TIB BANK SALARY CONTINUATION AGREEMENT As Amended and Restated
Exhibit
99.1
TIB
BANK
As
Amended and Restated
THIS
AGREEMENT is made this 16th day of
December, 2008, by and between TIB BANK, a Florida banking corporation located
in Key Largo, Florida (the "Company") and Xxxxxx X. Xxxx (the
“Executive").
WHEREAS,
the Company and the Executive have previously entered into the TIB Bank of the
Keys Salary Continuation Agreement (hereinafter referred to as the “Agreement”)
on March 27, 2001, effective on January 1, 2001, as amended; and
WHEREAS,
certain revisions to the Agreement are necessary in order to conform such
Agreement to the requirements of Section 409A of the Code and related
regulations and notices promulgated thereunder, with such revisions to be
effective as of December 31, 2008.
NOW,
THEREFORE BE IT RESOLVED, that the Agreement shall be revised, amended and
restated in its entirety, effective as of December 31, 2008, as
follows:
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 (the “Holding Company”), 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 (A) the Executive is unable to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment that can
be expected to result in death or can be expected to last for a continuous
period of not less than 12 months; or (B) the Executive is, by reason of any
medically determinable physical or mental impairment that can be expected to
result in death or can be expected to last for a continuous period of not less
than 12 months, receiving income replacement benefits for a period of not less
than three months under an accident and health plan covering employees 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. 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 the initial effective date of January 1, 2001 with respect to the
Plan and December 31, 2008 with respect to the Plan as amended and restated for
the amendment and restatement.
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.
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1.13 “Specified
Employee” means an employee who at the time of Termination of Employment is a
key employee of the Company, if any stock of the Holding 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 is (i) an
officer of the Company having an annual compensation greater than $150,000 (as
indexed), (ii) a 5-percent owner of Holding Company, or (iii) a 1-percent owner
of the Holding Company having an annual compensation from the Company greater
than $150,000 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.
1.14 "Termination
for Cause" See Section 5.1.
1.15 “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. "Termination of Employment" shall have the same meaning
as "separation from service", as that phrase is defined in Section 409A of the
Code (taking into account all rules and presumptions provided for in the Section
409A regulations).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 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).
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 three percent (43.0%) of the Benefit Basis.
2.1.2 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 Executive's
Normal Retirement Date. The annual benefit shall be paid to the
Executive for fifteen (15) years.
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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 vesting the
Executive in 100 percent (100%) of the 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 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 three percent (43.0%) of Inflated Compensation.
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2.4.2 Payment
of Benefit. The Company shall pay to the Executive in a lump-sum
payment payable within 60 days following the date of Termination of Employment
an amount equal to the present value of the benefit calculated at
Section 2.4.1.
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. Such payments to the
Executive’s beneficiary will commence on the first day of the month following
the date of the Executive’s death.
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 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.
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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.
ARTICLE
6
CLAIMS
AND REVIEW PROCEDURES
6.1 For
all claims for other than disability benefits:
6
6.1.1
Claims Procedure. Any individual ("Claimant") who has not received benefits
under the Agreement that he or she believes should be paid shall make a claim
for such benefits as follows:
6.1.1.1 Initiation
- Written Claim. The Claimant initiates a claim by submitting to the Company a
written claim for the benefits.
6.1.1.2 Timing
of Company Response. The Company shall respond to such Claimant within 90 days
after receiving the claim. If the Company determines that special circumstances
require additional time for processing the claim, the Company can extend the
response period by an additional 90 days by notifying the Claimant in writing,
prior to the end of the initial 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 Company expects to render its decision.
6.1.1.3 Notice
of Decision. If the Company denies part or all of the claim, the Company shall
notify the Claimant in writing of such denial. The Company shall write the
notification in a manner calculated to be understood by the Claimant. The
notification shall set forth:
(a) The
specific reasons for the denial,
(b) A
reference to the specific provisions of the Agreement on which the denial is
based,
(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,
(d) An
explanation of the Agreement's review procedures and the time limits applicable
to such procedures, and
(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.
6.1.2 Review
Procedure. If the Company denies part or all of the claim, the Claimant shall
have the opportunity for a full and fair review by the Company of the denial, as
follows:
6.1.2.1 Initiation
- Written Request. To initiate the review, the Claimant, within 60 days after
receiving the Company's notice of denial, must file with the Company a written
request for review.
6.1.2.2 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 Company 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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6.1.2.3 Considerations
on Review. In considering the review, the Company shall take into account all
materials and information the Claimant submits relating to the claim, without
regard to whether such information was submitted or considered in the initial
benefit determination.
6.1.2.4 Timing
of Company Response. The Company shall respond in writing to such Claimant
within 60 days after receiving the request for review. If the Company determines
that special circumstances require additional time for processing the claim, the
Company can extend the response period by an additional 60 days by notifying the
Claimant in writing, prior to the end of the initial 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 Company expects to render its
decision.
6.1.2.5 Notice
of Decision. The Company shall notify the Claimant in writing of its decision on
review. The Company shall write the notification in a manner calculated to be
understood by the Claimant. The notification shall set forth:
(a) The
specific reasons for the denial,
(b) A
reference to the specific provisions of the Agreement on which the denial is
based,
(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
(d) A
statement of the Claimant's right to bring a civil action under ERISA Section
502(a).
6.2 For
disability claims:
6.2.1 Claims
Procedures. Any individual ("Claimant") who has not received benefits under the
Agreement that he or she believes should be paid shall make a claim for such
benefits as follows:
6.2.1.1 Initiation
- Written Claim. The Claimant initiates a claim by submitting to the Company a
written claim for the benefits.
6.2.1.2 Timing
of Company Response. The Company shall notify the Claimant in writing of any
adverse determination as set out in this Section.
6.2.1.3 Notice
of Decision. If the Company denies part or all of the claim, the Company shall
notify the Claimant in writing of such denial. The Company shall write the
notification in a manner calculated to be understood by the Claimant. The
notification shall set forth:
8
(a) The
specific reasons for the denial,
(b) A
reference to the specific provisions of the Agreement on which the denial is
based,
(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,
(d)
An explanation of the Agreement's review procedures and the time limits
applicable to such procedures,
(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,
(f) [See
Section 2560.503-1(g)(v)] Any internal rule, guideline, protocol, or other
similar criterion relied upon in making the adverse determination, or a
statement that such a rule, guideline, protocol, or other similar criterion was
relied upon in making the adverse determination and that the Claimant can
request and receive free of charge a copy of such rule, guideline, protocol or
other criterion from the Company, and
(g) If
the adverse benefit determination is based on a medical necessity or
experimental treatment or similar exclusion or limit, either an explanation of
the scientific or clinical judgment for the determination, applying the terms of
the Agreement to the Claimant's medical circumstances, or a statement that such
explanation will be provided free of charge upon request.
6.2.1.4 Timing
of Notice of Denial/Extensions. The Company shall notify the Claimant of denial
of benefits in writing not later than 45 days after receipt of the claim by the
Agreement. The Company may elect to extend notification by two 30-day periods
subject to the following requirements:
(a) For
the first 30-day extension, the Company shall notify the Claimant (1) of the
necessity of the extension and the factors beyond the Agreement's control
requiring an extension; (2) prior to the end of the initial 45-day period; and
(3) of the date by which the Agreement expects to render a
decision.
(b) If
the Company determines that a second 30-day extension is necessary based on
factors beyond the Agreement's control, the Company shall follow the same
procedure in (a) above, with the exception that the notification must be
provided to the Claimant before the end of the first 30-day extension
period.
(c) For
any extension provided under this section, the Notice of Extension shall
specifically explain the standards upon which entitlement to a benefit is based,
the unresolved issues that prevent a decision on the claim, and the additional
information needed to resolve those issues. The Claimant shall be afforded 45
days within which to provide the specified information.
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6.2.2 Review
Procedures - Denial of Benefits. If the Company denies part or all of the claim,
the Claimant shall have the opportunity for a full and fair review by the
Company of the denial, as follows:
6.2.2.1 Initiation
of Appeal. Within 180 days following notice of denial of benefits, the Claimant
shall initiate an appeal by submitting a written notice of appeal to
Company.
6.2.2.2 Submissions
on Appeal - Information Access. The Claimant shall be allowed to provide written
comments, documents, records, and other information relating to the claim for
benefits. The Company shall provide to the Claimant, upon request and free of
charge, reasonable access to, and copies of, all documents, records, and other
information relevant (as defined in applicable ERISA regulations) to the
Claimant's claim for benefits.
6.2.2.3 Additional
Company Responsibilities on Appeal. On appeal, the Company shall:
(a) [See
Section 2560.503-1(h)(3)(i)-(v)] 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;
(b) Provide
for a review that does not afford deference to the initial adverse benefit
determination and that is conducted by an appropriate named fiduciary of the
Agreement who is neither the individual who made the adverse benefit
determination that is the subject of the appeal, nor the subordinate of such
individual;
(c) In
deciding an appeal of any adverse benefit determination that is based in whole
or in part on a medical judgment, including determinations with regard to
whether a particular treatment, drug, or other item is experimental,
investigational, or not medically necessary or appropriate, consult with a
health care professional who has appropriate training and experience in the
field of medicine involved in the medical judgment;
(d) Identify
medical or vocational experts whose advise was obtained on behalf of the
Agreement in connection with a Claimant's adverse benefit determination, without
regard to whether the advice was relied upon in making the benefit
determination; and
(e) Ensure
that the health care professional engaged for purposes of a consultation under
subsection (c) above shall be an individual who was neither an individual who
was consulted in connection with the adverse benefit determination that is the
subject of the appeal, nor the subordinate of any such
individual.
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6.2.2.4 Timing
of Notification of Benefit Denial - Appeal Denial. The Company shall notify the
Claimant not later than 45 days after receipt of the Claimant's request for
review by the Agreement, unless the Company determines that special
circumstances require an extension of time for processing the claim. If the
Company determines that an extension is required, written notice of such shall
be furnished to the Claimant prior to the termination of the initial 45-day
period, and such extension shall not exceed 45 days. The Company shall indicate
the special circumstances requiring an extension of time and the date by which
the Agreement expects to render the determination on review.
6.2.2.5 Content
of Notification of Benefit Denial. The Company shall provide the Claimant with a
notice calculated to be understood by the Claimant, which shall
contain:
(a) The
specific reason or reasons for the adverse determination;
(b) Reference
to the specific plan provisions on which the benefit determination is
based;
(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
relevant information (as defined in applicable ERISA regulations);
(d) A
statement of the Claimant's right to bring an action under ERISA Section
502(a);
(e) [See
Section 2560.503-1(j)(5)] Any internal rule, guideline, protocol, or other
similar criterion relied upon in making the adverse determination, or a
statement that such a rule, guideline, protocol, or other similar criterion was
relied upon in making the adverse determination and that the Claimant can
request and receive free of charge a copy of such rule, guideline, protocol or
other criterion from the Company;
(f) If
the adverse benefit determination is based on a medical necessity or
experimental treatment or similar exclusion or limit, either an explanation of
the scientific or clinical judgment for the determination, applying the terms of
the Agreement to the Claimant's medical circumstances, or a statement that such
explanation will be provided free of charge upon request; and
(g) The
following statement: "You and your plan may have other voluntary
alternative dispute resolution options such as mediation. One way to find out
what may be available is to contact your local U.S. Department of Labor Office
and your state insurance regulatory agency."
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ARTICLE
7
AMENDMENTS
AND TERMINATION
This
Agreement may be amended or terminated only by a written agreement signed by the
Company and the Executive.
Upon a
termination of the Agreement, the Executive may receive a lump sum payment
immediately paid to the Executive (without regard to any actual Termination of
Employment) or designated beneficiary, provided, however, any such distributions
to be made in accordance with this Article 7 shall comply with the requirements
and limitation under Section 409A of the Code, including that such lump-sum
distribution shall only be made: (1) within thirty (30) days before, or twelve
(12) months after a Change in the Ownership or Effective Control of the Holding
Company or the Company, or Change in the Ownership of a Substantial Portion of
the Assets of the Holding Company or the Company as described in Section
409A(a)(2)(A)(v) of the Code and Treas. Reg. §1.409A-3(i)(5) (or any similar or
successor provisions), provided that all distributions are made no later than
twelve (12) months following such termination of the Agreement and further
provided that all of the Company’s arrangements which are substantially similar
to the Agreement are terminated so the Executive and all participants under
similar arrangements shall receive all amounts of deferred compensation under
such terminated agreements within twelve (12) months of the termination of the
arrangements; (2) Upon the Company’s dissolution or with the approval of a
bankruptcy court provided that the amounts deferred under the Agreement are
included in the Executive’s gross income in the latest of (i) the calendar year
in which the Agreement terminates; (ii) the calendar year in which the amount is
no longer subject to a substantial risk of forfeiture; or (iii) the first
calendar year in which the distribution is administratively practical; or (3)
Upon the Company’s termination of this and all other non-account balance plans
(as referenced in Section 409A of the Code or the regulations thereunder),
provided that all distributions are made no earlier than twelve (12) months and
no later than twenty-four (24) months following such termination, and the
Company does not adopt any new non-account balance plans for a minimum of three
(3) years following the date of such termination.
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. 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.
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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 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.
13
ARTICLE
9
SECTION
409A COMPLIANCE
9.1 Notwithstanding
anything herein to the contrary, the Company shall make reasonable efforts to
administer the Agreement and make benefit payments hereunder in a manner that is
not deemed to be contrary to the requirements set forth at Section 409A of the
Code and regulations and notices promulgated thereunder such that any payments
made would result in the requirement for the recipient of such payments to pay
additional interest and taxes to be imposed in accordance with Section
409A(a)(1)(B) of the Code; provided, however, the Company shall not have any
responsibility to a Executive or beneficiary(ies) with respect to any tax
liabilities that may be applicable to any payments made under the Agreement,
whether such tax liabilities are applicable to compliance with Section 409A of
the Code or otherwise.
9.2 If
any provision of the Agreement shall be determined to be inconsistent with the
requirements of Section 409A of the Code, then, the Agreement shall be
construed, to the maximum extent possible, to give effect to such provision in a
manner consistent with Section 409A of the Code, and if such construction is not
possible, as if such provision had never been included.
9.3 Delay
of Payment Commencement to Specified Employee
Notwithstanding
any provision in the Agreement to the contrary, if the Executive is a Specified
Employee, such Executive's benefit payments shall become first payable to him or
her as of the first day of the seventh month next following his or her
Termination of Employment, if and only if such payments, if made earlier, would
result in the recipient of such payments to pay additional interest and taxes to
be imposed in accordance with Section 409A(a)(1)(B) of the Code; provide that
such payment delay shall not be required in the event of the death of the
Executive. Therefore, in the event this Section 9.3 is applicable to
the Executive, any distribution which would otherwise be paid to the Executive
within the first six months following the Termination of Employment shall be
accumulated and paid to the Executive in a lump sum on the first day of the
seventh month following the Termination of Employment along with any payments
applicable to such seventh month. All subsequent distributions shall
be paid in the manner specified. To the extent that the benefits
distribution schedule is modified in accordance with this Section 9.3, the
Schedule A Calculations in Exhibit I shall be adjusted as necessary.
Notwithstanding anything herein to the contrary, this Section 9.3 shall only be
effective if the stock of the Company or a parent corporation is publicly traded
as set forth at Section 409A(a)(2)(B)(i) of the Code.
9.4 Distributions
Upon Income Inclusion Under Section 409A of the Code. Upon the
inclusion of any amount as taxable income to the Executive as a result of the
failure of this non-qualified deferred compensation agreement to comply with the
requirements of Section 409A of the Code, to the extent such tax liability can
be covered by the then accrued benefit, a distribution shall be made to the
Executive as soon as is administratively practicable following the discovery of
the plan failure in an amount sufficient for the Executive to pay such tax
liability.
14
9.5 Request
to Delay Payment by Executive. Any request by the Executive to delay
the commencement date of the distribution of the accrued benefit under the
Agreement shall be detailed in writing and approved by the Company not less than
one year prior to the payment commencement date of the benefits payable under
the Agreement, absent such written request, and such payment commencement date
shall not be earlier than five years from payment commencement date, absent such
subsequent written request.
9.6 Special
One-Time Election in 2008 for Distribution that may be made in
2009. Notwithstanding anything contained herein to the contrary, the
Executive may elect in writing before December 31, 2008 to receive a lump-sum
cash payment of the Executive’s entire vested accrued benefit valued as of
December 31, 2007; and if the Executive is still employed with the Company on
December 31, 2008, the Executive may elect on December 31, 2008 to receive a
lump-sum cash payment of the Executive’s entire vested accrued benefit valued as
of December 31, 2008; provided, however, such election shall not be effective if
distribution of such benefits otherwise commences on or before December 31, 2008
in accordance with the Plan. In accordance with IRS Notice 2007-86, such
one-time election is in conformity with Section 409A of the Code and applicable
regulations. The Executive’s accrued benefit will be paid as soon as
administratively feasible in 2009, but in no event earlier than January 1, 2009
and no later than March 14, 2009, based upon the calculation of the December 31,
2007 valuation or the December 31, 2008 valuation, as applicable.
9.7 De
Minimus Lump Sum Payment. Notwithstanding the foregoing, the Company
may, in its sole discretion, commence pay-out of a Executive’s accrued benefit
at any time, provided that such pay-out amount shall be in an amount equal to
not less than the lump sum value of such accrued benefit determined on the date
of such pay-out; provided that such pay-out (1) accompanies the termination of
the Executive’s entire interest under the Agreement and all similar arrangements
that constitute non-account balance plan under Regulations at Section
1.409A-1(c)(2) applicable to Section 409A of the Code; and (2) the payment is
not greater than the applicable dollar amount under Section 402(g)(1)(B) of the
Code.
15
IN
WITNESS WHEREOF, the Executive and a duly authorized Company officer have signed
this Agreement.
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EXECUTIVE:
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COMPANY:
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TIB
BANK
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By:
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Title
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BENEFICIARY
DESIGNATION
TIB
BANK
I
designate the following as beneficiary of any death benefits under this Salary
Continuation Agreement:
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Primary:
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Contingent:
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NOTE:
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TO
NAME A TRUST AS BENEFICIARY, PLEASE PROVIDE THE NAME OF THE TRUSTEE(S) AND
THE EXACT NAME AND DATE OF THE TRUST
AGREEMENT.
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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.
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Signature
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Date
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Accepted
by the Company this ______ day of _________________, 2001.
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By
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Title
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SCHEDULE
A CALCULATIONS
TIB
BANK SALARY CONTINUATION AGREEMENT
BENEFIT
LEVEL: 43% 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 will be determined
periodically to be in conformity with Generally Accepted Accounting Principles
(the “Discount Rate”). The balance is calculated each year, based on
the Benefit Basis, in three steps.
1. Calculate
the annual benefit equal to 43% 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 the Discount Rate.
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 one hundred percent
(100.0%).
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 the Discount Rate
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 the Discount
Rate.
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 the Discount
Rate.
TIB
BANK
SALARY
CONTINUATION PLAN - SCHEDULE A
EARLY
TERM.
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PLAN
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BENEFIT
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ACCRUAL
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VESTING
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VESTED
ACCRUAL
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EARLY
TERMINATION ANNUAL BENEFIT PAYABLE
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CHANGE
OF CONTROL ANNUAL BENEFIT PAYABLE
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DISABILITY
ANNUAL BENEFIT PAYABLE
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|||||||
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YEAR
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LEVEL
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BALANCE
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SCHEDULE
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BALANCE
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AT
65
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AT
65
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IMMEDIATELY
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TIB
BANK
WITH
XXXXXX X. XXXX
Participant
2008 Election for a 2009 Lump-Sum Cash Payment
of Benefits
Participant Name:
Xxxxxx X. Xxxx
Accrued
Benefit Balance as of December 31, 2007: __________________ or
Accrued
Benefit Balance as of December 31, 2008: __________________
WHEREAS,
in accordance with Section 9.6 of the TIB Bank Salary Continuation Agreement by
and between TIB Bank and Xxxxxx X. Xxxx (the “Plan”), the
Executive may elect in writing before December 31, 2008 to receive a lump-sum
cash payment of the entire vested and accrued balance in the Participant’s
account, valued as of December 31, 2007 (“Accrued Benefit”) or if the
Participant is still employed with TIB Bank on December 31, 2008 he may elect to
receive a lump-sum cash payment of the entire Accrued Benefit, valued as of
December 31, 2008.
WHEREAS,
the Participant’s Accrued Benefit will be paid as soon as administratively
feasible on or after January 1, 2009, but in no event later than March 14,
2009.
In
accordance with the terms of Section 9.6 of the Plan, I hereby elect
to receive a lump-sum cash payment as soon as administratively feasible on or
after January 1, 2009, but in no event later than March 14, 2009, equal to the
value of the Accrued Benefit of my account under the Plan listed above, with
such value determined based on the value of such Accrued Benefit determined as
of December 31, 2007 if the election is made before December 31, 2008 and valued
as of December 31, 2008 if the election is made on December 31,
2008. I understand that this election must be executed by me not
later than December 31, 2008, and such election, once made, may not be changed
by me after December 31, 2008; provided, however, such election shall not be
effective if distribution of such benefits otherwise commences on or before
December 31, 2008 in accordance with the Plan. I understand that upon
receipt of such payout, all benefits payable in accordance with the Plan shall
be fully satisfied.
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Date:
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||
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Name:
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Xxxxxx
X. Xxxx
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Signature
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Received
and Approved by TIB Bank this ______ day of _________________,
2008.
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By
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Title
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