EXHIBIT 10.7 - FORM OF DIRECTOR SPLIT DOLLAR AGREEMENT
TIB BANK OF THE KEYS
SPLIT DOLLAR AGREEMENT
THIS AGREEMENT is made and entered into this _______ day of
_________________, 2001, by and between TIB BANK OF THE KEYS, a state-chartered
commercial bank located in Key Largo, Florida (the "Company"), and
_______________ (the "Director"). This Agreement shall append the Split Dollar
Endorsement entered into on __________________, 2001, or as subsequently
amended, by and between the aforementioned parties.
INTRODUCTION
To encourage the Director to remain a director of the Company, the
Company is willing to divide the death proceeds of a life insurance policy on
the Director's life. The Company will pay life insurance premiums from its
general assets.
ARTICLE 1
GENERAL DEFINITIONS
The following terms shall have the meanings specified:
1.1 "Change of Control" means the acquisition by any person, or
persons acting as a group within the meaning of Section 13(d) of the Securities
Exchange Act of 1934, of fifty-one percent or more of the voting securities of
the Company, or of any lesser percentage of the voting securities of the
Company if the Board of Directors of the Company, the Comptroller of Florida,
the FDIC, or the Federal Reserve Bank makes a determination that such
acquisition constitutes or will constitute control of the Company. The term
"person" as used herein includes and individual, corporation, bank holding
company or any other legal entity.
1.2 "Insurer" means __________.
1.3 "Policy" means insurance policy no. ________ issued by the
Insurer.
1.4 "Insured" means the Director.
1.5 "Normal Retirement Age" means the earliest of a) the first of
the month following ten (10) consecutive full years of board membership; b) the
Director's 70th birthday; or c) the date of a Change of Control.
1.6 "Split Dollar Amount" means the amount equal to the product
of Years of Service times $10,000.
1.7 "Termination of Service" means the Director ceasing to serve
as a member of the Company's Board of Directors for any reason whatsoever.
1.8 "Years of Service" means the number of complete years of
service by the Director as a member of the Company's Board of Directors through
Termination of Service.
ARTICLE 2
POLICY OWNERSHIP/INTERESTS
2.1 Company Ownership. The Company is the sole owner of the
Policy and shall have the right to exercise all incidents of ownership. The
Company shall be the direct beneficiary of an amount of death proceeds equal to
the greater of: a) the cash surrender value of the policy, b) the aggregate
premiums paid on the Policy by the Company less any outstanding indebtedness to
the Insurer, or c) the total death proceeds of the policy minus the Split
Dollar Amount.
2.2 Director's Interest. The Director shall have the right to
designate the beneficiary of any remaining death proceeds of the Policy. The
Director shall also have the right to elect and change settlement options that
may be permitted. Provided, however, the Director, the Director's transferee or
the Director's beneficiary shall have no rights or interests in the Policy with
respect to that portion of the death proceeds designated in this section 2.2
upon the Director's Termination of Service prior to Normal Retirement Age.
2.3 Option to Purchase. The Company shall not sell, surrender or
transfer ownership of the Policy while this Agreement is in effect without
first giving the Director or the Director's transferee the option to purchase
the Policy for a period of sixty (60) days from written notice of such
intention. The purchase price shall be an amount equal to the cash surrender
value of the Policy. This provision shall not impair the right of the Company
to terminate this Agreement.
2.4 Comparable Coverage. Upon the Director's attaining Normal
Retirement Age while still in service as a director of the Company, the Company
shall maintain the Policy in full force and effect and in no event shall the
Company amend, terminate or otherwise abrogate the Director's interest in the
Policy, unless the Company replaces the Policy with a comparable insurance
policy to cover the benefit provided under this Agreement. The Policy or any
comparable policy shall be subject to the claims of the Company's creditors.
ARTICLE 3
PREMIUMS
3.1 Premium Payment. The Company shall pay any premiums due on
the Policy.
3.2 Imputed Income. The Company shall impute income to the
Director in an amount equal to the current term rate for the Director's age
multiplied by the aggregate death benefit payable to the Director's
beneficiary. The "current term rate" is the minimum amount required to be
imputed under Revenue Rulings 64-328 and 66-110, or any subsequent applicable
authority.
3.3 Cash Payment. The Company shall annually pay to the Director
an amount necessary to pay the federal and state income taxes attributable to
the imputed income and to the additional cash payments under this section. In
calculating the cash payments due from the Company, the Company shall use the
Director's actual marginal income tax bracket for the calendar year immediately
preceding the payment to the Director. If the Director's Termination of Service
occurs on or after the Normal Retirement Age, the cash payments shall continue
until the Director's death. In the event the Director's Termination of service
occurs prior to the Normal Retirement Age, the cash payments shall then cease
as of the date of Termination of Service.
ARTICLE 4
ASSIGNMENT
The Director may assign without consideration all interests in the
Policy and in this Agreement to any person, entity or trust. In the event the
Director transfers all of the Director's interest in the Policy, then all of
the Director's interest in the Policy and in the Agreement shall be vested in
the Director's transferee, who shall be substituted as a party hereunder and
the Director shall have no further interest in the Policy or in this Agreement.
ARTICLE 5
INSURER
The Insurer shall be bound only by the terms of the Policy. Any
payments the Insurer makes or actions it takes in accordance with the Policy
shall fully discharge it from all claims, suits and demands of all entities or
persons. The Insurer shall not be bound by or be deemed to have notice of the
provisions of this Agreement.
ARTICLE 6
CLAIMS PROCEDURE
6.1 Claims Procedure. The Company shall notify the Director, the
Director's transferee or beneficiary, or any other party who claims a right to
an interest under this Agreement (the "Claimant") in writing, within 90 days of
Claimant's written application for benefits, of his or her eligibility or
ineligibility for benefits under this Agreement. If the Company determines that
the Claimant is not eligible for benefits or full benefits, the notice shall
set forth (1) the specific reasons for such denial, (2) a specific reference to
the provisions of this Agreement on which the denial is based, (3) a
description of any additional information or material necessary for the
Claimant to perfect his or her claim, and a description of why it is needed,
and (4) an explanation of this Agreement's claims review procedure and other
appropriate information as to the steps to be taken if the Claimant wishes to
have the claim reviewed. If the Company determines that there are special
circumstances requiring additional time to make a decision, the Company shall
notify the Claimant of the special circumstances and the date by which a
decision is expected to be made, and may extend the time for up to an
additional 90 days.
6.2 Review Procedure. If the Claimant is determined by the
Company not to be eligible for benefits, or if the Claimant believes that he or
she is entitled to greater or different benefits, the Claimant shall have the
opportunity to have such claim reviewed by the Company by filing a petition for
review with the Company within 60 days after receipt of the notice issued by
the Company. Said petition shall state the specific reasons which the Claimant
believes entitle him or her to benefits or to greater or different benefits.
Within 60 days after receipt by the Company of the petition, the Company shall
afford the Claimant (and counsel, if any) an opportunity to present his or her
position to the Company verbally or in writing, and the Claimant (or counsel)
shall have the right to review the pertinent documents. The Company shall
notify the Claimant of its decision in writing within the sixty-day period,
stating specifically the basis of its decision, written in a manner to be
understood by the Claimant and the specific provisions of this Agreement on
which the decision is based. If, because of the need for a hearing, the 60-day
period is not sufficient, the decision may be deferred for up to another 60-day
period at the election of the Company, but notice of this deferral shall be
given to the Claimant.
ARTICLE 7
AMENDMENTS AND TERMINATION
This Agreement may be amended or terminated only by a written
agreement signed by the Company and the Director. However, unless otherwise
agreed to by the Company and the Director, this Agreement will automatically
terminate upon the Director's Termination of Service prior to Normal Retirement
Age.
ARTICLE 8
MISCELLANEOUS
8.1 Binding Effect. This Agreement shall bind the Director and
the Company, their beneficiaries, survivors, executors, administrators and
transferees, and any Policy beneficiary.
8.2 No Guarantee of Service. This Agreement is not a service
contract. It does not give the Director the right to remain a director of the
Company, nor does it interfere with the shareholders' right to discharge the
Director. It also does not require the Director to remain a director nor
interfere with the Director's right to terminate service at any time.
8.3 Applicable Law. The Agreement and all rights hereunder shall
be governed by and construed according to the laws of the State of Florida,
except to the extent preempted by the laws of the United States of America.
8.4 Reorganization. The Company shall not merge or consolidate
into or with another company, or reorganize, or sell substantially all of its
assets to another company, firm or person unless such succeeding or continuing
company, firm or person agrees to assume and discharge the obligations of the
Company.
8.5 Notice. Any notice, consent or demand required or permitted
to be given under the
provisions of this Split Dollar Agreement by one party to another shall be in
writing, shall be signed by the party giving or making the same, and may be
given either by delivering the same to such other party personally, or by
mailing the same, by United States certified mail, postage prepaid, to such
party, addressed to his or her last known address as shown on the records of
the Company. The date of such mailing shall be deemed the date of such mailed
notice, consent or demand.
8.6 Entire Agreement. This Agreement constitutes the entire
agreement between the Company and the Director as to the subject matter hereof.
No rights are granted to the Director by virtue of this Agreement other than
those specifically set forth herein.
8.7 Administration. The Company shall have powers which are
necessary to administer this Agreement, including but not limited to:
(a) Interpreting the provisions of the Agreement;
(b) Establishing and revising the method of accounting
for the Agreement;
(c) Maintaining a record of benefit payments; and
(d) Establishing rules and prescribing any forms
necessary or desirable to administer the Agreement.
8.8 Named Fiduciary. The Company shall be the named fiduciary and
plan administrator under the Agreement. The named fiduciary may delegate to
others certain aspects of the management and operation responsibilities of the
plan including the service of advisors and the delegation of ministerial duties
to qualified individuals
IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first above written.
DIRECTOR: COMPANY:
TIB BANK OF THE KEYS
BY
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TITLE
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SPLIT DOLLAR POLICY ENDORSEMENT
TIB BANK OF THE KEYS SPLIT DOLLAR AGREEMENT
Policy No. Insured:
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Supplementing and amending the application for insurance to _________
("Insurer") on _____, 2001, the applicant requests and directs that:
BENEFICIARIES
1. TIB BANK OF THE KEYS, a state-chartered commercial bank
located in Key Largo, Florida (the "Company"), shall be the direct beneficiary
of death proceeds equal to the greater of (a) the cash surrender value of the
policy, (b) the aggregate premiums paid on the Policy by the Company less any
outstanding indebtedness to the Insurer, or (c) the total death proceeds of the
policy minus the Split Dollar Amount. The Split Dollar Amount is the amount
equal to the product of the number of complete years of service by the Insured
as a member of the Company's Board of Directors times $10,000.
2. The beneficiary of any remaining death proceeds shall be
designated by the Insured or the Insured's transferee, subject to the
provisions of paragraph (5) below.
OWNERSHIP
3. The Owner of the policy shall be the Company. The Owner shall
have all ownership rights in the Policy except as may be specifically granted
to the Insured or the Insured's transferee in paragraph (4) of this
endorsement.
4. The Insured or the Insured's transferee shall have the right
to assign his or her rights and interests in the Policy with respect to that
portion of the death proceeds designated in paragraph (2) of this endorsement,
and to exercise all settlement options with respect to such death proceeds.
5. Notwithstanding the provisions of paragraph (4) above, the
Insured or the Insured's transferee shall have no rights or interests in the
Policy with respect to that portion of the death proceeds designated in
paragraph (2) of this endorsement if the Insured ceases to be a director of the
Company prior to the Normal Retirement Age (as defined in the Agreement) for
any reason whatsoever (other than by reason of a leave of absence which is
approved by the Company), unless otherwise agreed to by the Company and the
Director.
MODIFICATION OF ASSIGNMENT PROVISIONS OF THE POLICY
Upon the death of the Insured, the interest of any collateral assignee of the
Owner of the Policy
designated in (3) above shall be limited to the portion of the proceeds
described in paragraph (1) above.
OWNERS AUTHORITY
The Insurer is hereby authorized to recognize the Owner's claim to rights
hereunder without investigating the reason for any action taken by the Owner,
including its statement of the amount of premiums it has paid on the Policy.
The signature of the Owner shall be sufficient for the exercise of any rights
under this Endorsement and the receipt of the Owner for any sums received by it
shall be a full discharge and release therefore to the Insurer.
Any transferee's rights shall be subject to this Endorsement.
The owner accepts and agrees to this split dollar endorsement.
Signed at ___________________, Florida, this _____ day of ______________, 2001.
TIB BANK OF THE KEYS
By
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Its
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The Insured accepts and agrees to the foregoing and, subject to the rights of
the Owner as stated above, designates the following beneficiaries of the
portion of the proceeds described in (2) above:
Primary beneficiary
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Relationship to Insured
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Secondary beneficiary
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Relationship to Insured
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Signed at ____________________, Florida, this ______ day of ____________, 2001.
THE INSURED:
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