Executive's
65th birthday or the date of a Change of Control.
1.6 "Termination of Service" means the Executive's ceasing to be
employed by the Company for any reason whatsoever.
ARTICLE 2
POLICY OWNERSHIP/INTERESTS
2.1 Company Ownership. The Company is the sole owner of the
Policy and shall have the right to exercise all incidents of ownership. The
Company shall be the direct beneficiary of an amount of death proceeds equal to
the greater of: a) the cash surrender value of the policy, b) the aggregate
premiums paid on the Policy by the Company less any outstanding indebtedness to
the Insurer or c) the total death proceeds less the Split Dollar Amount. The
Split Dollar Amount shall be the amount equal to 60% of the difference between
the total death proceeds and the cash surrender value at the time of the
Executive's death.
2.2 Executive's Interest. The Executive shall have the right to
designate the beneficiary of any remaining death proceeds of the Policy. The
Executive shall also have the right to elect and change settlement options that
may be permitted. Provided, however, the Executive, the Executive's transferee
or the Executive's beneficiary shall have no rights or interests in the Policy
with respect to that portion of the death proceeds designated in this section
2.2 upon the Executive's Termination of Service prior to Normal Retirement Age.
2.3 Option to Purchase. The Company shall not sell, surrender or
transfer ownership of the Policy while this Agreement is in effect without
first giving the Executive or the Executive's transferee the option to purchase
the Policy for a period of sixty (60) days from written notice of such
intention. The purchase price shall be an amount equal to the cash surrender
value of the Policy. This provision shall not impair the right of the Company
to terminate this Agreement.
2.4 Comparable Coverage. Upon the Executive's attaining Normal
Retirement Age while still in service as an employee of the Company, the
Company shall maintain the Policy in full force and effect and in no event
shall the Company amend, terminate or otherwise abrogate the Executive's
interest in the Policy, unless the Company replaces the Policy with a
comparable insurance policy to cover the benefit provided under this Agreement.
The Policy or any comparable policy shall be subject to the claims of the
Company's creditors.
ARTICLE 3
PREMIUMS
3.1 Premium Payment. The Company shall pay any premiums due on
the Policy.
3.2 Imputed Income. The Company shall impute income to the
Executive in an amount equal to the current term rate for the Executive's age
multiplied by the aggregate death benefit payable to the Executive's
beneficiary. The "current term rate" is the minimum amount required to be
imputed under Revenue Rulings 64-328 and 66-110, or any subsequent applicable
authority.
ARTICLE 4
ASSIGNMENT
The Executive may assign without consideration all interests in the
Policy and in this Agreement to any person, entity or trust. In the event the
Executive transfers all of the Executive's interest in the Policy, then all of
the Executive's interest in the Policy and in the Agreement shall be vested in
the Executive's transferee, who shall be substituted as a party hereunder and
the Executive shall have no further interest in the Policy or in this
Agreement.
ARTICLE 5
INSURER
The Insurer shall be bound only by the terms of the Policy. Any
payments the Insurer makes or actions it takes in accordance with the Policy
shall fully discharge it from all claims, suits and demands of all entities or
persons. The Insurer shall not be bound by or be deemed to have notice of the
provisions of this Agreement.
ARTICLE 6
CLAIMS PROCEDURE
6.1 Claims Procedure. The Company shall notify the Executive, the
Executive's transferee or beneficiary, or any other party who claims a right to
an interest under this Agreement (the "Claimant') in writing, within 90 days of
Claimant's written application for benefits, of his or her eligibility or
ineligibility for benefits under this 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 this 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 this 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 sixty-day period,
stating specifically the basis of its decision, written in a manner to be
understood by the Claimant and the specific provisions of this Agreement on
which the decision is based. If, because of the need for a hearing, the 60-day
period is not sufficient, the decision may be deferred for up to another 60-day
period at the election of the Company, but notice of this deferral shall be
given to the 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. However, unless otherwise
agreed to by the Company and the Executive, this Agreement will automatically
terminate upon the Executive's Termination of Service
prior to Normal Retirement Age.
ARTICLE 8
MISCELLANEOUS
8.1 Binding Effect. This Agreement shall bind the Executive and
the Company, their beneficiaries, survivors, executors, administrators and
transferees, and any Policy beneficiary.
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 a Executive or 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 Executive nor interfere with the Executive's right to
terminate employment at any time.
8.3 Applicable Law. The Agreement and all rights hereunder shall
be governed by and construed according to the laws of the State of Florida,
except to the extent preempted by the laws of the United States of America.
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.
8.5 Notice. Any notice, consent or demand required or permitted
to be given under the provisions of this Split Dollar Agreement by one party to
another shall be in writing, shall be signed by the party giving or making the
same, and may be given either by delivering the same to such other party
personally, or by mailing the same, by United States certified mail, postage
prepaid, to such party, addressed to his or her last known address as shown on
the records of the Company. The date of such mailing shall be deemed the date
of such mailed notice, consent or demand.
8.6 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.
8.7 Administration. The Company shall have powers which are
necessary to administer this Agreement, including but not limited to:
(a) Interpreting the provisions of the Agreement;
(b) Establishing and revising the method of accounting
for the Agreement;
(c) Maintaining a record of benefit payments; and
(d) Establishing rules and prescribing any forms
necessary or desirable to administer the Agreement.
8.8 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 parties have executed this Agreement the day
and year first above written.
EXECUTIVE: COMPANY:
TIB BANK OF THE KEYS
BY
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TITLE
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SPLIT DOLLAR POLICY ENDORSEMENT
TIB BANK OF THE KEYS SPLIT DOLLAR AGREEMENT
Policy No. Insured:
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Supplementing and amending the application for insurance to _____________
("Insurer") on ___________________________, 2000, the applicant requests and
directs that:
BENEFICIARIES
1. TIB BANK OF THE KEYS, a state-chartered commercial bank
located in Key Largo, Florida (the "Company"), shall be the direct beneficiary
of death proceeds equal to the greater of (a) the cash surrender value of the
policy, (b) the aggregate premiums paid on the Policy by the Company less any
outstanding indebtedness to the Insurer or (c) the total death proceeds less
the Split Dollar Amount. The Split Dollar Amount shall be an amount equal to
60% of the difference between the total death proceeds and the cash surrender
value at the time of the Insured's death.
2. The beneficiary of any remaining death proceeds shall be
designated by the Insured or the Insured's transferee, subject to the
provisions of Paragraph Five below.
OWNERSHIP
3. The Owner of the policy shall be the Company. The Owner shall
have all ownership rights in the Policy except as may be specifically granted
to the Insured or the Insured's transferee in Paragraph Four of this
endorsement.
4. The Insured or the Insured's transferee shall have the right
to assign his or her rights and interests in the Policy with respect to that
portion of the death proceeds designated in Paragraph Two of this endorsement,
and to exercise all settlement options with respect to such death proceeds.
5. Notwithstanding the provisions of Paragraph Four above, the
Insured or the Insured's transferee shall have no rights or interests in the
Policy with respect to that portion of the death proceeds designated in
Paragraph Two of this endorsement if the Insured ceases to serve as an employee
of the Company prior to the Normal Retirement Age for any reason whatsoever
(other than by reason of a leave of absence which is approved by the Company),
unless otherwise agreed to by the Company and the Insured. Normal Retirement
Age is the earlier of Insured's 65th birthday or the date of a Change of
Control.
MODIFICATION OF ASSIGNMENT PROVISIONS OF THE POLICY
Upon the death of the Insured, the interest of any collateral assignee of the
Owner of the Policy designated in Paragraph Three above shall be limited to the
portion of the proceeds described in Paragraph One above.
OWNERS AUTHORITY
The Insurer is hereby authorized to recognize the Owner's claim to rights
hereunder without investigating the reason for any action taken by the Owner,
including its statement of the amount of premiums it has paid on the Policy.
The signature of the Owner shall be sufficient for the exercise of any rights
under this Endorsement and the receipt of the Owner for any sums received by it
shall be a full discharge and release therefore to the Insurer.
Any transferee's rights shall be subject to this Endorsement.
The owner accepts and agrees to this Split Dollar Endorsement.
Signed at ___________________, Florida, this _____ day of ______________, 2001.
TIB BANK OF THE KEYS
By
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Its
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The Insured accepts and agrees to the foregoing and, subject to the rights of
the Owner as stated above, designates the following beneficiaries of the
portion of the proceeds described in (2) above:
Primary beneficiary
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Relationship to Insured
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Secondary beneficiary
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Relationship to Insured
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Signed at ____________________, Florida, this ______ day of ____________, 2001.
THE INSURED:
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