EXHIBIT 10.11 FORM OF AMENDED AND RESTATED SUPPLEMENTAL RETIREMENT
PLAN AGREEMENT DATED AS OF JULY 1, 1997 BY AND BETWEEN
REPUBLIC SECURITY BANK AND EACH OF XXXX X. XXXXXX AND XXXXXXX
X. XXXXXXX (FILED HEREWITH)
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AMENDED AND RESTATED
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AGREEMENT
THIS AGREEMENT, made and entered into as of the 1st day of
July, 1997, by and between REPUBLIC SECURITY BANK, a Florida state bank (the
"Bank"), and ______________ (the "Executive"), amends and restates that certain
Amended and Restated Supplemental Executive Retirement Plan Agreement between
the parties dated as of August 1, 1996.
WITNESSETH:
WHEREAS, the Executive has been a participant in the
Supplemental Executive Retirement Plan of Republic Security Financial
Corporation (the "Corporation Plan") and in the employ of the Corporation and
the Bank for more than three years, and is now serving the Corporation and the
Bank as ________; and
WHEREAS, the Boards of Directors of the Corporation and the
Bank have determined, and the Executive has agreed, that the Corporation Plan
should be transferred to the Bank; and
WHEREAS, the Board of Directors of the Bank has adopted a
Supplemental Executive Retirement Plan (the "Plan"), in form and substance
substantially similar to the Corporation Plan; and
WHEREAS, the Bank has agreed to assume all responsibilities of
the Corporation accrued under the Corporation Plan and to assure that all
benefits accrued to the Executive under the Corporation Plan continue unaffected
under the Plan; and
WHEREAS, it is the consensus of the Board of Directors that
the Executive's services to the Bank in the past have been of exceptional merit
and have constituted an invaluable contribution to the general welfare of the
Bank and in bringing it to its present status of operating efficiency; and
WHEREAS, the experience of the Executive, his knowledge of the
affairs of the Bank, his reputation and contacts in the industry are so valuable
that assurance of his continued services is essential for the future growth and
profits of the Bank and it is in the best interests of the Bank to reasonably
assure his continuing good service so as to allow him to remain in the employ of
the Bank during his lifetime or until the age of retirement; and
WHEREAS, it is the desire of the Bank that his services be
supplementally remunerated as herein provided;
NOW THEREFORE, it is agreed as follows:
ARTICLE ONE
1.01 EFFECTIVE DATES. For purposes of entry into the Plan, the
effective date of this Agreement shall be April 1, 1990; however, the effective
date for accrual of benefits hereunder shall be April 1, 1987 ("Benefit
Effective Date").
1.02 EMPLOYMENT. Executive and the Corporation and/or the Bank
have otherwise agreed to the extent, terms and duration of employment and this
Agreement shall not, either explicitly or impliedly, create, nor give rise to
any right of employment.
The salary continuation benefits provided by this Agreement
are granted by the Bank as a fringe benefit to the Executive and 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.
ARTICLE TWO
2.01 RETIREMENT BENEFIT.
(a) The Executive may retire from the employ of the
Corporation and/or the Bank at any time after he attains age fifty-five. If the
Executive retires at age fifty-five, then the Bank shall pay to the Executive,
upon the attainment of such age, a retirement benefit equal to sixty percent of
the Executive's Final Base Salary, as defined in Section 2.01(c), on a monthly
basis during his lifetime for twenty years, subject to the terms and conditions
of this Agreement. In the event that the Executive retires from the employ of
the Corporation and/or the Bank subsequent to age fifty-five, he shall be
entitled to the Vested Retirement Benefit, set forth in Section 2.02(c), to be
paid to the Executive on a monthly basis during his lifetime for twenty years.
Notwithstanding the foregoing, the Executive's Vested Retirement Benefit shall
not exceed seventy-five percent of his Final Base Salary (the "Maximum Vested
Retirement Benefit").
(b) The date for the first payment to the Executive under this
Section 2.01 shall be the first day of the month next following the latest of
(i) attainment of age fifty-five, (ii) the date upon which the Executive retires
from the employ of the Corporation and/or the Bank, or (iii) upon such later
date as may be mutually agreed by the Executive and the Bank.
(c) "Final Base Salary" shall mean the average Base Salary of
the highest three of the last five years in which the Executive is employed by
the Corporation and/or the Bank. "Base Salary" shall mean the annual base salary
paid to the Executive by the Corporation, the Bank and any subsidiaries of the
Corporation and the Bank, excluding bonuses, commissions, fringe benefits and
incentive compensation.
2.02 VESTED RETIREMENT BENEFIT. The Executive's retirement
benefit set forth in Section 2.01 hereof shall vest in the following increments
as the Executive attains the ages set forth below, provided that the Executive
is employed by the Corporation and/or the Bank on the date of attaining such
age:
(a) Upon the attainment by the Executive of age thirty-nine,
thirty percent of his Final Base Salary shall vest;
(b) For each year commencing with age forty and continuing
through age fifty-five, on the birth date of the Executive in each such year, an
additional 2% of the Final Base Salary shall vest, e.g. upon attainment by the
Executive of age fifty-five, sixty percent of his Final Base Salary shall vest;
and
(c) For each year commencing with age fifty-six and continuing
through age sixty-two, on the birth date of the Executive in each such year, an
additional 1.4% of the Final Base Salary shall vest, until the Executive attains
the age of sixty-two, at which time the Maximum Vested Retirement Benefit shall
vest.
The vested amount of retirement benefit provided for in this
Section 2.02, measured upon any particular date, shall be referred to herein as
the "Vested Retirement Benefit."
2.03 RETIREMENT DEATH BENEFIT. The Bank agrees that if the
Executive shall have retired as provided in Section 2.01, but shall die before
receiving all payments under Section 2.01, the Bank will continue to make such
payments to such individual or individuals as the Executive may have designated
in writing, filed with and receipt acknowledged by the Bank, until the
expiration of twenty years from the date of the first payment under this
Agreement. In the absence of any effective designation of beneficiary, any such
amounts becoming due and payable upon the death of the Executive shall be
payable to his duly qualified executor, administrator, or personal
representative.
ARTICLE THREE
3.01 DEATH PRIOR TO BENEFIT PAYMENT INCEPTION. In the event
the Executive should die while employed by the Corporation and/or the Bank at
any time after the effective date of this Agreement, but prior to qualifying for
living benefits under Section 2.01, the Bank will pay the Vested Retirement
Benefit, but in no event less than thirty percent of the Final Base Salary, for
a period of 240 months to such individual or individuals as the Executive may
have designated in writing, filed with and receipt acknowledged by the Bank. The
said monthly payments shall begin the first day of the month following the month
of the death of the Executive. In the absence of any effective designation of
beneficiary, any such amounts becoming due and payable upon the death of the
Executive shall be payable to his duly qualified executor, administrator, or
personal representative.
ARTICLE FOUR
4.01 DISABILITY PRIOR TO RETIREMENT. In the event that the
Executive shall become permanently and totally disabled, as defined in this
Article, this Agreement shall continue subject to the limitations hereinafter
provided. If the Executive shall become disabled (as defined) during his
employment, but not necessarily as a result thereof, and should live to
otherwise qualify for benefits under Article Two, those benefits shall be
payable as if the Executive had remained in the employment of the Corporation
and/or the Bank during his disability. If the Executive should die after
becoming disabled but would otherwise have qualified for death benefits payable
under Articles Two or Three, those benefits shall be payable as if the Executive
had remained in the employment of the Corporation and/or the Bank during his
disability.
4.02 DEFINITION OF DISABILITY. "Disability" means that the
Executive has become permanently and totally disabled, mentally or physically,
such that his disability renders him unable to perform his duties in a manner
satisfactory to the Bank, and the Bank by a resolution adopted at any regular or
special meeting of its Board of Directors terminates the employment of the
Executive as a result of his disability. The Bank retains the right to have the
Executive examined medically at the Bank's expense to determine the extent of
his disability and the likelihood of his recovery.
4.03 DISABILITY BENEFIT OPTION. If the Bank elects to make any
disability payments to the Executive which are not provided either by any
corporate or personal disability income insurance or any separate disability
salary continuation agreement, then the total payout of any subsequent benefits
under Article Two or Article Three shall be reduced to the extent of any
disability payments so made.
ARTICLE FIVE
5.01 VOLUNTARY TERMINATION OF EMPLOYMENT. If the Executive
voluntarily terminates his employment prior to becoming entitled to receive
benefits under Section 2.01, his participation in the Plan shall cease and he
shall be entitled to receive his Vested Retirement Benefit, as deter mined in
accordance with Section 2.02. Except as otherwise provided in this Agreement,
the Vested Retirement Benefit due to the Executive pursuant to this Section 5.01
shall be payable to the Executive upon his attainment of age fifty-five, to be
paid to the Executive on a monthly basis for twenty years.
5.02 CHANGE OF CONTROL. A "Change in Control" shall mean the
occurrence of any of the following: (1) the merger or consolidation by virtue of
which the Corporation or the Bank shall not be the surviving entity; (2) the
sale of substantially all the assets of the Corporation or the Bank; or (3) the
change of control of the Corporation or the Bank such that any person (as
defined in Section 13(d)(3) and 14(d)(2) of the Securities Exchange Act of 1934,
as amended) becomes a beneficial owner, directly or indirectly, of securities
representing 25% or more of the combined voting power of the then outstanding
securities of either the Corporation or the Bank. Notwithstanding any provision
of this Agreement to the contrary, the Executive shall be entitled to the
Maximum Vested Retirement Benefit immediately upon the occurrence of a Change of
Control. Upon the occurrence of a Change of Control, Executive shall, at his
option, receive the Maximum Vested Retirement Benefit either (i) at retirement
subsequent to age fifty-five in the manner provided in Section 2.01 hereof or
(ii) upon written demand to the Corporation prior to the date of first payment
provided in Section 2.01(b) hereof, in a single payment in an amount equal to
the present value (computed at a rate of 8% interest per annum) of Maximum
Vested Retirement Benefit payable as provided in Section 2.01 hereof.
5.03 DISCHARGE FROM EMPLOYMENT FOR CAUSE. In the event that
the Executive's employment shall have been terminated for cause and the Board of
Directors of the Corporation or the Bank shall determine that the Executive
shall have engaged in "conduct inimical to the interest of the corporation" (as
herein defined), this Agreement may be terminated by resolution of the Board of
Directors, and in such event, all benefits and payments of any kind hereunder,
and all right or rights thereto, shall be terminated and canceled. "Conduct
inimical to the interest of the corporation" shall mean: actions engaged in by
the Executive which constitute the commission of a felony, the commission of
gross negligence resulting in significant damage to the Bank or its properties
or assets (including goodwill) or the commission of willful misconduct relating
to the affairs of the Bank.
5.04 OTHER TERMINATION OF SERVICE. The Corporation and/or the
Bank reserves the right to terminate the employment of the Executive at any
time. In the event that the employment of the Executive shall terminate prior to
the Executive's entitlement to receive benefits under Section 2.01, other than
by his disability, his death or his discharge for cause and the determination of
"conduct inimical to the interests of the corporation" pursuant
to Section 5.03, then the Executive or his legal representative shall have
ninety days from the date of his termination of employment to file a written
notice with the Bank and electing the termination benefit defined in Section
15.03. If the Executive does not make the election described in this Section,
this Agreement shall continue with the following limitations: the Executive's
Final Base Salary for purposes of determining Vested Retirement Benefits shall
be his Base Salary on the date of termination of employment, provided, however,
that such Base Salary shall not be less than the Executive's Final Base Salary,
as calculated pursuant to Section 2.01.
ARTICLE SIX
6.01 ALIENABILITY. Neither the Executive, his widow, 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 or any of them, or be transferable by operation of law in the event
of bankruptcy, insolvency, or otherwise. In the event the Executive or any
beneficiary attempts assignment, commutation, hypothecation, transfer, or
disposal of the benefit hereunder the Bank's liabilities shall forthwith cease
and terminate.
ARTICLE SEVEN
7.01 PARTICIPATION IN OTHER PLANS. Nothing contained in this
Agreement shall be construed to alter, abridge, amend, modify or in any manner
affect the rights and privileges of the Executive to participate in and be
covered by any pension, profit-sharing, group insurance, bonus or other employee
plans which the Bank or the Corporation may now or hereafter have.
ARTICLE EIGHT
8.01 PURCHASE OF ASSETS BY BANK. The Bank reserves the
absolute right at its sole and exclusive discretion either to purchase assets to
provide for the obligations of the Bank undertaken by this Agreement or to
refrain from the purchase of such assets, and to determine the extent, nature,
and method of any such purchases. Should the Bank elect to purchase assets to
provide for obligations under this Agreement, in whole or in part, the Bank
shall be the unrestricted owner of any assets acquired. The Bank reserves the
absolute right, in its sole discretion, to terminate any such funding program,
at any time, either in whole or in part. At no time shall the Executive be
deemed to have any right, title, or interest in or to any specified asset or
assets of the Bank.
8.02 RIGHTS AS UNSECURED CREDITOR. This Article shall not be
construed as giving the Executive or his beneficiary any greater rights than
those of any other unsecured creditor of the Bank.
ARTICLE NINE
9.01 REORGANIZATION. In the event that the Bank shall merge,
consolidate into or with another bank, reorganize, or sell substantially all of
its assets to another corporation, firm, or person, such succeeding or
continuing corporation, firm, or person shall assume and discharge the
obligations of the Bank under this Agreement. Upon the occurrence of such event,
the term "Bank" as used in this Agreement shall be deemed to refer to such
successor or survivor.
ARTICLE TEN
10.01 BENEFITS AND BURDENS. This Agreement shall be binding
upon and inure to the benefit of the Executive and his personal representatives
and the Bank, and any successor organization which shall succeed to
substantially all of its assets and business.
ARTICLE ELEVEN
11.01 COMMUNICATIONS. Any notice or communication required of
either party with respect to this Agreement shall be made in writing and may
either be delivered personally or sent by certified mail to: For Bank, Republic
Security Bank, 0000 Xxxxxxxx Xxxxxx, Xxxx Xxxx Xxxxx, Xxxxxxx 00000-0000; For
Executive,_____ , at his address as last shown on the records of the Bank, as
the case may be. Each party shall have the right by written notice to the other
in the manner provided herein to change the place to which any notice may be
addressed.
ARTICLE TWELVE
12.01 NOT A CONTRACT OF EMPLOYMENT. This Agreement shall not
be deemed to constitute a contract of employment between the parties hereto, nor
shall any provision hereof restrict the right of the Bank or the Corporation to
discharge the Executive, either with or without cause, or restrict the right of
the Executive to terminate his employment.
ARTICLE THIRTEEN
13.01 CLAIMS PROCEDURE. In the event that benefits under this
Agreement are not paid to the Executive (or his beneficiary in the case of the
Executive's death), and such person feels entitled to receive them, a claim
shall be made in writing to the Plan Administrator within sixty days from the
date payments are claimed to have been due. Such claim shall be reviewed by the
Plan Administrator and the Bank. If the claim is denied, in full or in part, the
Plan Administrator shall provide a written notice within ninety days from
receipt of the claim setting forth the specific reasons for denial, specific
reference to the provisions of this Agreement upon which the denial is based,
and any additional material or information necessary to perfect the claim if
any. Also, such written notice shall indicate the steps to be taken if a review
of the denial is desired.
13.02 REVIEW OF A CLAIM DENIAL. If a claim is denied and a
review of the denial is desired, the Executive (or his beneficiary in the case
of the Executive's death), shall notify the Plan Administrator in writing within
sixty days (and a claim shall be deemed denied if the Plan Administrator does
not take any action within the aforesaid ninety-day period). In requesting a
review, the Executive or his beneficiary may review this Agreement or any
documents relating to it and submit any written issues and comments he or she
may feel appropriate. In its sole discretion the Plan Administrator shall then
review the claim and provide a written decision within sixty days. This decision
likewise shall state the specific reasons for the decision and shall include
reference to specific provisions of this Agreement on which the decision is
based.
Upon exhausting the remedies available under this Article
Thirteen, the Executive or his beneficiary may wish to seek arbitration as
provided under Article Sixteen. For purposes of implementing this claim
procedure (but not for any other purpose), the Chief Financial Officer of the
Bank is hereby designated as the Named Fiduciary and Plan Administrator of this
Agreement.
ARTICLE FOURTEEN
14.01 ADMINISTRATION. Any payment required to be made pursuant
to this Agreement to a person who is under a legal disability at the time such
payment is due may be made by the Bank to or for the benefit of such person in
such of the following ways as the Bank shall determine: (a) directly to the
person entitled to the payment; (b) to the legal representative of such person;
(c) to some near relative of such person to be used for latter's benefit; (d)
directly in payment of expenses of support, maintenance or education of such
person. Any such payment by the Bank shall, to the extent thereof, be a complete
discharge of any liability under this Agreement with respect to such payment.
The Bank shall not be required to see to the application by any third party of
any payments made pursuant to this paragraph.
14.02 MARITAL DEDUCTION. If the Executive designates his wife
to receive payments to be made after his death, she shall have the right to
direct the Bank as to the distribution of the sums, if any, payable after her
death. The Executive's wife has the right to direct that any such payments which
may be payable after her death be paid to such person or persons or to her own
estate as she appoints and directs by a written direction filed with the Bank
during her lifetime or by her last will and testament specifically referring to
this power of appointment. To the extent the Executive's wife does not
effectively exercise the power of appointment such sums shall upon her death be
distributed to her estate.
ARTICLE FIFTEEN
15.01 EVENTS OF DEFAULT. For purposes of this Agreement, the
words "Event of Default" shall mean:
(a) Nonpayment of any benefit provided herein when due;
(b) Adjudication of the Bank as a bankrupt or insolvent or
entry of an order, remaining unstayed by appeal or otherwise for forty-five
days, appointing a receiver or trustee for the Bank, or for all or any of its
property or approving a petition seeking reorganization or other similar relief
under the bankruptcy or other similar laws of the United States of America or
any state or any other competent jurisdiction, or the filing by the Bank of a
petition seeking any of the foregoing or consenting thereto, or the filing of a
petition to take advantage of any debtor's act, or making a general agreement
for the benefit of creditors, or admitting in writing its inability to pay its
debts as they mature; or
(c) Dissolution or liquidation of the Bank.
The Executive shall be notified in writing within seven days
of any occurrence described in Section 15.01(b) or (c) above.
15.02 NOTICE OF TERMINATION. Upon the occurrence of an Event
of Default, the Executive or his legal representative may in his sole discretion
terminate this Agreement by filing written notice of the Executive's election to
receive the benefits provided in Section 15.03.
15.03 LUMP SUM SETTLEMENT. In the event the Executive shall be
entitled to elect the benefits provided in this Section 15.03 pursuant to the
provisions of Sections 5.04 or 15.02 hereof, and the Executive shall have made
such election, the Executive shall be entitled to receive a single sum payment
in an amount equal to the present value (computed at a rate of 8% interest) of
the retirement, disability, or severance benefits otherwise payable hereunder,
and which are unpaid at the date at which the election is made. Said single sum
shall be due and payable upon the date of such election and amounts remaining
unpaid for thirty days thereafter shall bear interest at the rate of 8%
compounded annually. This Agreement shall terminate upon payment in full of the
benefits provided herein.
15.04 CESSATION OF BENEFITS. In the event this Agreement is
terminated pursuant to Sections 5.04 or 15.02, the Executive shall not be and
shall cease to be entitled to receive any benefits hereunder except those
specifically set forth in this Article Fifteen.
15.05 LUMP SUM UPON DEATH. In the event of the death of the
Executive and at any time during which the Bank shall be obligated to make
payments constituting death benefits pursuant to either Section 2.03 or Section
3.01, the Bank shall have the right to elect to pay the balance of all benefits
to which the Executive's beneficiaries shall be entitled under this Agreement,
in an alternative manner by lump sum payment consisting of the present value of
all benefits then unpaid (computed at a rate of 8% interest). The Bank shall
make such election by notice to the beneficiaries and shall make payment in full
within thirty days, in which event this Agreement shall terminate.
ARTICLE SIXTEEN
16.01 ARBITRATION. In the event of any dispute, controversy or
misunderstanding arising between the parties hereto, which may, directly or
indirectly concern or involve any of the terms, covenants or conditions hereof,
the parties agree that such controversy shall be settled by arbitration in the
city of West Palm Beach, Florida in accordance with the Rules of American
Arbitration Association. One arbitrator shall be named by each party involved in
the dispute and then an additional arbitrator shall be named by the arbitrators
so chosen. Judgment upon the award rendered by the arbitrators may be entered in
any court having jurisdiction thereof. The costs of the arbitration shall be
borne by the party or parties designated by the arbitrators.
16.02 SEVERABILITY. If any provision of this Agreement, or the
application thereof to any person or circumstance, shall for any reason and to
any extent be invalid or unenforceable, neither the remainder of this Agreement
nor the application of such provision to any other person or circumstance shall
be affected thereby, but rather the same shall be enforced to the greatest
extent permitted by law.
16.03 HEADINGS. The captioned headings used have been inserted
as a matter of convenience and shall not be considered or construed to in any
manner explain or otherwise affect the provisions herein contained.
16.04 INTEGRATED AGREEMENT. This Agreement represents the
entire, complete, and exclusive understanding of the parties hereto and reduces
to writing all oral negotiations and agreements of the parties and shall not be
changed, varied, or otherwise amended unless made in writing signed by each of
the parties hereto.
16.05 GOVERNING LAW. This Agreement shall be governed by the
laws of the State of Florida.
IN WITNESS WHEREOF, the parties hereto have duly entered into
this Agreement as of the date first above written.
EXECUTIVE:
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ATTEST: REPUBLIC SECURITY BANK
---------------------- By ------------------------------------
Secretary
