EXHIBIT 10.12 SUPPLEMENTAL RETIREMENT PLAN AGREEMENT DATED AS OF
JANUARY 1, 0000 XXXXXXX XXXXXXXX SECURITY BANK AND
XXXXX XXXXXX (FILED HEREWITH)
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SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AGREEMENT
THIS AGREEMENT is made and entered into as of January 1, 1996,
by and between REPUBLIC SECURITY BANK, a Florida state bank (the "Bank"), and
XXXXX XXXXXX (the "Executive").
WITNESSETH:
WHEREAS, the Board of Directors has determined to supplement
Executive's compensation by providing him benefits of the Bank's Supplemental
Executive Retirement Plan upon the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements contained herein, the parties hereto hereby agree as follows:
ARTICLE ONE
1.01 EFFECTIVE DATES. For purposes of entry into the Plan, the
effective date of this Agreement shall be January 1, 1996 ("Benefit Effective
Date").
1.02 EMPLOYMENT. Executive and Republic Security Financial
Corporation (the "Corporation") and/or the Bank have otherwise agreed to the
extent, terms and duration of employment and this Agreement shall not, either
explicitly or impliedly, create, nor give rise to any right of employment.
The salary continuation benefits provided by this Agreement
are granted by the Bank as a fringe benefit to the Executive and are not part of
any salary reduction plan or an arrangement deferring a bonus or a salary
increase. The Executive has no option to take any current payment or bonus in
lieu of these salary continuation benefits.
ARTICLE TWO
2.01 RETIREMENT BENEFIT. The Bank agrees that upon the
attainment of age sixty-two (62) it will pay to the Executive thirty percent
(30%) of the Executive's final monthly average base salary on a monthly basis to
the Executive during his lifetime for twenty (20) years; subject to the
conditions and limitations hereinafter set forth. Final monthly average base
salary shall be defined as the average of the highest three (3) of the last five
(5) Plan Years Base Salary. The date for the first payment is hereby established
as the first day of the month next following the latter of (1) attainment of age
sixty-two or (2) upon such later date as may be mutually agreed by the Executive
and the Bank. Plan Year shall mean the twelve month period which begins on the
effective date as provided in Section 1.01 and each anniversary thereof. The
term "Base Salary" shall mean the base salary, excluding bonuses, commissions,
fringe benefits and incentive compensation, paid by the Bank and any subsidiary
thereof to the Executive. It shall not be considered a condition to receipt of
the retirement benefits herein provided that the Executive may not continue to
be employed or be reemployed beyond age sixty-two.
2.02 RETIREMENT DEATH BENEFIT. The Bank agrees that if the
Executive shall have attained age sixty-two as provided in Section 2.01, but
shall die before receiving all payments under Section 2.01, it will continue to
make such payments to such individual or individuals as the Executive may have
designated in writing, filed with and receipt acknowledged by the Bank, until
the expiration of twenty (20) years from the date of the first payment under
this Agreement. In the absence of any effective designation of beneficiary, any
such amounts becoming due and payable upon the death of the Executive shall be
payable to his duly qualified executor, administrator, or personal
representative.
ARTICLE THREE
3.01 DEATH PRIOR TO BENEFIT PAYMENT INCEPTION. In the event
the Executive should die while employed by the Corporation and/or the Bank at
any time after the effective date of this Agreement, the Bank will pay thirty
percent (30%) of the Executive's final average monthly base salary for a period
of 240 months to such individual or individuals as the Executive may have
designated in writing, filed with and receipt acknowledged by the Bank. The said
monthly payments shall begin the first day of the month following the month of
the death of the Executive. In the absence of any effective designation of
beneficiary, any such amounts becoming due and payable upon the death of the
Executive shall be payable to his duly qualified executor, administrator, or
personal representative. ARTICLE FOUR
4.01 DISABILITY PRIOR TO RETIREMENT. In the event that the
Executive shall become permanently and totally disabled, as defined in this
Article, this Agreement shall continue subject to the limitations hereinafter
provided. If the Executive shall become disabled (as defined) during his
employment, but not necessarily as a result thereof, and should live to
otherwise qualify for benefits under Article Two, those benefits shall be
payable as if the Executive had remained in the employment of the Corporation
and/or the Bank during his disability. If the Executive should die after
becoming disabled but would otherwise have qualified for death benefits payable
under Articles Two or Three, those benefits shall be payable as if the Executive
had remained in the employment of the Corporation and/or the Bank during his
disability.
4.02 DEFINITION OF DISABILITY. "Disability" means that the
Executive has become permanently and totally disabled, mentally or physically,
such that his disability renders him unable to perform his duties in a manner
satisfactory to the Bank, and the Bank by a resolution adopted at any regular or
special meeting of its Board of Directors terminates the employment of the
Executive as a result of his disability. The Bank retains the right to have the
Executive examined medically at the Bank's expense to determine the extent of
his disability and the likelihood of his recovery.
4.03 DISABILITY BENEFIT OPTION. If the Bank elects to make any
disability payments to the Executive which are not provided either by any
corporate or personal disability income insurance or any separate disability
salary continuation agreement, then the total payout of any subsequent benefits
under Article Two or Article Three shall be reduced to the extent of any
disability payments so made.
ARTICLE FIVE
5.01 VESTING. If the Executive voluntarily terminates his
employment prior to becoming entitled to receive benefits under Article Two, his
participation hereunder shall cease and he shall be entitled to a Deferred
Vested Benefit as set forth in this Article.
5.02 VESTED AMOUNT. The amount of Deferred Vested Benefit
shall equal the vested portion of the Executive's benefits under Article Two on
the date he terminates employment, such portion to be determined in accordance
with the table below:
YEARS SUBSEQUENT TO
BENEFIT EFFECTIVE DATE VESTED PORTION OF BENEFIT
0 20%
1 40%
2 60%
3 80%
4 or more 100%
Except as stated otherwise in this Agreement, the Deferred
Vested Benefit shall be payable at the time the Executive would have otherwise
been entitled to receive it if he had remained employed by the Bank until the
date at which he became entitled to receive the applicable benefits.
Notwithstanding the foregoing provisions of this Section 5.02,
the Executive shall be deemed to be and shall become 100% vested immediately
upon the occurrence of: (1) a merger or consolidation by virtue of which the
Corporation or the Bank shall not be the surviving entity; (2) the sale of
substantially all the assets of the Corporation or the Bank; or (3) the change
of control of the Corporation or the Bank such that any person (as defined in
Section 13(d)(3) and 14(d)(2) of the Securities Exchange Act of 1934, as
amended) becomes a beneficial owner, directly or indirectly, of securities
representing 25% or more of the combined voting power of the then outstanding
securities of either the Corporation or the Bank.
5.03 DISCHARGE FROM EMPLOYMENT FOR CAUSE. In the event that
the Executive's employment shall have been terminated for cause and the Board of
Directors of the Corporation or the Bank shall determine that the Executive
shall have engaged in "conduct inimical to the interest of the corporation" (as
herein defined), this Agreement may be terminated by resolution of the Board of
Directors, and in such event, all benefits and payments of any kind hereunder,
and all right or rights thereto, shall be terminated and canceled. "Conduct
inimical to the interest of the corporation" shall mean: actions engaged in by
the Executive which constitute the commission of a felony, the commission of
gross negligence resulting in significant damage to the Bank or its properties
or assets (including goodwill) or the commission of willful misconduct relating
to the affairs of the Bank.
5.04 OTHER TERMINATION OF SERVICE. The Corporation and/or the
Bank reserves the right to terminate the employment of the Executive at any
time. In the event that the employment of the Executive shall terminate, other
than by his disability, his death or his discharge for cause and the
determination of "conduct inimical to the interests of the corporation" pursuant
to Section 5.03, then the Executive or his legal representative shall have
ninety (90) days from the date of his termination of employment to file a
written notice with the Bank and electing the termination benefit defined in
Section 15.03. If the Executive does not make such election as described in this
section, this Agreement shall continue with the following limitations: the
Executive's final base salary for purposes of benefit payments shall be his base
salary on the date of termination of employment, so long as it shall not be less
than the Executive's average base salary as calculated pursuant to Section 2.01.
ARTICLE SIX
6.01 ALIENABILITY. Neither the Executive, his widow, nor any
other beneficiary under this Agreement shall have any power or right to
transfer, assign, anticipate, hypothecate, mortgage, commute, modify, or
otherwise encumber in advance any of the benefits payable hereunder, nor shall
any of said benefits be subject to seizure for the payment of any debts,
judgments, alimony or separate maintenance, owed by the Executive or his
beneficiary or any of them, or be transferable by operation of law in the event
of bankruptcy, insolvency, or otherwise. In the event the Executive or any
beneficiary attempts assignment, commutation, hypothecation, transfer, or
disposal of the benefit hereunder the Bank's liabilities shall forthwith cease
and terminate.
ARTICLE SEVEN
7.01 PARTICIPATION IN OTHER PLANS. Nothing contained in this
Agreement shall be construed to alter, abridge, amend, modify or in any manner
affect the rights and privileges of the Executive to participate in and be
covered by any pension, profit-sharing, group insurance, bonus or other employee
plans which the Bank or the Corporation may now or hereafter have.
ARTICLE EIGHT
8.01 PURCHASE OF ASSETS BY BANK. The Bank reserves the
absolute right at its sole and exclusive discretion either to purchase assets to
provide for the obligations of the Bank undertaken by this Agreement or to
refrain from the purchase of such assets, and to determine the extent, nature,
and method of any such purchases. Should the Bank elect to purchase assets to
provide for obligations under this Agreement, in whole or in part, the Bank
shall be the unrestricted owner of any assets acquired. The Bank reserves the
absolute right, in its sole discretion, to terminate any such funding program,
at any time, either in whole or in part. At no time shall the Executive be
deemed to have any right, title, or interest in or to any specified asset or
assets of the Bank.
8.02 RIGHTS AS UNSECURED CREDITOR. This Article shall not be
construed as giving the Executive or his beneficiary any greater rights than
those of any other unsecured creditor of the Bank.
ARTICLE NINE
9.01 REORGANIZATION. In the event that the Bank shall merge,
consolidate into or with another Bank, reorganize, or
sell substantially all of its assets to another corporation, firm, or person,
such succeeding or continuing corporation, firm, or person shall 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 such successor or survivor.
ARTICLE TEN
10.01 BENEFITS AND BURDENS. This Agreement shall be binding
upon and inure to the benefit of the Executive and his personal representatives
and the Bank, and any successor organization which shall succeed to
substantially all of its assets and business.
ARTICLE ELEVEN
11.01 COMMUNICATIONS. Any notice or communication required of
either party with respect to this Agreement shall be made in writing and may
either be delivered personally or sent by certified mail as follows:
If to the Bank: Republic Security Bank
0000 Xxxxxxxx Xxxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
If to the Executive: Xxxxx Xxxxxx
c/o Republic Security Bank
0000 Xxxxxxxx Xxxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Each party shall have the right by written notice to the other in the manner
provided herein to change the place to which any notice may be addressed.
ARTICLE TWELVE
12.01 NOT A CONTRACT OF EMPLOYMENT. This Agreement shall not
be deemed to constitute a contract of employment between the parties hereto, nor
shall any provision hereof restrict the right of the Bank or the Corporation to
discharge the Executive, either with or without cause, or restrict the right of
the Executive to terminate his employment.
ARTICLE THIRTEEN
13.01 CLAIMS PROCEDURE. In the event that benefits under this
Plan Agreement are not paid to the Executive (or his beneficiary in the case of
the Executive's death), and such person feels entitled to receive them, a claim
shall be made in writing to the Plan Administrator within sixty (60) days from
the date payments are claimed to have been due. Such claim shall be reviewed by
the Plan Administrator and the Bank. If the claim is denied, in full or in part,
the Plan Administrator shall provide a written notice within ninety (90) days
from receipt of the claim setting forth the specific reasons for denial,
specific reference to the provisions of this Agreement upon which the denial is
based, and any additional material or information necessary to perfect the claim
if any. Also, such written notice shall indicate the steps to be taken if a
review of the denial is desired.
13.02 REVIEW OF A CLAIM DENIAL. If a claim is denied and a
review of the denial is desired, the Executive (or his beneficiary in the case
of the Executive's death), shall notify the Plan Administrator in writing within
sixty (60) days (and a claim shall be deemed denied if the Plan Administrator
does not take any action within the aforesaid ninety (90) day period). In
requesting a review, the Executive or his beneficiary may review this Plan
Agreement or any documents relating to it and submit any written issues and
comments he or she may feel appropriate. In its sole discretion the Plan
Administrator shall then review the claim and provide a written decision within
sixty (60) days. This decision likewise shall state the specific reasons for the
decision and shall include reference to specific provisions of this Plan
Agreement on which the decision is based.
Upon exhausting the remedies available under this Article
Thirteen, the Executive or his beneficiary may wish to seek arbitration as
provided under Article Sixteen. For purposes of implementing this claim
procedure (but not for any other purpose), the Chief Financial Officer of the
Bank is hereby designated as the Named Fiduciary and Plan Administrator of this
Plan Agreement.
ARTICLE FOURTEEN
14.01 ADMINISTRATION. Any payment required to be made pursuant
to this Agreement to a person who is under a legal disability at the time such
payment is due may be made by the Bank to or for the benefit of such person in
such of the following ways as the Bank shall determine: (a) directly to the
person entitled to the payment; (b) to the legal representative of such person;
(c) to some near relative of such person to be used for latter's benefit; (d)
directly in payment of expenses of support, maintenance or education of such
person. Any such payment by the Bank shall, to the extent thereof, be a complete
discharge of any liability under this Agreement with respect to such payment.
The Bank shall not be required to see to the application by any third party of
any payments made pursuant to this paragraph.
14.02 MARITAL DEDUCTION. If the Executive designates his
spouse to receive payments to be made after his death, she shall have the right
to direct the Bank as to the distribution of the sums, if any, payable after his
death. The Executive's spouse has the right to direct that any such payments
which may be payable after her death be paid to such person or persons or to her
own estate as she appoints and directs by a written direction filed with the
Bank during her lifetime or by her last will and testament specifically
referring to this power of appointment. To the extent the Executive's spouse
does not effectively exercise the power of appointment, such sums shall upon her
death be distributed to her estate.
ARTICLE FIFTEEN
15.01 EVENTS OF DEFAULT. For purposes of this Agreement, the
words "Event of Default" shall mean:
(a) Nonpayment of any benefit provided herein when due;
(b) Adjudication of the Bank as a bankrupt or insolvent or
entry of an order, remaining unstayed by appeal or otherwise for forty-five (45)
days, appointing a receiver or trustee for the Bank, or for all or any of its
property or approving a petition seeking reorganization or other similar relief
under the bankruptcy or other similar laws of the United States of America or
any state or any other competent jurisdiction, or the filing by the Bank of a
petition seeking any of the foregoing or consenting thereto, or the filing of a
petition to take advantage of any debtor's act, or making a general agreement
for the benefit of creditors, or admitting in writing its inability to pay its
debts as they mature; or
(c) dissolution or liquidation of the Bank.
The Executive shall be notified in writing within seven (7)
days of any occurrence described in Section 15.01(b), above.
15.02 LUMP SUM UPON DEATH. In the event of the death of the
Executive and at any time during which the Bank shall be obligated to make
payments constituting death benefits pursuant to either Section 2.02 or Section
3.01, the Bank shall have the right to elect to pay the balance of all benefits
to which the Executive's beneficiaries shall be entitled under this Agreement,
in an alternative manner by lump sum payment consisting of the present value of
all benefits then unpaid (computed at a rate of 8% interest). The Bank shall
make such election by notice to the beneficiaries and shall make payment in full
within thirty (30) days, in which event this Agreement shall terminate.
ARTICLE SIXTEEN
16.01 ARBITRATION. In the event of any dispute, controversy or
misunderstanding arising between the parties hereto, which may, directly or
indirectly concern or involve any of the terms, covenants or conditions hereof,
the parties agree that such controversy shall be settled by arbitration in the
city of West Palm Beach, Florida in accordance with the Rules of American
Arbitration Association. One arbitrator shall be named by each party involved in
the dispute and then an additional arbitrator shall be named by the arbitrators
so chosen. Judgment upon the award rendered by the arbitrators may be entered in
any court having jurisdiction thereof. The costs of the arbitration shall be
borne by the party or parties designated by the arbitrators.
16.02 SEVERABILITY. If any provision of this Agreement, or the
application thereof to any person or circumstance, shall for any reason and to
any extent be invalid or unenforceable, neither the remainder of this Agreement
nor the application of such provision to any other person or circumstance shall
be affected thereby, but rather the same shall be enforced to the greatest
extent permitted by law.
16.03 HEADINGS. The captioned headings used have been inserted
as a matter of convenience and shall not be considered or construed to in any
manner explain or otherwise affect the provisions herein contained.
16.04 INTEGRATED AGREEMENT. This Agreement represents the
entire, complete, and exclusive understanding of the parties hereto and reduces
to writing all oral negotiations and agreements of the parties and shall not be
changed, varied, or otherwise amended unless made in writing signed by each of
the parties hereto.
16.05 GOVERNING LAW. This Agreement shall be governed by the
laws of the State of Florida.
IN WITNESS WHEREOF, the parties hereto have entered into this
Agreement as of the date first above written.
EXECUTIVE:
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Xxxxx Xxxxxx
REPUBLIC SECURITY BANK
By
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Xxxx X. Xxxxxx,
President
