Second Amendment to Robert Porter’s Salary Continuation Agreement (Attached)
THIS SECOND AMENDMENT is adopted as of this 15th day of December, 2005, by and
between FLORIDA CHOICE BANK, located in Mount Dora, Florida (the “Company”) and XXXXXX XXXXXX (the
“Executive”).
WHEREAS, the Company and the Executive executed the FLORIDA CHOICE BANK SALARY CONTINUATION
AGREEMENT on January 1, 2004 (the “Agreement”) and the FIRST AMENDMENT TO THE FLORIDA CHOICE BANK
SALARY CONTINUATION AGREEMENT on April 1, 2005 (the “First Amendment”);
WHEREAS, the First Amendment was a “material modification” under Section 1.409A-6(a)(4) of the
Proposed Regulations (“Proposed Regulations”) to Internal Revenue Code Section 409A (“Section
409A”);
WHEREAS, the material modification caused all benefits under the Agreement and the Agreement
itself to be subject to the provisions of Section 409A and its rules and regulations; and
WHEREAS, the Company and the Executive now desire to amend and terminate the Agreement in
accordance with Section 409A, the Proposed Regulations and Q&A-20 of Notice 2005-1, as of December
15, 2005 (the “Effective Date”).
NOW THEREFORE, effective as of the Effective Date, the following revisions shall be made:
| 1. | A new Section 2.5 is added as follows: |
“2.5 Benefit in Event of 409A Termination. Notwithstanding any other
provisions of this Agreement to the contrary, if the Company elects to terminate
this Agreement in accordance with a 409A Termination pursuant to Article 7, the
Company shall pay to the Executive the benefit described in this Section 2.5 in lieu
of any other benefit hereunder.
2.5.1 Amount of Benefit. The benefit under this Section 2.5 is
one-hundred percent (100%) of the normal retirement benefit as set forth in Section
2.1.
2.5.2 Payment of Benefit. The Company shall pay no later than
December 31, 2005, the lump sum present value of the normal retirement benefit
determined as of December 31, 2005, utilizing the Discount Rate.
2.5.3 Satisfaction of All Company Obligations. Notwithstanding
anything to the contrary in this Agreement or in that certain Supplemental Life
Insurance Agreement between the Executive and the Company (as amended, the
“Insurance Agreement”), immediately upon receipt of the lump sum payment provided
for in Section 2.5.2 of this Agreement, the Executive’s rights under this Agreement
and under the Insurance Agreement shall automatically cease and his participation in
this Agreement and the Insurance Agreement shall automatically terminate such that
no further amounts shall be paid or payable to the Executive under either this
Agreement or the Insurance Agreement, and if the Company decides to maintain the
Policy referred to in the Insurance Agreement
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after such time, the Company shall be the sole and direct beneficiary of the entire
death proceeds of the Policy.”
| 2. | Section 5.4 is deleted in its entirety. | ||
| 3. | The following is added at the end of Article 7: | ||
| “Notwithstanding the foregoing provisions of this Article 7, the Company by resolution of the Board of Directors, may unilaterally terminate this Agreement in accordance with Article XI, F. of the Commentary to the Proposed Regulations under Section 409A of the Internal Revenue Code (or such finalized version of such regulations) and Q&A-20 of Notice 2005-1 (“409A Termination”). In the event of a 409A Termination, the Executive shall be paid (no later than December 31, 2005) the 409A Termination Benefit in accordance with Section 2.5.” | |||
| 4. | The content of Schedule A of the Agreement shall be deleted and replaced by the amended Schedule A. | ||
| 5. | All other terms and provisions of the Agreement and any previous amendments not herein amended shall remain in full force and effect. |
IN WITNESS OF THE ABOVE, the Executive and the Company hereby consent to this Second Amendment
as of the date first written above.
| Executive: | Florida Choice Bank: |
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| By: | ||||||||
/s/
Xxxxxx Xxxxxx
Xxxxxx Xxxxxx
|
/s/
Xxxxxxx X. Xxxxx
|
|||||||
| Title: | ||||||||
CFO
|
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Salary Continuation Plan
Schedule A
Xxxxxx Xxxxxx |
||
Birth Date: 6/17/1958 |
Termination of Agreement | |
Plan Anniversary Date: 1/1/2006 |
||
Normal Retirement: 12/31/2020, Age 62 |
Lump Sum | |
Normal
Retirement Payment: Monthly for 18 years |
| Discount | Benefit | Based On | ||||||||||||||
| Period | Rate | Level | Vesting | Benefit | ||||||||||||
| Ending | (1) | (2) | (3) | (4) | ||||||||||||
Dec
2005 1 |
5.00% | 108,103 | 100% | 608,754 | ||||||||||||
| 1 | The first line reflects 3 months of data, October 2005 to December 2005. | |
| * | IF THERE IS A CONFLICT IN ANY TERMS OR PROVISIONS BETWEEN THIS SCHEDULE A AND THE AGREEMENT, THE TERMS AND PROVISIONS OF THE AGREEMENT SHALL PREVAIL. IF A TRIGGERING EVENT OCCURS, REFER TO THE AGREEMENT TO DETERMINE THE ACTUAL BENEFIT AMOUNT BASED ON THE DATE OF THE EVENT. |
