FLORIDIAN BANK SALARY CONTINUATION AGREEMENT
EXHIBIT 10.13
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Floridian Bank. |
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FLORIDIAN BANK
SALARY CONTINUATION AGREEMENT
This Salary Continuation Agreement (this “Agreement”) is adopted this 31st day of March, 2009, by and between FLORIDIAN BANK, a state-chartered commercial bank located in Daytona Beach, Florida (the “Company”), and XXXXX XXXXX (the “Executive”).
The purpose of this Agreement is to provide specified benefits to the Executive, a member of a select group of management or highly compensated employees who contribute materially to the continued growth, development and future business success of the Company. This Agreement shall be unfunded for tax purposes and for purposes of Title I of the Employee Retirement Income Security Act of 1974 (“ERISA”), as amended from time to time.
Article
1
Definitions
Whenever used in this Agreement, the following words and phrases shall have the meanings specified:
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1.1 |
“Accrual Balance” means the liability that should be accrued by the Company, under Generally Accepted Accounting Principles (“GAAP”), for the Company’s obligation to the Executive under this Agreement, by applying Accounting Principles Board Opinion Number 12 (“APB 12”) as amended by Statement of Financial Accounting Standards Number 106 (“FAS 106”) and the Discount Rate. Any one of a variety of amortization methods may be used to determine the Accrual Balance. However, once chosen, the method must be consistently applied. |
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1.2 |
“Beneficiary” means each designated person or entity, or the estate of the deceased Executive, entitled to any benefits upon the death of the Executive pursuant to Article 4. |
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1.3 |
“Beneficiary Designation Form” means the form established from time to time by the Plan Administrator that the Executive completes, signs and returns to the Plan Administrator to designate one or more Beneficiaries. |
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1.4 |
“Board” means the Board of Directors of the Company as from time to time constituted. |
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1.5 |
“Change in Control” means a change in the ownership or effective control of the Company, or in the ownership of a substantial portion of the assets of the Company, as such change is defined in Code Section 409A and regulations thereunder. |
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1.6 |
“Code” means the Internal Revenue Code of 1986, as amended, and all regulations and guidance thereunder, including such regulations and guidance as may be promulgated after the Effective Date. |
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Floridian Bank |
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1.7 |
“Disability” means the Executive: (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months; or (ii) is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees or directors of the Company. Medical determination of Disability may be made by either the Social Security Administration or by the provider of disability insurance covering employees or directors of the Company provided that the definition of “disability” applied under such insurance program complies with the requirements of the preceding sentence. Upon the request of the Plan Administrator, the Executive must submit proof to the Plan Administrator of the Social Security Administration’s or the provider’s determination. |
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1.8 |
“Discount Rate” means the rate used by the Plan Administrator for determining the Accrual Balance. The initial Discount Rate is six percent (6%). However, the Plan Administrator, in its discretion, may adjust the Discount Rate to maintain the rate within reasonable standards according to GAAP and/or applicable bank regulatory guidance. |
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1.9 |
“Early Termination” means the Executive’s Separation from Service before attainment of Normal Retirement Age except when such Separation from Service occurs following a Change in Control or due to death, Disability or Termination for Cause. |
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1.10 |
“Effective Date” means April 1, 2009. |
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1.11 |
“Normal Retirement Age” means December 31 after the Executive’s attainment of age sixty-five (65). |
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1.12 |
“Normal Retirement Date” means the later of Normal Retirement Age or Separation from Service. |
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1.13 |
“Plan Administrator” means the Board or such committee or person as the Board shall appoint. |
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1.14 |
“Plan Year” means each twelve (12) month period commencing on January 1 and ending on December 31 of each year. |
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1.15 |
“Separation from Service” means termination of the Executive’s employment with the Company for reasons other than death. Whether a Separation from Service has occurred is determined in accordance with the requirements of Code Section 409A based on whether the facts and circumstances indicate that the Company and Executive reasonably anticipated that no further services would be performed after a certain date or that the level of bona fide services the Executive would perform after such date (whether as an employee or as an independent contractor) would permanently decrease to no more than |
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Floridian Bank |
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twenty percent (20%) of the average level of bona fide services performed (whether as an employee or an independent contractor) over the immediately preceding thirty-six (36) month period (or the full period of services to the Company if the Executive has been providing services to the Company less than thirty-six (36) months). |
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1.16 |
“Specified Employee” means an employee who at the time of Separation from Service is a key employee of the Company, if any stock of the Company is publicly traded on an established securities market or otherwise. For purposes of this Agreement, an employee is a key employee if the employee meets the requirements of Code Section 416(i)(l)(A)(i), (ii), or (iii) (applied in accordance with the regulations thereunder and disregarding section 416(i)(5)) at any time during the twelve (12) month period ending on December 31 (the “identification period”). If the employee is a key employee during an identification period, the employee is treated as a key employee for purposes of this Agreement during the twelve (12) month period that begins on the first day of April following the close of the identification period. |
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1.17 |
“Termination for Cause” means Separation from Service for any of the following reasons: |
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(a) If the Executive shall fail or refuse to comply with the obligations required of him as set forth in his Employment Agreement or comply with the policies of the Company established by the Board from time to time; provided, however, that for the first such failure or refusal, the Executive shall be given written warning (providing at least a ten (10) day period for an opportunity to cure), and the second failure or refusal shall be grounds for termination for Cause; |
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(b) If the Executive shall have engaged in conduct involving fraud, deceit, personal dishonesty, or breach of fiduciary duty, or any other conduct which has adversely affected, or may adversely affect, the business or reputation of the Company; |
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(c) If the Executive shall have violated any banking law or regulation, memorandum of understanding, cease and desist order, or other agreement with any banking agency having jurisdiction over the Company; |
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(d) If the Executive shall have become subject to continuing intemperance in the use of alcohol or drugs which has adversely affected, or may adversely affect, the business or reputation of the Company, or has been convicted of a crime involving moral turpitude; |
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(e) If the Executive shall have filed, or had filed against him, any petition under the federal bankruptcy laws or any state insolvency laws; or |
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(f) If the Executive shall fail to achieve mutually agreed upon performance standards established from time to time. |
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Floridian Bank |
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Article 2
Distributions During Lifetime
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2.1 |
Normal Retirement Benefit. Upon Separation from Service after attaining Normal Retirement Age, the Company shall distribute to the Executive the benefit described in this Section 2.1 in lieu of any other benefit under this Article. |
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2.1.1 |
Amount of Benefit. The annual benefit under this Section 2.1 is One Hundred and Five Thousand Dollars ($105,000). |
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2.1.2 |
Distribution of Benefit. The Company shall distribute the annual benefit to the Executive in twelve (12) equal monthly installments commencing on the first day of the month following the Normal Retirement Date. The annual benefit shall be distributed to the Executive for fifteen (15) years. |
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2.2 |
Early Termination Benefit. If Early Termination occurs, the Company shall distribute to the Executive the benefit described in this Section 2.2 in lieu of any other benefit under this Article. |
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2.2.1 |
Amount of Benefit. The benefit under this Section 2.2 is the Accrual Balance determined as of the end of the Plan Year preceding Separation from Service subject to the Vesting Percentage. Interest shall be credited from Separation from Service to Normal Retirement Age at a rate equal to the Discount Rate in effect at the time of Separation from Service. |
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Date in Which Separation from |
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Vesting Percentage |
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04/01/09-12/30/09 |
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0% |
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12/31/09-12/30/10 |
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10% |
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12/31/010-12/30/11 |
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20% |
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12/31/11-12/30/12 |
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30% |
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12/31/12-12/30/13 |
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40% |
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12/31/13-12/30/14 |
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50% |
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12/31/14-12/30/15 |
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60% |
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12/31/15-12/30/16 |
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70% |
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12/31/16-12/30/17 |
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80% |
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12/31/17-12/30/18 |
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90% |
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On or After 12/31/18 |
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100% |
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2.2.2 |
Distribution of Benefit. The Company shall distribute the benefit to the Executive in one hundred eighty (180) equal monthly installments commencing on the first day of the month following Normal Retirement Age. Interest shall be credited |
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Floridian Bank |
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during the installment period at a rate equal to the Discount Rate in effect at the time of Separation from Service. |
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2.3 |
Disability Benefit. If the Executive experiences a Disability, the Company shall distribute to the Executive the benefit described in this Section 2.3 in lieu of any other benefit under this Article. |
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2.3.1 |
Amount of Benefit. The benefit under this Section 2.3 is one hundred percent (100%) of the Accrual Balance determined as of the date of Disability. |
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2.3.2 |
Distribution of Benefit. The Company shall distribute the benefit to the Executive in a lump sum the first of the month following Disability. |
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2.4 |
Change in Control Benefit. If a Change in Control occurs, the Company shall distribute to the Executive the benefit described in this Section 2.4 in lieu of any other benefit under this Article. |
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2.4.1 |
Amount of Benefit. The benefit under this Section 2.4 is the present value (using the Discount Rate in effect at the time of the Change in Control) of the Accrual Balance required at Normal Retirement Age to pay the benefit described in Sections 2.1.1 and 2.1.2. Interest shall be credited to this amount during the installment period at a rate equal to the Discount Rate in effect at the time of Change in Control. |
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2.4.2 |
Distribution of Benefit. The Company shall distribute the benefit under this Section 2.4 to the Executive in thirty-six (36) equal monthly installments commencing on the first day of the month following Change in Control. |
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2.5 |
Restriction on Commencement of Distributions. Notwithstanding any provision of this Agreement to the contrary, if the Executive is considered a Specified Employee, the provisions of this Section 2.5 shall govern all distributions hereunder. If benefit distributions which would otherwise be made to the Executive due to Separation from Service are limited because the Executive is a Specified Employee, then such distributions shall not be made during the first six (6) months following Separation from Service. Rather, any distribution which would otherwise be paid to the Executive during such period shall be accumulated and paid to the Executive in a lump sum on the first day of the seventh month following Separation from Service. All subsequent distributions shall be paid in the manner specified. |
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2.6 |
Distributions Upon Taxation of Amounts Deferred. If, pursuant to Code Section 409A, the Federal Insurance Contributions Act or other state, local or foreign tax, the Executive becomes subject to tax on the amounts deferred hereunder, then the Company may make a limited distribution to the Executive in a manner that conforms to the requirements of Code section 409A. Any such distribution will decrease the Executive’s benefits distributable under this Agreement. |
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Floridian Bank |
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2.7 |
Change in Form or Timing of Distributions. For distribution of benefits under this Article 2, the Executive and the Company may, subject to the terms of Section 8.1, amend this Agreement to delay the timing or change the form of distributions. Any such amendment: |
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(a) |
may not accelerate the time or schedule of any distribution, except as provided in Code Section 409A; |
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(b) |
must, for benefits distributable under Section 2.2, 2.3 and 2.4, be made at least twelve (12) months prior to the first scheduled distribution; |
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(c) |
must, for benefits distributable under Sections 2.1, 2.2, 2.3 and 2.4, delay the commencement of distributions for a minimum of five (5) years from the date the first distribution was originally scheduled to be made; and |
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(d) |
must take effect not less than twelve (12) months after the amendment is made. |
Article 3
Distribution at Death
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3.1 |
Death During Active Service. If the Executive dies prior to Separation from Service, the Company shall distribute to the Beneficiary the benefit described in this Section 3.1. This benefit shall be distributed in lieu of any benefit under Article 2. |
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3.1.1 |
Amount of Benefit. The benefit under this Section 3.1 is the Accrual Balance (using the Discount Rate in effect at the time of the Executive’s death) required at Normal Retirement Age to pay the benefit described in Sections 2.1.1 and 2.1.2. |
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3.1.2 |
Distribution of Benefit. The Company shall distribute the benefit to the Beneficiary in a lump sum the first day of the fourth month following the Executive’s death. The Beneficiary shall be required to provide to the Company the Executive’s death certificate. |
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3.2 |
Death During Distribution of a Benefit. If the Executive dies after any benefit distributions have commenced under this Agreement but before receiving all such distributions, the Company shall distribute to the Beneficiary the remaining benefits at the same time and in the same amounts they would have been distributed to the Executive had the Executive survived. |
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3.3 |
Death Before Benefit Distributions Commence. If the Executive is entitled to benefit distributions under this Agreement but dies prior to the date that commencement of said benefit distributions are scheduled to be made under this Agreement, the Company shall distribute to the Beneficiary the same benefits to which the Executive was entitled prior to death, except that the benefit distributions shall be paid in the manner specified in Section 3.1.2 and shall commence the first day of the fourth month following the |
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Floridian Bank |
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Executive’s death. The Beneficiary shall be required to provide to the Company the Executive’s death certificate. |
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Article
4 |
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4.1 |
In General. The Executive shall have the right, at any time, to designate a Beneficiary to receive any benefit distributions under this Agreement upon the death of the Executive. The Beneficiary designated under this Agreement may be the same as or different from the beneficiary designated under any other plan of the Company in which the Executive participates. |
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4.2 |
Designation. The Executive shall designate a Beneficiary by completing and signing the Beneficiary Designation Form and delivering it to the Plan Administrator or its designated agent. If the Executive names someone other than the Executive’s spouse as a Beneficiary, the Plan Administrator may, in its sole discretion, determine that spousal consent is required to be provided in a form designated by the Plan Administrator, executed by the Executive’s spouse and returned to the Plan Administrator. 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. The Executive shall have the right to change a Beneficiary by completing, signing and otherwise complying with the terms of the Beneficiary Designation Form and the Plan Administrator’s rules and procedures. Upon the acceptance by the Plan Administrator of a new Beneficiary Designation Form, all Beneficiary designations previously filed shall be cancelled. The Plan Administrator shall be entitled to rely on the last Beneficiary Designation Form filed by the Executive and accepted by the Plan Administrator prior to the Executive’s death. |
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4.3 |
Acknowledgment. No designation or change in designation of a Beneficiary shall be effective until received, accepted and acknowledged in writing by the Plan Administrator or its designated agent. |
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4.4 |
No Beneficiary Designation. If the Executive dies without a valid beneficiary designation, or if all designated Beneficiaries predecease the Executive, then the Executive’s spouse shall be the designated Beneficiary. If the Executive has no surviving spouse, any benefit shall be paid to the Executive’s estate. |
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4.5 |
Facility of Distribution. If the Plan Administrator determines in its discretion that a benefit is to be distributed to a minor, to a person declared incompetent or to a person incapable of handling the disposition of that person’s property, the Plan Administrator may direct distribution of such benefit to the guardian, legal representative or person having the care or custody of such minor, incompetent person or incapable person. The Plan Administrator may require proof of incompetence, minority or guardianship as it may deem appropriate prior to distribution of the benefit. Any distribution of a benefit shall be a distribution for the account of the Executive and the Beneficiary, as the case |
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Floridian Bank |
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may be, and shall completely discharge any liability under this Agreement for such distribution amount. |
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Article 5 |
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General Limitations |
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5.1 |
Termination for Cause. Notwithstanding any provision of this Agreement to the contrary, the Company shall not distribute any benefit under this Agreement if the Executive’s employment with the Company is terminated by the Company or an applicable regulator due to a Termination for Cause. |
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5.2 |
Suicide or Misstatement. No benefit shall be distributed if the Executive commits suicide within two (2) years after the Effective Date, or if an insurance company which issued a life insurance policy covering the Executive and owned by the Company denies coverage (i) for material misstatements of fact made by the Executive on an application for such life insurance, or (ii) for any other reason. |
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5.3 |
Removal. Notwithstanding any provision of this Agreement to the contrary, the Company shall not distribute 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. Notwithstanding anything herein to the contrary, any payments made to the Executive pursuant to this Agreement, or otherwise, shall be subject to and conditioned upon compliance with 12 U.S.C. 1828 and FDIC Regulation 12 CFR Part 359, Golden Parachute Indemnification Payments and any other regulations or guidance promulgated thereunder. |
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5.4 |
Forfeiture Provision. The Executive shall forfeit any non-distributed benefits under this Agreement if during the term of this Agreement and within twelve (12) months following a Separation from Service, 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): |
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(i) 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 twenty five (25) miles of any office maintained by the Company as of the date of the termination of the Executive’s employment; |
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(ii) 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 was employed by the Company as of the date of termination of the Executive’s employment; |
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Floridian Bank |
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Salary Continuation Agreement |
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(iii) assists, advises, or serves in any capacity, representative or otherwise, any third party in any action against the Company or transaction involving the Company; |
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(iv) 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 Company (the preceding hereinafter referred to as “Services”), to or from any person or entity from whom the Executive or the Company, to the knowledge of the Executive provided banking or other financial services, sold, offered to sell or solicited orders, contracts or accounts for Services during the one (1) year period immediately prior to the termination of the Executive’s employment; |
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(v) divulges, discloses, or communicates to others in any manner whatsoever, any confidential information of the Company, to the knowledge of the Executive, including, but not limited to, the names and addresses of customers or prospective customers, of the Company, as 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 Company, earnings or other information concerning the Company. The restrictions contained in this subparagraph (v) apply to all information regarding the Company, regardless of the source who provided or compiled such information. Notwithstanding anything to the contrary, all information referred to herein shall not be disclosed unless and until it becomes known to the general public from sources other than the Executive, |
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5.5 |
Change in Control. The forfeiture provision detailed in Section 5.4 hereof shall not be enforceable following a Change in Control. |
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Article 6 |
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Administration of Agreement |
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6.1 |
Plan Administrator Duties. The Plan Administrator shall administer this Agreement according to its express terms and shall also have the discretion and authority to (i) make, amend, interpret and enforce all appropriate rules and regulations for the administration of this Agreement and (ii) decide or resolve any and all questions, including interpretations of this Agreement, as may arise in connection with this Agreement to the extent the exercise of such discretion and authority does not conflict with Code Section 409A. |
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6.2 |
Agents. In the administration of this Agreement, the Plan Administrator may employ agents and delegate to them such administrative duties as the Plan Administrator sees fit, including acting through a duly appointed representative, and may from time to time consult with counsel who may be counsel to the Company. |
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6.3 |
Binding Effect of Decisions. Any decision or action of the Plan Administrator with |
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Floridian Bank |
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Salary Continuation Agreement |
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respect to any question arising out of or in connection with the administration, interpretation or application of this Agreement and the rules and regulations promulgated hereunder shall be final and conclusive and binding upon all persons having any interest in this Agreement. |
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6.4 |
Indemnity of Plan Administrator. The Company shall indemnify and hold harmless the Plan Administrator against any and all claims, losses, damages, expenses or liabilities arising from any action or failure to act with respect to this Agreement, except in the case of willful misconduct by the Plan Administrator. |
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6.5 |
Company Information. To enable the Plan Administrator to perform its functions, the Company shall supply full and timely information to the Plan Administrator on all matters relating to the date and circumstances of the Executive’s death, Disability or Separation from Service, and such other pertinent information as the Plan Administrator may reasonably require. |
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6.6 |
Annual Statement. The Plan Administrator shall provide to the Executive, within one hundred twenty (120) days after the end of each Plan Year, a statement setting forth the benefits to be distributed under this Agreement. |
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Article 7 |
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Claims And Review Procedures |
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7.1 |
Claims Procedure. An Executive or Beneficiary (“claimant”) who has not received benefits under this Agreement that he or she believes should be distributed shall make a claim for such benefits as follows: |
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7.1.1 |
Initiation – Written Claim. The claimant initiates a claim by submitting to the Plan Administrator a written claim for the benefits. If such a claim relates to the contents of a notice received by the claimant, the claim must be made within sixty (60) days after such notice was received by the claimant. All other claims must be made within one hundred eighty (180) days of the date on which the event that caused the claim to arise occurred. The claim must state with particularity the determination desired by the claimant. |
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7.1.2 |
Timing of Plan Administrator Response. The Plan Administrator shall respond to such claimant within ninety (90) days after receiving the claim. If the Plan Administrator determines that special circumstances require additional time for processing the claim, the Plan Administrator can extend the response period by an additional ninety (90) days by notifying the claimant in writing, prior to the end of the initial ninety (90) day period, that an additional period is required. The notice of extension must set forth the special circumstances and the date by which the Plan Administrator expects to render its decision. |
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Floridian Bank |
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Salary Continuation Agreement |
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7.1.3 |
Notice of Decision. If the Plan Administrator denies part or all of the claim, the Plan Administrator shall notify the claimant in writing of such denial. The Plan Administrator shall write the notification in a manner calculated to be understood by the claimant. The notification shall set forth: |
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(a) |
The specific reasons for the denial; |
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(b) |
A reference to the specific provisions of this Agreement on which the denial is based; |
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(c) |
A description of any additional information or material necessary for the claimant to perfect the claim and an explanation of why it is needed; |
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(d) |
An explanation of this Agreement’s review procedures and the time limits applicable to such procedures; and |
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(e) |
A statement of the claimant’s right to bring a civil action under ERISA Section 502(a) following an adverse benefit determination on review. |
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7.2 |
Review Procedure. If the Plan Administrator denies part or all of the claim, the claimant shall have the opportunity for a full and fair review by the Plan Administrator of the denial as follows: |
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7.2.1 |
Initiation – Written Request. To initiate the review, the claimant, within sixty (60) days after receiving the Plan Administrator’s notice of denial, must file with the Plan Administrator a written request for review. |
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7.2.2 |
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 Plan Administrator 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. |
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7.2.3 |
Considerations on Review. In considering the review, the Plan Administrator 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. |
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7.2.4 |
Timing of Plan Administrator Response. The Plan Administrator shall respond in writing to such claimant within sixty (60) days after receiving the request for review. If the Plan Administrator determines that special circumstances require additional time for processing the claim, the Plan Administrator can extend the response period 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 Plan Administrator expects to render its decision. |
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11
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Floridian Bank |
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Salary Continuation Agreement |
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7.2.5 |
Notice of Decision. The Plan Administrator shall notify the claimant in writing of its decision on review. The Plan Administrator shall write the notification in a manner calculated to be understood by the claimant. The notification shall set forth: |
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(a) |
The specific reasons for the denial; |
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(b) |
A reference to the specific provisions of this Agreement on which the denial is based; |
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(c) |
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 |
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(d) |
A statement of the claimant’s right to bring a civil action under ERISA Section 502(a). |
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Article 8 |
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Amendments and Termination |
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8.1 |
Amendments. This Agreement may be amended only by a written agreement signed by the Company and the Executive. However, the Company may unilaterally amend this Agreement to conform with written directives to the Company from its auditors or banking regulators or to comply with legislative changes or tax law, including without limitation Code Section 409A. |
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8.2 |
Plan Termination Generally. This Agreement may be terminated only by a written agreement signed by the Company and the Executive. The benefit shall be the Accrual Balance as of the date this Agreement is terminated. Except as provided in Section 8.3, the termination of this Agreement shall not cause a distribution of benefits under this Agreement. Rather, upon such termination benefit distributions will be made at the earliest distribution event permitted under Article 2 or Article 3. |
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8.3 |
Plan Terminations Under Code Section 409A. Notwithstanding anything to the contrary in Section 8.2, if the Company terminates this Agreement in the following circumstances: |
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(a) |
Within thirty (30) days before or twelve (12) months after a Change in Control, provided that all distributions are made no later than twelve (12) months following such termination of this Agreement and further provided that all the Company’s arrangements which are substantially similar to this Agreement are terminated so the Executive and all participants in the similar arrangements are required to receive all amounts of compensation deferred under the terminated arrangements within twelve (12) months of such termination; |
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(b) |
Upon the Company’s dissolution or with the approval of a bankruptcy court provided that the amounts deferred under this Agreement are included in the Executive’s gross income in the latest of (i) the calendar year in which this Agreement terminates; (ii) the calendar year in which the amount is no longer |
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Floridian Bank |
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Salary Continuation Agreement |
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subject to a substantial risk of forfeiture; or (iii) the first calendar year in which the distribution is administratively practical; or |
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(c) |
Upon the Company’s termination of this and all other arrangements that would be aggregated with this Agreement pursuant to Treasury Regulations Section 1.409A-l(c) if the Executive participated in such arrangements (“Similar Arrangements”), provided that (i) the termination and liquidation does not occur proximate to a downturn in the financial health of the Company, (ii) all termination distributions are made no earlier than twelve (12) months and no later than twenty-four (24) months following such termination, and (iii) the Company does not adopt any new arrangement that would be a Similar Arrangement for a minimum of three (3) years following the date the Company takes all necessary action to irrevocably terminate and liquidate the Agreement; |
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the Company may distribute the Accrual Balance, determined as of the date of the termination of this Agreement, to the Executive in a lump sum subject to the above terms. |
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Article 9 |
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Miscellaneous |
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9.1 |
Binding Effect. This Agreement shall bind the Executive and the Company and their beneficiaries, survivors, executors, administrators and transferees. |
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9.2 |
No Guarantee of Employment. This Agreement is not a contract for employment. It does not give the Executive the right to remain as an employee of the Company nor interfere with the Company’s right to discharge the Executive. It does not require the Executive to remain an employee nor interfere with the Executive’s right to terminate employment at any time. |
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9.3 |
Non-Transferability. Benefits under this Agreement cannot be sold, transferred, assigned, pledged, attached or encumbered in any manner. |
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9.4 |
Tax Withholding and Reporting. The Company shall withhold any taxes that are required to be withheld, including but not limited to taxes owed under Code Section 409A from the benefits provided under this Agreement. The Executive acknowledges that the Company’s sole liability regarding taxes is to forward any amounts withheld to the appropriate taxing authorities. The Company shall satisfy all applicable reporting requirements, including those under Code Section 409A. |
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9.5 |
Applicable Law. This 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. |
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9.6 |
Unfunded Arrangement. The Executive and the Beneficiary are general unsecured creditors of the Company for the distribution of benefits under this Agreement. The benefits represent the mere promise by the Company to distribute such benefits. The |
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Floridian Bank |
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Salary Continuation Agreement |
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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 or other informal funding asset is a general asset of the Company to which the Executive and Beneficiary have no preferred or secured claim. |
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9.7 |
Reorganization. The Company shall not merge or consolidate into or with another bank, or reorganize, or sell substantially all of its assets to another bank, firm or person unless such succeeding or continuing bank, firm or person agrees to assume and discharge the obligations of the Company under this Agreement. Upon the occurrence of such an event, the term “Company” as used in this Agreement shall be deemed to refer to the successor or survivor entity. |
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9.8 |
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. |
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9.9 |
Interpretation. Wherever the fulfillment of the intent and purpose of this Agreement requires and the context will permit, the use of the masculine gender includes the feminine and use of the singular includes the plural. |
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9.10 |
Alternative; Action. In the event it shall become impossible for the Company or the Plan Administrator to perform any act required by this Agreement due to regulatory or other constraints, the Company or Plan Administrator may perform such alternative act as most nearly carries out the intent and purpose of this Agreement and is in the best interests of the Company, provided that such alternative act does not violate Code Section 409A. |
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9.11 |
Headings. Article and section headings are for convenient reference only and shall not control or affect the meaning or construction of any provision herein. |
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9.12 |
Validity. If any provision of this Agreement shall be illegal or invalid for any reason, said illegality or invalidity shall not affect the remaining parts hereof, but this Agreement shall be construed and enforced as if such illegal or invalid provision had never been included herein. |
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9.13 |
Notice. Any notice or filing required or permitted to be given to the Company or Plan Administrator under this Agreement shall be sufficient if in writing and hand-delivered or sent by registered or certified mail to the address below: |
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Floridian Financial Group, Inc. |
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0000 Xxxxx Xxxxx Xxxxxx Xxxx. |
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Xxxxxxx Xxxxx, XX. 00000 |
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Such notice shall be deemed given as of the date of delivery or, if delivery is made by mail, as of the date shown on the postmark on the receipt for registration or certification. |
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Floridian Bank |
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Salary Continuation Agreement |
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Any notice or filing required or permitted to be given to the Executive under this Agreement shall be sufficient if in writing and hand-delivered or sent by mail to the last known address of the Executive. |
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9.14 |
Compliance with Section 409A. This Agreement shall be interpreted and administered consistent with Code Section 409A. |
IN WITNESS WHEREOF, the Executive and a duly authorized representative of the Company have signed this Agreement.
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EXECUTIVE |
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COMPANY |
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/s/ XXXXX XXXXX |
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By: |
/s/ XXXXXX X.XXXXXX |
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XXXXX XXXXX |
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Title: |
CHAIRMAN/CEO |
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15
