EXHIBIT 10.9
FIRST BANK OF FLORIDA
EMPLOYEE STOCK OWNERSHIP PLAN
(EFFECTIVE JANUARY 1, 1993;
AMENDED AND RESTATED EFFECTIVE APRIL 1, 1995)
AMENDMENT NO. 4
1. Section 2 - Effective January 1, 1997, the definition of "Employee" in
Section 2 of the Plan shall be amended to read in its entirety as follows:
"Employee" means any individual who is or has been employed or
self-employed by an Employer. At the Effective Date of the Plan, Employee
shall mean individuals employed by First Bank of Florida, but shall not
include individuals employed by subsidiaries of First Bank of Florida who
are not also employed by the Company. "Employee" also means an individual
employed by a leasing organization who, pursuant to an agreement between an
Employer and the leasing organization, has performed services for the
Employer and any related persons (within the meaning of Section 414(n)(6)
of the Code) on a substantially full-time basis for more than one year,
and, for periods prior to January 1, 1997, such services are of a type
historically performed by employees in the business field of the Employer,
and for periods on or after January 1, 1997, such services are performed
under primary direction or control by the recipient. However, such a
"leased employee" shall not be considered an Employee if (i) he
participates in a money purchase pension plan sponsored by the leasing
organization which provides for immediate participation, immediate full
vesting, and an annual contribution of at least 10 percent of the
Employee's Total Compensation, and (ii) leased employees do not constitute
more than 20 percent of the Employer's total work force (including leased
employees, but excluding Highly Paid Employees and any other employees who
have not performed services for the Employer on a substantially full-time
basis for at least one year).
2. Section 2 - Effective January 1, 1997, the definition of "Highly Paid
Employee" contained in Section 2 of the Plan shall be amended to read in
its entirety as follows:
"Highly Paid Employee" for any Plan Year beginning before January 1,
1997 means an Employee who, during either of that or the immediately
preceding Plan Year, (i) was a Five Percent Owner, (ii) had Total
Compensation exceeding $75,000 (as adjusted pursuant to section 415(d) of
the Code), (iii) had Total Compensation exceeding $50,000 (as adjusted
pursuant to section 415(d) of the Code) and was among the most highly
compensated one-fifth of all Employees, or (iv) was at any time an officer
of an Employer and had Total Compensation exceeding $45,000 (or 50 percent
of the currently applicable dollar limit under Section 415(b)(1)(A) of the
Code) and for any Plan Year beginning after December 31, 1996 means an
Employee who (i) during either of that or the immediately preceding Plan
Year was a Five Percent Owner or (ii) during the immediately preceding Plan
Year had Total Compensation exceeding $80,000 (adjusted for cost of living
increases at the time and in the manner prescribed under section 415(d) of
the Code) and (if so elected by the Plan Administrator) was among the most
highly compensated one-fifth of all Employees. For this purpose:
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(a) "Total Compensation" shall include any amount which is
excludable from the Employee's gross income for tax purposes pursuant
to Sections 125, 402(a)(8), 402(h)(1)(B), or 403(b) of the Code.
(b) The number of Employees in "the most highly compensated
one-fifth of all Employees" shall be determined by taking into account
all individuals working for all related employer entities described in
the definition of "Service", but excluding any individual who has not
completed six months of Service, who normally works fewer than 17-1/2
hours per week or in fewer than six months per year, who has not
reached age 21, whose employment is covered by a collective bargaining
agreement, or who is a nonresident alien who receives no earned income
from United States sources.
(c) The number of individuals counted as "officers" shall not be
more than the lesser of (i) 50 individuals and (ii) the greater of 3
individuals or 10 percent of the total number of Employees. If no
officer earns more than $45,000 (or the adjusted limit), then the
highest paid officer shall be a Highly Paid Employee.
(d) A former employee shall be treated as a highly compensated
employee if such employee was a highly paid employee when such
employee separated from service, or if such employee was a highly paid
employee at any time after attaining age 55.
(e) For Plan Years beginning before January 1, 1997, if an
employee is, during a determination year or look-back year, a family
member of either a 5 percent owner who is an active or former employee
or a highly compensated employee who is one of the 10 most highly
compensated employees ranked on the basis of compensation paid by the
employer during such year, then the family member and the 5 percent
owner or top-ten highly compensated employee shall be aggregated. In
such case, the family member and 5 percent owner or top-ten highly
compensated employee shall be treated as a single employee receiving
compensation and plan contributions or benefits equal to the sum of
such compensation and contributions or benefits of the family member
and 5 percent owner or top-ten highly compensated employee. For
purposes of this section, family member includes the spouse, lineal
ascendants and descendants of the employee or former employee and the
spouses of such lineal ascendants and descendants.
For this purpose, the determination year shall be the plan year. The
look-back year shall be the twelve-month period immediately preceding the
determination year.
(f) The determination of who is a highly compensated employee,
including the determinations of the number and identity of employees
in the top-paid group, the top 100 employees, the number of employees
treated as officers and the compensation that is considered, will be
made in accordance with section 414(q) of the Code and the regulations
thereunder.
3. Section 2 - Effective January 1, 1997, the definition of "Total
Compensation" in Section 2 of the Plan shall be amended to read in its
entirety as follows:
"Total Compensation" means a Participant's wages, salary, overtime,
bonuses, commissions, and any other amounts received for personal services
rendered while in Service from any Employer or an affiliate (within the
purview of Section 414(b), (c), and (m) of the Code), plus his earned
income from any such entity as defined in Section 401(c)(2) of the Code if
he is self-employed. "Total Compensation":
(a) shall include (i) severance payments and amounts paid as a
result of termination, (ii) amounts excludable from gross income under
Section 911, (iii) amounts described in Sections
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104(a)(3), 105(a) and 105(h) of the Code to the extent includable in
gross income, (iv) amounts received from an Employer for moving
expenses which are not deductible under Section 217 of the Code, (v)
amounts includable in gross income in the year of, and on account of,
the grant of a non-qualified stock option, (vi) amounts includable in
gross income pursuant to Section 83(b) of the Code, (vii) amounts
includable in gross income under an unfunded non-qualified plan of
deferred compensation, (viii) any elective deferrals (within the
meaning of section 402(g) of the Code) under any qualified cash or
deferred arrangement described in section 401(k) of the Code and
maintained by any Employer, any tax-deferred annuity described in
section 403(b) of the Code and maintained by any Employer, any salary
reduction simplified employee pension plan described in section 408(k)
of the Code and maintained by any Employer, and (ix) any salary
reduction contributions under any cafeteria plan described in section
125 of the Code and maintained by any Employer; but
(b) shall exclude (i) Employer contributions to or amounts
received from a funded or qualified plan of deferred compensation,
(ii) Employer contributions to a simplified employee pension account
to the extent deductible under Section 219 of the Code, (iii) Employer
contributions to a Section 403(b) annuity contract, (iv) amounts
includable in gross income pursuant to Section 83(a) of the Code, (v)
amounts includable in gross income upon the exercise of nonqualified
stock option or upon the disposition of stock acquired under any stock
option, and (vi) any other amounts expended by the Employer on the
Participant's behalf which are excludable from his income or which
receive special tax benefits.
In no event shall a person's Total Compensation for any Plan Year beginning
after December 31, 1988 and before January 1, 1994 include any compensation
in excess of $200,000 (or such other amount as may be permitted under
section 401(a)(17) of the Code) and for any Plan Year beginning after
December 31, 1993 include any compensation in excess of $150,000 (or such
other amount as may be permitted under section 401(a)(17) of the Code). For
purposes of applying the foregoing limitation in any Plan Year beginning
before January 1, 1997 to any person who is a Five Percent Owner or who is
one of the 10 Highly Paid Employees with the highest Total Compensation
(determined prior to the application of this sentence), any Total
Compensation paid to the spouse of such person or to any lineal descendant
of such person who has not attained age 19 on or before the last day of
such calendar year shall be deemed to have been paid to such person.
4. Section 5 - Effective January 1, 1997, the first sentence of Section 5.2 of
the Plan shall be amended to read in its entirety as follows:
For limitation years beginning before January 1, 2000, aside from the
limitation prescribed by Section 5.1 with respect to the annual addition to
a Participant's accounts for any single limitation year, if a Participant
has ever participated in one or more defined benefit plans maintained by an
Employer or an affiliate, then the annual additions to his accounts shall
be limited on a cumulative basis so that the sum of his defined
contribution plan fraction and his defined benefit plan fraction does not
exceed one.
5. Section 5 - Effective December 12, 1994, Section 5 of the Plan shall be
amended by adding a new Section 5.5 which shall read in its entirety as
follows:
5.5 Retroactive Contributions for Returning Veterans. Notwithstanding
anything in the Plan to the contrary, to the extent required by section
414(u) of the Code, in the event of the reemployment, or after December 12,
1994, by the Employer of a Participant with statutory reemployment rights
following a period of service in the uniformed services of the United
States, such person shall be eligible for retroactive benefit contributions
or allocations under the Plan computed as though he or she had continued
working for an Employer during the period of uniformed service.
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6. Section 6 - Effective December 31, 1997, the second sentence of Section 6.2
shall be amended to read in its entirety as follows:
The Trustee shall have no investment responsibility for the Stock Fund, but
shall accept any Employer contributions made in the form of Stock, and
shall acquire, sell, exchange, distribute, and otherwise deal with and
dispose of Stock in accordance with the provisions of the Plan and Trust
Agreement.
7. Section 6 - Effective January 1, 1997, section 6.4 shall be amended to read
in its entirety as follows:
6.4 Participants' Option to Diversify. The Committee shall provide for
a procedure under which each Participant may, for the first five years of a
certain six-year period, elect to have up to 25 percent of the value of his
Account committed to alternative investment options within the Investment
Fund. For the sixth year in this period, the Participant may elect to have
up to 50 percent of the value of his Account committed to other
investments. The six-year period shall begin with the Plan Year in which
the Participant has both reached age 55 and completed 10 years of
participation in the Plan; a Participant's election to diversify his
Account must be made within the 90-day period immediately following the
last day of each of the six Plan Years. The Committee shall see that the
Investment Fund includes a sufficient number of investment options to
comply with Section 401(a)(28)(B) of the Code. The Trustee shall comply
with any investment directions received from Participants in accordance
with the procedures adopted from time to time by the Committee under this
Section 6.4.
8. Section 9 - Effective August 5, 1993, Section 9.2 of the Plan shall be
amended to read in its entirety as follows:
(b) Unless otherwise specifically excluded, a Participant's Vesting
Years shall include any period of active military duty to the extent
required by the Military Selective Service Act of 1967 (38 U.S.C. Section
2021) and any period of absence required to be recognized for vesting
purposes pursuant to the Family and Medical Leave Act of 1993.
9. Section 10 - Effective January 1, 1997, Section 10.1 of the Plan shall be
amended to read in its entirety as follows:
10.1 Benefits for Participants.(a) Except as provided in section
10.1(b), a Participant whose Service ends for any reason shall receive the
vested portion of his Account in a single payment on a date selected by the
Committee. That date shall be on or before (i) the 180th day after the end
of the Plan Year in which his Service ends (if his Service ends in a Plan
Year the precedes the Plan Year in which he attains age 65 or the Plan Year
which includes the 10th anniversary of his commencement of participation in
the Plan) and (ii) the 60th day after the end of the Plan Year in which his
Service ends (in all other cases). Notwithstanding the foregoing, if the
balance credited to his Account exceeds $3,500 (or such greater amount as
may be prescribed pursuant to section 417(e) of the Code) in the case of
termination of employment prior to January 1, 1998 and $5,000 (or such
greater amount as may be prescribed pursuant to section 417(e) of the Code)
in the case of termination of employment after December 31, 1997, his
benefits shall not be paid before the latest of his 65th birthday or the
tenth anniversary of the year in which he commenced participation in the
Plan unless he elects an early payment date in a written election filed
with the Committee. A Participant may modify such an election at any time,
provided any new benefit payment date is at least 30 days after a modified
election is delivered to the Committee.
(b) Except as provided by the last two sentences of this section
10.1(b), a Participant's benefits shall be paid by April 1st of the
calendar year in which he reaches age 71 1/2. A Participant's benefits from
that portion of his Account committed to the Investment Fund shall be
calculated on the basis of the most recent Valuation Date before the day of
payment. In the case of an individual who continues to be a Participant
after the calendar year in which he reaches age 70 1/2, a lump sum payment
representing the entire
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benefit accrued through the last day of the calendar year in which the
Participant reaches age 70 1/2 shall be made prior to April 1st of the
calendar year in which the Participant reaches age 71 1/2, and any benefits
accrued in a subsequent calendar year shall be paid in a lump sum no later
than December 31st of the calendar year following the calendar year in
which such additional benefits are accrued. A Participant who has attained
age 70 1/2 prior to January 1, 1999 and who continues in Service after
December 31, 1996 may elect, in such form and manner as the Plan
Administrator may prescribe, to defer distributions until the earlier of
April 1st of the calendar year following the calendar year in which he
terminates Service or April 1st of the calendar year following any earlier
calendar year in which he is a Five Percent Owner. Further, a Participant,
other than a Five Percent Owner, who attains age 70 1/2 after December 31,
1998 shall not receive benefits while he or she continues in Service.
10. Section 12.1 - Effective December 31, 1997, Section 12.1 of the Plan shall
be amended to read in its entirety as follows:
12.1 Authority of Committee. The Committee shall be the "plan
administrator" within the meaning of ERISA and shall have exclusive
responsibility and authority to control and manage the operation and
administration of the Plan, including the interpretation and application of
its provisions, except to the extent such responsibility and authority are
otherwise specifically (i) allocated to the Company, the Employers, or the
Trustee under the Plan and Trust Agreement, (ii) delegated in writing to
other persons by the Company, the Employers, the Committee, or the Trustee,
or (iii) allocated to other parties by operation of law. The Committee
shall have exclusive responsibility regarding decisions concerning the
payment of benefits under the Plan. The Committee shall have no investment
responsibility. In the discharge of its duties, the Committee may employ
accountants, actuaries, legal counsel, and other agents (who also may be
employed by an Employer or the Trustee in the same or some other capacity)
and may pay their reasonable expenses and compensation. Any action taken or
omitted by the Committee or any other fiduciary with respect to the Plan,
including any decision, interpretation, claim denial or review on appeal,
shall be conclusive and binding on all interested parties and shall be
subject to judicial modification or reversal only to the extent it is
determined by a court of competent jurisdiction that such action or
omission was arbitrary and capricious and contrary to the terms of the
Plan.
11. Section 12 - Effective December 31, 1997, Section12.3 of the Plan shall be
amended by deleting therefrom the entirety of the second paragraph thereof.
12. Section 14 - Effective August 5, 1997, Section 14.2 of the Plan shall be
amended to read in its entirety as follows:
14.2 Nonassignability of Benefits. No assignment, pledge, or other
anticipation of benefits from the Plan will be permitted or recognized by
the Employers, the Committee, or the Trustee. Moreover, benefits from the
Plan shall not be subject to attachment, garnishment, or other legal
process for debts or liabilities of any Participant or Beneficiary, to the
extent permitted by law. This prohibition on assignment or alienation shall
apply to any judgment, decree, or order (including approval of a property
settlement agreement) which relates to the provision of child support,
alimony, or property rights to a present or former spouse, child or other
dependent of a Participant pursuant to a State domestic relations or
community property law, unless the judgment, decree, or order is determined
by the Committee to be a qualified domestic relations order within the
meaning of Section 414(p) of the Code. This prohibition on assignment shall
also not apply to prevent a benefit offset by any amount such Participant,
Former Participant or Beneficiary is required or ordered to pay to the Plan
if:
(i) the order or requirement to pay arises: (A) under a judgment
issued on or after August 5, 1997 of conviction for a crime involving
the Plan; (B) under a civil judgment (including a consent order or
decree) entered by a court on or after August 5, 1997 in an action
brought in
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connection with a violation (or alleged violation) of part 4 of
subtitle B of title I of ERISA; or (C) pursuant to a settlement
agreement entered into on or after August 5, 1997 between the
Participant, Former Participant or Beneficiary and one or both of the
United States Department of Labor and the Pension Benefit Guaranty
Corporation in connection with a violation (or alleged violation) of
part 4 of subtitle B of title I of ERISA by a fiduciary or any other
person; and
(ii) the judgment, order, decree or settlement agreement
expressly provides for the offset of all or part of the amount ordered
or required to be paid to the Plan against the Participant's, Former
Participant's or Beneficiary's benefits under the Plan.
13. Section 14 - Effective November 1, 1996, Section 14 of the Plan shall be
amended by deleting Section 14.10 therefrom in its entirety.
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