Exhibit 99.1
CAPITAL BANK & TRUST COMPANY
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AGREEMENT
THIS AGREEMENT is made to be effective this 10th day of July, 2006 , (the
"Effective Date"), by and between Capital Bank & Trust Company (the "Bank"), a
state-chartered bank located in Nashville, Tennessee and R. XXXX XXXX (the
"Executive"), intending to be legally bound hereby.
INTRODUCTION
To encourage the Executive to remain an employee of the Bank, the Bank
is willing to provide supplemental retirement benefits to the Executive. The
Bank will pay the benefits from its general assets.
AGREEMENT
ARTICLE 1
DEFINITIONS
1.1 Definitions. Whenever used in this Agreement, the following words
and phrases shall have the meanings specified:
1.1.1. "Change in Control" means any of the following: There
occurs or exists, as a result of one or more transactions or
occurrences, if and when, with or without the approval of the Board of
the Bank incumbent prior to the occurrence: (1) more than 35% of the
outstanding securities entitled to vote in an election of Directors of
the Bank shall be acquired by any person (as such term is used in
Section 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended); or (2) as the result of a tender offer, merger,
consolidation, sale of assets or contested election or any combination
of such transactions, the persons who were Directors of the Bank
immediately before the commencement of such transaction shall cease to
constitute a majority of the Board.
The interpretation of this Change in Control definition shall
be in accordance with the change in control regulators and other
applicable rules, regulations and interpretations of the Board of
Governors of the Federal Reserve System ("FRB") and including, without
limitation, Regulation Y of the FRB and other applicable FRB rules,
regulations and interpretations as in effect from time to time during
the Term or any Extended Term of this Agreement, all as in effect from
time to time during the Term or any Extended Term of this Agreement. In
addition, a Change in Control shall be deemed to have occurred upon any
merger, consolidation or reorganization to which the Bank (or an entity
controlled thereby) is a party, but is not a surviving entity; or upon
the sale of all or substantially all of the assets of the Bank.
The Executive's right to resign for cause as a result of a
Change in Control shall
be operative when there has been, in fact, a change in control from
that in effect on the Effective Date of this Agreement, all as more
fully described in the Employment Agreement. Notwithstanding anything
else to the contrary set forth in this Plan, if (i) an agreement is
executed by the Bank providing for any of the transactions or events
constituting a Change in Control as defined herein, and the agreement
subsequently expires or is terminated without the transaction or event
being consummated, and (ii) Executive's employment did not terminate
during the period after the agreement and prior to such expiration or
termination, for purposes of this Plan it shall be as though such
agreement was never executed and no Change in Control event shall be
deemed to have occurred as a result of the execution of such agreement.
Inasmuch as the Bank is a subsidiary of the Corporation, a
bank holding company, the interpretation of this Change in Control
definition shall be in accordance with Regulation Y of the Board of
Governors of the Federal Reserve System ("FRB") and other applicable
FRB rules, regulations and interpretations as in effect from time to
time during the Term or any Extended Term of this Agreement.
The intent of this Change in Control provision is to provide
protection for Executive against changes in control and ownership,
Executive having contracted herein to be employed by the Bank and
having stated his desire to be protected against changes in control.
Once a Change in Control has been finally consummated, then the
Executive shall have six months from the date of such final
consummation to terminate his employment under this Agreement and,
which resignation shall be deemed to be for cause. By such resignation
for cause, the Executive is entitled to demand the Termination Payment
and other benefits and bargains due to him. If the Executive does not
resign within such six months, then the particular Change in Control
shall be deemed to have been waived by the Executive. The Executive
shall have a reasonable degree of latitude and discretion in
determining the effective date of the consummation of a change in
control.
Unless it reasonably appears that the resignation or
retirement of directors of the Bank is related to a Change in Control
transaction (such as, but not limited to a merger, tender offer,
reverse stock split or disposition of assets), then the resignation or
retirement of directors of the Bank shall not alone be deemed to be a
Change in Control for purposes of this Agreement.
For purposes of this Change in Control definition, the term
"Bank" means and includes the Corporation, which is the parent bank
holding company that, as of the date of this Agreement, is the owner of
all (100%) of the Bank's common voting stock.
1.1.2 "Code" means the Internal Revenue Code of 1986, as
amended.
1.1.3 "Corporation" means Capital Bancorp, Inc.
1.1.4 "Disability" means Executive suffering a sickness,
accident or injury which has been determined by the carrier of any
group disability insurance policy provided by the Bank or made
available by the Bank to its employees and covering the Executive, or
by the Social Security Administration, to be disability rendering the
Executive totally and permanently disabled. The Executive must submit
proof to the
Bank of the carrier's or Social Security Administration's determination
upon the request of the Bank.
1.1.5 "Early Termination" means the Termination of Employment
before Normal Retirement Age for reasons other than death, Disability,
Termination for Cause or following a Change in Control.
1.1.6 "Employment Agreement" means Employment Agreement
between the Bank and the Executive dated December 13, 2000.
1.1.7 "Normal Retirement Age" means the executive's 65th
birthday.
1.1.8 "Normal Retirement Date" means the later of the Normal
Retirement Age or Termination of Employment.
1.1.9 "Plan Year" means each consecutive twelve (12) month
period commencing with the effective date of this Agreement.
1.1.10 "Termination of Employment" means that the Executive
ceases to be employed by the Bank for any reason whatsoever other than
by reason of a leave of absence, which is approved by the Bank. For
purposes of this Agreement, if there is a dispute over the employment
status of the Executive or the date of the Executive's Termination of
Employment, the Bank shall have the sole and absolute right to decide
the dispute.
1.1.11 "Other Terms" -- Capitalized terms that are not
otherwise defined herein shall have the meanings ascribed to them in
the Employment Agreement.
ARTICLE 2
LIFETIME BENEFITS
2.1 Normal Retirement Benefit. The Bank shall pay to the Executive the
benefit described in this Section 2.1 in lieu of any other benefit under this
Agreement upon Termination of Employment on or after the Normal Retirement Age
for reasons other than death.
2.1.1 Amount of Benefit. The annual Normal Retirement Benefit
under this Section 2.1 is $29,000 (Twenty-nine thousand dollars). The
Bank may increase the annual benefit under this Section 2.1 at the sole
and absolute discretion of the Bank's Board of Directors. Any increase
in the annual benefit shall require the recalculation of all the
amounts on Schedule A attached hereto. The annual benefit amounts on
Schedule A are calculated by amortizing the Accrued Benefit using the
interest method of accounting, a 5.75% discount rate, monthly
compounding and monthly payments.
2.1.2 Payment of Benefit. The Bank shall pay the annual
benefit to the Executive in equal monthly installments payable on the
first day of each month commencing with the month following the
Executive's Normal Retirement Date and continuing for 179 consecutive
additional months.
2.1.3 Benefit Increases. Commencing on the first anniversary
of the first benefit payment, and continuing on each subsequent
anniversary, the Bank's Board of Directors, in its sole discretion, may
increase the benefit.
2.2 Early Termination Benefit. Upon Early Termination, the Bank 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 annul benefit under this Section
2.2. is the Accrued Benefit set forth in Schedule A for the Plan Year
ended immediately prior to the Early Termination Date.
2.2.2 Payment of Benefit. The Bank shall pay the annual
benefit to the Executive in equal monthly installments commencing
within 45 days after the date of the Executive's Normal Retirement Age
and continuing for 179 consecutive additional months.
2.2.3 Benefit Increase. 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 Bank shall pay to the Executive
the benefit described in this Section 2.3 in lieu of any other benefit under the
Agreement.
2.3.1. Amount of Benefit. The annual benefit under this
Section 2.3 is the Disability Benefit amount set forth in Schedule A
for the Plan Year ended immediately prior to the date in which
Termination of Employment occurs.
2.3.2. Payment of Benefit. The Bank shall pay the annual
benefit to the Executive in equal monthly installments commencing
within 15 days after the date of the Executive's Normal Retirement Age
and continuing for 179 consecutive additional months.
2.3.3. Benefit Increases. Benefit payments may be increased as
provided in Section 2.1.3.
2.4. Change in Control Benefit. If Executive is in active service at
the time of a Change in Control, the Bank 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 benefit under this Section 2.4 is
the Normal Retirement benefit set forth in Section 2.1.1.
2.4.2 Payment of Benefit. The Bank shall distribute the annual
benefit to the Executive in equal monthly installments commencing with
the month following the Executive's Normal Retirement Age and
continuing for 179 consecutive additional months.
ARTICLE 3
DEATH BENEFITS
3.1 Death During Active Service. If the Executive dies while in the
active service of the Bank, the Bank 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 the Normal Retirement Benefit described in Section 2.1.1.
3.1.2 Payment of Benefit. The Bank shall pay the annual
benefit to the beneficiary in equal monthly installments payable on the
first day of each month commencing within 45 days of the Executive's
death and continuing for 179 consecutive additional months.
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 Bank shall pay the remaining benefits to the Executive's
beneficiary at the same time and in the same amounts they would have been paid
to the Executive had the Executive survived.
3.3 Death Following Termination of Employment But Before Benefits
Commence. If the Executive is entitled to benefits under this Agreement, but
dies prior to receiving said benefits, the Bank shall pay to the Executive's
beneficiary the same benefits, in the same manner, the would have been paid to
the Executive had the Executive Survived; however, said benefit payments will
commence within 45 days 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 Bank. 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 Bank during the Executive's lifetime. The executive's
beneficiary designation shall be deemed automatically revoked if the beneficiary
predeceases the Executive, or if the Executive names a spouse as beneficiary and
the marriage is subsequently dissolved. If the Executive dies without a valid
beneficiary designation, all payments shall be made to the Executive's estate.
4.2 Facility of Payment. If a benefit is payable to a minor, to a
person declared incapacitated, or to a persona incapable of handling the
disposition of his or her property, the Bank may pay such benefit to the
guardian, legal representative or person having the care of custody of such
minor, incapacitated person or incapable person. The Bank 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
Bank from all liability with respect to such benefit.
ARTICLE 5
GENERAL LIMITATIONS
5.1 Excess Parachute or Golden Parachute Payment. If the payments and
benefits pursuant to this Agreement, either alone or together with other
payments and benefits which the Executive has the right to receive from the
Bank, would constitute a "parachute payment" under Section 280G of the Code, the
payments and benefits pursuant to this Agreement shall be reduced, in the manner
determined by the Executive, by the amount, if any, which is minimum necessary
to result in no portion of the payments and benefits under this Agreement being
non-deductible to the Bank pursuant to Section 280G of the Code and subject to
the excise tax imposed under Section 4999 of the Code.
5.2 Termination for Cause. Notwithstanding any provision of this
Agreement to the contrary, the Bank shall not pay any benefit under this
Agreement of the Bank terminate the Executive's employment for cause.
Termination of the Executive's employment for "Cause" shall mean termination
because of personal dishonesty, willful misconduct, breach of fiduciary duty
involving personal profit, intentional failure to perform stated duties, willful
violation of any law, rule or regulation (other than traffic violations or
similar offenses) or final cease-and-desist order or material breach of any
provision of the Agreement. For purposes of this Section, no act or failure to
act on the Executive's part shall be considered "willful" unless done, or
omitted to be done, by the Executive not in good faith and without reasonable
belief that the Executive's action or omission was in the best interest of the
Bank.
5.3 Removal. Notwithstanding any provision of this Agreement to the
contrary, the Bank shall not pay 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 ("FDIA").
5.4 Non-Competition, Non-Solicitation, and Non-Disclosure Agreements.
Executive shall forfeit any unpaid benefits under this Agreement if during the
term of this Agreement, and before all benefits have been paid, the Executive,
directly or indirectly, either as an individual or as a proprietor, stockholder,
partner, officer, director, employee, agent, consultant or independent
contractor of any individual, partnership, corporation or other entity violates
any of the terms of Section 5.4.1 or Section 5.4.2. The Executive shall be
liable to the Bank and/or the Corporation, as applicable, for any actual damages
that accrue as a result of any violation of Section 5.4.5, as well as being
subject to injunctive remedies.
5.4.1 Participation in a Competing Business. Except as
otherwise expressly provided in this Agreement or in the Employment
Agreement, during the Term or any Extended Term and for one year after
termination of the Executive's employment (such one year being the
"Post-Term Period") (regardless of whether the Executive's employment
ends at the end of the Term or any Extended Term or at some other point
after the end of the Term or any Extended Term), the Executive will not
become involved with a Competing Business (as defined below) or serve,
directly or indirectly, a Competing Business in any manner, including,
without limitation, as a shareholder, member, partner, director,
officer, manager, investor, organizer, "founder," employee, consultant,
or agent; provided, however, that the Executive may acquire and own an
interest not to exceed two percent (2%) of the total equity interest in
any publicly held entity whose equity securities are listed on a
national securities exchange (even if such
entity is a Competing Business).
The Executive's non-competition obligations for the Post-Term
Period will not apply if (1) the Executive's employment during the Term
or any Extended Term is terminated without a cause described in Section
7(a) of the Employment Agreement, (2) the Executive terminates his
employment during the Term or any Extended Term for a cause described
in subsection 7(b) or subsection 7(j) of the Employment Agreement, or
(3) the Bank, the corporation, or their respective successor(s)
decline(s) to employ the Executive after expiration of the Term or any
Extended Term except that the Bank may extend the non-competition
period as provided in Section 7(e) of the Employment Agreement.
5.4.2 No Solicitation. During the Term or any Extended Term
and the Post-Term Period (regardless of whether the Executive's
employment ends at the end of the Term or any Extended Term or at some
other point after the end of the Term or any Extended Term) the
Executive will not directly or indirectly solicit or attempt to solicit
(1) any employees located in Davidson County in the State of Tennessee,
or in any other county or counties in Tennessee in which the Bank or an
affiliate of the Bank maintains an office during the Executive's
employment (the "Counties") of the Bank or any affiliate of the Bank,
to leave their employment or (2) any customers located in any of the
Countries of the Bank or any affiliate of the Bank to remove their
business from the Bank or any affiliate of the Bank, or to participate
in any manner in a Competing Business. Solicitation prohibited under
this Section includes solicitation by any means, including, without
limitation, meetings, letters or other mailings, electronic
communications or any kind, and internet communications. The
Executive's non-solicitation obligations shall in all events be the
same as for any non-competition period (including the period specified
in Section 7(e) of the Employment Agreement).
5.4.3 Employment Outside the Counties. Nothing in this
Agreement or the Employment Agreement prevents the Executive from
accepting employment from a Competing Business, after termination of
the Executive's employment, outside the counties, as long as the
Executive will not, either directly or indirectly, (a) act as an
employee or other representative or agent of the Competing Business
within the Counties or (b) have any responsibilities for the Competing
Business' operations within the Counties. The summary contained in
Section 9(f) of the Employment Agreement incorporated herein by
reference.
5.4.4 Competing Business. "Competing Business" means any
financial institution or trust company that competes with, or will
compete in any of the Counties with, the Bank or any affiliate of the
Bank. The term "Competing Business" includes, without limitation, any
start-up or other financial institution or trust company information.
5.4.5 Nondisclosure. During the term of his employment
hereunder, or at any time thereafter, the Executive shall not disclose
or use (except in the course of his employment hereunder) any
confidential or proprietary information or data of the Corporation, the
Bank, or any of their respective affiliates, regardless of whether such
information or data is embodied in writing or other physical form. Of
course, the Executive's knowledge and skills obtained during employment
shall remain his alone and
information that is publicly known as a result of the Executive's
violation of this Section or some other duty to the Corporation and the
Bank.
5.4.6 Judicial Relief. In the event of a breach or threatened
breach by the Executive of any provision of these restrictions, the
Executive recognizes the substantial and immediate harm that a breach
or threatened breach will impose upon the Bank, and further recognizes
that in such event monetary damages may be inadequate to fully protect
the Bank. Accordingly, in the event of a breach or threatened breach of
this Agreement, the Executive consents to the Bank's entitlement to
such ex parte, preliminary, interlocutory, temporary or permanent
injunctive, or any other equitable relief, protecting and fully
enforcing the Bank's rights hereunder and preventing the Executive from
further breach any of his obligations set forth herein. The Executive
expressly waives any requirement, based on any statute, rule of
procedure, or other source, that the Bank post a bond as a condition of
obtaining any of the above-described remedies. Nothing herein shall be
construed as prohibiting the Bank from pursuing any other remedies
available to the Bank at law or in equity for such breach or threatened
breach, including the recovery of damages from the Executive. The
Executive expressly acknowledges and agrees that: (i) the restrictions
set forth in this Section 5 are reasonable, in terms of scope,
duration, geographic area, and otherwise, (ii) the protections afforded
the Bank in this Section 5 are necessary to protect its legitimate
business interest, (iii) the restrictions set forth in this Section 5
will not be materially adverse to the Executive's employment with the
Bank, and (iv) Executive's agreement to observe such restrictions forms
a material part of the consideration for this Agreement. Further,
reference to "Bank" in this Section is intended to, and does, include
reference to the Corporation or any other affiliate of the Bank and/or
the corporation that has been or is threatened with damage or injury as
a result of Executive's violation of this Section.
5.4.7 Overbreadth of Restrictive Covenant. It is the intention
of the parties that if any restrictive covenant in this Agreement is
determined by a court of competent jurisdiction to be overly broad,
then the court should enforce such restrictive covenant to the maximum
extent permitted under the law as to area, breadth and duration.
5.4.8 Change in Control. The non-competition provision
detailed in Section 5.4.1 hereof shall not be enforceable following a
Change in Control, nor shall any benefits hereunder be denied as a
result of any claim by the Bank or the Corporation under such Section
5.4.1 after any Change in Control.
5.5 Suicide or Misstatement. No benefits shall be payable if the
Executive commits suicide within two years after the date of this Agreement, or
if at any time the insurance company denies coverage for material misstatements
of fact made by the Executive on any application for life insurance purchased by
the Bank, regardless of when such material misstatements or alleged material
misstatements were made, or if such overage is denied for any other reason;
provided, however that the Bank shall evaluate the reason for the denial, and
upon advice of legal counsel and in its sole discretion, consider judicially
challenging any denial.
ARTICLE 6
CLAIMS AND REVIEW PROCEDURES
6.1 Claims Procedure. An executive or beneficiary ("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 Initiation -- Written Claim. The claimant initiates a
claim by submitting to the Bank a written claim for the benefits.
6.1.2 Timing of Bank Response. The Bank shall respond to such
claimant within 30 days after receiving the claim. If the Bank
determines that special circumstances require additional time for
processing the claim, the Bank can extend the response period by an
additional 30 days by notifying the claimant in writing, prior to the
end of the initial 30-day period that an additional period is required.
The notice of extension must set forth the special circumstances and
the date by which the Bank expect to render their decision.
6.1.3 Notice of Decision. If the Bank denies part or all of
the claim, the Bank shall notify the claimant in writing of such
denial. The Bank shall write the notification in a manner calculated to
be understood by the claimant. The notification shall set forth:
6.1.3.1 The specific reasons for the denial,
6.1.3.2 A reference to the specific provisions of the
Agreement on which the denial is based,
6.1.3.3 A description of any additional information
or material necessary for the claimant to perfect the claim
and an explanation of why it is needed,
6.1.3.4 An explanation of the Agreement's review
procedures and the time limits applicable to such procedures,
and
6.1.3.5 A statement of the claimant's right to bring
a civil action under ERISA Section 502(a) following an adverse
benefit determination on review.
6.2 Review Procedure. If the Bank denies part or all of the claim, the
claimant shall have the opportunity for a full and fair review by the Bank of
the denial, as follows:
6.2.1 Initiation -- Written Request. To initiate the review,
the claimant, within 60 days after receiving the Bank's notice of
denial, must file with the Bank a written request for review.
6.2.2 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
Bank 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.
6.2.3 Considerations on Review. In considering the review, the
Bank 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.
6.2.4 Timing of Bank Response. The Bank shall respond in
writing to such claimant within 60 days after receiving the request for
review. If the Bank determines that special circumstances require
additional time for processing the claim, the Bank 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 Bank expects to
render its decision.
6.2.5 Notice of Decision. The Bank shall notify the claimant
in writing of its decision on review. The Bank shall write the
notification in a manger calculated to be understood by the claimant.
The notification shall set forth:
6.2.5.1 The specific reasons for the denial,
6.2.5.2 A reference to the specific provisions of the
Plan on which the denial is based,
6.2.5.3 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
6.2.5.4 A statement of the claimant's right to bring
a civil action under ERISA Section 502(a).
ARTICLE 7
AMENDMENTS AND TERMINATION
No provisions of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in writing signed by
the Executive and such officer or officers as may be specifically designated by
the Board of Directors of the Bank to sign on their behalf. No waiver by any
party hereto at any time of any breach by any other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time.
ARTICLE 8
MISCELLANEOUS
8.1 Administration. The Bank shall have powers, which are necessary to
administer this Agreement, including but not limited to:
8.1.1 Interpreting the provisions of the Agreement;
8.1.2 Establishing and revising the method of accounting for
the Agreement;
8.1.3 Maintaining a record of benefit payments; and
8.1.4 Establishing rules and prescribing any forms necessary
or desirable to administer the Agreement.
8.2 Applicable Law. The Agreement and all rights hereunder shall be
governed by the laws of the State of Tennessee, except to the extent preempted
by the laws of the United States of America.
8.3 Binding Effect. This Agreement shall bind the Executive and the
Bank, and their beneficiaries, survivors, executors, successors, administrators
and transferees.
8.4 Entire Agreement. This Agreement constitutes the entire agreement
between the Bank and the Executive as to the subject matter hereof, and this
Agreement is intended to grant benefits to the Executive in addition to, and not
to replace, those set forth in the Supplemental Executive Retirement Plan
Agreement between the Bank and the Executive dated August 20, 2003. No rights
are granted to the Executive by virtue of this Agreement other than those
specifically set forth herein.
8.5 Administrator. The Bank shall be the administrator under this
Agreement. The Bank may delegate to others certain aspects of the management and
operational responsibilities including the service of advisors and the
delegation of ministerial duties to qualified individuals.
8.6 Right of Offset. The Bank shall have the right to offset the
benefits against any unpaid obligation the Executive may have with the Bank.
8.7 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 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.
8.8 Non-Transferability. Benefits under this Agreement cannot be sold,
transferred, assigned, pledged, attached, or encumbered in any manner.
8.9 Notice. For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by certified or
registered mail, return receipt
requested, postage prepaid, addressed to the respective addresses set forth
below:
To the Bank: Chairman, Human Resources Committee
Capital Bank & Trust Company
0000 Xxxx Xxx Xxxxxx
Xxxxxxxxx, XX 00000
To the Executive: R. Xxxx Xxxx
000 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
8.10 Facility of Payment. If the Executive is declared to be
incompetent, or incapable of handling the disposition of his or her property,
the Bank may pay such benefit to the duly appointed guardian, legal
representative or person having the care or custody of the Executive. The Bank
may require proof of incompetence, minority or guardianship as it may deem
appropriate prior to distribution of the benefit. Such distribution shall
completely discharge the Bank from all liability with respect to such benefit.
8.11 Reorganization. The Corporation 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
Corporation hereunder.
8.12 Tax Withholding. The Bank shall withhold any taxes that are
required to be withheld from the benefits provided under this Agreement.
8.13 Nature of Obligations. Nothing contained herein shall create or
require the Bank to create a trust of any kind to fund any benefits which may be
payable hereunder, and to the extent that the Executive acquires a right to
receive benefits from the Bank hereunder, such right shall be no greater than
the right of any unsecured general creditor of the Bank.
8.14 Headings. The section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
8.15 Validity. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provisions of this Agreement, which shall remain in full force and effect.
8.16 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
8.17 Regulatory Prohibition. Notwithstanding any other provision of
this Agreement to the contrary, any payments made to the Executive pursuant to
this Agreement, or otherwise, are subject to and conditioned upon their
compliance with Section 18(k) of the FDIA (12 U.S.C 1828(k)) and any regulations
promulgated there under.
IN WITHNESS WHEREOF, the Executive and duly authorized officers of the Bank have
signed this Agreement.
EXECUTIVE: BANK:
CAPITAL BANK & TRUST COMPANY
/s/ R. Xxxx Xxxx By /s/ Xxxxx X. Xxxxxx
--------------------------- -------------------------------------
R. Xxxx Xxxx
Title EVP/CFO
---------------------------------
By execution hereof, Capital Bancorp, Inc. consents to and agrees to be
bound by the terms and conditions of this Agreement.
ATTEST: CORPORATION:
CAPTIAL BANCORP, INC.
/s/ Xxxx X. Xxxxxxx, Xx. By /s/ Xxxxxx X. Xxxx III
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Title Chairman, Compensation Committee
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SCHEDULE A
CAPITAL BANK & TRUST COMPANY
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
R. XXXX XXXX
Early Change in
Termination Disability Control
annual annual annual
benefit benefit benefit
Plan Age at payable at payable at payable at
Year Plan Normal Normal Normal
Plan ending Year Accrual Retirement Retirement Retirement
Year June 30, end Balance Age Age Age
---- -------- ---- ------- ---------- ---------- ----------
1 2007 59 27,286 2,764 2,764 29,000
2 2008 60 57,794 5,854 5,854 29,000
3 2009 61 91,809 9,299 9,299 29,000
4 2010 62 129,639 13,131 13,131 29,000
5 2011 63 171,616 17,383 17,383 29,000
6 2012 64 218,097 22,091 22,091 29,000
7 2013 65 269,469 27,294 27,294 29,000
Nov-13 292,415
BENEFICIARY DESIGNATION
Capital Bank & Trust Company
Nashville, TN
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
I, _______________________, designate the following as beneficiary of any death
benefits under this Supplemental Executive Retirement Plan:
Primary: _______________________________________________________________________
__________________________________________________________________
Contingent: ____________________________________________________________________
___________________________________________________________________
NOTE: TO NAME A TRUST AS BENEFICIARY, PLEASE PROVIDE THE NAME OF THE TRUSTEE(S)
AND THE EXACT NAME AND DATE OF THE TRUST AGREEMENT.
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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.
Signature _________________________________________________
Date ______________________________________________________
Accepted by the Company this _____ day of __________. 20___
By _______________________________________________
Title ____________________________________________
