EXHIBIT 10.8 - FORM OF SALARY CONTINUATION AGREEMENT
TIB BANK OF THE KEYS
SALARY CONTINUATION AGREEMENT
THIS AGREEMENT is made this ________ day of _______________, 2001, by
and between TIB BANK OF THE KEYS, a Florida banking corporation located in Key
Largo, Florida (the "Company") and ________________ (the "Executive").
INTRODUCTION
To encourage the Executive to remain an employee of the Company, the
Company is willing to provide salary continuation benefits to the Executive.
The Company will pay the benefits from its general assets.
AGREEMENT
The Executive and the Company agree as follows:
ARTICLE 1
DEFINITIONS
Whenever used in this Agreement, the following words and phrases shall
have the meanings specified:
1.1 "Benefit Basis" means the Executive's highest Compensation
level in the three years immediately preceding the date of Termination of
Employment.
1.2 "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.
1.3 "Code" means the Internal Revenue Code of 1986, as amended.
1.4 "Compensation" means the Executive's annual base salary rate.
1.5 "Disability" means, if the Executive is covered by a Company
sponsored disability policy, total disability as defined in such policy without
regard to any waiting period. If the Executive is not
covered by such a policy, Disability means the Executive suffering a sickness,
accident or injury which, in the judgment of a physician satisfactory to the
Company, prevents the Executive from performing substantially all of the
Executive's normal duties for the Company. As a condition to receiving any
Disability benefits, the Company may require the Executive to submit to such
physical or mental evaluations and tests as the Company's Board of Directors
deems appropriate.
1.6 "Early Termination" means the Termination of Employment
before Normal Retirement Age for reasons other than death, Disability,
Termination for Cause or following a Change of Control.
1.7 "Early Termination Date" means the month, day and year in
which Early Termination occurs.
1.8 "Effective Date" means January 1, 2001.
1.9 "Inflated Compensation" means the highest Compensation for
the three years immediately preceding Termination of Employment increased by
4.0%, compounded for the number of years from Termination of Employment to the
Normal Retirement Date.
1.10 "Normal Retirement Age" means the Executive's 65th birthday.
1.11 "Normal Retirement Date" means the later of the Normal
Retirement Age or Termination of Employment.
1.12 "Plan Year" means a twelve-month period commencing on January
1st and ending on December 31st of each year. The initial Plan Year shall
commence on the Effective Date.
1.13 "Termination for Cause" See Section 5.2.
1.14 "Termination of Employment" means that the Executive ceases
to be employed by the Company for any reason whatsoever other than by reason of
a leave of absence, which is approved by the Company.
ARTICLE 2
LIFETIME BENEFITS
2.1 Normal Retirement Benefit. Upon Termination of Employment on
or after the Normal Retirement Age for reasons other than death, the Company
shall pay to the Executive the benefit described in this Section 2.1 in lieu of
any other benefit under this Agreement.
2.1.1 Amount of Benefit. The annual benefit under this
Section 2.1 is an amount equal to forty percent (40.0%) of the Benefit
Basis.
2.1.2 Payment of Benefit. The Company shall pay the annual
benefit to the Executive
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in 12 equal monthly installments payable on the first day of each
month commencing with the month following the Executive's Normal
Retirement Date. The annual benefit shall be paid to the Executive for
fifteen (15) years.
2.1.3 Benefit Increases. Commencing on the first
anniversary of the first benefit payment, and continuing on each
subsequent anniversary, the Company's Board of Directors, in its sole
discretion, may increase the benefit.
2.2 Early Termination Benefit. Upon Early Termination, the
Company 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 benefit under this Section
2.2 is the Early Termination Annual Benefit set forth in Schedule A
for the Plan Year ending immediately prior to the Early Termination
Date, determined by reference to the vested accrual balance set forth
in Schedule A. Annual changes in Compensation shall require the
recalculation of Schedule A in accordance with the Schedule A
Calculations in Exhibit I.
2.2.2 Payment of Benefit. The Company shall pay the annual
benefit to the Executive in 12 equal monthly installments payable on
the first day of each month commencing with the month following the
Normal Retirement Age. The annual benefit shall be paid to the
Executive for fifteen (15) years.
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 Company 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 benefit under this Section
2.3 is the Disability Annual Benefit set forth in Schedule A for the
Plan Year ending immediately prior to the date in which the
Termination of Employment occurs, determined by vesting the Executive
in 100 percent (100%) of the accrual balance. Annual changes in
Compensation shall require the recalculation of Schedule A in
accordance with the Schedule A Calculations in Exhibit I.
2.3.2 Payment of Benefit. The Company shall pay the annual
benefit amount to the Executive in 12 equal monthly installments
payable on the first day of each month commencing with the month
following the Termination of Employment. The annual benefit shall be
paid to the Executive for (15) years.
2.3.3 Benefit Increases. Benefit payments may be increased
as provided in Section 2.1.3.
2.4 Change of Control Benefit. Upon Termination of Employment
following a Change of
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Control, the Company 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 annual benefit under this
Section 2.4 is an amount equal to forty percent (40%) of Inflated
Compensation.
2.4.2 Payment of Benefit. The Company shall pay the annual
benefit amount to the Executive in 12 equal monthly installments
payable on the first day of each month commencing with the month
following the Normal Retirement Date. The annual benefit shall be paid
to the Executive for (15) years.
2.4.3 Benefit Increases. Benefit payments may be increased
as provided in Section 2.1.3.
ARTICLE 3
DEATH BENEFITS
3.1 Death During Active Service. If the Executive dies while in
the active service of the Company, the Company shall pay to the Executive's
beneficiary the benefit described in this Section 3.1. 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 equal to the Disability Annual Benefit described in
Section 2.3.1.
3.1.2 Payment of Benefit. The Company shall pay the annual
benefit to the Executive's beneficiary in 12 equal monthly
installments payable on the first day of each month commencing with
the month following the Executive's death. The annual benefit shall be
paid to the Executive's beneficiary for fifteen (15) years.
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 Company 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 After Termination of Employment But Before Benefit
Payments Commence. If the Executive is entitled to benefit payments under this
Agreement, but dies prior to the commencement of said benefit payments, the
Company shall pay the benefit payments to the Executive's beneficiary that the
Executive was entitled to prior to death except that the benefit payments shall
commence on the first day of the month following the date of the Executive's
death.
ARTICLE 4
BENEFICIARIES
4.1 Beneficiary Designations. The Executive shall designate a
beneficiary by filing a written
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designation with the Company. 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 Company 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 names a spouse as beneficiary and the marriage is subsequently
dissolved. 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 Company 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 Company 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
Company from all liability with respect to such benefit.
ARTICLE 5
GENERAL LIMITATIONS
5.1 Termination for Cause. Notwithstanding any provision of this
Agreement to the contrary, the Company shall not pay any benefit under this
Agreement if the Company terminates the Executive's employment for:
(a) Gross negligence or gross neglect of duties;
(b) Commission of a felony or of a gross misdemeanor
involving moral turpitude; or
(c) Fraud, disloyalty, dishonesty or willful violation
of any law or significant Company policy committed in connection with
the Executive's employment and resulting in an adverse effect on the
Company.
5.2 Suicide or Misstatement. The Company shall not pay any
benefit under this Agreement if the Executive commits suicide within two years
after the date of this Agreement, or if the Executive has made any material
misstatement of fact on any application for life insurance purchased by the
Company.
5.3 Competition after Termination of Employment. The Company
shall not pay any benefit under this Agreement if the Executive, without the
prior written consent of the Company, engages in, becomes interested in,
directly or indirectly, as a sole proprietor, as a partner in a partnership, or
as a substantial shareholder in a corporation, or becomes associated with, in
the capacity of employee, director, officer, principal, agent, trustee or in
any other capacity whatsoever, any enterprise conducted in the trading area (a
50 mile radius) of the business of the Company, which enterprise is, or may
deemed to be, competitive with any business carried on by the Company, for a
period of two (2) years following Termination of Employment.
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ARTICLE 6
CLAIMS AND REVIEW PROCEDURES
6.1 Claims Procedure. The Company shall notify any person or
entity that makes a claim against the Agreement (the "Claimant") in writing,
within 90 days of Claimant's written application for benefits, of his or her
eligibility or noneligibility for benefits under the 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 the 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 the 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 60-day period,
stating specifically the basis of its decision, written in a manner calculated
to be understood by the Claimant and the specific provisions of the 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 days 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.
ARTICLE 8
MISCELLANEOUS
8.1 Binding Effect. This Agreement shall bind the Executive and
the Company, and their beneficiaries, survivors, executors, successors,
administrators and transferees.
8.2 No Guarantee of Employment. This Agreement is not an
employment policy or contract.
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It does not give the Executive the right to remain an 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 employee nor interfere with
the Executive's right to terminate employment at any time.
8.3 Non-Transferability. Benefits under this Agreement cannot be
sold, transferred, assigned, pledged, attached or encumbered in any manner.
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 under this Agreement. Upon the occurrence of such event, the term
"Company" as used in this Agreement shall be deemed to refer to the successor
or survivor company.
8.5 Tax Withholding. The Company shall withhold any taxes that
are required to be withheld from the benefits provided under this Agreement.
8.6 Applicable Law. The Agreement and all rights hereunder shall
be governed by the laws of the State of Florida, except to the extent preempted
by the laws of the United States of America.
8.7 Unfunded Arrangement. The Executive and beneficiary are
general unsecured creditors of the Company for the payment of benefits under
this Agreement. The benefits represent the mere promise by the Company to pay
such benefits. The rights to benefits are not subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance,
attachment, or garnishment by creditors. Any insurance on the Executive's life
is a general asset of the Company to which the Executive and beneficiary have
no preferred or secured claim.
8.8 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.
8.9 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.
8.10 Named Fiduciary. The Company shall be the named fiduciary and
plan administrator
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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 Executive and a duly authorized Company
officer have signed this Agreement.
EXECUTIVE: COMPANY:
TIB BANK OF THE KEYS
By
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Title
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BENEFICIARY DESIGNATION
TIB BANK OF THE KEYS
SALARY CONTINUATION AGREEMENT
I designate the following as beneficiary of any death benefits under this
Salary Continuation Agreement:
Primary:
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Contingent:
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NOTE: TO NAME A TRUST AS BENEFICIARY, PLEASE PROVIDE THE NAME OF THE
TRUSTEE(S) AND THE EXACT NAME AND DATE OF THE TRUST AGREEMENT.
I understand that I may change these beneficiary designations by filing a new
written designation with the Company. 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.
Signature
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Date
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Accepted by the Company this ______ day of _________________, 2001.
By
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Title
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EXHIBIT I
SCHEDULE A CALCULATIONS
TIB BANK OF THE KEYS SALARY CONTINUATION AGREEMENT
BENEFIT LEVEL: 40% of the Benefit Basis as defined in the Agreement.
ACCRUAL BALANCE: The accrual balance is calculated using the interest or
sinking fund method. The discount rate is 9.00% per year. All calculations are
compounded monthly. The balance is calculated each year, based on the Benefit
Basis, in three steps.
1. Calculate the annual benefit equal to 40% of the Benefit
Basis based upon current compensation. Then, calculate the
present value at Normal Retirement Age of the projected
annual benefit, paid in equal monthly installments over 15
years, including interest at 9.0% per year, compounded
monthly.
2. Calculate the monthly principal contribution amount required
each month to the Normal Retirement Age which, with interest
calculated monthly, will accumulate to the present value
calculated in step 1.
3. Beginning with the prior year's accrual balance, calculate
the balance for the year by adding principal contributions at
the beginning of the each month and interest at the end of
each month for the twelve months of the year being
calculated.
VESTING PERCENT: The vesting percent is zero percent (0.0%) until the earlier
of the Normal Retirement Date as defined in the agreement or ten (10) years
from the Effective Date as defined in the agreement, after which it is one
hundred percent (100%).
VESTED ACCRUAL BALANCE: The vested accrual balance is the product of the
accrual balance multiplied by the vesting percentage.
EARLY TERMINATION ANNUAL BENEFIT: The Early Termination Annual Benefit is
determined by first increasing the Vested Accrual Balance by 9.00% per year,
compounded monthly to the normal retirement age, and then calculating a fixed
annuity which is payable in 180 equal monthly installments, crediting interest
on the unpaid balance of the inflated Vested Accrual Balance at an annual rate
of 9.00%, compounded monthly.
DISABILITY ANNUAL BENEFIT: The Disability Annual Benefit amount is determined
by calculating a fixed annuity which is payable in 180 equal monthly
installments, crediting interest on the unpaid balance of the Accrual Balance
at an annual rate of 9.00%, compounded monthly.
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TIB BANK OF THE KEYS
SALARY CONTINUATION PLAN - SCHEDULE A
EARLY TERM.
VESTED EARLY TERMINATION CHANGE OF CONTROL DISABILITY
PLAN BENEFIT ACCRUAL VESTING ACCRUAL ANNUAL BENEFIT ANNUAL BENEFIT ANNUAL BENEFIT
YEAR LEVEL BALANCE SCHEDULE BALANCE PAYABLE AT 65 PAYABLE AT 65 PAYABLE IMMEDIATELY
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