1
THE BRUNSWICK BANK AND TRUST COMPANY
NON-QUALIFIED DEFERRED COMPENSATION PLAN
ADOPTION AGREEMENT
1. EMPLOYER INFORMATION
A. The name of the Plan is the Brunswick Bank and Trust Company
Non-Qualified Deferred Compensation Plan;
B. The name and address of the employer sponsoring the Plan is:
Brunswick Bancorp and
Brunswick Bank and Trust Company ("The Company")
X.X. Xxx 00
Xxx Xxxxxxxxx, XX 00000
C. The first day of the twelve month period for which the Company
pays taxes is January 1, 1995.
2. PLAN INFORMATION
A. The effective date of the Plan is January 1, 1995;
B. The Plan year ends December 31st.
3. ELIGIBLE EMPLOYEES
Those key employees of the Company selected by the Compensation
Committee of the Board of Directors, specifically, Xxxxxx X. Xxxxxx,
at the date of adoption and key employees, if any, subsequently
designated.
4. CONTRIBUTIONS
Discretionary Incentive Contributions
The Company may make Discretionary Incentive Contributions in any
amounts the Company's Compensation Committee of the Board of Directors
shall designate.
The Company currently intends to make Discretionary Incentive
Contributions for Xxxxxx X. Xxxxxx as follows:
Plan Year Ended Amount
--------------- ----------
December 31, 1995 $120,000.00
December 31, 1996 120,000.00
December 31, 1997 120,000.00
December 31, 1998 120,000.00
December 31, 1999 120,000.00
2
These contributions will be subject to the vesting schedule selected
as designated in Section 5 below. Vesting schedules for subsequent
Discretionary Incentive Contributions shall be determined at the time
designated by the Compensation Committee of the Board of Directors.
5. VESTING OF DISCRETIONARY INCENTIVE CONTRIBUTIONS
Date Percentage
---- ----------
December 31, 1995 20%
December 31, 1996 40%
December 31, 1997 60%
December 31, 1998 80%
December 31, 1999 100%
6. ACCOUNTS
The Trustee can invest each Participant's Account Balance as a
separate account, in which case the Trustee can, but is not required
to, take into consideration the investment preferences of the
Participants.
7. ADMINISTRATION
Plan Administrator
The Plan Administrator is legally responsible for the operation of the
Plan, including:
A. Keeping track of which employees are eligible to participate
in the Plan and the date each employee becomes eligible to
participate;
B. Maintaining Participants' Accounts, including all sub-accounts
required for different contribution types and payment
elections, and keeping track of all elections made by
Participants under the Plan and any other relevant
information;
C. Transmitting important communications to the Participants, and
obtaining relevant information from Participants such as
changes in investment selections; and
D. Filing important reports required to be submitted to
governmental agencies.
3
THE BRUNSWICK BANK AND TRUST COMPANY
NON-QUALIFIED DEFERRED COMPENSATION PLAN
TRUST AGREEMENT
4
THIS TRUST AGREEMENT, made and entered into this 5th day of December,
1995, by and among Brunswick Bank and Trust Company (the "Bank"), Brunswick
Bancorp (the "Bancorp"), and Brunswick Bank and Trust Company together with
Brunswick Bancorp (the "Company") and Xxxxxx Xxxxxxx (the "Trustee").
WITNESSETH THAT:
WHEREAS, the Company heretofore established the Brunswick Bank and
Trust Company Non-Qualified Deferred Compensation Plan for Officers (the
"Plan") for the purpose of retaining the continued employment of certain key
employees of the Company; and
WHEREAS, the Company wishes to establish a trust fund to aid it in
accumulating the amounts necessary to satisfy its contractual liability to pay
such benefits; and
WHEREAS, the Company may make contributions to this trust from time to
time, which contributions (if made) will be applied in payment of the Company's
obligations to pay such benefits; and
WHEREAS, the Plan provides for the Company to pay all benefits
thereunder from its general assets, and the establishment of this trust shall
not reduce or otherwise affect the Company's continuing liability to pay
benefits from such assets except that the Company's liability shall be offset
by actual benefit payments made by this trust; and
WHEREAS, the trust established by this Trust Agreement is intended to
be classified for income tax purposes as a "grantor trust" with the
5
result that the income of the trust will be treated as income of the Company
pursuant to Subpart E of Subchapter J of Chapter 1, of Subtitle A of the
Internal Revenue Code of 1986, as amended (the "Code");
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the Company and the Trustee declare and agree as follows:
SECTION 1. ESTABLISHMENT AND TITLE OF THE TRUST.
1.1 The Company hereby establishes with the Trustee a trust (the
"Trust"), to accept such sums of money and other property acceptable to the
Trustee as from time to time may be paid or delivered to the Trustee. All such
money and other property, all investments and reinvestments made therewith or
proceeds thereof and all earnings and profits thereon that are not paid to the
Company as provided in Section 7.1 of this Trust Agreement, less all payments
and charges as authorized herein, are hereinafter referred to as the "Trust
Fund". The Trust Fund shall be held by the Trustee IN TRUST and shall be dealt
with in accordance with the provisions of this Trust Agreement. The Trust Fund
shall be held for the exclusive purpose of providing payments to the
participants of the Plan and their beneficiaries and defraying reasonable
expenses of administration in accordance with the provisions of this Trust
Agreement until all such payments have been made; provided, however, that the
Trust Fund shall at all times be subject to the claims of the creditors of the
Company as set forth in Section 8 of this Trust Agreement.
6
SECTION 2. ACCEPTANCE BY THE TRUSTEE.
2.1 The Trustee accepts the Trust established under this Trust
Agreement on the terms and subject to the provisions set forth herein, and it
agrees to discharge and perform fully and faithfully all of the duties and
obligations imposed upon it under this Trust Agreement.
SECTION 3. LIMITATION ON USE OF FUNDS.
3.1 No part of the corpus of the Trust Fund shall be recoverable
by the Company or used for any purpose other than for the exclusive purpose of
providing payments to participants of the Plan and their beneficiaries and
defraying reasonable expenses of administration in accordance with the
provisions of this Trust Agreement until all such payments required by this
Trust Agreement have been made; provided, however, that (i) nothing in this
Section 3.1 shall be deemed to limit or otherwise prevent the payment from the
Trust Fund of expenses and other charges as provided in Section 10.1 and 10.2
of this Trust Agreement or the application of the Trust Fund as provided in
Section 6.4 of this Trust Agreement if the Trust is finally determined not to
constitute a grantor trust and (ii) the Trust Fund shall at all times be
subject to the claims of creditors of the Company as set forth in Section 8 of
this Trust Agreement.
SECTION 4. DUTIES AND POWERS OF THE TRUSTEE WITH RESPECT TO INVESTMENTS.
4.1 The Trustee shall invest and reinvest the principal and income
of the Trust Fund and keep the Trust Fund invested, without distinction between
principal and income, in accordance with the
7
directions of the Company or such investment guidelines as the Company may
provide to the Trustee from time to time.
SECTION 5. ADDITIONAL POWERS AND DUTIES OF THE TRUSTEE.
5.1 Subject to the provisions of Section 4.1, the Trustee shall
have the following additional powers and authority with respect to all property
constituting a part of the Trust Fund:
a. To sell, exchange or transfer any such property at public or
private sale for cash or on credit and grant options for the purchase
or exchange thereof, including call options for property held in the
Trust Fund and put options for the purchase of property.
b. To participate in any plan of reorganization, consolidation,
merger, combination, liquidation or other similar plan relating to any
such property, and to consent to or oppose any such plan or any action
thereunder, or any contract, lease, mortgage, purchase, sale or other
action by any corporation or other entity.
c. To deposit any such property with any protective,
reorganization or similar committee; to delegate discretionary power
to any such committee; and to pay part of the expenses and
compensation of any such committee and any assessments levied with
respect to any property so deposited.
d. To exercise any conversion privilege or subscription right
available in connection with any such property; to oppose or to
8
consent to the reorganization, consolidation, merger or readjustment
of the finances of any corporation, company or association, or to the
sale, mortgage, pledge or lease of the property of any corporation,
company or association any of the securities of which may at any time
be held in the Trust Fund and to do any act with reference thereto,
including the exercise of options, the making of agreements or
subscriptions and the payment of expenses, assessments or
subscriptions, which may be deemed necessary or advisable in
connection therewith, and to hold and retain any securities or other
property which it may so acquire.
e. To commence or defend suits or legal proceedings and to
represent the Trust in all suits or legal proceedings; to settle,
compromise or submit to arbitration, any claims, debts or damages, due
or owing to or from the Trust.
f. To exercise, personally or by general or limited power of
attorney, any right, including the right to vote, appurtenant to any
securities or other such property.
g. To borrow money from any lender in such amounts and upon such
terms and conditions as shall be deemed advisable or proper to carry
out the purposes of the Trust and to pledge any securities or other
property for the repayment of any such loan.
h. To engage any legal counsel, including counsel to the Company,
any enrolled actuary, or any other suitable agents, to consult with
such counsel, enrolled actuary, or agents with respect to the
construction of this Trust Agreement, the duties of
9
the Trustee hereunder, the transactions contemplated by this Trust
Agreement or any act which the Trustee proposes to take or omit, to
rely upon the advice of such counsel, enrolled actuary or agents, and
to pay its reasonable fees, expenses and compensation.
i. To register any securities held by it in its own name or in
the name of any custodian of such property or of its nominee,
including the nominee of any system for the central handling of
securities, with or without the addition of words indicating that such
securities are held in a fiduciary capacity, to deposit or arrange for
the deposit of any such securities with such a system and to hold any
securities in bearer form.
j. To make, execute and deliver, as Trustee, any and all deeds,
leases, notes, bonds, guarantees, mortgages, conveyances, contracts,
waivers, releases or other instruments in writing necessary or proper
for the accomplishment of any of the foregoing powers.
k. To transfer assets of the Trust Fund to a successor trustee as
provided in Section 12.4.
l. To exercise, generally, any of the powers which an individual
owner might exercise in connection with property either real, personal
or mixed held by the Trust Fund, and to do all other acts that the
Trustee may deem necessary or proper to carry out any of the powers
set forth in this Section 5 or otherwise in the best interest of the
Trust Fund.
10
SECTION 6. PAYMENTS BY THE TRUSTEE.
6.1 The establishment of the Trust and the payment or delivery to
the Trust of money or other property acceptable to the Trustee shall not vest
in Plan participants or their beneficiaries any right, title or interest in and
to any assets of the Trust, except as otherwise set forth in this Section 6.
6.2 The Trustee shall make payment of Plan benefits to
participants and beneficiaries of the Plan from the assets held in their
respective Accounts, if any, to the extent such assets are available for
distribution, in accordance with the terms and conditions set forth in the Plan
and subject to the election, if any, of the participant or his beneficiary
thereunder. In no event shall the Account of any participant or beneficiary be
used for the purpose of providing benefits to any other participant or
beneficiary of the Plan.
6.3 If the participant's Account is not sufficient to make one or
more payments of benefits due under the Plan to such participant or his
beneficiary in accordance with the terms of the Plan, the Company shall make
the balance of each such payment as it falls due.
6.4 Notwithstanding anything contained in this Trust Agreement to
the contrary, if at any time the Trust finally is determined by the Internal
Revenue Service ("IRS") not to be a "grantor trust" with the result that the
income of the Trust Fund is not treated as income of the Company pursuant to
Subpart E of Subchapter J of the Code, or if a tax is finally determined by the
IRS or is determined by counsel to the Trustee to be payable by any Plan
participant or beneficiary in respect
11
of any vested interest in the Trust Fund prior to payment of such interest to
such participant or beneficiary, then the Trust shall immediately terminate and
the full fair market value of the assets in the Trust Fund shall be returned to
the Company. The Company shall fully reimburse each participant and their
beneficiaries for any tax liability they may incur pursuant to the operation of
this Section. For purposes of this Section, a final determination of the IRS
shall be a decision rendered by the IRS which is no longer subject to
administrative appeal within the IRS.
6.5 Notwithstanding any provision herein to the contrary, with
respect to each participant of the Plan, in the event of a change in control of
the Company, the Trustee shall immediately distribute in one lump sum to such
participant (or his beneficiary in the event of the participant's death) the
entire value of such participant's Account. Within thirty (30) days following
payment of the value of the participant's Account pursuant to this Section 6.5,
the Company shall determine the excess, if any, of the participant's lump sum
benefit payable, determined as of the date of the change in control of the
Company, over the amount of such participant's Account actually distributed
hereunder, and the Company shall immediately thereafter pay such excess to the
participant (or his beneficiary in the event of his death) in one lump sum cash
payment. In the event the amount of the participant's Account paid to him or
his beneficiary exceeds the participant's lump sum benefit payable, determined
as of the date of the change in control of the Company, the participant or his
beneficiary shall return such excess to the Company. The Trustee shall be
indemnified and held harmless by the Company in making a payment pursuant to
such notification. The Trustee shall not be required to
12
make an independent inquiry or decision with respect to the amount of any
payment which may be made pursuant to this Section 6.5 or the validity of any
notice hereunder.
For purpose of this Section 6.5, the term "change in control" shall
mean (a) the purchase or other acquisition in one or more transaction other
than from the Company, by any individual, entity or group of persons, within
the meaning of section 13(d)(3) or 14(d) of the Securities Exchange Act of 1934
or any comparable successor provisions, or beneficial ownership (within the
meaning of Rule 13d-3 of Securities Exchange Act of 1934) of 30 percent or more
of either the outstanding shares of common stock or the combined voting power
of the Company's then outstanding voting securities entitled to vote generally,
or (b) the approval by the stockholders of the Company of a reorganization,
merger, or consolidation, in each case, with respect to which persons who were
stockholders of the Company immediately prior to such reorganization, merger or
consolidation do not immediately thereafter own more than 50 percent of the
combined voting power of the reorganized, merged or consolidated Company's then
outstanding securities that are entitled to vote generally in the election of
directors or (c) the sale of substantially all of the Company's assets;
provided however, if any event described in (a) (b) or (c) shall be approved by
a two-thirds vote of the full Board, then it shall not constitute a Change of
Control.
6.6 Notwithstanding anything in this Trust Agreement to the
contrary, the Company shall remain primarily liable under the Plan to pay
benefits. However, the Company's liability under the Plan shall be reduced or
offset to the extent and by the value of any benefit payments
13
under the Plan made from the Trust.
6.7 The Trustee shall deduct from each payment under this Trust
Agreement any Federal, state or local withholding or other taxes or charges
which the Trustee may be required to deduct under applicable laws.
SECTION 7. FUNDING OF THE TRUST.
7.1 Amounts held for the benefit of each participant and
beneficiary in the Trust shall be maintained in a separate account (the
"Account") which shall be held, administered and accounted for separately for
each participant or beneficiary. Separate accounting records shall be
maintained so that the amount held in each participant's and beneficiary's
Account shall be identifiable at all times. Each Account shall consist of, and
be increased by, contributions made by the Company which are designated by the
Company as the property of such Account and shall be decreased by distributions
made therefrom. The Company shall make contributions to such Accounts from
time to time in accordance with such funding method and policy as will permit
the Trust to make payment of benefits provided by the Plan. In addition, the
Trustee shall allocate and credit the Net Income of the Trust to the Accounts
of participants and beneficiaries on the last day of each calendar year (the
"Allocation Date"), pro rata based on the respective Account balances of each
participant and beneficiary on such date; provided, however that in no event
shall the Account of any participant or beneficiary at any time exceed the
maximum lump sum benefit payable under the Plan to such participant or
beneficiary. If as a result of the foregoing, all or a portion of any Net
Income
14
otherwise allocable to the Account of any participant or beneficiary on the
Allocation Date cannot be so allocated, such Net Income shall be allocated and
credited to the Accounts for all other participants and beneficiaries whose
Accounts do not exceed the maximum lump sum benefit payable to them under the
Plan pro rata based on the respective Account balances of each such participant
and beneficiary on such Allocation Date (determined without regard to the
allocation of any Net Income to such Accounts on such date). To the extent
that any Net Income cannot be allocated to the Accounts of participants and
beneficiaries pursuant hereto, such Net Income shall be paid to the Company.
For purposes of the foregoing, Net Income shall mean the net gain or loss of
the Trust from investments, as reflected by interest payments, dividends,
realized and unrealized gains and losses on securities, other investment
transactions and expenses paid from the Trust. In determining the Net Income
of the Trust as of any date, assets shall be valued on the basis of their then
fair market value.
SECTION 8. TRUSTEE RESPONSIBILITY REGARDING PAYMENTS TO PARTICIPANTS AND
BENEFICIARIES WHEN COMPANY IS INSOLVENT.
8.1 It is the intent of the parties hereto that the Trust assets
are and shall remain at all times subject to the claims of the general creditors
of the Company. Accordingly, the Company shall not create a security interest in
the Trust assets in favor of the participants and beneficiaries of the Plan or
any creditor. If the Trustee receive the notice provided for in Section 8.2
hereof, or otherwise receives actual notice that the Company is insolvent or
bankrupt as defined in Section 8.2 hereof, the Trustee will make no further
distributions from the Trust to any of the participants or beneficiaries of the
Plan but will deliver the entire amount of the Trust assets only as a court of
15
competent jurisdiction, or duly appointed receiver or other person authorized
to act by such a court, may direct to make the Trust assets available to
satisfy the claims of the Company's general creditors. The Trustee shall
resume distributions from the Trust to the participants and beneficiaries of
the Plan under the terms hereof, upon no less than thirty (30) days' advance
notice to the Company, if it determines that the Company was not, or is no
longer, bankrupt or insolvent. Unless the Trustee has actual knowledge of the
Company's bankruptcy or insolvency, the Trustee shall have no duty to inquire
whether the Company is bankrupt or insolvent.
8.2 The Company, through its Board or Chief Financial Officer,
shall advise the Trustee promptly in writing of the Company's bankruptcy or
insolvency. The Company shall be deemed to be bankrupt or insolvent upon the
occurrence of any of the following:
a. The Company or the Bank shall make an assignment for the
benefit of creditors, file a petition in bankruptcy, petition or apply
to any tribunal for the appointment of a custodian, receiver,
liquidator, sequestrator, or any trustee for it or a substantial part
of its assets, or shall commence any case under any bankruptcy,
reorganization, arrangement, readjustment or debt, dissolution, or
liquidation law or statute of any jurisdiction (federal or state),
whether now or hereafter in effect; or if there shall have been filed
any such petition or application, or any such case shall have been
commenced against it, in which an order for relief is entered or which
remains undismissed; or the Company or the Bank by any act or
commission shall indicate its consent to, approval of or acquiescence
in any such petition,
16
application or case or order for relief or to the appointment of a
custodian, receiver or any trustee for it or any substantial part of
any of its property, or shall suffer any such custodianship,
receivership, or trusteeship to continue undischarged; or
b. The Company or the Bank shall generally not pay its debts as
such debts become due or shall cease to pay its debts in the ordinary
course of business; or
c. A conservator or receiver shall be appointed for the Company
or the Bank by any Federal or State regulatory agency.
8.3 If the Trustee discontinues payments of benefits under the
Plan from the Trust pursuant to Section 8.1 of this Trust Agreement and
subsequently resumes such payments, the first payment to a participant or
beneficiary following such discontinuance shall include the aggregate amount of
all payments which would have been made to the participant or beneficiary in
accordance with the Plan during the period of such discontinuance, less the
aggregate amount of payments of benefits under the Plan made to the participant
or his beneficiary by the Company during any such period of discontinuance.
SECTION 9. THIRD PARTIES.
9.1 A third party dealing with the Trustee shall not be required
to make inquiry as to the authority of the Trustee to take any action nor be
under any obligation to see to the proper application by the Trustee of the
proceeds of sale of any property sold by the Trustee or
17
to inquire into the validity or propriety of any act of the Trustee.
SECTION 10. TAXES, EXPENSES AND COMPENSATION.
10.1 The Company shall from time to time pay taxes of any and all
kinds whatsoever which at any time are lawfully levied or assessed upon or
become payable in respect of the Trust Fund, the income or any property forming
a part thereof, or any security transaction pertaining thereto. To the extent
that any taxes lawfully levied or assessed upon the Trust Fund are not paid by
the Company, the Trustee shall pay such taxes out of the Trust Fund. The
Trustee shall withhold Federal, State and local taxes from any payments made to
a participant or beneficiary in accordance with the provisions of applicable
law. The Trustee shall contest the validity of taxes in any manner deemed
appropriate by the Company or its counsel, but at the Company's expense, and
only if it has received an indemnity bond or other security satisfactory to it
to pay any such expenses. In the alternative, the Company may itself contest
the validity of any such taxes.
10.2 The Company shall pay the Trustee such reasonable compensation
for its services as may be agreed upon in writing from time to time by the
Company and the Trustee. The Company shall also pay the reasonable expenses
incurred by the Trustee in the performance of its duties under this Trust
Agreement, including brokerage commissions and fees of counsel engaged by the
Trustee. Such compensation and expenses shall be charged against and paid from
the Trust Fund to the extent that the Company does not pay such compensation.
18
SECTION 11. ADMINISTRATION AND RECORDS.
11.1 The Trustee shall keep or cause to be kept accurate and
detailed accounts of any investments, receipts, disbursements and other
transactions hereunder and all necessary and appropriate records required to
identify correctly and reflect accurately the interest of each participant or
beneficiary, and all accounts, books and records relating thereto shall be open
to the inspection and audit at all reasonable times by any person designated by
the Company. All such accounts, books and records shall be preserved (in
original form, or on microfilm, magnetic tape or any other similar process) for
such period as the Trustee may determine, but the Trustee may only destroy such
accounts, books and records after first notifying the Company in writing of its
intention to do so and transferring to the Company any of such accounts, books
and records requested.
11.2 Within 120 days after the close of each calendar year, and
within 120 days after the removal or resignation of the Trustee or the
termination of the Trust, the Trustee shall file with the Company a written
account setting forth all investments, receipts, disbursements and other
transactions effected by it during the preceding calendar year, or during the
period from the close of the preceding calendar [year] to the date of such
removal, resignation or termination, including a description of all investments
and securities purchased and sold with the cost or net proceeds of such
purchases or sales and showing of all cash, securities and other property held
at the end of such calendar year or other period.
19
11.3 The Trustee shall from time to time permit an independent
public accountant selected by the Company (except one to whom the Trustee has
reasonable objection) to have access during ordinary business hours to such
records as may be necessary to audit the Trustee's accounts.
11.4 As of the last day of each calendar year, the fair market
value of the assets held in the Trust Fund shall be determined. Within 120
days after the close of each calendar year, the Trustee shall file with the
Company the written report of the determination of such fair market value of
the assets held in the Trust Fund.
11.5 Nothing contained in this Trust Agreement shall be construed
as depriving the Trustee, the Company or any participant of beneficiary of the
right to have a judicial settlement of the Trustee's accounts, and upon any
proceeding for a judicial settlement of the Trustee's account or for
instructions the only necessary parties hereto in addition to the Trustee shall
be the Company and the participants or their beneficiaries.
11.6 In the event of the removal or resignation of the Trustee, the
Trustee shall deliver to the successor Trustee all records which shall be
required by the successor Trustee to enable it to carry out the provisions of
this Trust Agreement.
11.7 In addition to any returns required of the Trustee by law, the
Trustee shall prepare and file such tax reports and other returns as the
Company and the Trustee may from time to time agree.
20
SECTION 12. REMOVAL OR RESIGNATION OF THE TRUSTEE AND DESIGNATION OF
SUCCESSOR TRUSTEE.
12.1 At any time the Company may remove the Trustee with or without
cause, upon at least 60 days' notice in writing to the Trustee. A copy of such
notice shall be sent to the Trustee.
12.2 The Trustees may resign at any time upon at least 60 days'
notice in writing to the Company.
12.3 In the event of such removal or resignation, the Trustee shall
duly file with the Company a written account as provide in Section 11.2 of this
Trust Agreement for the period since the last previous annual accounting,
listing the investments of the Trust and any uninvested cash balance thereof,
and setting forth all receipts, disbursements, distributions and other
transactions respecting the Trust not included in any previous account.
12.4 Within 60 days after any such notice of removal or resignation
of the Trustee, the Company shall designate a successor Trustee qualified to
act hereunder. Each successor Trustee, during each period as it shall act as
such, shall have the powers and duties herein conferred upon the Trustee, and
the word "Trustee" wherever used herein, except where context otherwise
requires, shall be deemed to include any successor Trustee. Upon designation
of a successor Trustee and deliver to the resigned or removed Trustee of
written acceptance by the successor Trustee of such designation, such resigned
or removed Trustee shall promptly assign, transfer, deliver and pay over to
such Trustee, in conformity with the requirements of applicable law, the funds
and
21
properties in its control or possession then constituting the Trust Fund.
SECTION 13. ENFORCEMENT OF TRUST AGREEMENT AND LEGAL PROCEEDINGS.
13.1 The Company shall have the right to enforce any provision of
this Trust Agreement, and any participant or beneficiary of the Plan shall have
the right to enforce any provision of this Trust Agreement that affects the
right, title and interest of such participant or beneficiary, if any, in the
Trust. In any action or proceedings affecting the Trust the only necessary
parties shall be the Company, the Trustee and participants and beneficiaries of
the Plan and, except as otherwise required by applicable law, no other person
shall be entitled to any notice or service of process. Any judgement entered
in such an action or proceeding shall to the maximum extent permitted by
applicable law be binding and conclusive on all persons having or claiming to
have any interest in the Trust.
SECTION 14. TERMINATION AND SUSPENSION.
14.1 The Trust shall terminate when all payments which have or may
become payable pursuant to the terms of the Trust have been made and any
remaining assets shall then be paid by Trustee to the Company.
SECTION 15. AMENDMENTS.
15.1 The Company may from time to time amend or modify, in whole or
in part, any or all of the provisions of this Trust Agreement (except Sections
1.1, 3.1, 6, 11, 12.4, 13, 14, 15 and 17) with the written
22
consent of the Trustee, but without the consent of any participant or
beneficiary of the Plan, provided that any such amendment shall not adversely
affect the rights of any participant or beneficiary hereunder, or cause the
Trust to cease to constitute a grantor trust as described in Section 6.4 of
this Trust Agreement.
15.2 The Company and the Trustee shall execute such supplements to,
or amendments of, this Trust Agreement as shall be necessary to give effect to
any such amendment or modification.
SECTION 16. NONALIENATION.
16.1 Except insofar as applicable law may otherwise require and
subject to Sections 1.1, 3.1 and 8 of this Trust Agreement, (i) no amount
payable to or in respect of any participant or beneficiary at any time under
the Trust shall be subject in any manner to alienation by anticipation, sale,
transfer, assignment, bankruptcy, pledge, attachment, charge or encumbrance of
any kind, and any attempt to so alienate, sell transfer, assign, pledge,
attach, charge or otherwise encumber any such amount, whether presently or
thereafter payable, shall be void; and (ii) the Trust Fund shall in no manner
be liable for or subject to the debts or liabilities of a participant or
beneficiary.
SECTION 17. COMMUNICATIONS.
17.1 Communications to the Company shall be addressed to Brunswick
Bank and Trust, X.X. Xxx 00, Xxx Xxxxxxxxx, XX 00000, Attention: Chief
Financial Officer; provided, however, that upon the Company's written request,
such communications shall be sent to such other address as the
23
Company may specify.
17.2 Communications to the Trustee shall be addressed to Brunswick
Bank and Trust, X.X. Xxx 00, Xxx Xxxxxxxxx, XX 00000, Attention: Xxxxx Xxxxxx;
provided, however, that upon the Trustee's written request, such communications
shall be sent to such other address as the Trustee may specify.
17.3 No communication shall be binding on the Trustee until it is
received by the Trustee, no communication shall be binding on the Company until
it is received by the Company, and no communication shall be binding on any
participant or beneficiary until it is received by the participant or
beneficiary.
17.4 Any action of the Company pursuant to this Trust Agreement,
including all order, requests, directions, instructions, approvals and
objections of the Company to the Trustee, shall be in writing, signed on behalf
of the Company by any duly authorized officer of the Company. Any action by
any participant or beneficiary shall be in writing. The Trustee may rely on,
and will be fully protected with respect to any such action taken or omitted in
reliance on, any information, order, request, direction, instruction, approval,
objection, and list delivered to the Trustee by the Company or, to the extent
applicable under this Trust Agreement, by a participant or beneficiary.
SECTION 18. MISCELLANEOUS PROVISIONS.
18.1 This Trust Agreement shall be binding upon and inure to the
benefit of the Company and the Trustee and their respective successors
24
and assigns and the personal representatives of individuals.
18.2 The Trustee assumes no obligation or responsibility with
respect to any action required by this Trust Agreement on the part of the
Company.
18.3 Each participant or beneficiary shall file with the Trustee
such pertinent information concerning himself, and any other person as the
Trustee shall specify, and the participant or beneficiary shall have no rights
nor be entitled to any benefits under the Trust unless such information is
filed by or with respect to him.
18.4 Any corporation into which the Trustee may be merged or with
which it may be consolidated, or any corporation resulting from any merger,
reorganization or consolidation to which the Trustee may be a party, or any
corporation to which all or substantially all the trust business of the Trustee
may be transferred shall be the successor of the Trustee hereunder without the
execution of filing of any instrument or the performance of any act.
18.5 Title to the Sections of this Trust Agreement are included for
convenience only and shall not control the meaning or interpretation of any
provision of this Trust Agreement.
18.6 This Trust Agreement and the Trust established hereunder shall
be governed by and construed, enforced and administered in accordance with the
law of the State of New Jersey, and the Trustee shall be liable to account only
in the courts of the State of New Jersey.
25
18.7 This Trust Agreement may be executed in any number of
counterparts, each of which shall be deemed to be the original although the
others shall not be produced.
IN WITNESS WHEREOF, this Trust Agreement has been duly executed by the
parties hereto as of the day and year first above written.
By:
--------------------------------
Brunswick Bank and Trust Company
Attest
---------------------------
Assistant Secretary
By:
--------------------------------
Brunswick Bancorp
Attest
---------------------------
By:
--------------------------------
Xxxxxx Xxxxxxx
Attest
---------------------------
26
THE BRUNSWICK BANK AND TRUST COMPANY
NON-QUALIFIED DEFERRED
COMPENSATION PLAN
27
The Brunswick Bank and Trust Company Non-Qualified
Deferred Compensation Plan
ARTICLE 1 - INTRODUCTION
1.1 PURPOSE OF PLAN
The Company has adopted the Brunswick Bank and Trust Company Non-Qualified
Deferred Compensation Plan set forth herein to provide a means by which to
retain the continued employment of certain key employees by offering the
special incentive of a deferred compensation plan.
1.2 STATUS OF PLAN
The Plan is intended to be "a plan which is unfunded and is maintained by an
employer primarily for the purpose of providing deferred compensation for a
select group of management or highly compensated employees" within the meaning
of Sections 201(2) and 301(a)(3) of the Employee Retirement Income Security Act
of 1974 ("ERISA"), and shall be interpreted and administered to the extent
possible in a manner consistent with that intent.
ARTICLE 2 - DEFINITIONS
Wherever used herein, the following terms have the meanings set forth below,
unless a different meaning is clearly required by the context:
2.1 ACCOUNT means, for each Participant, the account established for his
or her benefit under Section 5.1.
28
2.2 CHANGE OF CONTROL means (a) the purchase or other acquisition in one
or more transaction other than from the Company, by any individual, entity or
group of persons, within the meaning of section 13(d)(3) or 14(d) of the
Securities Exchange Act of 1934 or any comparable successor provisions, or
beneficial ownership (within the meaning of Rule 13d-3 of Securities Exchange
Act of 1934) of 30 percent or more of either the outstanding shares of common
stock or the combined voting power of the Company's then outstanding voting
securities entitled to vote generally, or (b)the approval by the stockholders
of the Company of a reorganization, merger, or consolidation, in each case,
with respect to which persons who were stockholders of the Company immediately
prior to such reorganization, merger or consolidation do not immediately
thereafter own more than 50 percent of the combined voting power of the
reorganized, merged or consolidated Company's then outstanding securities that
are entitled to vote generally in the election of directors or (c) the sale of
substantially all of the Company's assets, provided, however, if any event
described in (a) (b) or (c) shall be approved by a two-thirds vote of the full
Board, then it shall not constitute a Change of Control.
2.3 CODE means the Internal Revenue Code of 1986, as amended from time to
time. Reference to any section or subsection of the Code includes reference to
any comparable or succeeding provisions of any legislation which amends,
supplements or replaces such section or subsection.
2.4 EFFECTIVE DATE means the date chosen in the Adoption Agreement as of
which the Plan first becomes effective.
29
2.5 ELIGIBLE EMPLOYEE means, on the Effective Date or on any Entry Date
thereafter, each employee of the Company designated in the Adoption Agreement,
or subsequently designated by the Compensation Committee of the Board of
Directors.
2.6 BANK means Brunswick Bank and Trust Company, any successor to all or a
major portion of the Bank's assets or business which assumes the obligations of
the Bank, and each other entity that is affiliated with the Bank which adopts
the Plan with the consent of the Bank, provided that the Bank that signs the
Adoption Agreement shall have sole power to amend this Plan and shall be the
Plan Administrator if no other person or entity is so serving at any time.
2.7 BANCORP means Brunswick Bancorp.
2.8 COMPANY means Brunswick Bancorp together with Brunswick Bank and Trust
Company.
2.9 ERISA means the Employee Retirement Income Security Act of 1974, as
amended from time to time. Reference to any section or subsection of ERISA
includes reference to any comparable or succeeding provisions of any
legislation which amends, supplements or replaces such section or subsection.
2.10 INCENTIVE CONTRIBUTION means a discretionary additional contribution
made by the Company as described in Section 4.1.
30
2.11 INSOLVENT means the occurrence of any of the following:
a. The Company or the Bank shall make an assignment for the benefit of
creditors, file a petition in bankruptcy, petition or apply to any
tribunal for the appointment of a custodian, receiver, liquidator,
sequestrator, or any trustee for it or a substantial part of its
assets, or shall commence any case under any bankruptcy,
reorganization, arrangement, readjustment or debt, dissolution, or
liquidation law or statute of any jurisdiction (federal or state),
whether now or hereafter in effect; or if there shall have been filed
any such petition or application, or any such case shall have been
commenced against it, in which an order for relief is entered or which
remains undismissed; or the Company or the Bank by any act or
commission shall indicate its consent to, approval of or acquiescence
in any such petition, application or case or order for relief or to
the appointment of a custodian, receiver or any trustee for it or any
substantial part of any of its property, or shall suffer any such
custodianship, receivership or trusteeship to continue undischarged;
or
b. The Company or the Bank shall generally not pay its debts as such
debts become due or shall cease to pay its debts in the ordinary
course of business; or
c. A conservator or receiver shall be appointed for the Company or the
Bank by any Federal or State regulatory agency.
2.12 PARTICIPANT means any individual who participates in the Plan in
accordance with Article 3.
31
2.13 PLAN means the Brunswick Bank and Trust Company Non-Qualified Deferred
Compensation plan for Select Employees and the Adoption Agreement and all
amendments thereto.
2.14 PLAN ADMINISTRATOR means the person, persons or entity designated by
the Company in the Adoption Agreement to administer the Plan and to serve as
the agent with respect to the Trust as contemplated by the agreement
establishing the Trust. If no such person or entity is so serving at any time,
the Company shall be the Plan Administrator.
2.15 PLAN YEAR means the 12-month period chosen in the Adoption Agreement.
2.16 TOTAL AND PERMANENT DISABILITY means the inability of a Participant 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 which has lasted or can be expected to last for a continuous period of
not less than 12 months, and the permanence and degree of which shall be
supported by medical evidence satisfactory to the Plan Administrator.
2.17 TRUST means the trust established by the Company that identifies the
Plan as a plan with respect to which assets are to be held by the Trustee.
2.18 TRUSTEE means the trustee or trustees under the Trust.
2.19 YEAR OF SERVICE means the computation period and service requirement
elected in the Adoption Agreement.
32
ARTICLE 3 - PARTICIPATION
3.1 COMMENCEMENT OF PARTICIPATION
Any individual designated through a corporate resolution in accordance with
Section 4.1 shall become a Participant in the Plan as of such date in
accordance with Section 4.1. Any individual who is not already a Participant
and whose Account is credited with an Incentive Contribution shall become a
Participant as of the date such amount is credited.
3.2 CONTINUED PARTICIPATION
A Participant in the plan shall continue to be a Participant so long as any
amount remains credited to his or her Account.
ARTICLE 4 - CONTRIBUTIONS
4.1 INCENTIVE CONTRIBUTIONS
The Company may, in its sole discretion, select one or more Eligible Employees
to receive an Incentive Contribution to his or her Account on such terms as the
Company shall specify at the time it makes the contribution. For example, the
Company may contribute an amount to a Participant's Account and condition the
payment of that amount and accrued earnings thereon upon the Participant
remaining employed by the Company for an additional specified period of time.
The terms specified by the Company shall supersede any other provision of this
Plan as regards Incentive Contribution and earnings with respect thereto. The
Company, in its discretion, may permit the Participant to designate a
distribution schedule for a particular Incentive Contribution provided that
such designation is made prior to the time that the Company finally determines
that the Participant will receive the Incentive Contribution.
33
ARTICLE 5 - ACCOUNTS
5.1 ACCOUNTS
The Plan Administrator shall establish an Account for each Participant
reflecting Incentive Contributions made for the Participant's benefit together
with any adjustments for income, gain or loss and any payments from the
Account. The Plan Administrator may cause the Trustee to maintain and invest
separate assets accounts corresponding to each Participant's Account. The Plan
Administrator shall establish sub-accounts for each Participant that has more
than one election in effect under Section 7.1 and such other sub- accounts as
are necessary for the proper administration of the Plan. As of the last
business day of each calendar quarter, the Plan Administrator shall provide the
Participant with a statement of his or her Account reflecting the income, gains
and losses (realized and unrealized), amounts of deferrals, and distributions
of such Account since the prior statement.
5.2 INVESTMENTS
The assets of the Trust shall be invested in such investments as the Trustee
shall determine. The Trustee may (but is not required to) consider the
Company's or a Participant's investment preferences when investing the assets
attributable to a Participant's Account.
ARTICLE 6 - VESTING
6.1 GENERAL
A Participant shall become vested in the portion of his or her Account
attributable to Incentive Contributions and income and gain attributable
thereto in accordance with the schedule selected by the Company in the Adoption
Agreement, subject to earlier vesting in accordance with Section 6.3, 6.4, and
6.5.
34
6.2 VESTING SERVICE
For purposes of applying the vesting schedule, a Participant shall be
considered to have completed a Year of Service for each complete year of
full-time service with the Company or an Affiliate, measured from the
Participant's first date of such employment, unless the Company also maintain a
401(k) plan that is qualified under section 401(a) of the Internal Revenue Code
in which the Participant participates, in which case the rules governing
vesting service under that plan shall also be controlling under this Plan.
6.3 CHANGE OF CONTROL
A Participant shall become fully vested in his or her Account immediately prior
to a Change of Control of the Company.
6.4 DEATH OR DISABILITY
A Participant shall become fully vested in his or her Account immediately prior
to termination of the Participant's employment by reason of the Participant's
death or Total and Permanent Disability. Whether a Participant's termination
of employment is by reason of the Participant's Total and Permanent Disability
shall be determined by the Plan Administrator in its sole discretion.
6.5 INSOLVENCY
A Participant shall become fully vested in his or her Account immediately prior
to the Company or the Bank becoming Insolvent, in which case the Participant
will have the same rights as a general creditor of the Company with respect to
his or her Account balance.
35
ARTICLE 7 - PAYMENTS
7.1 ELECTION AS TO TIME AND FORM OF PAYMENT
A Participant shall elect the date at which the vested Incentive Contributions
(including any earnings attributable thereto) will commence to be paid to the
Participant. The Participant shall also elect thereon for payments to be paid
in either:
a. a single lump-sum payment; or
b. annual installments over a period elected by the Participant up to 10
years, the amount of each installment to equal the balance of his or
her Account immediately prior to the installment divided by the number
of installments remaining to be paid.
Each such election will be effective for the Plan Year for which it is made and
succeeding Plan Years, unless changed by the Participant. Any change will be
effective only for Incentive Contributions made for the first Plan Year
beginning after the date on which the Election Form containing the change is
filed with the Plan Administrator. Except as provided in Sections 7.2, 7.3,
7.4, or 7.5, payment of a Participant's Account shall be made in accordance
with the Participant's election under this Section 7.1.
7.2 CHANGE OF CONTROL
As soon as possible following a Change of Control of the Company, each
Participant shall be paid his or her entire Account balance (including any
amount vested pursuant to Section 6.3) in a single lump sum.
36
7.3 TERMINATION OF EMPLOYMENT
Upon termination of a Participant's employment for any reason other than death,
the vested portion of the Participant's Account (including any portion vested
pursuant to Section 6.4 as a consequence of the Participant's Total and
Permanent Disability) shall be paid to the Participant in a single lump sum as
soon as practicable following the date of such termination; provided, however,
that the Plan Administrator, in its sole discretion, may pay out a
Participant's Account balance in annual installments if the Participant's
employment terminates by reason of the Participant's Total and Permanent
Disability.
7.4 DEATH
If a Participant dies prior to the complete distribution of his or her Account,
the balance of the Account shall be paid as soon as practicable in a single
lump sum payment to the estate of the Participant.
7.5 UNFORESEEN EMERGENCY
If a Participant suffers an unforeseen emergency, as defined herein, the Plan
Administrator, in its sole discretion, may pay to the Participant only that
portion, if any, of the vested portion of his or her Account which the Plan
Administrator determines is necessary to satisfy the emergency need, including
any amounts necessary to pay any federal, state or local income taxes
reasonably anticipated to result from the distribution. A Participant
requesting an emergency shall apply for the payment in writing in a form
approved by the Plan Administrator and shall provide such additional
information as the Plan Administrator may require.
37
For purposes of this paragraph, "unforeseen emergency" means an immediate and
heavy financial need resulting from any of the following:
a. expenses which are not covered by insurance and which the Participant
or his or her spouse or dependent has incurred as a result of, or is
required to incur in order to receive, medical care;
b. the need to prevent eviction of a Participant from his or her
principal residence or foreclosure on the mortgage of the
Participant's principal residence; or
c. any other circumstance that is determined by the Plan Administrator in
its sole discretion to constitute an unforeseen emergency which is not
covered by insurance and which cannot reasonably be relieved by the
liquidation of the Participant's assets.
7.6 FORFEITURE OF NON-VESTED AMOUNTS
To the extent that any amounts credited to a Participant's Account are not
vested at the time such amounts are otherwise payable under Sections 7.1 or
7.3, such amounts shall be forfeited and shall be used to satisfy the
Employer's obligation to make contributions to the Trust under the Plan.
7.7 TAXES
All federal, state or local taxes that the Plan Administrator determines are
required to be withheld from any payments made pursuant to this Article 7 shall
be withheld.
38
ARTICLE 8 - PLAN ADMINISTRATOR
8.1 PLAN ADMINISTRATION AND INTERPRETATION
The Plan Administrator shall oversee the administration of the Plan. The Plan
Administrator shall have complete control and authority to determine the rights
and benefits and all claims, demands and actions arising out of the provisions
of the Plan of any Participant, beneficiary, deceased Participant, or other
person having or claiming to have any interest under the Plan. The Plan
Administrator shall have complete discretion to interpret the Plan and to
decide all matters under the Plan. Such interpretation and decision shall be
final, conclusive and binding on all Participants and any person claiming under
or through any Participant, in the absence of clear and convincing evidence
that the Plan Administrator acted arbitrarily and capriciously. Any
individual(s) serving as Plan Administrator who is a Participant will not vote
or act on any matter relating solely to himself or herself. When making a
determination or calculation, the Plan Administrator shall be entitled to rely
on information furnished by a Participant, a beneficiary, the Company or the
Trustee. The Plan Administrator shall have the responsibility for complying
with any reporting and disclosure requirements of ERISA.
8.2 POWERS, DUTIES, PROCEDURES, ETC.
The Plan Administrator shall have such powers and duties, may adopt such rules,
may act in accordance with such procedures, may appoint such officers or
agents, may delegate such powers and duties, may receive such reimbursements
and compensation, and shall follow such claims and appeal procedures with
respect to the Plan as it may establish.
39
ARTICLE 9 - AMENDMENT AND TERMINATION
9.1 AMENDMENTS
The Company shall have the right to amend the Plan from time to time, subject
to Section 9.3, by an instrument in writing which has been executed on the
Company's behalf by its duly authorized officer.
9.2 TERMINATION OF PLAN
This Plan is strictly a voluntary undertaking on the part of the Company. The
Company reserves the right to terminate the Plan at any time, subject to
Section 9.3, by an instrument in writing which has been executed on the
Company's behalf by its duly authorized officer. Upon termination, the Company
may (a) elect to continue to maintain the Trust to pay benefits hereunder as
they become due as if the Plan had not terminated or (b) direct the Trustee to
pay promptly to Participants (or their beneficiaries) the vested balance of
their Accounts. For purposes of the preceding sentence, in the event the
Company chooses to implement clause (b), the Account balances of all
Participants who are in the employ of the Company at the time the Trustee is
directed to pay such balances shall become fully vested and nonforfeitable.
After Participants and their beneficiaries are paid all Plan benefits to which
they are entitled, all remaining assets of the Trust attributable to
Participants who terminated employment with the Company prior to termination of
the Plan and who were not fully vested in their Accounts under Article 6 at
that time shall be returned to the Company.
9.3 EXISTING RIGHTS
No amendment or termination of the Plan shall adversely affect the rights of
any Participant with respect to amounts that have been credited to his or her
Account prior to the date of such amendment or termination.
40
ARTICLE 10 - MISCELLANEOUS
10.1 NO FUNDING
The Plan constitutes a mere promise by the Company to make payments in
accordance with the terms of the Plan and Participants and beneficiaries shall
have the status of general unsecured creditors of the Company. Nothing in the
Plan will be construed to give any employee or any other person rights to any
specific assets of the Company or of any other person. In all events, it is
the intent of the Company that the Plan be treated as unfunded for tax purposes
and for purposes of Title I of ERISA.
10.2 NON-ASSIGNABILITY
None of the benefits, payments, proceeds or claims of any Participant or
beneficiary shall be subject to any claim of any creditor of any Participant or
beneficiary and, in particular, the same shall not be subject to attachment or
garnishment or other legal process by any creditor of such Participant or
beneficiary, nor shall any Participant or beneficiary have any right to
alienate, anticipate, commute, pledge, encumber or assign any of the benefits
or payments or proceeds which he or she may expect to receive, contingently or
otherwise, under the Plan.
10.3 LIMITATION OF PARTICIPANTS' RIGHTS
Nothing contained in the Plan shall confer upon any person a right to be
employed or to continue in the employ of the Company, or interfere in any way
with the right of the Company to terminate the employment of a Participant at
any time, with or without cause.
41
10.4 PARTICIPANTS BOUND
Any action with respect to the Plan taken by the Plan Administrator or the
Company or the Trustee or any action authorized by or taken at the direction of
the Plan Administrator, the Company or the Trustee shall be conclusive upon all
Participants and beneficiaries entitled to benefits under the Plan.
10.5 RECEIPT AND RELEASE
Any payment to any Participant or beneficiary in accordance with the provisions
of the Plan shall, to the extent thereof, be in full satisfaction of all claims
against the Company, the Plan Administrator and the Trustee under the Plan, and
the Plan Administrator may require such Participant of beneficiary, as a
condition precedent to such payment, to execute a receipt and release to such
effect. If any Participant of beneficiary is determined by the Plan
Administrator to be incompetent by reason of physical or mental disability
(including minority) to give a valid receipt and release, the Plan
Administrator may cause the payment or payments becoming due to such person to
be made to another person for his or her benefit without responsibility on the
part of the Plan Administrator, the Company or the Trustee to follow the
application of such funds.
10.6 GOVERNING LAW
The Plan shall be construed, administered, and governed in all respects under
and by the laws of the State of New Jersey. If any provision shall be held by
a court of competent jurisdiction to be invalid or unenforceable, the remaining
provisions hereof shall continue to be fully effective.
42
10.7 HEADINGS AND SUBHEADINGS
Headings and subheadings in this Plan are inserted for convenience only and are
not to be considered in the construction of the provisions hereof.
