Exhibit 99.3
CAPITAL BANK & TRUST COMPANY
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AGREEMENT
THIS SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AGREEMENT
("AGREEMENT") is made effective this 10th day of July, 2006 (the "EFFECTIVE
DATE"), by and between Capital Bank & Trust Company (the "BANK"), a
state-chartered bank located in Nashville, Tennessee and XXXXX X. XXXXXX (the
"EXECUTIVE"), intending to be legally bound hereby. Capital Bancorp, Inc.
("CORPORATION") joins in this Agreement.
INTRODUCTION
To encourage the Executive to remain an employee of the Bank, the Bank
is willing to provide supplemental retirement benefits to the Executive. The
Bank will pay the benefits from its general assets.
AGREEMENT
ARTICLE 1
DEFINITIONS
1.1 Definitions. Whenever used in this Agreement, the following words
and phrases shall have the meanings specified:
1.1.1 "Change in Control" means any of the following:
(A) any person (as such term is used in Sections 13d
and 14d-2 of the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT"), other than the Corporation, a subsidiary
of the Corporation, an employee benefit plan (or related
trust) of the Corporation or a direct or indirect subsidiary
of the Corporation, or Affiliates of the Corporation (as
defined in Rule 12b-2 under the Exchange Act), becomes the
beneficial owner (as determined pursuant to Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of
the Corporation representing more than thirty-five percent
(35%) of the combined voting power of the Corporation's then
outstanding securities (other than a person owning ten (10%)
or more of the voting power of stock on the date hereof); or
(B) the liquidation or dissolution of the Corporation
or the occurrence of, or execution of an agreement providing
for a sale of all or substantially all of the assets of the
Corporation to an entity which is not a direct or indirect
subsidiary of the Corporation; or
(C) the occurrence of, or execution of an agreement
providing for a reorganization merger, consolidation or other
similar transaction or connected series of transactions of the
Corporation as a result of which either (a) the Corporation
does not survive or (b) pursuant to which shares of the
Corporation common stock ("COMMON STOCK") would be converted
into cash, securities or other property, unless, in case of
either (a) or (b), the holders of the Corporation Common Stock
immediately prior to such transaction will, following the
consummation of the transaction, beneficially own, directly or
indirectly, more than thirty-five percent (35%) of the
combined voting power of the then outstanding voting
securities entitled to vote generally in the election of
directors of the corporation surviving, continuing or
resulting from such transaction; or
(D) the occurrence of, or execution of an agreement
providing for a reorganization, merger, consolidation or
similar transaction of the Corporation, or before any
connected series of such transactions, if upon consummation of
such transaction or transactions, the persons who are members
of the Board of Directors of the Corporation immediately
before such transaction or transactions cease or, in the case
of the execution of an agreement for such transaction or
transactions, it is contemplated in such agreement that upon
consummation such persons would cease to constitute a majority
of the Board of Directors of the Corporation or, in the case
where the Corporation does not survive in such transaction, of
the corporation surviving, continuing or resulting from such
transaction or transactions; or
(E) any other event which is at any time designated
as a "CHANGE IN CONTROL" for purposes of this Plan by a
resolution adopted by the Board of Directors of the
Corporation with the affirmative vote of a majority of the
non-employee directors in office at the time the resolution is
adopted; in the event any such resolution is adopted, the
Change in Control event specified thereby shall be deemed
incorporated herein by reference and thereafter may not be
amended, modified or revoked without the written agreement of
the Executive;
(F) during any period of two consecutive years during
the term of this Plan, individuals who at the beginning of
such period constitute the Board of Directors of the Bank or
Corporation cease for any reason to constitute at least a
majority thereof, unless the election of each director who was
not a director at the beginning of such period has been
approved in advance by directors representing at least
two-thirds of the directors then in office who were directors
at the beginning of the period, provided however this
provision shall not apply in the event two-thirds of the Board
of Directors at the beginning of a period no longer are
directors due to death, normal retirement, or other
circumstances not related to a Change in Control; or
(G) there occurs any "CHANGE IN CONTROL" or
comparable event as defined in the supplemental executive
retirement plan or employment agreement of any other executive
officer of the Bank or the Corporation.
Notwithstanding anything else to the contrary set forth in
this Plan, if (i) an agreement is executed by the Corporation providing
for any of the transactions or events constituting a Change in Control
as defined herein, and the agreement subsequently expires of is
terminated without the transaction or event being consummated, and (ii)
Executive's employment did not terminate during the period after the
agreement and prior to such expiration or termination, for purposes of
this Plan it shall be as though such agreement was never executed and
no Change in Control even shall be deemed to have occurred as a result
of the execution of such agreement.
1.1.2 "Code" means the Internal Revenue Code of 1986, as
amended.
1.1.3 "Corporation" means Capital Bancorp, Inc.
1.1.4 "Disability" means the Executive's suffering a sickness,
accident or injury which has been determined by the carrier of any
group disability insurance policy provided by the Bank or made
available by the Bank to its employees and covering the Executive, or
by the Social Security Administration, to be a disability rendering the
Executive totally and permanently disabled. The Executive must submit
proof to the Bank of the carrier's or Social Security Administration's
determination upon the request of the Bank.
1.1.5 "Early Termination" means the Termination of Employment
before
Normal Retirement Age for reasons other than death, Disability,
Termination for Cause or following a Change in Control.
1.1.6 "Normal Retirement Age" means the Executive's
sixty-fifth (65th) birthday.
1.1.7 "Normal Retirement Date" means the later of the Normal
Retirement Age or Termination of Employment.
1.1.8 "Plan Year" means each consecutive twelve (12) month
period commencing with the effective date of this Agreement.
1.1.9 "Termination of Employment" means that the Executive
ceases to be employed by the Bank for any reason whatsoever other than
by reason of a leave of absence, which is approved by the Bank. For
purposes of this Agreement, if there is a dispute over the employment
status of the Executive or the date of the Executive's Termination of
Employment, the Bank shall have the sole and absolute right to decide
the dispute.
ARTICLE 2
LIFETIME BENEFITS
2.1 Normal Retirement Benefit. The Bank shall pay to the Executive the
benefit described in this Section 2.1 in lieu of any other benefit under this
Agreement upon Termination of Employment on or after the Normal Retirement Age
for reasons other than death.
2.1.1 Amount of Benefit. The annual Normal Retirement Benefit
under this Section2.1 is Twenty-Two Thousand Dollars ($22,000). The
Bank may increase the annual benefit under this Section2.1 at the sole
and absolute discretion of the Bank's Board of Directors. Any increase
in the annual benefit shall require the recalculation of all the
amounts on Schedule A attached hereto. The annual benefit amounts on
Schedule A are calculated by amortizing the Accrued Benefit using the
interest method of accounting, a five and three-quarters percent
(5.75%) discount rate, monthly compounding any monthly payments.
2.1.2 Payment of Benefit. The Bank shall pay the annual
benefit to the Executive in equal monthly installments payable on the
first day of each month commencing with the month following the
Executive's normal Retirement Date and continuing thereafter for one
hundred seventy-nine (179) additional months.
2.1.3 Benefit Increases. Commencing on the first anniversary
of the first benefit payment, and continuing on each subsequent
anniversary, the Bank's Board of Directors, in its sole discretion, may
increase the benefit.
2.2 Early Termination Benefit. Upon Early Termination, the Bank 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 annual benefit under this Section
2.2 is the Accrued Benefit set forth in Schedule A for the Plan Year
ended immediately prior to the Early Termination Date.
2.2.2 Payment of Benefit. The Bank shall pay the annual
benefit to the Executive in equal monthly installments commencing
within forty-five (45) days after the date of the Executive's Normal
Retirement Age and continuing for one hundred seventy-nine (179)
additional months.
2.2.3 Benefit Increases. Benefit payments may be increased as
provided in Section 2.1.3.
2.3 Disability Benefit. If the Executive terminates employment due to
Disability prior to Normal Retirement Age, the Bank 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
Section2.3 is the Disability Benefit amount set forth in Schedule A for
the Plan Year ended immediately prior to the date in which Termination
of Employment occurs.
2.3.2 Payment of Benefit. The Bank shall pay the annual
benefit to the Executive in equal monthly installments commencing
within forty-five (45) days after the date of the Executive's Normal
Retirement Age and continuing for one hundred seventy-nine (179)
additional months.
2.3.3 Benefit Increases. Benefit payments may be increased as
provided in Section 2.1.3.
2.4 Change in Control Benefit. If Executive is in active service at the
time of a Change in Control, the Bank 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 Normal Retirement benefit set forth in Section 2.1.1.
2.4.2 Payment of Benefit. The Bank shall distribute the annual
benefit to the Executive in equal monthly installments commencing with
the month following the Executive's Normal Retirement Age and
continuing for one hundred seventy-nine (179) additional months.
ARTICLE 3
DEATH BENEFITS
3.1 Death During Active Service. If the Executive dies while in the
active service of the Bank, the Bank shall pay to the Executive's beneficiary
the benefit described in this Section3.1. This benefit shall be paid in lieu of
the Lifetime Benefits of ARTICLE 2.
3.1.1 Amount of Benefit. The annual benefit under this Section
3.1 is the Normal Retirement Benefit described in Section 2.1.1.
3.1.2 Payment of Benefit. The Bank shall pay the annual
benefit to the beneficiary in equal monthly installments payable on the
first day of each month commencing within forty-five (45) days of the
Executive's death and continuing for one hundred seventy-nine (179)
additional months.
3.2 Death During Benefit Period. If the Executive dies after the
benefit payments have commenced under this Agreement but before receiving all
such payments, the Bank shall pay the remaining benefits to the Executive's
beneficiary at the same time and in the same amounts they would have been paid
to the Executive had the Executive survived.
3.3 Death Following Termination of Employment But Before Benefits
Commence. If the Executive is entitled to benefits under this Agreement, but
dies prior to receiving said benefits, the Bank shall pay to the Executive's
beneficiary the same benefits, in the same manner, they would have
been paid to the Executive had the Executive survived; however, said benefit
payments will commence within forty-five (45) days of the Executive's death.
ARTICLE 4
BENEFICIARIES
4.1 Beneficiary Designations. The Executive shall designate a
beneficiary by filing a written designation with the Bank. The Executive may
revoke or modify the designation at any time by filing a new designation.
However, designations will only be effective if signed by the Executive and
accepted by the Bank 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 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 Bank 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 Bank 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
Bank from all liability with respect to such benefit.
ARTICLE 5
GENERAL LIMITATIONS
5.1 Excess Parachute or Golden Parachute Payment. If the payments and
benefits pursuant to this Agreement, either alone or together with other
payments and benefits which the Executive has the right to receive from the
Bank, would constitute a "parachute payment" under Section 280G of the Code, the
payments and benefits pursuant to this Agreement shall be reduced, in the manner
determined by the Executive, by the amount, if any, which is the minimum
necessary to result in no portion of the payments and benefits under this
Agreement being non-deductible to the Bank pursuant to Section 280G of the Code
and subjects to the excise tax imposed under Section 4999 of the Code.
5.2 Termination for Cause. Notwithstanding any provision of this
Agreement to the contrary, the Bank shall not pay nay benefit under this
Agreement, if the Bank terminates the Executive's employment for cause.
Termination of the Executive's employment for "CAUSE" shall mean termination
because of personal dishonesty, willful misconduct, breach of fiduciary duty
involving personal profit, intentional failure to perform stated duties, willful
violation of any law, rule or regulation (other than traffic violations or
similar offenses) or final cease-and-desist order or material breach of any
provision of the Agreement. For purposes of this paragraph, no act or failure to
act on the Executive's part shall be considered "willful" unless done, or
omitted to be done, by the Executive not in good faith and without reasonable
belief that the Executive's action or omission was in the best interest of the
Bank.
5.3 Removal. Notwithstanding any provision of this Agreement to the
contrary, the Bank shall not pay any benefit under this Agreement if the
Executive is subject to a final removal or prohibition order issued by an
appropriate federal banking agency pursuant to Section 8(e) of the Federal
Deposit Insurance Act ("FDIA").
5.4 Restrictive Provisions. The Executive shall forfeit any unpaid
benefits under this Agreement if during the term of this Agreement, and before
all benefits have been paid, the Executive, directly or indirectly, either as an
individual or as a proprietor, stockholder, partner, officer, director,
employee, agent, consultant or independent contractor of any individual,
partnership, corporation or other entity (excluding an ownership interest of
three percent (3%) or less in the stock of a publicly-traded company):
(i) within on calendar year after leaving the employ of the
Corporation or
the Bank, becomes employed by, participates in, or becomes
connected in any manner with the ownership, management,
operation or control of any bank, savings and loan or other
similar financial institution if the Executive's
responsibilities will include providing banking or other
financial services within the twenty (20) miles of the main
office maintained by the Bank as of the date of the
termination of the Executive's employment or in any county in
which the Bank has a full-service branch bank;
(ii) within one calendar year after leaving the employ of the Bank
or the Corporation participates in any way in hiring or
otherwise engaging, or assisting any other person or entity in
hiring or otherwise engaging, on a temporary, part time or
permanent basis, any individual who as employed by the Bank as
of the date of the termination of the Executive's employment;
(iii) within one calendar year after leaving the employ of the Bank
or the Corporation assists, advises, or serves in any
capacity, representative or otherwise, any third party in any
action against the Bank or transaction involving the Bank
other than in seeking legal redress of the rights of Executive
or members of Executive's family or closely held business;
provided, that the Executive shall not be penalized hereunder
in the event any employer of Executive not controlled by
Executive elects to engage in an activity proscribed under
this paragraph;
(iv) within one hundred twenty (120) days after leaving the employ
of the Corporation or the Bank, sells, offers to sell,
provides banking or other financial services, assists any
other person in selling or providing banking or other
financial services, or solicits or otherwise competes for,
either directly or indirectly, any orders, contract, or
accounts for services of a kind or nature like or
substantially similar to the financial services performed or
financial products sold by the Bank (the preceding hereinafter
referred to as "SERVICES"), to or from any person or entity
from whom the Executive or the Bank, to the knowledge of the
Executive provided banking or other financial services, sold,
offered to sell or solicited orders, contracts or accounts for
Services;
(v) divulges, discloses, or communicates to others in any manner
whatsoever, any confidential information of the Bank, to the
knowledge of the Executive, including, but not limited to, the
names and addresses of customers or prospective customers, of
the Bank, they may have existed from time to time, of work
performed or services rendered for any customer, any method
and/or procedures relating to projects or other work developed
for the Bank, earnings or other information concerning the
Bank. The restrictions contained in this subparagraph (v)
apply to all information regarding the Bank, regardless of the
source of such information. Notwithstanding anything to the
contrary, the Executive shall not disclose any of the
information referred to herein unless and until it becomes
known to the general public from a source other than the
Executive or those to whom disclosure was made by Executive.
5.4.2 Judicial Remedies. In the event of a breach or a threatened
breach by the Executive of any provision of these restrictions, the
Executive recognizes the substantial and immediate harm that a breach
or threatened breach will impose upon the Bank, and further recognizes
that in such event monetary damages may be inadequate to fully protect
the Bank. Accordingly, in the event of a breach or threatened breach of
this Agreement, the Executive consents to the Bank's entitlement to
such ex parte, preliminary, interlocutory, temporary or permanent
injunctive, or any other equitable relief, protecting and fully
enforcing the Bank's
rights hereunder and preventing the Executive from further breaching
any of his obligations set forth herein. The Executive expressly waives
any requirement, based on any statute, rule of procedure, or other
source, that the Bank post a bond as a condition of obtaining any of
the above-described remedies. Nothing herein shall be construed as
prohibiting the Bank from pursuing any other remedies available to the
Bank at law or in equity for such breach or threatened breach,
including the recovery of damages from the Executive. The Executive
expressly acknowledges and agrees that:
The restrictions set forth in Section 5.4.1 hereof are
reasonable, in terms of scope, duration, geographic area, and
otherwise, (ii) the protections afforded the Bank in Section
5.4.1 hereof are necessary to protect its legitimate business
interest, (iii) the restrictions set forth in Section 5.4.1
hereof will not be materially adverse to the Executive's
employment with the Bank, and (iv) his agreement to observe
such restrictions forms a material part of the consideration
for this Agreement.
5.4.3 Overbreadth of Restrictive Covenant. It is the
intention of the parties that if any restrictive covenant in
this Agreement is determined by a court of competent
jurisdiction to be overly broad, then the court should enforce
such restrictive covenant to the maximum extent permitted
under the law as to area, breadth and duration.
5.4.4 Change in Control, Etc. The non-competition
provisions specified in Section 5.4.1 hereof shall not be
enforceable following a Change in Control and shall not apply
unless the Corporation or the Bank continues to compensate the
Executive at for the time during which the provision is
applicable (the Corporation or the Bank reserving the absolute
right to terminate such compensations at any time). The
compensation required by this paragraph shall be not less than
the monthly salary received by the Executive immediately
preceding the Executive's termination from service. However,
if the Executive is terminated for cause as herein provided,
then no such compensation shall be required and the
non-compete provisions shall apply with full force and effect.
5.4.5 Termination by the Executive for Good Reason.
If the Bank or the Corporation persists, for a period of
thirty (30) calendar days after written notice from Executive
describing in reasonable detail the matter as to which
Executive is complaining, in any attempt to require Executive
to perform (or omit to perform) any act or engage (or omit to
engage) in any conduct that would constitute, in the
Executive's reasonable judgment, illegal conduct or omission,
a violation of the Corporation's or Bank's code of ethics or
code of conduct, or other Bank or Corporation policy, then
Executive shall be entitled to resign for good reason ("GOOD
REASON"). Such notice shall be deemed a demand for the Bank to
cease any such attempt. If the Executive resigns for Good
Reason, then the Executive shall continue to be entitled to
the benefits under this Agreement but shall not be subject to
the non-competition provisions of Section 5.4.1.
5.5 Suicide or Misstatement. No benefits shall be payable if
the Executive commits suicide within two years after the date of this
Agreement, or if the insurance company denies coverage for material
misstatements of fact made by the Executive on any application for life
insurance purchased by the Bank, or any other reason; provided, however
that the Bank shall evaluate the reason for the denial, and upon advice
of legal counsel and in its sole discretion, consider judicially
challenging any denial.
ARTICLE 6
CLAIMS AND REVIEW PROCEDURES
6.1 Claims Procedure. An Executive or beneficiary ("CLAIMANT") who has
not received benefits under the Agreement that he or she believes should be paid
shall make a claim for such
benefits as follows:
6.1.1 Initiation-Written Claim. The claimant initiates a claim
by submitting to the Bank a written claim for the benefits.
6.1.2 Timing of Bank Response. The Bank shall respond to such
claimant within thirty (30) days after receiving the claim. If the Bank
determines that special circumstances require additional time for
processing the claim, the Bank can extend the response period by an
additional thirty (30) days by notifying the claimant in writing, prior
to the end of the initial thirty-(30)-day period, that an additional
period is required. The notice of extension must act forth the special
circumstances and the date by which the Bank expect to render their
decision.
6.1.3 Notice of Decision. If the Bank denies part or all of
the claim, the Bank shall notify the claimant in writing of such
denial. The Bank shall write the notification in a manner calculated to
be understood by the claimant. The notification shall set forth:
6.1.3.1 The specific reasons for the denial,
6.1.3.2 A reference to the specific provisions of the
Agreement on which the denial is based,
6.1.3.3 A description of any additional information
or material necessary for the claimant to perfect the claim
and an explanation of why it is needed,
6.1.3.4 An explanation of the Agreement's review
procedures and the time limits applicable to such procedures,
and
6.1.3.5 A statement of the claimant's right to bring
a civil action under ERISA Section 502(a) following an adverse
benefit determination on review.
6.2 Review Procedure. If the Bank denies part of all of the claim, the
claimant shall have the opportunity for a full and fair review by the Bank of
the denial, as follows:
6.2.1 Initiation-Written Request. To initiate the review, the
claimant, within 60 days after receiving the Bank's notice of denial,
must file with the Bank a written request for review.
6.2.2 Additional Submissions-Information Access. The claimant
shall then have the opportunity to submit written comments, documents,
records and other information relating to the claim. The Bank shall
also provide the claimant, upon request and free of charge, reasonable
access to, and copies of, all documents, records and other information
relevant (as defined in applicable ERISA regulations) to the claimant's
claim for benefits.
6.2.3 Considerations on Review. In considering the review, the
Bank shall take into account all materials and information the claimant
submits relating to the claim, without regard to whether such
information was submitted or considered in the initial benefit
determination.
6.2.4 Timing of Bank Response. The Bank shall respond in
writing to such claimant within sixty (60) days after receiving the
request for review. If the Bank determines that special circumstances
require additional time for processing the claim, the Bank can extend
the response by an additional sixty (60) days by notifying the claimant
in writing, prior to the end of the initial sixty-(60)-day period, that
an additional period is required. The notice of extension
must set forth the special circumstances and the date by which the Bank
expects to render its decision.
6.2.5 Notice of Decision. The Bank shall notify the claimant
in writing of its decision on review. The Bank shall write the
notification in a manner calculated to be understood by the claimant.
The notification shall set forth:
6.2.5.1 The specific reasons for the denial,
6.2.5.2 A reference to the specific provisions of
the Plan on which the denial is based,
6.2.5.2 A statement that the claimant is entitled to
receive, upon request and free of charge, reasonable access
to, and copies of, all documents, records and other
information relevant (as defined in applicable ERISA
regulations) to the claimant's claim for benefits, and
6.2.5.3 A statement of the claimant's right to bring
a civil action under ERISA Section 502(a).
ARTICLE 7
AMENDMENTS AND TERMINATION
No provisions of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in writing signed by
the Executive and such officer or officers as may be specifically designated by
the Board of Directors of the Bank to sign on their behalf. No waiver by any
party hereto at any time of any breach by any other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time.
ARTICLE 8
MISCELLANEOUS
8.1 Administration. The Bank shall have powers, which are necessary to
administer this Agreement, including but not limited to:
8.1.1 Interpreting the provisions of the Agreement;
8.1.2 Establishing and revising the method of accounting for
the Agreement;
8.1.3 Maintaining a record of benefit payments; and
8.1.4 Establishing rules and prescribing any forms necessary
or desirable to administer the Agreement.
8.2 Applicable Law. The Agreement and all rights hereunder shall be
governed by the laws of the State of Tennessee, except to the extent preempted
by the laws of the United States of America.
8.3 Binding Effect. This Agreement shall bind the Executive and the
Bank, and their beneficiaries, survivors, executors, successors, administrators
and transferees.
8.4 Entire Agreement. This Agreement constitutes the entire agreement
between the Bank and the Executive as to the subject matter hereof, and this
Agreement is intended to grant benefits to the Executive in addition to, and not
to replace, those set forth in the Supplemental Executive Retirement Plan
Agreement between the Bank and the Executive dated May 26, 2004. No rights are
granted to the Executive by virtue of this Agreement other than those
specifically set forth herein.
8.5 Administrator. The Bank shall be the administrator under this
Agreement. The Bank may delegate to others certain aspects of the management and
operational responsibilities including the service of advisors and the
delegation of ministerial duties to qualified individuals.
8.6 Right of Offset. The Bank shall have the right of offset the
benefits against any unpaid obligation the Executive may have with the Bank.
8.7 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 Bank, nor does it interfere with the Bank'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 employment at any time.
8.8 Non-Transferability. Benefits under this Agreement cannot be sold,
transferred, assigned, pledged, attached or encumbered in any manner.
8.9 Notice. For the purposes of this Agreement, notices and all other
communications provided for this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by certified or
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth below:
To the Bank: Secretary
Capital Bank & Trust Company
0000 Xxxx Xxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
To the Executive: Xxxxx X. Xxxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
8.10 Facility of Payment. If the Executive is declared to be
incompetent, or incapable of handling the disposition of his or her property,
the Bank may pay such benefit to the duly appointed guardian, legal
representative or person having the care or custody of the Executive. The Bank
may require proof of incompetence, minority or guardianship as it may deem
appropriate prior to distribution of the benefit. Such distribution shall
completely discharge the Bank from all liability with respect to such benefit.
8.11 Reorganization. The Corporation 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
Corporation hereunder.
8.12 Tax Withholding. The Bank shall withhold any taxes that are
required to be withheld from the benefits provided under this Agreement.
8.13 Nature of Obligations. Except as described in Section 2.6, nothing
contained herein
shall create or require the Bank to create a trust of any kind to fund any
benefits which may be payable hereunder, and to the extent that the Executive
acquires a right to receive benefits from the Bank hereunder, such right shall
be no greater than the right of any unsecured general creditor of the Bank.
8.14 Headings. The section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
8.15 Validity. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
8.16 Counterparts. This Agreement may be executed in one or more
counterparts, each off which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
8.17 Regulatory Prohibition. Notwithstanding any other provision of
this Agreement to the contrary, any payments made to the Executive pursuant to
this Agreement, or otherwise, are subject to and condition upon their compliance
with Section 18(k) of the FDIA (12 U.S.C. ss.1828(k)) and any regulations
promulgated thereunder.
IN WITNESS WHEREOF, the Executive and duly authorized officers of the
Bank have signed this Agreement.
EXECUTIVE: BANK:
/s/ Xxxxx X. Xxxxxx By: /s/ R. Xxxx Xxxx
------------------------------------ ------------------------------
XXXXX X. XXXXXX
Title Chairman, President & CEO
---------------------------
(Capital Bancorp, Inc.'s signature follows on the next succeeding page.)
By execution hereof, Capital Bancorp, Inc. consents to and agrees to be
bound by the terms and conditions of this Agreement.
ATTEST: CORPORATION:
CAPITAL BANCORP, INC.
/s/ Xxxx X. Xxxxxxx, Xx. By /s/ Xxxxxx X. Xxxx III
--------------------------- --------------------------------------
Title Chairman, Compensation Committee
-----------------------------------
SCHEDULE A
CAPITAL BANK & TRUST COMPANY
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
XXXXX X. XXXXXX
Early Change in
Termination Disability Control
annual annual annual
benefit benefit benefit
Plan Age at payable at payable at payable at
Year Plan Normal Normal Normal
Plan ending Year Accrual Retirement Retirement Retirement
Year June 30, end Balance Age Age Age
---- -------- ---- ------- ---------- ---------- ----------
1 2007 53 9,281 940 940 22,000
2 2008 54 19,658 1,991 1,991 22,000
3 2009 55 31,228 3,163 3,163 22,000
4 2010 56 44,096 4,466 4,466 22,000
5 2011 57 58,375 5,913 5,913 22,000
6 2012 58 74,185 7,514 7,514 22,000
7 2013 59 91,659 9,284 9,284 22,000
8 2014 60 110,938 11,237 11,237 22,000
9 2015 61 132,174 13,388 13,388 22,000
10 2016 62 155,530 15,753 15,573 22,000
11 2017 63 181,184 18,352 18,352 22,000
12 2018 64 209,325 21,202 21,202 22,000
Nov-18 221,832
BENEFICIARY DESIGNATION
CAPITAL BANK & TRUST COMPANY
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AGREEMENT
I, XXXXX X. XXXXXX, designate the following as beneficiary of benefits under the
Agreement payable following my death:
--------------------------------------------------------------------------------
PRIMARY:
_______________________________________________________________ _______%
_______________________________________________________________ _______%
_______________________________________________________________ _______%
--------------------------------------------------------------------------------
CONTINGENT:
_______________________________________________________________ _______%
_______________________________________________________________ _______%
_______________________________________________________________ _______%
--------------------------------------------------------------------------------
NOTES:
o PLEASE PRINT CLEARLY OR TYPE THE NAMES OF THE BENEFICIARIES.
o TO NAME A TRUST AS BENEFICIARY, PLEASE PROVIDE THE NAME OF THE
TRUSTEE(S) AND THE EXACT NAME AND DATE OF THE TRUST AGREEMENT.
o TO NAME YOUR ESTATE AS BENEFICIARY, PLEASE WRITE "ESTATE OF
[YOUR NAME]".
o BE AWARE THAT NONE OF THE CONTINGENT BENEFICIARIES WILL
RECEIVE ANYTHING UNLESS ALL OF THE PRIMARY BENEFICIARIES
PREDECEASE YOU.
I understand that I may change these beneficiary designations by delivering a
new written designation to the Administrator, which shall be effective only upon
receipt and acknowledgment by the Administrator prior to my death. I further
understand that the designations will be automatically revoked if the
beneficiary predeceases me, or, if I have named my spouse as beneficiary and our
marriage is subsequently dissolved.
NAME: _________________________
SIGNATURE: _________________________ DATE: ______________
Received by the Plan Administrator this ________ day of _______________________,
20____.
By: ____________________________
Title: ____________________________
