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EXHIBIT 10.7
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EXECUTION COPY
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AMENDED AND RESTATED 1 ST UNITED
BANCORP/1 ST UNITED BANK
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AGREEMENT
THIS
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AGREEMENT (the
“Agreement”), originally adopted May 31, 2006, by and
among 1 ST UNITED BANCORP, INC. a Florida bank holding
company (the “Company”), 1 ST UNITED BANK, a
Florida commercial bank (the “Bank”), and RUDY SCHUPP
(the “Executive”), is hereby amended and restated,
effective December 18, 2008.
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 Company and
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.
Benefits will be paid from the general assets of the Company and
the Bank.
The
Company, the Bank and the Executive agree as provided
herein.
Article 1
Definitions
Whenever
used in this Agreement, the following words and phrases shall have
the meanings specified:
Section
1.1 “ Applicable PBGC Rate ” shall have the
meaning set forth in the Employment Agreement.
Section
1.2 “ Beneficiary ” means the estate of the
deceased Executive or such other person designated in accordance
with Article 4 that is entitled to benefits, if any, upon the death
of the Executive determined pursuant to Article 4.
Section
1.3 “ Board ” means the Board of Directors of
the Company.
Section
1.4 “ Change in Control ” means a change in the
ownership or effective control of the Company or the Bank, or in
the ownership of a substantial portion of the assets of the Company
or the Bank, as such change is defined in Section 409A of the Code
and regulations thereunder.
Section
1.5 “ Code ” means the Internal Revenue Code of
1986, as amended.
Section
1.6 “ Constructive Early Termination ” means
that the Executive Separates from Service with the Company or the
Bank for any of the reasons set forth in section 9(a) of the
Employment Agreement.
Section
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.
Section
1.8 “ Early Termination ” means that, prior to
Normal Retirement Age, the Executive’s employment with the
Company or the Bank terminates for reasons other than Termination
for Cause, death, Disability, Constructive Early Termination, or a
Change in Control.
Section
1.9 “ Effective Date ” means June 1,
2006.
Section
1.10 “ Employment Agreement ” means that
Employment Agreement dated March 4, 2004 among the Executive, the
Company and the Bank, as amended and restated effective as of the
date hereof.
Section
1.11 “ Final Base Salary ” means the average
base annual salary, excluding bonuses, commissions, fringe
benefits, and incentive compensation but including deferrals under
any retirement, reimbursement or cafeteria plan, of the highest
three (3) of the last five (5) years in which the Executive is
employed by the Company or the Bank.
Section
1.12 “ Normal Retirement Age ” means the
Executive’s sixty-fifth (65th) birthday.
Section
1.13 “ Normal Retirement Date ” means the later
of the Normal Retirement Age or the effective date of Separation
from Service.
Section
1.14 “ Plan Administrator ” means the plan
administrator described in Article 8.
Section
1.15 “ Plan Year ” means each twelve-month
period commencing on the Effective Date.
Section
1.16 “ Separation from Service ” means the
Executive’s separation from service (within the meaning of
Section 409A of the Code and the regulations thereunder) with the
Bank and the Company.
Section
1.17 “ Specified Employee ” means a key employee
(as defined in Section 416(i) of the Code without regard to
paragraph 5 thereof) of the Company or the Bank (as determined in
accordance with the methodology established by the Company as in
effect on the date of the Executive’s Separation from
Service) if any stock of the Company or the Bank is publicly traded
on an established securities market or otherwise.
Section
1.18 “ Termination for Cause ” means discharge
of the Executive for “cause” as defined in the
Employment Agreement.
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Section
1.19 “ Vesting Commencement Date ” means the
first day of the calendar month following the calendar quarter in
which the Company and the Bank first have consolidated total assets
of at least $250 million, as reported by the Company and the Bank
to their banking regulators.
Article 2
Benefits During Lifetime
Section
2.1 Normal Retirement Benefit . Subject to Sections 2.5 and
2.6, upon Separation from Service on or after the Normal Retirement
Age for reasons other than death, the Company and the Bank shall
jointly and severally pay 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 the Executive’s Final Base
Salary.
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2.1.2
Payment of Benefit . The annual benefit shall be paid to the
Executive in twelve (12) equal monthly installments commencing on
the first day of the month following the Executive’s Normal
Retirement Date, and continuing on the first of each month
thereafter for a total period of twenty (20) years.
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Section
2.2 Early Termination Benefit . Subject to Sections 2.5 and
2.6, upon Early Termination, the Company and the Bank shall jointly
and severally pay to the Executive 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 annual benefit under this Section
2.2 is thirty percent (30%) of Executive’s Final Base Salary,
subject to the following vesting schedule. Prior to the Vesting
Commencement Date, the Executive shall not be vested in any Early
Termination benefits.
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Full Calendar Years Subsequent to the
Vesting Commencement Date
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Vested Portion of Benefit
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1
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20
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%
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2
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40
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%
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3
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47.5
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%
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4
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55
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%
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5
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62.5
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%
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6
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70
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%
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7
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77.5
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%
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8
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85
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%
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9
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92.5
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%
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10 or more
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100
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%
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2.2.2
Payment of Benefit . The annual benefit shall be paid to the
Executive in twelve (12) equal monthly installments commencing on
the first day of the month following the Executive’s
attainment of Normal Retirement Age, and continuing on the first of
each month thereafter for a total period of twenty (20)
years.
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Section
2.3 Constructive Early Termination Benefit . Subject to
Sections 2.5 and 2.6, upon Constructive Early Termination, the
Company and the Bank shall jointly and severally pay to the
Executive 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 annual benefit under this Section
2.3 is thirty percent (30%) of the Executive’s Final Base
Salary.
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2.3.2
Payment of Benefit . The annual benefit shall be paid to the
Executive in twelve (12) equal monthly installments commencing on
the first day of the month following the Executive’s Normal
Retirement Age, and continuing on the first of each month
thereafter for a total period of twenty (20) years.
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Section
2.4 Disability Benefit . Subject to Sections 2.5 and 2.6,
upon Separation from Service due to Disability prior to Normal
Retirement Age, the Company and the Bank shall jointly and
severally pay to the Executive 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 thirty percent (30%) of the Executive’s Final Base
Salary.
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2.4.2
Payment of Benefit . The annual benefit shall be paid to the
Executive in twelve (12) equal monthly installments commencing on
the first day of the month following the Executive’s Normal
Retirement Age, and continuing on the first of each month
thereafter for a total period of twenty (20) years.
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Section
2.5 Change in Control Benefit . Notwithstanding any
provision of this Agreement to the contrary, upon a Change in
Control while the Executive is in the active service of the Company
and the Bank, the Company and the Bank shall jointly and severally
pay to the Executive the benefit described in this Section 2.5 in
lieu of any other benefit under this Article.
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2.5.1
Amount of Benefit . The benefit under this Section 2.5 shall
equal the lump sum present value as of the date of payment,
determined based on the Applicable PBGC Rate for the month of
payment, of a hypothetical annual benefit of seventy percent (70%)
of the Executive’s Final Base Salary that would be payable in
twelve (12) equal monthly installments commencing on the first day
of the month following the Change in Control, and continuing on the
first of each month thereafter for a total period of twenty (20)
years.
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2.5.2
Payment of Benefit . The benefit shall be paid to the
Executive within thirty (30) days of the Change in
Control.
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Section
2.6 Change in Control Following Separation From Service . In
the event that a Change in Control occurs following a Separation
From Service with respect to which the Executive has a future
entitlement to payments under this Article 2 or under Article 3 but
prior to all such payments having been distributed, the present
value (determined as of the date of payment, determined based on
the Applicable PBGC Rate for the month of payment) of all such
payments not previously distributed shall be paid to the Executive
within thirty (30) days of
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the Change in Control (which lump
sum payment shall serve in lieu of any subsequent payments
hereunder).
Section
2.7 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 Company and 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 2.7 is applicable to the
Executive, any distribution 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.
Section
2.8 Distributions Upon Income Inclusion Under Section 409A of
the Code . Upon the inclusion of any portion of the benefits
payable pursuant to this Agreement 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 accrued liability, a distribution shall be
made as soon as is administratively practicable following the
discovery of the plan failure.
Section
2.9 Change in Form or Timing of Distributions . All changes
in the form or timing of distributions hereunder must comply with
the following requirements. The changes:
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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 Sections 2.1, 2.2, 2.3, 2.4
and 2.5, 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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(c)
must take effect not less than twelve (12) months after the
election is made.
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Article 3
Death Benefits
Section
3.1 Death During Active Service . If the Executive dies
prior to a Change in Control while in the active service of the
Company and the Bank, the Company and the Bank shall jointly and
severally pay to the Beneficiary the benefit described in this
Section 3.1. This benefit shall be paid in lieu of the benefits
under Article 2.
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3.1.1
Amount of Benefit . The annual benefit under this Section
3.1 is thirty percent (30%) of the Executive’s Final Base
Salary. For purposes of determining Final Base Salary under this
Section 3.1, if at the time of his death the Executive was employed
by the Company and the Bank for (i) less than five (5) years, the
average base salary shall be based on the highest three (3) of the
total years employed or (ii) less than
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5
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three (3) years, the average base
salary shall be the highest base salary in any year
employed.
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3.1.2
Payment of Benefit . The annual benefit shall be paid to the
Beneficiary in twelve (12) equal monthly installments commencing
within sixty (60) days following the Executive’s death, and
continuing on the first of each month thereafter until two hundred
forty (240) total payments have been made.
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Section
3.2 Death During Payment of a Benefit . If the Executive
dies after any benefit payments have commenced under Article 2 of
this Agreement but before receiving all such payments, the Company
and the Bank shall jointly and severally pay the remaining benefits
to the Beneficiary at the same time and in the same amounts they
would have been paid to the Executive had the Executive
survived.
Section
3.3 Death After Separation from Service But Before Payment of a
Benefit Commences . If the Executive is entitled to any benefit
payments under Article 2 of this Agreement, but dies prior to the
commencement of said benefit payments, the Company and the Bank
shall jointly and severally pay the same benefit payments to the
Beneficiary that the Executive was entitled to prior to death
except that the benefit payments shall commence within sixty (60)
days following the date of the Executive’s death.
Article 4
Beneficiaries
Section
4.1 Beneficiary . The Executives shall have the right, at
any time, to designate a Beneficiary(ies) 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 designation under any other plan
of the Company or the Bank in which the Executive
participates.
Section
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
