Exhibit 10.1
COMMUNITY BANK OF THE CHESAPEAKE
EXECUTIVE INCENTIVE COMPENSATION PLAN
(as amended and restated effective January 1, 2016)
COMMUNITY BANK OF THE CHESAPEAKE
EXECUTIVE INCENTIVE COMPENSATION PLAN
(As, Amended and Restated Effective January 1, 2016)
ARTICLE I
GENERAL PROVISIONS
1.01 Purpose. This purpose ofThe Community Bank of the Chesapeake Executive Incentive Compensation Plan, as amended and restated is to align the interests of Participants with the interests of the Bank, the Company and Company shareholders by providing Participants with an opportunity to earn incentive compensation upon the achievement of Company, Bank (branch/department), and/or individual performance goals.
It is intended that the Plan be an unfunded plan maintained primarily to provide bonuses in the form of cash and non-cash compensation for a select group of management or highly compensated employees within the meaning of Section 201(2) of ERISA and that benefits provided under the Plan be taxable to Participants only when actually received. The Plan shall be administered, construed and interpreted in a manner consistent with the purpose and intent set forth in this Section.
1.02 Effective Date. The Plan was originally adopted effective January 1, 1992 and subsequently amended and restated on January 1, 1998, December 23, 2002, December 31, 2008, January 1, 2010 and January 1, 2015. The effective date of this restatement is January 1, 2016 (“Effective Date”).
ARTICLE II
DEFINITIONS
Unless the context clearly requires otherwise, the terms defined in this Article II shall, for all purposes of this Plan, have the respective meanings specified in this Article II.
2.01 “Affiliate” means any company that would be considered an affiliate of the Bank or the Corporation pursuant to Section 424 of the Code.
2.02 “Bank” means Community Bank of the Chesapeake.
2.03 “Beneficiary” means the person or persons designated as a Participant’s beneficiary or beneficiaries in accordance with Section 4.06 hereof.
2.04 “Benefits” shall mean, as to any Participant, any incentive compensation provided under Article IV hereof (also referred to as an Incentive Award in this Plan).
2.05 “Board” means the Board of Directors of the Bank.
2.06 Reserved.
2.07 “Cause” means personal dishonesty, incompetence, willful misconduct, breach of fiduciary duty involving personal profits, intentional failure to perform stated duties, willful violation of a material provision of any law, rule or regulation (other than traffic violations or similar offenses), or a material violation of a final cease-and-desist order or any other action which results in a material financial loss to the Bank. A determination of “Cause” shall be made by the Board within its sole discretion.
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2.08 “Chairman” means the Chairman of the Governance Committee who shall be responsible for coordinating all actions of the Committee.
2.09 “Code” means the Internal Revenue Code of 1986, as amended from time to time. References to a Code section shall include any comparable section or sections of future legislation that amends, supplements or supersedes such section.
2.10 “Committee” means the members of the Compensation Committee of the Board who are appointed to serve on the Committee. In the absence at any time of a duly appointed Committee, the Plan shall be administered by the Board.
2.11 “Compensation” means a Participant’s base salary for the calendar year, as adjusted from time to time. Base salary will include only amounts paid by the Bank (including such amounts contributable to the Bank’s 401(k) plan by employees) and will exclude amounts paid by third party providers, such as disability.
2.12 “Corporation” means The Community Financial Corporation.
2.13 “Employee” means any individual who performs service in the business of the Bank, the Corporation or any Affiliate, excluding any individual who performs such services as a self-employed person.
2.14 “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.
2.15 “Good Standing” means an employee’s overall performance meets expectations (as determined by the Bank) and the employee is not under corrective action or probation.
2.16 “Incentive Award” means cash or non-cash compensation paid to Participants pursuant to Article IV hereof (also referred to as a Benefit in this Plan).
2.17 “Maximum Incentive” means the maximum Incentive Award that can be earned under this Plan for maximum performance, subject to Committee discretion.
2.18 “Multiplier” means for any calendar year the percentage of the performance goals established by the Committee or the Board that the Bank has achieved.
The Committee shall work with management, and independent consultants from time to time, to set appropriate performance goals under the Plan by the end of the first quarter of each Performance Period. Once the goals are set, the Committee or its designee will communicate the performance goals to Participants (for each Performance Period) through performance scorecards. The Company performance goals may include, but are not limited to, NIATBI, Return on Assets (ROA), Return on Average Assets (ROAA), Return on Earnings (ROE), Earnings Per Share (EPS) or Non-Performing Loans,subject to the Committee’s discretion to take into account or to disregard any extraordinary financial events.
2.19 “NIATBI” means the net income (after taxes and before Benefits accrued for the fiscal year) of the Bank and its Affiliates, and shall be determined by the Committee in accordance with generally accepted accounting principles.
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2.20 “Participant” means an Employee who has become a Participant in the Plan as provided for in Article III.
2.21 “Performance Period” means January 1 – December 31st.
2.22 “Plan” means the Community Bank of the Chesapeake Executive Incentive Compensation Plan as herein set forth and as it may from time to time be amended.
2.23 “Target Incentive” means the Incentive Award that may be earned if level performance for each performance measure is satisfied (“Target Performance”), subject to Committee discretion. Target performance is based upon historical data and management’s best judgement as to expected performance during an applicable performance period.
2.24 “Threshold Incentive”means the Incentive Award determined by the Committee if Target Performance is not achieved, but the Committee determines a level of incentive opportunity is present.
ARTICLE III
ELIGIBILITY AND PARTICIPATION
The Committee shall have sole discretion to determine which Employees are eligible to participate in the Plan. The Committee may, in its sole discretion, limit eligibility for any reason including, but not limited to, ensuring that the Plan at all times complies with ERISA. Eligibility may be subject to fulfillment of conditions, if any, as the Committee, in its sole discretion, may impose. Employees are only eligible to participate in the Plan if they are in “Good Standing”.
ARTICLE IV
BENEFITS/INCENTIVE AWARDS
4.01 Incentive Awards. Commencing January 1, 2016, each Participant will have a pre-determined Threshold, Target and Maximum Incentive Award opportunity dependent upon his/her level of responsibility within the Bank, that is expressed as a percentage of such Participant’s Compensation as of the last day of the Performance Period (“Incentive Award Opportunity”). The Incentive Award Opportunities for each Participant for the applicable Performance Period will be approved by the Committee on an annual basis. The Committee has the authority to set and amend the Incentive Award Opportunity and the weighting of the criteria applicable to individual Participants in the Plan. Incentive Award Opportunities will be determined based on a combination of performance measures as determined by the Committee.
Unless otherwise specified in this Plan, Participants must be employed by the Bank on the date an Incentive Award is to be distributed in order to earn the Incentive Award under this Plan.In addition, all Participants must be in “Good Standing” in order for Incentive Awards to be earned under this Plan.
4.02 Recoupment. Notwithstanding anything herein to the contrary, the Committee may, to the extent permitted by applicable law and stock exchange rules or by any policies adopted by the Company or its affiliates, cancel or require reimbursement of an Incentive Award distributed under this Plan.
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4.04 Payment of Incentive Awards/Benefits. Incentive Awards/Benefits shall be determined by the Committee as soon as is practicable after the end of each Performance Period and will be calculated using a ratable approach. For purposes of this Plan, the ratable approach shall mean that payouts may be calculated as a proportion of the Threshold, Target and Maximum Incentive Award opportunities. If actual performance falls below between performance levels, the payout will also fall between the pre-defined performance level on a pro-rate basis. The Benefits or Incentive Awards, at the Committee’s discretion, will be in the form of cash and/or non-cash compensation. If an Incentive Award is distributed in Company common stock, the Incentive Award will be valued at the fair market value of the Company common stock as determined under The Community Financial Corporation 2015 Equity Compensation Plan or successor plans or such other method at the Committee’s discretion for stock awards. Incentive Awards distributed in Company common stock may also be subject to a vesting condition upon grant. Once the Benefits/Incentive Awards are determined by the Committee they will be paid in the payroll immediately following the determination of the Benefits/Incentive Awards, but in no event later than 75 days after the end of the applicable Performance Period. Employment on the distribution date is a condition of earning a Benefit/Incentive Award. In the event a Participant dies after the determination of the Incentive Award/Benefit but prior to distribution, the Participant’s Beneficiary shall receive the Benefit/Incentive Award.
4.05 Source of Benefits. The cash Benefits payable under the Plan shall be paid by the Bank out of its general assets and shall not be funded by trust or otherwise. Nothing contained in this Plan shall constitute, or be treated as, a trust or create any fiduciary relationship. The Bank shall be under no obligation to segregate any assets to provide Benefits under the Plan and no person or entity which is entitled to payment under the terms of the Plan shall have any claim, right, security interest, or other interest in any fund, trust, account, insurance contract, or asset of the Employer. To the extent that a Participant or any other person acquires a right to receive any Benefit under the Plan, such right shall be limited to that of a recipient of an unfunded, unsecured promise to pay amounts in the future and the Participant’s (or other person’s) position with respect to such amounts shall be that of a general unsecured creditor of the Employer. The non-cash compensation Benefits payable under the Plan shall be granted to Participants by the Board of Directors of the Corporation from The Community Financial Corporation 2015 Equity Compensation Plan or any other shareholder approved equity plan, to the extent shares are available under the plan.
4.06 Minority disability or Incompetency. If any Benefit becomes payable under this Plan to a minor, to a person under legal disability or to a person not adjudicated incompetent but who the Committee in its discretion determines to be incapable by reason of illness or mental or physical disability of managing his or her financial affairs, the Committee may direct that such Benefit shall be paid to the legal representative or custodian of such person or to any relative or friend of such person, or that such amount be paid directly for such person’s support and maintenance. Payments so made in good faith shall completely discharge the Committee and the Bank of any and all obligations and liabilities with respect to such payments.
4.07 Designation of Beneficiary. A Participant may file with the Committee a written designation of a Beneficiary who is to receive his or her vested benefits in the event of the Participant’s death before his or her collection of said benefits. Such designation of Beneficiary may be changed at any time by written notice to the Committee. The designation last filed with the Committee shall be controlling. In the event of the death of a Participant and in the absence of a beneficiary validly designated under the Plan who is living at the time of the Participant’s death, the Participant’s estate shall be deemed to be the Beneficiary for purposes of this Plan.
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ARTICLE V
PLAN ADMINISTRATION
5.01 (a)Responsibilities of the Committee. The Committee has the responsibility to approve, amend, or terminate the Plan as necessary. The actions of the Committee shall be final and binding on all parties. The Committee shall also review the operating rules of the Plan on an annual basis and revise these rules if necessary. The Committee also has the sole ability to decide if an extraordinary event totally outside of management’s influence, be it a windfall or a shortfall, has occurred during the current Plan year, and whether the figures should be adjusted to neutralize the effects of such events. After approval by the Committee, management shall, as soon as practical, inform each of the Plan participants under the Plan of their potential Benefits/Incentive Awards under the operating rules adopted for the Plan year.
(b)Responsibilities of the CEO. Notwithstanding any provision to the contrary, the CEO of the Bank administers the program directly and provides liaison to the Committee, including the following specific responsibilities: recommend the Participants to be included in the Plan each year (this includes determining if additional Employees should be added to the Plan and if any Plan participants should be removed from participating in the Plan); provide recommendations for the Incentive Award Opportunities amounts at Threshold, Target, and Maximum for Employees other than himself; review the objectives and evaluations, adjust guideline awards for performance and recommend final payouts to the Committee; and, provide other appropriate recommendations that may become necessary during the life of the Plan. This could include such items as changes to Plan provisions.
5.02 Claims Procedure. Claims for Benefits under the Plan shall be filed in writing with the Committee. Written notice of the Committee’s disposition of a claim generally shall be furnished to the claimant within 60 days after the application therefore is filed. However, if special circumstances exist of which the Committee notifies the claimant within such 60 day period, the Committee may extend such period to the extent necessary, but in no event beyond 180 days after the claim is filed. If the claim is denied, the reasons for the denial shall be specifically set forth in writing, pertinent provisions of the Plan shall be cited, and, where appropriate, an explanation as to how the claimant can perfect the claim will be provided. Any claimant who has been denied a Benefit shall be entitled, upon request to the Committee, to appeal the denial of his claim within 60 days following the Committee’s determination described in the preceding sentence. Upon such appeal, the claimant, or his representative, shall be entitled to examine pertinent documents, submit issues and comments in writing to the Committee, and meet with the Committee. The Committee shall review its decision and issue a final decision to the claimant in writing, generally within 60 days following such appeal. However, if special circumstances exist of which the Committee notifies the claimant within such 60 day period, the Committee may extend such period to the extent necessary, but in no event beyond 120 days following such appeal.
ARTICLE VI
AMENDMENT AND TERMINATION
6.01 Right to Amend or Terminate. The Committee has developed the Plan on the basis of existing business, market and economic conditions, current services and staff assignments. Therefore, the Committee reserves the right at any time to terminate or amend the Plan in any manner and for any reason; provided, that no amendment or termination shall, without the consent of the Participant or, if applicable, the Beneficiary, adversely affect such Participant’s or Beneficiary’s rights with respect to Benefits earned as of the date of such amendment or termination.
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ARTICLE VII
GENERAL PROVISIONS
7.01 No Enlargement of Employment Rights. Nothing contained in this Plan shall give or be construed as giving any Employee the right to be retained in the service of the Bank or shall interfere with the right of the Bank to discharge or otherwise terminate any Employee’s employment at any time.
7.02 Gender. Whenever any masculine terminology is used in this Plan, it shall be taken to include the feminine, unless the context otherwise indicates.
7.03 Applicable Law. This Plan shall be construed and regulated, and its validity and effect and the rights hereunder of all parties interested shall at all times be determined in accordance with the laws of the State of Maryland, except to the extent such state law is preempted by federal law.
7.04 Titles and Headings. The titles and headings included herein are included for convenience only and shall not be construed as in any way affecting or modifying the text of the Plan, which text shall control.
7.05 Withholding. The Bank reserves the right to withhold from payments of Benefits/Incentive Awards such amounts of income, payroll, and other taxes as it deems advisable, and if the amount of such cash payment is not sufficient, the Bank may require the Participant or Beneficiary to pay the Bank the amount required to be withheld as a condition of delivering Benefits/Incentive Awards under the Plan.
7.06 Successors. All obligations of the Bank and the Company under the Plan shall be binding upon and inure to the benefit of any successor to the Bank and/or the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger, consolidation, or otherwise, of all or substantially all of the business and/or assets of the Bank and /or the Company.
7.07 Section 409A. It is intended, and the Plan will be so construed, that any amounts payable under the Plan shall be exempt from Code Section 409A a short-term deferrals pursuant to Treasury Regulation §1.409A-1(b)(4). However, to the extent any amount payable under the Plan is not, in fact, exempt from Code Section 409A, it is intended, and the Plan to be so construed, that such amount shall comply with the provisions of Code Section 409A, then neither the Bank, the Company the Boards of Directors of the Bank and/or the Company, the Committee nor its or other designees or agents shall be liable to any Participant or other persons for actions, decisions or determinations made in good faith.
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The Board of Directors of the Community Bank of the Chesapeake adopted this Community Bank of the Chesapeake Executive Incentive Compensation Plan, as amended and restated (the”Plan”) on February 4, 2016 and the Plan is effective as of the 1st day of January, 2016.
| ATTEST: | COMMUNITY BANK OF THE CHESAPEAKE | |||
| By: | ||||
| William J. Pasenelli, President & CEO | ||||
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