Exhibit 99.2
THIS
SALARY CONTINUATION AGREEMENT (the “Agreement”) is adopted this 21 day of September,
2006, by and between United Heritage Bank, a state-chartered commercial bank located in Orlando,
Florida (the “Bank”) and XXXXXXX X. 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 Bank. 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:
| 1.1 |
|
“Accrual Balance” means the liability that should be accrued by the Bank, under
Generally Accepted Accounting Principles (“GAAP”), for the Bank’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. The Accrual Balance
shall be reported annually by the Bank to the Executive. |
| 1.2 |
|
“Beneficiary” means each designated person, or the estate of the deceased Executive,
entitled to benefits, if any, upon the death of the Executive determined pursuant to Article
4. |
| 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 Bank as from time to time constituted. |
| 1.5 |
|
“Change of Control” means a Change of Control shall mean a merger or acquisition in
which the Company or the Bank is not the surviving entity, or the acquisition by any
individual or group of beneficial ownership of more than 50% of the outstanding shares of the
Company common stock. The term “group” and the concept of beneficial ownership shall have
such meanings ascribed thereto as set forth in the Securities Exchange Act of 1934, as amended
(the “1934 Act”), and the regulations and rules thereunder. |
| 1.6 |
|
“Code” means the Internal Revenue Code of 1986, as amended. |
| 1.7 |
|
“Disability” means 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 of the Bank. Medical determination of Disability may be made by either the Social
Security Administration or by the provider of an accident or health plan covering employees of
the Bank. 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. |
| 1.8 |
|
“Discount Rate” means the rate used by the Plan Administrator for determining the
Accrual Balance. The initial Discount Rate is six and one-quarter percent (6.25%). 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. |
| 1.9 |
|
“Early Termination” means Separation from Service before Normal Retirement Age except
when such Separation from Service occurs: (i) following a Change of Control; or (ii) due to
death, Disability, or Termination for Cause. |
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| 1.10 |
|
“Effective Date” means October 1, 2006. |
| 1.11 |
|
“Employment Agreement” means the Employment Agreement between the Bank and the
Executive dated March 15, 2004. |
| 1.12 |
|
“Final Pay” means the Executive’s highest annualized base salary (before reduction
for compensation deferred pursuant to all qualified, non-qualified, and Code Section 125
plans) from the five (5) years prior to Separation from Service, including the year such
Separation from Service occurs. |
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| 1.13 |
|
“Normal Retirement Age” means the Executive attaining age sixty-five (65). |
| 1.14 |
|
“Normal Retirement Date” means the later of Normal Retirement Age or Separation from
Service. |
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| 1.15 |
|
“Plan Administrator” means the plan administrator described in Article 6. |
| 1.16 |
|
“Plan Year” means each twelve (12) month period commencing on September 1 and ending
on August 31 of each year. The initial Plan Year shall commence on the Effective Date of this
Agreement and end on the following August 31. |
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| 1.17 |
|
“Projected Benefit” means thirty percent (30%) of Projected Final Pay. |
| 1.18 |
|
“Projected Final Pay” means Final Pay increased by four percent (4%) annually, from
Separation from Service until Normal Retirement Age. |
| 1.19 |
|
“Separation from Service” means the termination of the Executive’s employment with
the Bank for reasons other than death. Whether a Separation from Service takes place is
determined based on the facts and circumstances surrounding the termination of the Executive’s
employment and whether the Bank and the Executive intended for the Executive to provide
significant services for the Bank following such termination. A termination of employment
will not be considered a Separation from Service if: |
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(a) |
|
the Executive continues to provide services as an employee of the Bank at an
annual rate that is twenty percent (20%) or more of the services rendered, on average,
during the immediately preceding three full calendar years of employment (or, if
employed less than three years, such lesser period) and the annual remuneration for
such services is twenty percent (20%) or more of the average annual remuneration earned
during the final three full calendar years of employment (or, if less, such lesser
period), or |
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(b) |
|
the Executive continues to provide services to the Bank in a capacity other
than as an employee of the Bank at an annual rate that is fifty percent (50%) or more
of the services rendered, on average, during the immediately preceding three full
calendar years of employment (or if employed less than three years, such lesser period)
and the annual remuneration for such services is fifty percent (50%) or more of the
average annual remuneration earned during the final three full calendar years of
employment (or if less, such lesser period). |
| 1.20 |
|
“Specified Employee” means a key employee (as defined in Section 416(i) of the Code
without regard to paragraph 5 thereof) of the Bank if any stock of the Bank is publicly traded
on an established securities market or otherwise. |
| 1.21 |
|
“Termination for Cause” has the meaning described in Section 8(a) of the Employment
Agreement. |
Article 2
Distributions During Lifetime
| 2.1 |
|
Normal Retirement Benefit. Upon the Normal Retirement Date, the Bank 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
thirty percent (30%) of Final Pay. |
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2.1.2 |
|
Distribution of Benefit. The Bank shall distribute the benefit to the
Executive in twelve (12) equal monthly installments commencing on the first day of the
month following the Executive’s Normal Retirement Date. The annual benefit shall be
distributed to the Executive for fifteen (15) years. |
| 2.2 |
|
Early Termination Benefit. Upon Early Termination, the Executive shall be entitled
to 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. |
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Prior to the end of the first Plan Year, the Executive is zero percent (0%) vested in
the Accrual Balance but becomes one hundred percent (100%) vested in the Accrual
Balance on September 30, 2007. Interest shall be credited to the accrual balance from
Separation from Service through Normal Retirement Age at an annual rate equal to the
Discount Rate, compounded monthly. |
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2.2.2 |
|
Distribution of Benefit. The Bank shall distribute the benefit to the
Executive in twelve (12) equal monthly installments commencing on the first day of the
month following Normal Retirement Age. The annual benefit shall be distributed to the
Executive for fifteen (15) years. During the applicable installment period, the Bank
shall credit interest to the remaining Accrual Balance at an annual rate equal to the
Discount Rate, compounded monthly. |
| 2.3 |
|
Disability Benefit. If Executive experiences a Disability which results in a
Separation from Service prior to Normal Retirement Age, the Executive shall be entitled to 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 end of the Plan Year
preceding Separation from Service. Interest shall be credited to the accrual balance
from Separation from Service through Normal Retirement Age at an annual rate equal to
the Discount Rate, compounded monthly. |
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2.3.2 |
|
Distribution of Benefit. The Bank shall distribute the benefit to the
Executive in twelve (12) equal monthly installments commencing on the first day of the
month following Normal Retirement Age. The annual benefit shall be distributed to the
Executive for fifteen (15) years. During the applicable installment period, the Bank
shall credit interest to the remaining Accrual Balance at an annual rate equal to the
Discount Rate, compounded monthly. |
| 2.4 |
|
Change of Control Benefit. Upon a Change of Control followed by a Separation from
Service, the Executive shall be entitled to 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 annual benefit under this Section 2.4 is one
hundred percent (100%) of the Projected Benefit. |
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2.4.2 |
|
Distribution of Benefit. The Bank shall distribute the benefit to the
Executive in twelve (12) equal monthly installments commencing on the first day of the
month following Normal Retirement Age. The annual benefit shall be distributed to the
Executive for fifteen (15) years. |
| 2.5 |
|
Restriction on Timing of Distribution. Notwithstanding any provision of this
Agreement to the contrary, if the Executive is considered a Specified Employee at Separation
from Service under such procedures as established by the Bank in accordance with Section 409A of
the Code, benefit distributions that are made upon Separation from Service may not commence
earlier than six (6) months after the date of such Separation from Service. Therefore, in
the event this Section 2.5 is applicable to the Executive, any distribution |
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|
which would
otherwise be paid to the Executive within the first six months following the Separation from
Service shall be accumulated and paid to the Executive in a lump sum on the first day of the
seventh month following the Separation from Service. All subsequent distributions shall be
paid in the manner specified. |
| 2.6 |
|
Distributions Upon Income Inclusion Under Section 409A of the Code. Upon the
inclusion of any portion of the Accrual Balance into the Executive’s income as a result of the
failure of this non-qualified deferred compensation plan to comply with the requirements of
Section 409A of the Code, to the extent such tax liability can be covered by the Executive’s
vested Accrual Balance, a distribution shall be made as soon as is administratively
practicable following the discovery of the plan failure. |
| 2.7 |
|
Change in Form or Timing of Distributions. For distribution of benefits under this
Article 2, the Executive and the Bank may, subject to the terms of Section 8.1, amend the
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 Section 409A of the Code and the regulations thereunder; |
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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
| 3.1 |
|
Death During Active Service. If the Executive dies while in the active service of
the Bank, the Bank shall distribute to the Beneficiary the benefit described in this Section
3.1. This benefit shall be distributed in lieu of the benefits under Article 2. |
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3.1.1 |
|
Amount of Benefit. The benefit under this Section 3.1 is one hundred
percent (100%) of the projected Accrual Balance. |
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3.1.2 |
|
Distribution of Benefit. The Bank shall distribute the benefit to the
Beneficiary in a lump sum within sixty (60) days following receipt by the Bank of the
Executive’s death certificate. |
| 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 Bank shall distribute to the Beneficiary the remaining benefits at the
same time and in the same amounts that would have been distributed to the Executive had the
Executive survived. |
| 3.3 |
|
Death After Separation from Service But Before Benefit Distributions Commence. If
the Executive is entitled to benefit distributions under this Agreement, but dies prior to the |
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|
commencement of said benefit distributions, the Bank shall distribute to the Beneficiary the
same benefits that the Executive was entitled to prior to death except that the benefit
distributions shall commence within thirty (30) days following receipt by the Bank of the
Executive’s death certificate. |
Article 4
Beneficiaries
| 4.1 |
|
Beneficiary. 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 Bank in which the Executive
participates. |
| 4.2 |
|
Beneficiary Designation: Change. 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. 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,
as in effect from time to time. 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. |
| 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. |
| 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, the
benefits shall be made to the Executive’s estate. |
| 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 Executive’s Beneficiary, as
the case may be, and shall be a complete discharge of any liability under the Agreement for
such distribution amount. |
Article 5
General Limitations
| 5.1 |
|
Termination for Cause. Notwithstanding any provision of this Agreement to the
contrary, the Bank shall not distribute any benefit under this Agreement if the Executive’s
employment with the Bank is terminated due to a Termination for Cause. |
| 5.2 |
|
Suicide or Misstatement. No benefits shall be distributed if the Executive commits
suicide within two (2) years after the Effective Date of this Agreement, or if an insurance
company which issued a life insurance policy covering the Executive and owned by the Bank
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. |
| 5.3 |
|
Removal. Notwithstanding any provision of this Agreement to the contrary, the Bank
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. |
| 5.4 |
|
Noncompetition. The Bank shall not distribute any benefit under this Agreement if
the noncompetition provision in Section 12 of the Employment Agreement is violated. This
Section 5.4 shall not apply however, following a Change of Control. |
Article 6
Administration of Agreement
| 6.1 |
|
Plan Administrator Duties. This Agreement shall be administered by a Plan
Administrator which shall consist of the Board, or such committee or person(s) as the Board
shall appoint. 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 the Agreement to the extent the exercise of such discretion and
authority does not conflict with Section 409A of the Code and regulations thereunder. |
| 6.2 |
|
Agents. In the administration of this Agreement, the Plan Administrator may employ
agents and delegate to them such administrative duties as it sees fit, (including acting
through a duly appointed representative), and may from time to time consult with counsel who
may be counsel to the Bank. |
| 6.3 |
|
Binding Effect of Decisions. The decision or action of the Plan Administrator with
respect to any question arising out of or in connection with the administration,
interpretation and application of the Agreement and the rules and regulations promulgated
hereunder shall be final and conclusive and binding upon all persons having any interest in
the Agreement. |
| 6.4 |
|
Indemnity of Plan Administrator. The Bank shall indemnify and hold harmless the
members of 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 or any of its members. |
| 6.5 |
|
Bank Information. To enable the Plan Administrator to perform its functions, the
Bank shall supply full and timely information to the Plan Administrator on all matters
relating to the date and circumstances of the death, Disability or Separation from Service of
the Executive and such other pertinent information as the Plan Administrator may reasonably
require. |
| 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. |
Article 7
Claims And Review Procedures
| 7.1 |
|
Claims Procedure. An Executive or Beneficiary (“claimant”) who has not received
benefits under the 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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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) |
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The specific reasons for the denial; |
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(b) |
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A reference to the specific provisions of the Agreement on
which the denial is based; |
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(c) |
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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) |
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An explanation of the 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. |
| 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: |
| 7.2.1 |
|
Initiation — Written Request. To initiate the review, the claimant,
within 60 days after receiving the Plan Administrator’s notice of denial, must file
with the Plan Administrator a written request for review. |
| 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. |
| 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. |
| 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. |
| 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) |
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The specific reasons for the denial; |
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(b) |
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A reference to the specific provisions of the Agreement on
which the denial is based; |
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(c) |
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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) |
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A statement of the claimant’s right to bring a civil action
under ERISA Section 502(a). |
Article 8
Amendments and Termination
| 8.1 |
|
Amendments. This Agreement may be amended only by a written agreement signed by the
Bank and the Executive. However, the Bank may unilaterally amend this Agreement to conform
with written directives to the Bank from its auditors or banking regulators or to comply with
legislative or tax law, including without limitation Section 409A of the Code and any and all
regulations and guidance promulgated thereunder. |
| 8.2 |
|
Plan Termination Generally. This Agreement may be terminated only by a written
agreement signed by the Bank and the Executive. The benefit shall be the Accrual Balance as
of the date the 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. |
| 8.3 |
|
Plan Terminations Under Section 409A. Notwithstanding anything to the contrary in
Section 8.2, if the Bank 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 the
ownership or effective control of the Bank, or in the ownership of a substantial
portion of the assets of the Bank as described in Section 409A(2)(A)(v) of the Code,
provided that all distributions are made no later than twelve (12) months following
such termination of the Agreement and further provided that all the Bank’s arrangements
which are substantially similar to the 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
the termination of the arrangements; |
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(b) |
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Upon the Bank’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 |
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(c) |
|
Upon the Bank’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 Bank does not adopt any new
non-account balance plans for a minimum of five (5) years following the date of such
termination; |
the Bank may distribute the Accrual Balance, determined as of the date of the termination of
the Agreement, to the Executive in a lump sum subject to the above terms.
Article 9
Miscellaneous
| 9.1 |
|
Binding Effect. This Agreement shall bind the Executive and the Bank, and their
beneficiaries, survivors, executors, administrators and transferees. |
| 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 Bank, nor does it
interfere with the Bank’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. |
| 9.3 |
|
Non-Transferability. Benefits under this Agreement cannot be sold, transferred,
assigned, pledged, attached or encumbered in any manner. |
| 9.4 |
|
Tax Withholding and Reporting. The Bank shall withhold any taxes that are required
to be withheld, including but not limited to taxes owed under Section 409A of the Code and
regulations thereunder, from the benefits provided under this Agreement. The Executive
acknowledges that the Bank’s sole liability regarding taxes is to forward any amounts withheld
to the appropriate taxing authority(ies). Further, the Bank shall satisfy all applicable
reporting requirements, including those under Section 409A of the Code and regulations
thereunder. |
| 9.5 |
|
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. |
| 9.6 |
|
Unfunded Arrangement. The Executive and the Beneficiary are general unsecured
creditors of the Bank for the distribution of benefits under this Agreement. The benefits
represent the mere promise by the Bank to distribute 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
or other informal funding asset is a general asset of the Bank to which the Executive and
Beneficiary have no preferred or secured claim. |
| 9.7 |
|
Reorganization. The Bank 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 Bank under this Agreement. Upon the occurrence of such event, the term
“Bank” as used in this Agreement shall be deemed to refer to the successor or survivor bank. |
| 9.8 |
|
Entire Agreement. This Agreement constitutes the entire agreement between the Bank
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. |
| 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. |
| 9.10 |
|
Alternative Action. In the event it shall become impossible for the Bank or the Plan
Administrator to perform any act required by this Agreement, the Bank or Plan Administrator
may in its discretion perform such alternative act as most nearly carries out the intent and
purpose of this Agreement and is in the best interests of the Bank, provided that such
alternative acts do not violate Section 409A of the Code. |
| 9.11 |
|
Headings. Article and section headings are for convenient reference only and shall
not control or affect the meaning or construction of any of its provisions. |
| 9.12 |
|
Validity. In case 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 and invalid provision has
never been inserted herein. |
| 9.13 |
|
Notice. Any notice or filing required or permitted to be given to the Bank 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: |
United Heritage Bank
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
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.
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.
| 9.14 |
|
Compliance with Section 409A. This Agreement shall at all times be administered and
the provisions of this Agreement shall be interpreted consistent with the requirements of
Section 409A of the Code and any and all regulations thereunder, including such regulations as
may be promulgated after the Effective Date of this Agreement. |
IN WITNESS WHEREOF, the Executive and a duly authorized representative of the Bank have signed
this Agreement.
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| Executive: |
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BANK: |
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United Heritage Bank |
| /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx |
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By
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/s/ Xxxxx X. Xxxxxx
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Title
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President & CEO
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