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Exhibit 10.4
THE BANCORP, INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
(As amended and restated, effective as of
January 1, 2009)
THE BANCORP,
INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
(As amended and restated, effective as of
January 1, 2009)
SECTION 1. INTRODUCTION
The Plan was initially adopted pursuant to Executive’s
Employment Agreement effective as of the Effective Date. The
Company desires to amend the Plan, the terms and conditions of
which were described in the Executive’s Employment Agreement,
to make certain clarifying changes, as well as to amend the Plan to
incorporate the applicable provisions of section 409A of the Code
and the final regulations issued thereunder. In order to include
the foregoing amendments into the Plan, the Company has determined
to amend and restate the Plan, effective as of January 1,
2009, as set forth herein, and to provide that the terms and
conditions set forth herein supersede the terms and conditions set
forth in the Employment Agreement.
This Plan is an unfunded, non-qualified "top-hat" plan under
ERISA that is maintained by the Company for the purpose of
providing deferred compensation benefits to a select group of
management or highly compensated employees. The Plan is intended to
be maintained and operated in accordance with the requirements of
section 409A of the Code with respect to all benefits payable under
the Plan.
The purpose of the Plan is to provide supplemental retirement
income to Executive in order to satisfy the Company’s
obligations under the Employment Agreement. Such supplemental
retirement income is intended to provide Executive with additional
performance incentives, as well as to make up for benefits that
cannot be paid to her under the qualified retirement plans
sponsored by the Company due to certain restrictive provisions of
applicable law.
Unless the context clearly indicates otherwise, all capitalized
terms in this Section 1 shall have the meaning ascribed to
them in Section 2 below.
SECTION 2. DEFINITIONS
2.01 " Beneficiary " means Executive’s husband or
such other person that Executive may from time to time designate on
a form provided by the Plan Administrator.
2.02 " Board " means the Board of Directors of the
Company.
2.03 " Cause " means any of the following grounds for
termination of Executive’s employment:
(a) Executive shall have been convicted of a felony;
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(b) Executive intentionally and continually fails
substantially to perform her reasonably assigned material duties to
the Company (other than a failure resulting from Executive’s
incapacity due to physical or mental illness), which failure has
been materially and demonstrably detrimental to the Company and has
continued for a period of at least thirty (30) days after a
written notice of demand for substantial performance, signed by a
duly authorized officer of the Company, has been delivered to
Executive specifying the manner in which Executive has failed
substantially to perform; or
(c) Executive breaches Section 5 of her Employment
Agreement.
2.04 " Change of Control " means the occurrence of any of
the following:
(a) The acquisition of the beneficial ownership, as defined
under the Securities Exchange Act of 1934, of twenty-five percent
(25%) or more of the Company’s voting securities or all
or substantially all of the assets of the Company by a single
person or entity or group of affiliated persons or entities other
than by a Related Entity (as defined below);
(b) The merger, consolidation or combination of the Company with
an unaffiliated entity, other than a Related Entity (as defined
below) in which the directors of the Company as applicable
immediately prior to such merger, consolidation or combination
constitute less than a majority of the board of directors of the
surviving, new or combined entity unless one-half of the board of
directors of the surviving, new or combined entity, were directors
of the Company immediately prior to such transaction and the
Company’s chief executive officer immediately prior to such
transaction continues as the chief executive officer of the
surviving, new or combined entity;
(c) During any period of two consecutive calendar years,
individuals who at the beginning of such period constitute the
Board cease for any reason to constitute at least two-thirds
thereof, unless the election or nomination for the election by the
Company’s stockholders of each new director was approved by a
vote of at least two-thirds of the directors then still in office
who were directors at the beginning of the period; or
(d) The transfer of all or substantially all of the
Company’s assets or all or substantially all of the assets of
its primary subsidiaries to an unaffiliated entity, other than to a
Related Entity (as defined below).
For purposes of the definition of "Change of Control" as set
forth herein, the term "Related Entity" shall mean an entity that
is an "affiliate" of Executive or any member of Executive’s
immediate family including her spouse or children, as determined in
accordance with Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as amended.
2.05 " Code " means the Internal Revenue Code of 1986, as
it may be amended from time to time.
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2.06 " Company " means The Bancorp, Inc.,
a Delaware corporation, and any successor thereto that assumes this
Plan.
2.07 " Disability " means Executive has been unable to
perform the material duties of her employment for a period of
ninety (90) consecutive days in any twelve (12)-month period
because of physical or mental injury or illness. Executive agrees,
in the event of a dispute relating to Executive’s Disability,
to submit to a physical examination by a licensed physician jointly
selected by the Board and Executive.
2.08 " Effective Date " means January 1, 2005.
2.09 " Employment Agreement " means the employment
agreement, entered into as of April 20, 2005 between Executive
and the Company, and effective as of the Effective Date, and as
subsequently amended.
2.10 " ERISA " means the Employee Retirement Income
Security Act of 1974, as amended.
2.11 " Executive " means Betsy Z. Cohen.
2.12 " Good Reason " means the occurrence of any of the
following events or conditions, unless Executive has expressly
consented in writing thereto or unless the event is remedied by the
Company promptly after receipt of notice thereof given by
Executive:
(a) a demotion of Executive;
(b) a material reduction of Executive’s duties under the
Employment Agreement;
(c) the Company’s requiring Executive to be based at a
location other than in the Philadelphia, Pennsylvania metropolitan
area;
(d) the failure of Executive to be elected to the Board; or
(e) any material breach of the Employment Agreement by the
Company.
2.13 " Monthly Benefit " means $25,000, provided,
however, that if prior to January 1, 2011, (a) Executive
has a Separation From Service with the Company, then
Executive’s Monthly Benefit shall be determined as follows:
(i) if Executive’s Separation From Service with the
Company is on account of a termination by the Company without
Cause, due to Disability or death or resignation by Executive for
Good Reason, Executive’s Monthly Benefit shall equal $25,000,
or (ii) if Executive’s Separation From Service is on
account of a resignation by Executive for a reason other than Good
Reason, Executive’s Monthly Benefit shall equal the amount
described in Exhibit A , attached hereto; or (b) a
Change of Control occurs while Executive is employed by the
Company,
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Executive’s Monthly Benefit shall equal
$25,000. The full value of the benefit payable as a result of a
Separation From Service on account of a reason described in clause
(a)(i) of the preceding sentence shall serve as consideration for
Executive’s entering into restrictive covenants described in
Section 5 of the Employment Agreement.
2.14 " Plan " means the The Bancorp, Inc. Supplemental
Executive Retirement Plan, as set forth herein, and as the same may
from time to time hereafter be amended.
2.15 " Plan Administrator " means the Chief Financial
Officer of the Company. The Board may appoint another individual or
individuals to perform some or all acts that the Plan Administrator
is authorized to perform.
2.16 " Separation Date " means the last day on which
Executive is employed by the Company on account of a Separation
From Service.
2.17 " Separation From Service " means Executive’s
separation from service with the Company within the meaning of
section 409A of the Code and the regulations thereunder.
2.18 " Specified Employee " means any individual who, at
any time during the twelve month period ending on the
identification date (as determined by the Company or its delegate),
is a specified employee under section 409A of the Code, as
determined by the Company (or its delegate). The determination of
"specified employees," including the number and identity of persons
considered "specified employees" and identification date, shall be
made by the Company (or its delegate) in accordance with the
provisions of sections 416(i) and 409A of the Code and the
regulations issued thereunder.
SECTION 3. PARTICIPATION
3.01 Participation . Executive’s participation in
the Plan commenced on the Effective Date and shall continue until
amounts are paid to Executive (and her Beneficiary, as applicable)
under the Plan pursuant to Section 4 or Executive forfeits the
benefit as provided in Section 5. Other than Executive’s
designated Beneficiary in the event of her death, no other
individual is eligible to participate in, or receive a benefit
under, the Plan.
SECTION 4. BENEFIT
4.01 Benefit . Except as otherwise provided in
Section 5 below or in the event of Executive’s death as
described in Section 4.02, upon the later to occur of
Executive attaining age 70 or her Separation From Service,
Executive shall be paid the Monthly Benefit for the remainder of
her life. The Monthly Benefit shall be paid to Executive as
described below.
(a) Age 70 . If Executive has a Separation From Service
prior to attaining age 70, the Monthly Benefit payable to Executive
shall commence to be paid to her on the first business day of the
month that immediately follows the month in which she attains age
70, and such Monthly Benefit shall continue to be paid to Executive
on the first business day of each month thereafter for the rest of
Executive’s life.
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(b) Separation
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