SUSSEX BANCORP/SUSSEX BANK DIRECTOR DEFERRED COMPENSATION AGREEMENT
Exhibit
10
SUSSEX
BANCORP/SUSSEX BANK
THIS
DIRECTOR DEFERRED COMPENSATION AGREEMENT (the “Agreement”) is adopted this 19th
day of June, 2006, by and between SUSSEX BANCORP, a New Jersey bank holding
company (the “Company”), SUSSEX BANK, 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:
1.1
|
“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
|
“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
|
“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
|
“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
|
“Code”
means the Internal Revenue Code of 1986, as
amended.
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1.6
|
“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
|
“Deferrals”
means the amount of the Director’s Compensation which the Director elects
to defer according to this
Agreement.
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1.8
|
“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
1.9 “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.
1.10
|
“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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1.11
|
“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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1.12
|
“Effective
Date”
means June_____, 2006.
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1.13
|
“Fees”
means the total fees payable to the Director during a Plan
Year.
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1.14
|
“Normal
Retirement Age”
means the Director attaining age 75
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1.15
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“Normal
Retirement Date”
means the later of Normal Retirement Age or Separation from
Service.
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1.16
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“Plan
Administrator”
means the plan administrator described in Article
8.
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1.17
|
“Plan
Year”
means each twelve-month period commencing on January 1 and ending
on
December 1 of each year, other than the initial Plan 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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1.18
|
“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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2
1.19 | “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. |
1.20
|
“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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Fraud,
disloyalty, dishonesty or willful violation of any law or significant Company
or
Bank policy committed in connection with the Director's service.
1.21
|
“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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Article
2
Deferral
Election
2.1
|
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;
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2.2
|
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. 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.
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Article
3
Deferral
Account
3.1
|
Establishing
and Crediting.
The Bank shall establish a Deferral Account on its books for the
Director
and shall credit to the Deferral Account the following
amounts:
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(a)
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Any
Deferrals hereunder;
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(b)
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Interest
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
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3
this
Agreement, interest shall be credited on the Deferral Account at an annual
rate
equal to the
Crediting Rate,
compounded monthly; and
(ii)
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On
the last day of each month during any applicable installment period,
interest shall be credited on the unpaid Deferral Account balance
at an
annual rate equal to the
Crediting Rate,
compounded monthly.
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3.2
|
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
4.1
|
Normal
Retirement Benefit.
Upon the Normal Retirement Date, the Company and/or the Bank, depending
upon which Board the Director was a member of, 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 annual benefit shall be distributed to the Director in (12) equal
monthly installments commencing on the first day of the month following
Separation from Service. The annual benefit shall be distributed
to the
Director for ten (10) years.
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4.2
|
Early
Termination Benefit.
Upon Early Termination, the Company and/or the Bank, depending upon
which
Board the Director was a member of, 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 annual benefit shall be distributed to the Director in (12) equal
monthly installments commencing on the first day of the month following
Separation from Service. The annual benefit shall be distributed
to the
Director for ten (10) years.
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4.3
|
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,
depending upon
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4
which
Board the Director was a member of, shall distribute to the Director the benefit
described in this Section 4.3 in lieu of any other benefit under this
Article.
4.3.1
|
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
|
Distribution
of Benefit.
The annual benefit shall be distributed to the Director in (12) equal
monthly installments commencing on the first day of the month following
Normal Retirement Age.
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4.4
|
Change
in Control Benefit.
Upon a Change in Control followed by a Separation from Service, the
Company and/or the Bank, depending upon which Board the Director
was a
member of, 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
|
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
|
Distribution
of Benefit.
The annual benefit shall be distributed to the Director in (12) equal
monthly installments commencing on the first day of the month following
Separation from Service. The annual benefit shall be distributed
to the
Director for ten (10) years.
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4.5
|
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
|
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 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
|
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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5
(a) may
not
accelerate the time or schedule of any distribution, except as provided in
Section 409A of the Code and the regulations thereunder;
(b)
|
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)
|
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
|
Hardship
Distribution.
If an Unforeseeable Emergency occurs, the Director may petition the
Board
to receive a distribution from the Agreement. The Board in its sole
discretion may grant such petition. If granted, the Director shall
receive, within sixty (60) days, a distribution from the Agreement
(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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Article
5
Distributions
at Death
5.1
|
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
|
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
|
Distribution
of Benefit.
The annual benefit shall be distributed to the Beneficiary in (12)
equal
monthly installments commencing on the first day of the month commencing
within thirty (30) days following receipt by the Company and/or the
Bank
of the Director’s death certificate. The annual benefit shall be
distributed to the Beneficiary for ten (10)
years.
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5.2
|
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 by the Bank and/or
the
Company, depending upon which Board the Director was a member of,
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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6
5.3
|
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
6.1
|
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
|
Beneficiary
Designation: Change.
The Directors 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
|
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
|
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
|
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
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7
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.
Article
7
General
Limitations
7.1
|
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) 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
|
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)
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
8.1 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 administra-tion of this
Agreement and (ii) decide or resolve any and all ques-tions 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.
8.2 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.
8.3 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.
8
8.4
|
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
|
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 Compensation of its
Directors, the date and circum-stances 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
|
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
9.1
|
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
|
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 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
|
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
|
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:
|
(a)
|
The
specific reasons for the denial,
|
9
(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
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(d)
|
An
explanation of the Agreement’s review procedures and the time limits
applicable to such procedures.
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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:
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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.
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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.
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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.
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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.
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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
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(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.
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10
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.
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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.
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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.
11
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.
|
12
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.
|
13
IN
WITNESS WHEREOF, the Director, the Company and the Bank have signed this
Agreement
as of ______________, 2006
Director:
|
Bank:
|
|
SUSSEX
BANK
|
By:
|
||||
[Director]
|
||||
Title:
|
Company:
|
||
By:
|
|||
Title:
|
14
Fee
Election
Amount
of Deferral
|
Duration
|
[Initial
and Complete One]
____
I
elect to defer ______% of my Fees (amount not to exceed _____ %).
____
I
elect to defer $______________ of my Fees (amount not to exceed
$______________).
____ I
elect not to defer any of my Fees.
|
[Initial
and Complete One]
____
For
____ year(s)
____
For
all future Plan Years
|
Printed
Name:
|
|||
Signature:
|
Date:
|
Received
by the Plan Administrator this ________ day of ___________________,
2______
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:
|