SUSSEX BANCORP/SUSSEXBANK AMENDED AND RESTATED DIRECTOR DEFERRED COMPENSATION AGREEMENT
Exhibit
10
SUSSEX
BANCORP/SUSSEXBANK
AMENDED
AND RESTATED DIRECTOR DEFERRED COMPENSATION AGREEMENT
THIS DIRECTOR DEFERRED COMPENSATION
AGREEMENT (the “Agreement”) is originally adopted this 17th day of
May, 2006, by and between SUSSEX BANCORP, a New Jersey bank holding company (the
“Company”), SUSSEXBANK, a state-chartered commercial bank located in Franklin,
New Jersey (the “Bank”) and _________________________(the
“Director”).
The
purpose of this Agreement is to provide specified benefits to the Director who
contributes to the continued growth, development and future business success of
the Company and/or the Bank.
Article
1
Definitions
Whenever used in this Agreement, the
following words and phrases shall have the meanings specified:
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1.1
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“Beneficiary”
means each designated person, or the estate of a deceased Director,
entitled to benefits, if any, upon the death of the Director determined
pursuant to Article 6.
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1.2
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“Beneficiary
Designation Form” means the form established from time to time by
the Plan Administrator that the Director completes, signs and returns to
the Plan Administrator to designate one or more
beneficiaries.
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1.3
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“Board” means
the Board of Directors of the Company and/or the Bank as from time to time
constituted.
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1.4
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“Change in
Control” means a change in the ownership or effective control of
the Company and/or the Bank, or in the ownership of a
substantial portion of the assets of the Company and/or the
Bank, as such change is defined in Section 409A of the Code and
regulations thereunder.
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1.5
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“Code” means the
Internal Revenue Code of 1986, as
amended.
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1.6
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“Crediting Rate”
means a rate equal to the average interest rate earned by the Bank on its
investment portfolio.
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1.7
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“Common
Stock” means the common stock of the Company, no par
value per share.
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1.8
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“Deferrals”
means the amount of the Director’s Compensation which the Director elects
to defer according to this
Agreement.
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1.9 “Deferral Account”
means the Company and/or the Bank’s accounting of the Director’s accumulated
Deferrals, plus accrued interest.
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1.10
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“Deferral Election
Form” means the form established from time to time by the Plan
Administrator that the Director completes, signs and returns to the Plan
Administrator to designate the amount of the
Deferrals.
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1.11
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“Disability”
means Director: (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 directors 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 directors of the Bank. Upon the request of
the Plan Administrator, the Director must submit proof to the Plan
Administrator of the Social Security Administration’s or the provider’s
determination.
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1.12
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“Early
Termination” means Separation from Service before Normal Retirement
Age except when such Separation from Service occurs due to death,
Disability, Change in Control or Termination for
Cause.
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1.13
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“Effective Date”
means May 17, 2006.
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1.14
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“Fair Market
Value” on any date shall mean the closing price of a share of
Common Stock on such date as reported in the principal consolidated
transaction reporting system on which the common stock is principally
traded.
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1.15
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“Fees” means the
total fees payable to the Director during a Plan
Year.
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1.16
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“Interest
Account” means that portion of the Deferral Account governed by
Section 3.2(a) hereof.
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1.17
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“Normal Retirement
Age” means the Director attaining age
75.
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1.18
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“Normal Retirement
Date” means the later of Normal Retirement Age or Separation from
Service.
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1.19
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“Plan
Administrator” means the plan administrator described in Article
8.
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1.20
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“Plan Year”
means each twelve-month period commencing on January 1 and ending on
December 31st of each year. The initial Plan Year shall
commence on the Effective Date of this Agreement and end on the following
December 31st.
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1.21
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“Separation from
Service” means the termination of the Director’s service with the
Company and/or the Bank for reasons other than death or
Disability. Whether a Separation from Service takes place is
determined based on the facts and circumstances surrounding the
termination of the Director’s service and whether the Company and/or the
Bank and the Director intended for the Director to provide significant
services for the Company and/or the Bank following such
termination.
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1.22
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“Specified
Employee” means a key employee (as defined in Section 416(i) of the
Code without regard to paragraph 5 thereof) of the Company and/or the Bank
if any stock of the Company and/or the Bank is publicly traded on an
established securities market or
otherwise.
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1.23
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“Stock Account”
means that portion of the Deferral Account governed by Section 3.2(b)
hereof.
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1.24
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“Termination for
Cause” means a Separation from Service
for:
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(a)
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Gross
negligence or gross neglect of duties to the Company and/or the Bank;
or
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(b)
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Conviction
of a felony or of a gross misdemeanor involving moral turpitude in
connection with the Director’s service with the Company and/or the Bank;
or
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(c)
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Fraud,
disloyalty, dishonesty or willful violation of any law or significant
Company or Bank policy committed in connection with the Director's service
and resulting in a material adverse effect on the Company or the
Bank.
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1.25
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“Unforeseeable
Emergency” means a severe financial hardship to the Director
resulting from an illness or accident of the Director, the Director’s
spouse, or the Director’s dependent (as defined in Section 152(a) of the
Code), loss of the Director’s property due to casualty, or other similar
extraordinary and unforeseeable circumstances arising as a result of
events beyond the control of the
Director.
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1.26
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“Stated Payment
Date” shall mean that date selected by a Director on his or her
Election Form as the date on which they will receive payment of all
Deferrals which are the subject of such Election Form, and all interest
paid thereon.
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Article
2
Deferral
Election
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2.1
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Elections
Generally. The Director may annually file Fees Deferral
Election Form(s) with the Plan Administrator no later than the end of the
Plan Year preceding the Plan Year in which services leading to such Fees
will be performed. Such form shall set forth the amount of Fees to be
deferred as well the account into which such Fees shall be credited, the
Interest Account or the Stock
Account.
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2.2
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Initial
Election. After being notified by the Plan Administrator
of becoming eligible for participation in the Agreement, the Director may
make an initial deferral election under this Agreement by delivering to
the Plan Administrator a signed Deferral Election Form(s) and Beneficiary
Designation Form within thirty (30) days of becoming
eligible. The Deferral Election Form(s) shall set forth the
amount of Fees to be deferred as well the account into which such fees
shall be credited, the Interest Account or the
Stock
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Account. However,
if the Director was eligible to participate in any other account balance plans
sponsored by the Company or the Bank (as referenced in Section 409A of the Code
or the regulations thereunder) prior to becoming eligible to participate in this
Agreement, the initial election to defer Fees under this Agreement shall not be
effective until the Plan Year following the Plan Year in which the Director
became eligible to participate in this Agreement.
Article
3
Deferral
Account
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3.1
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Establishing the
Deferral Account. The Bank shall establish a Deferral
Account on its books for the Director. Such Deferral Account shall consist
of an Interest Account or a Stock Account, or both, depending upon the
election(s) made by the Director pursuant to Article 2
hereof.
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3.2
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Crediting of
Accounts. The Deferral Account shall be credited with
any Deferrals made hereunder and:
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(a)
for amounts credited to the Interest Account, earnings will be credited as
follows:
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(i)
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On
the last day of each month and immediately prior to the distribution of
any benefits, but only until commencement of benefit distributions under
this Agreement, interest shall be credited on the Interest Account portion
of the Deferral Account at an annual rate equal to the Crediting
Rate, compounded monthly; and
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(ii)
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On
the last day of each month during any applicable installment period,
interest shall be credited on the unpaid balance of the Interest Account
portion of the Deferral Account at an annual rate equal to the Crediting
Rate, compounded monthly. Prior to the commencement of any
distributions hereunder, the Board, in its sole discretion, may change the
rate used to calculate interest in this Section 3.2(a)
(ii).
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(b)
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for
amounts credited to the Stock Account, such Deferrals shall be deemed
invested in a number of notional shares of the Company's common stock (the
"Units") equal to the quotient of (i) such
Deferrals divided by (ii) the Fair
Market Value (defined below) on either the date the Deferrals then being
allocated to the Stock Account would otherwise have been paid or such
other date, not later than 90 days thereafter, as may be specified for
deemed investment by the Company (this provision permitting the Company to
establish a quarterly investment date, for convenient and economical
administration of the Plan). Fractional Units shall be
credited, but shall be rounded to the nearest hundredth percentile, with
amounts equal to or greater than .005 rounded up and amounts less than
.005 rounded down. Whenever a dividend other than a dividend
payable in the form of shares is declared with respect to the shares, the
number of Units in the Director's Stock Account shall be increased by the
number of Units determined by dividing (i) the product
of (A)
the number of Units in the Director's Stock Account on the related
dividend record date and (B) the amount
of any cash dividend declared by the Company on a share of Common Stock
(or, in the case of any dividend distributable in property other than
Common Stock, the per share value
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such
dividend, as determined by the Company for purposes of income tax reporting) by
(ii) the Fair
Market Value on the related dividend payment date. In the case of any
dividend declared on Common Stock which is payable in shares of Common Stock,
the Director's Stock Account shall be increased by the number of Units equal to
the product of (i) the number of
Units credited to the Directors Stock Account on the related dividend record
date and (ii)
the number of shares (including any fraction thereof) distributable as a
dividend on a share. In the event of any change in the number or kind
of outstanding shares of Common Stock by reason of any recapitalization,
reorganization, merger, consolidation, stock split or any similar change
affecting such shares, other than a dividend of cash, stock or property as
provided above, the Board of Directors shall make an appropriate adjustment in
the number of Units credited to the Director's Stock Account. For
purposes of this section, "Fair Market Value" on any date shall mean the closing
price of a share of Common Stock on such date as reported in the principal
consolidated transaction reporting system on which the Common Stock is
principally traded.
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3.3
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Distribution from
Accounts Upon Termination of Service as a
Director. The form of payments out of a
Director’s Deferral Account, including both deferrals and hypothetical
earnings thereon, shall be in the same form as the account into which the
deferrals were credited, the Interest Account (i.e. cash) or the Stock
Account (i.e. shares of Common
Stock).
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3.4
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Change in
Election. By written notice to the Secretary of
the Company, a Director may change the
allocation of Deferrals previously credited to the
Interest Account to the Stock Account. Any such
election shall be effective as of the first calendar quarter commencing
after receipt of such election. No Director may make any
election to change the way in which amounts previously allocated to the
Director's Deferral Account are deemed invested within six months of the
date of the last such election by such Director to change the way in which
such amounts are deemed
invested.
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3.5
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Accounting Device
Only. The Deferral Account is solely a device for
measuring amounts to be paid under this Agreement. The Deferral
Account is not a trust fund of any kind. The Director is a
general unsecured creditor of the Company and the Bank for the
distribution of benefits. The benefits represent the mere
promise by the Company and/or the Bank to distribute such
benefits. The Director's rights are not subject in any manner
to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, attachment, or garnishment by the Director's
creditors.
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Article
4
Distributions
During Lifetime
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4.1
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Normal Retirement
Benefit. Upon the Normal Retirement Date, the Company
and/or the Bank, on which board the Director served, shall distribute to
the Director the benefit described in this Section 4.1 in lieu of any
other benefit under this Article.
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4.1.1
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Amount of
Benefit. The benefit under this Section 4.1 is the
Deferral Account balance at the Normal Retirement
Date.
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4.1.2
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Distribution of
Benefit. The benefit shall be distributed to the
Director within thirty (30) days of the Director’s Separation from
Service.
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4.2
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Early Termination
Benefit. Upon Early Termination, the Company and/or the
Bank shall distribute to the Director the benefit described in this
Section 4.2 in lieu of any other benefit under this
Article.
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4.2.1
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Amount of
Benefit. The benefit under this Section 4.2 is the
Deferral Account balance determined as of the date of Separation from
Service.
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4.2.2
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Distribution of
Benefit. The
benefit shall be distributed to the Director within thirty (30) days of
the Director’s Separation from
Service.
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4.3
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Disability
Benefit. If Director experiences a Disability which
results in a Separation from Service prior to Normal Retirement Age, the
Company and/or the Bank shall distribute to the Director the benefit
described in this Section 4.3 in lieu of any other benefit under this
Article.
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4.3.1
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Amount of
Benefit. The benefit under this Section 4.3 is the
Deferral Account balance determined as of the date of Separation from
Service.
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4.3.2
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Distribution of
Benefit. The benefit shall be distributed to the
Director within thirty (30) days of the Director’s Separation from
Service.
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4.4
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Change in Control
Benefit. Upon a Change in Control followed by a
Separation from Service, the Company and/or the Bank shall distribute to
the Director the benefit described in this Section 4.4 in lieu of any
other benefit under this Article.
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4.4.1
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Amount of
Benefit. The benefit under this Section 4.4 is the
Deferral Account balance determined as of the date of Separation from
Service.
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4.4.2
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Distribution of
Benefit. The benefit shall be distributed to the
Director within thirty (30) days of the Director’s Separation from
Service.
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4.5
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Restriction on Timing
of Distribution. Notwithstanding any provision of this
Agreement to the contrary, if the Director is considered a Specified
Employee at Separation from Service under such procedures as established
by the Company and/or 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 4.5 is applicable to the Director, any distribution which
would otherwise be paid to the Director within the first six months
following the Separation from Service shall be accumulated and paid to the
Director 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.
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4.6
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Distributions Upon
Income Inclusion Under Section 409A of the Code. Upon
the inclusion of any portion of the Deferral Account balance into the
Director’s income as a
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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 Deferral Account balance, a distribution shall be made as soon
as is administratively practicable following the discovery of the plan
failure.
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4.7
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Change in Form or
Timing of Distributions. For distribution of benefits
under this Article 4, the Director may amend this Agreement to delay the
timing or change the form of distributions by submitting the appropriate
Distribution Election Form(s) to the Plan Administrator. Any
such amendment:
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(a)
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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)
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must,
for benefits distributable under Section 4.3, be made at least twelve (12)
months prior to the first scheduled
distribution;
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(c)
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must,
for benefits distributable under Sections 4.1, 4.2, 4.3 and 4.4, 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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(d)
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must
take effect not less than twelve (12) months after the election is
made.
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4.8
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Hardship
Distribution. If an Unforeseeable Emergency occurs, the
Director may petition the Board to receive a distribution from his or her
Deferral Account. The Board in its sole discretion may grant
such petition. If granted, the Director shall receive, within
sixty (60) days, a distribution from his or her Deferral Account (i) only
to the extent deemed necessary by the Board to remedy the Unforeseeable
Emergency, plus an amount necessary to pay taxes reasonably anticipated as
a result of the distribution; and (ii) after taking into account the
extent to which such hardship is or may be relieved through reimbursement
or compensation by insurance or otherwise or by liquidation of the
Director’s assets (to the extent the liquidation would not
itself cause severe financial hardship). In any event, the
maximum amount which may be paid out pursuant to this Section 4.8 is the
Deferral Account balance as of the day that the Director petitioned the
Board to receive a Hardship Distribution under this
Section.
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4.9 Payment Upon Stated
Date. In connection with any Director who has, on his or her Election
Form, elected to be paid the amount of a Deferral, and any interest thereon,
upon a Stated Payment Date, and in lieu of any other benefit provided for under
this Article in connection with the Deferral subject to that Election Form,
Company shall pay to the Participant the following benefit:
4.9.1 Amount of
Benefit The benefit under this Section 4.9.1 will be the
amount of the Deferral subject to the particular Election Form , and any and all
interest accrued thereon.
4.9.2 Payment of Benefit –
The Company shall pay the benefit to the Director hereunder as elected by the
Director on the Election Form.
Article
5
Distributions
at Death
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5.1
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Death During Active
Service. If the Director dies while in active service to
the Company and/or the Bank, the Company and/or the Bank shall distribute
to the Beneficiary the benefit described in this Section
5.1. This benefit shall be distributed in lieu of the benefits
under Article 4.
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5.1.1
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Amount of
Benefit. The benefit under this Section 5.1 is the
Deferral Account balance determined as of the date of the Director’s
death.
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5.1.2
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Distribution of
Benefit. The benefit shall be distributed to the
Beneficiary within thirty (30) days following receipt by the Company
and/or the Bank of the Director’s death
certificate.
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5.2
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Death During
Distribution of a Benefit. If the Director dies after
any benefit distributions have commenced under this Agreement but before
receiving all such distributions, the remaining benefits shall be
distributed to the Beneficiary at the same time and in the same amounts
that would have been distributed to the Director had the Director
survived.
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5.3
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Death After Separation
from Service But Before Benefit Distributions
Commence. If the Director is entitled to benefit
distributions under this Agreement, but dies prior to the commencement of
said benefit distributions, the Company and/or the Bank shall distribute
to the Beneficiary the same benefits that the Director was entitled to
prior to death except that the benefit distributions shall commence within thirty (30)
days following receipt by the Company and/or the Bank of the Director’s
death certificate.
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Article
6
Beneficiaries
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6.1
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Beneficiary. The
Director shall have the right, at any time, to designate a
Beneficiary(ies) to receive any benefits distributable under the Agreement
to a Beneficiary upon the death of the Director. The
Beneficiary designated under this Agreement may be the same as or
different from the beneficiary designation under any other plan of the
Company and/or the Bank in which the Director
participates.
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6.2
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Beneficiary
Designation: Change. The Director shall designate a
Beneficiary by completing and signing the Beneficiary Designation Form,
and delivering it to the Plan Administrator or its designated
agent. The Director's beneficiary designation shall be deemed
automatically revoked if the Beneficiary predeceases the Director or if
the Director names a spouse as Beneficiary and the marriage is
subsequently dissolved. The Director 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 Plan Administrator shall be entitled to rely on
the last Beneficiary Designation Form filed by the Director and accepted
by the Plan Administrator prior to the Director’s
death.
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6.3
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Acknowledgment. No
designation or change in designation of a Beneficiary shall be effective
until received, accepted and acknowledged in writing by the Plan
Administrator or its designated
agent.
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6.4
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No Beneficiary
Designation. If the Director dies without a valid
Beneficiary designation, or if all designated Beneficiaries predecease the
Director, then the Director’s spouse shall be the designated
Beneficiary. If the Director has no surviving spouse, the
benefits shall be paid to the personal representative of the Director's
estate.
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6.5
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Facility of
Distribution. If the Plan Administrator determines in
its discretion that a benefit is to be paid to a minor, to a person
declared incompetent, or to a person incapable of handling the disposition
of that person’s property, the Plan Administrator may direct distribution
of such benefit to the guardian, legal representative or person having the
care or custody of such minor, incompetent person or incapable
person. The Plan Administrator may require proof of
incompetence, minority or guardianship as it may deem appropriate prior to
distribution of the benefit. Any distribution of a benefit
shall be a distribution for the account of the Director and the
Beneficiary, as the case may be, and shall be a complete discharge of any
liability under the Agreement for such distribution
amount.
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Article
7
General
Limitations
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7.1
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Termination for
Cause. Notwithstanding any provision of this Agreement
to the contrary, the Company and/or the Bank shall not distribute any
benefit under this Agreement in excess of the Deferrals (i.e., Deferral
Account minus interest credited thereon for amounts credited to the
Interest Account) if the Director’s service with the Company and/or the
Bank is terminated due to a Termination for
Cause.
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7.2
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Removal. Notwithstanding
any provision of this Agreement to the contrary, the Company and/or the
Bank shall not distribute any benefit under this Agreement in excess of
the Deferrals (i.e., Deferral Account minus interest credited thereon for
amounts credited to the Interest Account) if the Director 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.
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Article
8
Administration
of Agreement
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8.1
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Plan Administrator
Duties. This Agreement shall be administered by a Plan
Administrator which shall consist of the Board, or such committee or
person(s) as the Board shall appoint. The Plan Administrator
shall administer this Agreement according to its express terms and shall
also have the discretion and authority to (i) make, amend, interpret and
enforce all appropriate rules and regulations for the administration
of this Agreement and (ii) decide or resolve any and all questions
including interpretations of this Agreement, as may arise in connection
with the Agreement to the extent the exercise of such discretion and
authority does not conflict with Section 409A of the Code and regulations
thereunder.
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8.2
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Agents. In
the administration of this Agreement, the Plan Administrator may employ
agents and delegate to them such administrative duties as it sees fit,
(including acting through a duly appointed representative), and may from
time to time consult with counsel who may be counsel to the Company and/or
the Bank.
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8.3
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Binding Effect of
Decisions. The decision or action of the Plan
Administrator with respect to any question arising out of or in connection
with the administration, interpretation and application of the Agreement
and the rules and regulations promulgated hereunder shall be final and
conclusive and binding upon all persons having any interest in the
Agreement.
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8.4
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Indemnity of Plan
Administrator. The Company and/or the Bank shall
indemnify and hold harmless the members of the Plan Administrator against
any and all claims, losses, damages, expenses or liabilities arising from
any action or failure to act with respect to this Agreement, except in the
case of willful misconduct by the Plan Administrator or any of its
members.
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8.5
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Company and Bank
Information. To enable the Plan Administrator to perform
its functions, the Company and the Bank shall supply full and timely
information to the Plan Administrator on all matters relating to the
Compensations of its Directors, the date and circumstances of the
retirement, Disability, death or Separation from Service of its Directors,
and such other pertinent information as the Plan Administrator may
reasonably require.
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8.6
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Statement of
Accounts. The Plan Administrator shall provide to the
Director, within one hundred twenty (120) days after the end of each Plan
Year, a statement setting forth the Deferral Account
balance.
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Article
9
Claims
and Review Procedures
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9.1
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Claims
Procedure. The Director 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:
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9.1.1
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Initiation – Written
Claim. The claimant initiates a claim by submitting to
the Plan Administrator a written claim for the benefits. If
such a claim relates to the contents of a notice received by the claimant,
the claim must be made within sixty (60) days after such notice was
received by the claimant. All other claims
must
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be made
within 180 days of the date on which the event that caused the claim to
arise occurred. The claim must state with particularity the
determination desired by the claimant.
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9.1.2
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Timing of Company
and/or Bank Response. The Plan
Administrator shall respond to such claimant within 90 days after
receiving the claim. If the Plan Administrator determines that
special circumstances require additional time for processing the claim,
the Plan Administrator can extend the response period by an additional 90
days by notifying the claimant in writing, prior to the end of the initial
90-day period, that an additional period is required. The
notice of extension must set forth the special circumstances and the date
by which the Plan Administrator expects to render its
decision.
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9.1.3
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Notice of
Decision. If the Plan Administrator denies part or all
of the claim, the Plan Administrator shall notify the claimant in writing
of such denial. The Plan Administrator shall write the
notification in a manner calculated to be understood by the
claimant. The notification shall set
forth:
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|
|
(a)
|
The
specific reasons for the denial,
|
|
|
(b)
|
A
reference to the specific provisions of the Agreement on which the denial
is based,
|
|
|
(c)
|
A
description of any additional information or material necessary for the
claimant to perfect the claim and an explanation of why it is needed,
and
|
|
|
(d)
|
An
explanation of the Agreement’s review procedures and the time limits
applicable to such procedures.
|
|
9.2
|
Review
Procedure. If the Plan Administrator denies part or all
of the claim, the claimant shall have the opportunity for a full and fair
review by the Plan Administrator of the denial, as
follows:
|
|
9.2.1
|
Initiation – Written
Request. To initiate the review, the claimant, within 60
days after receiving the Plan Administrator’s notice of denial, must file
with the Plan Administrator a written request for
review.
|
|
9.2.2
|
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 Plan Administrator shall
also provide the claimant, upon request and free of charge, reasonable
access to, and copies of, all documents, records and other information
relevant to the claimant’s claim for
benefits.
|
|
9.2.3
|
Considerations on
Review. In considering the review, the Plan
Administrator 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.
|
|
9.2.4
|
Timing of Plan
Administrator Response. The Plan Administrator shall
respond in writing to such claimant within 60 days after receiving the
request for review. If the Plan Administrator determines that
special circumstances require
additional
|
time for
processing the claim, the Plan Administrator 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 Plan Administrator expects to render its decision.
|
9.2.5
|
Notice of
Decision. The Plan Administrator shall notify the
claimant in writing of its decision on review. The Plan
Administrator shall write the notification in a manner calculated to be
understood by the claimant. The notification shall set
forth:
|
|
|
(a)
|
The
specific reasons for the denial,
|
|
|
(b)
|
A
reference to the specific provisions of the Agreement on which the denial
is based, and
|
|
|
(c)
|
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 to the claimant’s claim for
benefits.
|
Article
10
Amendments
and Termination
|
10.1
|
Amendments. This
Agreement may be amended only by a written agreement signed by the
Company, the Bank and the Director. However, the Company and
the Bank may unilaterally amend this Agreement to conform with written
directives to the Company and/or the Bank from its auditors or banking
regulators or to comply with legislative changes or tax law, including
without limitation Section 409A of the Code and any and all Treasury
regulations and guidance promulgated
thereunder.
|
|
10.2
|
Plan Termination
Generally. This Agreement may be terminated only by a
written agreement signed by the Company, the Bank and the Director. Except
as provided in Section 10.3, the termination of this Agreement shall not
cause a distribution of benefits under this Agreement. Rather,
upon such termination benefit distributions will be made at the earliest
distribution event permitted under Article 4 or Article
5.
|
|
10.3
|
Plan Terminations
Under Section 409A. Notwithstanding anything to the
contrary in Section 10.2, if the Company and the Bank terminates this
Agreement in the following
circumstances:
|
|
|
(a)
|
Within
thirty (30) days before, or twelve (12) months after a Change in Control,
provided that all distributions are made no later than twelve (12) months
following such termination of the Agreement and further provided that
all the Company’s and the Bank's arrangements which are
substantially similar to the Agreement are terminated so the
Director and all participants in the similar arrangements are
required to receive all amounts of compensation deferred under the
terminated arrangements within twelve (12) months of the termination of
the arrangements;
|
|
|
(b)
|
Upon
the Company’s and the Bank’s dissolution or with the approval of a
bankruptcy court provided that the amounts deferred under the Agreement
are included in the Director's gross income in the latest of (i) the
calendar year in
|
which the
Agreement terminates; (ii) the calendar year in which the amount is no longer
subject to a substantial risk of forfeiture; or (iii) the first calendar year in
which the distribution is administratively practical; or
|
|
(c)
|
Upon
the Company’s and the Bank’s termination of this and all other account
balance plans (as referenced in Section 409A of the Code or the
regulations thereunder), provided that all distributions are made no
earlier than twelve (12) months and no later than twenty-four (24) months
following such termination, and the Company and/or the Bank does not adopt
any new account balance plans for a minimum of five (5) years following
the date of such termination;
|
the
Company and/or the Bank may distribute the Deferral Account balance, determined
as of the date of the termination of the Agreement to the Director, in a lump
sum subject to the above terms.
Article
11
Miscellaneous
|
11.1
|
Binding
Effect. This Agreement shall bind the Director and the
Company and the Bank and their beneficiaries, survivors, executors,
administrators and transferees.
|
|
11.2
|
No Guarantee of
Service. This Agreement is not a contract for
service. It does not give the Director the right to remain as a
director of the Company and/or the Bank, nor does it interfere with the
Company and/or the Bank's 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.
|
|
11.3
|
Non-Transferability. Benefits
under this Agreement cannot be sold, transferred, assigned, pledged,
attached or encumbered in any
manner.
|
|
11.4
|
Tax Withholding and
Reporting. The Company and/or the Bank shall withhold
any taxes that are required to be withheld, including but not limited to
taxes owed under Section 409A of the Code and regulations thereunder, from
the benefits provided under this Agreement. The Director
acknowledges that the Company and/or the Bank’s sole liability regarding
taxes is to forward any amounts withheld to the appropriate taxing
authority(ies). Further, the Company and/or the Bank shall
satisfy all applicable reporting requirements, including those under
Section 409A of the Code and regulations
thereunder.
|
|
11.5
|
Applicable
Law. The Agreement, and all rights hereunder shall be
governed by the laws of the State of New Jersey except to the extent
preempted by the laws of the United States of
America.
|
|
11.6
|
Unfunded
Arrangement. The Director and the Beneficiary are
general unsecured creditors of the Company and/or the Bank for the
distribution of benefits under this Agreement. The benefits
represent the mere promise by the Company and/or the Bank to distribute
such benefits. The rights to benefits are not subject in any
manner to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, attachment, or garnishment by creditors. Any
insurance on the Director's life or other informal
funding
|
asset is
a general asset of the Company and/or the Bank to which the Director and the
Beneficiary have no preferred or secured claim.
|
11.7
|
Reorganization. The
Company and/or the Bank shall not merge or consolidate into or with
another bank, or reorganize, or sell substantially all of its assets to
another bank, firm, or person unless such succeeding or continuing bank,
firm, or person agrees to assume and discharge the obligations of the
Company and/or the Bank under this Agreement. Upon the
occurrence of such event, the term “Bank” as used in this Agreement shall
be deemed to refer to the successor or survivor
bank.
|
|
11.8
|
Entire
Agreement. This Agreement
constitutes the entire agreement between the Company and/or the Bank 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.
|
|
11.9
|
Interpretation. Wherever
the fulfillment of the intent and purpose of this Agreement requires, and
the context will permit, the use of the masculine gender includes the
feminine and use of the singular includes the
plural
|
|
11.10
|
Alternative
Action. In the event it shall become impossible for the
Company and/or the Bank or the Plan Administrator to perform any act
required by this Agreement, the Company and/or the Bank or Plan
Administrator may in its discretion perform such alternative act as most
nearly carries out the intent and purpose of this Agreement and is in the
best interests of the Company and/or the Bank, provided that such
alternative acts do not violate Section 409A of the
Code.
|
|
11.11
|
Headings. Article
and section headings are for convenient reference only and shall not
control or affect the meaning or construction of any of its
provisions.
|
|
11.12
|
Validity. In
case any provision of this Agreement shall be illegal or invalid for any
reason, said illegality or invalidity shall not affect the remaining parts
hereof, but this Agreement shall be construed and enforced as if such
illegal and invalid provision has never been inserted
herein.
|
|
11.13
|
Notice. Any
notice or filing required or permitted to be given to the Plan
Administrator under this Agreement shall be sufficient if in writing and
hand-delivered, or sent by registered or certified mail, to the address
below:
|
Such
notice shall be deemed given as of the date of delivery or, if delivery is made
by mail, as of the date shown on the postmark or the receipt for registration or
certification.
Any
notice or filing required or permitted to be given to the Director under this
Agreement shall be sufficient if in writing and hand-delivered, or sent by mail,
to the last known address of the Director.
|
11.14
|
Compliance with
Section 409A. This Agreement shall at all times be
administered and the provisions of this Agreement shall be interpreted
consistent with the requirements of Section 409A of the Code and any and
all regulations thereunder, including such regulations as may be
promulgated after the Effective Date of this
Agreement.
|
IN WITNESS WHEREOF, the Director, the
Company and the Bank have signed this Agreement as of ______________,
2_________
|
Director:
|
Bank:
|
||
|
SUSSEXBANK
|
|||
|
By:
|
|||
|
[Director]
|
|||
|
Title:
|
|||
|
Company:
|
|||
|
By:
|
|||
|
Title:
|
|||
{ } New
Designation
{ } Change
in Designation
I,
________________________________, designate the following as Beneficiary under
the Plan:
|
Primary:
|
_____%
_____%
|
|
Contingent:
|
_____%
_____%
|
Notes:
|
|
·
|
Please
PRINT CLEARLY or TYPE the names of the
beneficiaries.
|
|
|
·
|
To
name a trust as Beneficiary, please provide the name of the trustee(s) and
the exact name and date of the trust
agreement.
|
|
|
·
|
To
name your estate as Beneficiary, please write “Estate of _[your
name]_”.
|
|
|
·
|
Be
aware that none of the contingent beneficiaries will receive anything
unless ALL of the primary beneficiaries predecease
you.
|
I
understand that I may change these beneficiary designations by delivering a new
written designation to the Plan Administrator, which shall be effective only
upon receipt and acknowledgment by the Plan Administrator prior to my
death. 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.
Name:
_____________________________
Signature: _______________________________
Date: _______
Received
by the Plan Administrator this ________ day of ___________________,
2___
By: _________________________________
Title: _________________________________