EXHIBIT 10.25
DIRECTOR INDEXED FEE CONTINUATION PLAN
AGREEMENT
This Agreement, made and entered into this first day of January, 1996,
by and between Northside Bank of Tampa a Bank organized and existing under the
laws of the State of Florida, hereinafter referred to as "the Bank", and Xxxxxx
X. Xxxxxx a Director of the Bank and the Director of the Bank, hereinafter
referred to as "the Director'".
The Director is on the Board of the Bank and is faithfully serving the
Bank. It is the consensus of the Board of Directors of the Bank (The Board) that
the Director's services have been of exceptional merit in excess of the
compensation paid, and an invaluable contribution to the profits and position of
the Bank in its field of activity. 'Me Board further believes that the
Director's experience, knowledge of corporate affairs, reputation and industry
contacts are of such value and his continued services are so essential to the
Bank's future growth and profits that it would suffer severe financial loss
should the Director terminate his services on the Board.
Accordingly, it is the desire of the Bank and the Director to enter
into this Agreement under which the Bank will agree to make certain payments to
the Director upon his retirement and, alternatively, to his beneficiary(ies) in
the event of his premature death while serving on the Board.
It is the intent of the parties hereto that this Agreement be
considered an arrangement maintained primarily to provide supplemental
retirement benefits for the Director for purposes of the Employee Retirement
Security Act of 1974 (ERISA). The Director is fully advised of the Banks
financial status and has had substantial input in the design and operation of
this benefit plan.
Therefore, in consideration of the Director's services performed in the
past and those to be performed in the future and based upon the mutual promises
and covenants herein contained, the Bank and the Director, agree as follows:
I. DEFINITIONS
A. EFFECTIVE DATE:
The Effective Date of this Agreement shall be January 1, 1996.
B. PLAN YEAR:
Any reference to "Plan Year' shall mean a calendar year from January I
to December 31). In the year of implementation, the term 'Plan Year"
shall mean the period from the effective date to December 31 of the
year of the effective date.
C. RETIREMENT DATE.
Retirement Date shall mean retirement from service with the Bank which
becomes effective on the first day of the calendar month following the
month in which the Director reaches his sixty-fifth (65th) birthday or
such date as the Director may actually retire.
D. TERMINATION OF SERVICE:
Termination of Service shall mean voluntary resignation of service by
the Director or the Bank's discharge of the Director without cause (as
defined in subparagraph IH (D) hereinafter], prior to the Normal
Retirement Age [described in subparagraph I (J) hereinafter].
E. PRE-RETIREMENT ACCOUNT:
A Pre-Retirement Account shall be established as a liability reserve
account on the books of the Bank for the benefit of the Director. Prior
to termination of service or the Director's retirement, such liability
reserve account shall be increased or decreased each Plan You
(including the Plan Year in watch the Director ceases to be employed by
the Bank) by an amount equal to the annual earnings or loss for that
Plan Year determined by the Index [described in subparagraph I (G)
hereinafter], less the Cost of Funds Expense for that Plan Year.
[described in subparagraph I (H) hereinafter].
F. INDEX RETIREMENT BENEFIT:
The Index Retirement Benefit for the Director for any year shall be
equal to the excess of the annual earnings (if any) determined by the
Index [subparagraph I (G)] for that Plan Year over the Cost of Funds
Expense [subparagraph I (H] for that Plan Year.
G. INDEX:
The Index for any Plan Year shall be the aggregate annual after-tax
income from the life insurance contracts described hereinafter as
defined by FASB
2
Technical Bulletin 85-4, This Index shall be applied as if such
insurance contracts were purchased on the effective date hereof
Insurance Company: Canada Life Assurance Company
Policy Form: Participating Whole Life
Policy Name: CL/I
Insured's Age and Sex: 51, Male
Riders: Paid Up Additions Rider
Custom Term Rider
Ratings: None
Face Amount: $219,402
Premiums Paid -. $15,000.00
Number of Premium Payments: Seven
Assumed Purchase Date- May 1, 1996
If such contracts of the insurance are actually purchased by the Bank
then the actual policies as of the dates they were purchased shall be
used in calculations under this Agreement. If such contracts of the
insurance are not purchased or are subsequently surrendered or lapsed,
then the Bank shall receive annual policy illustrations that assume the
above described policies were purchased from the above named insurance
company(ies) on the Effective Date from which the increase in policy
value will be used to calculate the amount of the Index.
In either case, references to the life insurance contract are merely
for purposes of calculating a benefit. The Bank has no obligation to
purchase such life 'Insurance and, if purchased, the Director and his
beneficiary(ies) shall have no ownership interest in such policy and
shall always have no greater interest in the benefits under this
Agreement than that of an unsecured general creditor of the Bank,
H. COST OF FUNDS EXPENSE
The Cost of Funds Expense for any Plan Year shall be calculated by
taking the sum of the amount of premiums set forth in the Indexed
policies described above plus the amount of any after-tax benefits paid
to the Director pursuant to this Agreement (Paragraph III hereinafter)
plus the amount of all previous years after-tax Costs of Funds Expense,
and multiplying that sum by the average after-tax cost of funds of the
Bank's third quarter Call Report for the Plan Year as filed with the
Federal Deposit Insurance Corporation.
3
I. CHANGE OF CONTROL-.
Change of control shall be deemed to be the cumulative transfer of more
than fifty percent (50%) of the voting stock of the Bank or the Bank's
holding company from the Effective Date of this Agreement. For the
purposes of this Agreement, transfers on account of deaths or gifts,
transfers between family members or transfers to a qualified retirement
plan maintained by the Bank shall not be considered in determining
whether there has been a change in control.
J. NORMAL RETIREMENT AGE .
Normal Retirement Age shall mean the date on which the Director attains
age sixty-five (65).
II. EMPLOYMENT
No provision of this Agreement shall be deemed to restrict or limit any existing
employment agreement by and between the Bank and the Director, nor shall any
conditions herein create specific employment rights to the Director nor limit
the right of the Employer to discharge the Director with or without cause. In a
similar fashion, no provision shall limit the Directors rights to voluntarily
sever his employment at any time,
III. INDEX BENEFITS
The following benefits provided by the Bank to the Director are in the nature of
a fringe benefit and shall in no event be construed to effect nor limit the
Director's current or prospective fee increases, cash bonuses or profit-sharing
distributions or credits.
A. RETIREMENT BENEFITS:
The Director shall be entitled to receive the balance in his
Pre-Retirement Account (as defined in subparagraph I (E)] in ten (10)
equal annual installments commencing thirty (30) days following the
Director's Normal Retirement Date, In addition to these payments,
commencing with the Plan Year in which the Director attains his
Retirement Date, the Index Retirement Benefit [as defined in
subparagraph I (F) above] for each year shall be paid to the, Director
until his death.
B. TERMINATION OF SERVICE:
Subject to subparagraph III (D) hereinafter, should the Director-
suffer a termination of service after the earlier of attaining age
sixty-five (65) or ten years of service on the Board [defined in
subparagraph I (D)], he shall be entitled to receive one hundred
percent (100%), times the balance in the
4
Pre-Retirement Account paid over ten (10) years in equal installments
commencing at the Retirement Date (subparagraph I (C)]. In addition to
these payments, one hundred percent (100%) times full years of service
with the Bank, times the Index Retirement Benefit for each year shall
be paid to the Director until his death.
Should the Director suffer a termination of service prior to the
earlier of attaining age sixty-five (65) or ten years of service on the
Board, no benefit shall be due under this Agreement and this Agreement
shall terminate.
C. DEATH
Should the Director die prior to having received the full balance of
the Pre- Retirement Account, the unpaid balance of the Pre-Retirement
Account shall be paid in a lump sum to the beneficiary selected by the
Director and filed with the Bank. In the absence of or a failure to
designate a beneficiary, the unpaid balance shall be paid in a lump sum
to the personal representative of the Director's estate. No other death
benefit shall be payable under this Agreement.
D. DISCHARGE FOR CAUSE:
Should the Director be discharged for cause at any time prior to his
Retirement Date, all Index Benefits under this Agreement [subparagraphs
III (A), (B) or (C)] shall be forfeited. The term "for cause" shall
mean gross negligence or gross neglect or the commission of a felony or
gross-misdemeanor involving moral turpitude, fraud, dishonesty or
willful violation of any law that results in any adverse effect on the
Bank. If a dispute arises as to discharge "for cause", such dispute
shall be resolved by arbitration as set forth in this Agreement.
IV. 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 Director, his
beneficiary(ies) or any successor in interest to him shall be and remain simply
a general creditor of the Bank in the same manner as any other creditor having a
general claim for matured and unpaid compensation.
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 exact 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,
in whole or in part. At no time shall the Director be
5
deemed to have any lien or right, title or interest in or to any specific
funding investment or to any assets of the Bank.
If the Bank elects to invest in a life insurance, disability or annuity policy
upon the life of the Director, then the Director shall assist the Bank by freely
submitting to a physical exam and supplying such additional information
necessary to obtain such insurance or annuities.
V. CHANGE OF CONTROL
Upon a Change of Control (as defined in subparagraph I (1) herein], the Director
shall receive the benefits promised in this Agreement upon attaining Normal
Retirement Age, as if he had continuously served on the Board of the Bank until
his Normal Retirement Age. The Director will also remain eligible for all
promised death benefits in this Agreement. In addition, no sale, merger or
consolidation of the Bank shall take place unless the new or surviving entity
expressly acknowledges the obligations under this Agreement and agrees to abide
by its terms.
VI MISCELLANEOUS
A. ALIENABILITV AND ASSIGNMENT PROHIBITION:
Neither the Director, his/her surviving spouse nor any other
beneficiary under this Agreement shall have any power or tight 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 Director
or his beneficiary, nor be transferable by operation of law in the
event of bankruptcy, insolvency or otherwise, In the event the Director
or any beneficiary attempts assignment, commutation, hypothecation,
transfer or disposal of the benefits hereunder, the Bank's liabilities
shall forthwith cease and terminate.
B. BINDING OBLIGATION OF BANK AND ANY SUCCESSOR IN INTEREST:
The Bank expressly agrees that it shall not merge or consolidate into
or with another bank or sell substantially all of its assets to another
bank, firm or person until such bank, firm or person expressly agrees,
in writing, TO assume and discharge the duties and obligations of the
Bank under this Agreement. This Agreement shall be binding upon the
parties hereto, their successors, beneficiary(ies), heirs and personal
representatives.
C. REVOCATION-
It is agreed by and between the parties hereto that, during the
lifetime of the Director, this Agreement may be amended or revoked at
any time or
6
times, in whole or in part by the mutual written assent of the Director
and the Bank.
D. GENDER:
Whenever in this Agreement words are used in the masculine or neuter
gender, they shalI be read and construed as in the masculine, &
feminine or neuter gender, whenever they should so apply.
E. EFFECT ON OTHER BANK BENEFIT PLANS:
Nothing contained in this Agreement shall affect the right of the
Director 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.
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.
VII. ERISA PROVISION
A. NAMED FIDUCIARY AND PLAN ADMINISTRATOR:
The "Named Fiduciary and Plan Administrator" of this plan shall be
Northside Bank of Tampa until its removal by the Board. As Named
Fiduciary and Administrator, the Bank shall be responsible for the
management, control and administration of the Fee Continuation
Agreement as established herein. 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.
B. CLAIMS PROCEDURE AND ARBITRATION:
In the event a dispute arises over benefits under this Agreement and
benefits are not paid to the Director (or to his beneficiary in the
case of the Director's death) and such claimants feel they are entitled
to receive such benefits, then a written claim must be made to the Plan
7
Administrator named above within ninety (90) days from the date
payments are refused. The Plan Administrator 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 Administrator fails to take any
action within the aforesaid ninety-day period,
If claimants desire a second review they shall notify the Plan
Administrator in writing within ninety (90) days of the first claim
denial. Claimants may review this Agreement or any documents relating
thereto and submit any written issues and comments they may feet
appropriate. In its sole discretion, the Plan Administrator shall then
review the second claim and provide a written decision within ninety
(90) days of receipt of such claim. This decision shall likewise state
the specific reasons for the decision and shall include reference to
specific provisions of this Agreement upon which the decision is based.
If claimants continue to dispute the benefit denial based upon
completed performance of this 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 Bank, 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 Director "for
cause", such dispute shall likewise be submitted to arbitration as
above described and the parties hereto agree to be bound by the
decision thereunder.
8
IN WITNESS WHEREOF, the parties hereto acknowledge that each has
carefully read this Agreement and executed the original thereof on the first day
of January, 1996 and that, upon execution, each has received a conforming copy.
NORTHSIDE BANK OF TAMPA
/s/ Xxxxxxxxx X. Cos By: /s/ Xxxx Xxxxxx, President & CEO
----------------------------------- ---------------------------------
Witness Title
/s/ Xxxxxxxxx X. Cos By: /s/ Xxxxxx X. Xxxxxx
----------------------------------- ---------------------------------
Witness Xxxxxx X. Xxxxxx
9
