Exhibit 10 (I)
PEAPACK-GLADSTONE BANK
SPLIT DOLLAR PLAN FOR SENIOR MANAGEMENT
THIS PLAN, hereby made effective this 7th day of September 2001, by
PEAPACK-GLADSTONE BANK, a state-chartered bank located in Gladstone, New Jersey
(the "Bank"), the Participant selected to participate in this Plan (the
"Participant") and Christiana Bank & Trust Company (the "Trustee") as Trustee of
the Peapack-Gladstone Bank Employer's Trust (the "Trust").
INTRODUCTION
The Bank wishes to attract, retain and reward highly qualified executives.
To further this objective, the Bank is willing to divide the death proceeds of
certain life insurance policies which are owned by the Bank on the lives of the
participating executives with the designated beneficiary of each insured
participating executive. The Bank will pay the life insurance premiums from its
general assets.
Article 1
General Definitions
The following terms shall have the meanings specified:
1.1 "Affiliate" means any company that controls, is controlled by, or is
under common control with the Bank or the Corporation. For this Agreement,
company includes any corporation, partnership, association, limited liability
company or trust.
1.2 "Base Annual Salary" means the Participant's basic annual salary as of
each January 1st, exclusive of special payments such as bonuses or fees, but
including any salary reductions made in accordance with Sections 125 or 401(k)
of the Code.
1.3 "Board of Directors" means a majority of the Bank's Board of Directors
or the Compensation Committee designated from time to time by the Bank's Board
of Directors.
1.4 "Change in Control" means any of the following:
(A) any person (as such term is used in Sections 13d and 14d-2 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), other
than the Corporation, a subsidiary of the Corporation, an employee benefit
plan (or related trust) of the Corporation or a direct or indirect
subsidiary of the Corporation, or Affiliates of the Corporation (as defined
in Rule 12b-2 under the Exchange Act), becomes the beneficial owner (as
determined pursuant to Rule 13d-3 under the Exchange Act), directly or
indirectly, of
securities of the Corporation representing more than 50% of the combined
voting power of the Corporation's then outstanding securities (other than a
person owning 10% or more of the voting power of stock on the date hereof);
or
(B) the liquidation or dissolution of the Corporation or the
occurrence of, or execution of an agreement providing for a sale of all or
substantially all of the assets of the Corporation to an entity which is
not a direct or indirect subsidiary of the Corporation; or
(C) the occurrence of, or execution of an agreement providing for a
reorganization, merger, consolidation or other similar transaction or
connected series of transactions of the Corporation as a result of which
either (a) the Corporation does not survive or (b) pursuant to which shares
of the Corporation common stock ("Common Stock") would be converted into
cash, securities or other property, unless, in case of either (a) or (b),
the holders of the Corporation Common Stock immediately prior to such
transaction will, following the consummation of the transaction,
beneficially own, directly or indirectly, more than 50% of the combined
voting power of the then outstanding voting securities entitled to vote
generally in the election of directors of the corporation surviving,
continuing or resulting from such transaction; or
(D) the occurrence of, or execution of an agreement providing for a
reorganization, merger, consolidation or similar transaction of the
Corporation, or before any connected series of such transactions, if upon
consummation of such transaction or transactions, the persons who are
members of the Board of Directors of the Corporation immediately before
such transaction or transactions cease or, in the case of the execution of
an agreement for such transaction or transactions, it is contemplated in
such agreement that upon consummation such persons would cease to
constitute a majority of the Board of Directors of the Corporation or, in
the case where the Corporation does not survive in such transaction, of the
corporation surviving, continuing or resulting from such transaction or
transactions; or
(E) any other event which is at any time designated as a "Change in
Control" for purposes of this Agreement by a resolution adopted by the
Board of Directors of the Corporation with the affirmative vote of a
majority of the non-employee directors in office at the time the resolution
is adopted; in the event any such resolution is adopted, the Change in
Control event specified thereby shall be deemed incorporated herein by
reference and thereafter may not be amended, modified or revoked without
the written agreement of the Participant; or
(F) during any period of two consecutive years during the term of this
Agreement, individuals who at the beginning of such period constitute the
Board of Directors of the Bank or Corporation cease for any reason to
constitute at least a majority thereof, unless the election of each
director who was not a director at the beginning of such period has been
approved in advance by directors representing at least two-thirds of the
directors then in office who were directors at the beginning of the period,
provided however this provision shall not apply in the event two-thirds of
the Board of Directors at the beginning of a period no longer are directors
due to death, normal retirement, or other circumstances
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not related to a Change in Control.
Notwithstanding anything else to the contrary set forth in this Agreement,
if (i) an agreement is executed by the Corporation providing for any of the
transactions or events constituting a Change in Control as defined herein, and
the agreement subsequently expires or is terminated without the transaction or
event being consummated, and (ii) Participant's employment did not terminate
during the period after the agreement and prior to such expiration or
termination, for purposes of this Agreement it shall be as though such agreement
was never executed and no Change in Control event shall be deemed to have
occurred as a result of the execution of such agreement.
1.5 "Code" means the Internal Revenue Code of 1986, as amended.
1.6 "Corporation" means Peapack-Gladstone Financial Corporation
1.7 "Disability" means, if the Participant is covered by a Bank-sponsored
disability policy, total disability is defined in such policy without regard to
any waiting period. If the Participant is not covered by such a policy,
disability means the Participant suffers from a mental or physical impairment
that prevents the Participant from performing the essential functions of his or
her position, with or without a reasonable accommodation. As a condition to any
benefits, the Bank may require the Participant to submit to such physical or
mental evaluations and tests as the Board of Directors deems appropriate.
1.8 "Insured" means the individual whose life is insured.
1.9 "Insurer" means the insurance company issuing the life insurance policy
on the life of the insured.
1.10 "Participant" means the executive who is designated by the Board of
Directors as eligible to participate in the Plan, elects in writing to
participate in the Plan using the form attached hereto as Exhibit A, and signs a
Split Dollar Endorsement for the Policy in which he or she is the Insured.
1.11 "Policy" or "Policies" means the individual insurance policy (or
policies) adopted by the Board of Directors for purposes of insuring a
Participant's life under this Plan, including any group term life insurance
carried on the Participant's life where the premiums are paid by the Bank.
1.12 "Plan" means this instrument, including all amendments thereto.
1.13 "Plan Year" means the calendar year. In the year of implementation,
Plan Year shall mean the period from the date of this Agreement through December
31 of the same year.
1.14 "Termination of Employment" means that the Participant ceases to be
employed by the Bank for any reason whatsoever other than by reason of a leave
of absence which is approved by the Bank. For purposes of this Agreement, if
there is a dispute over the employment status of
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the Participant or the date of the Participant's Termination of Employment, the
Bank shall have the sole and absolute right to decide the dispute. 1.15 "Vested
Insurance Benefit" means the Bank will provide the Participant with continued
insurance coverage from the date of vesting until death, subject to the
forfeiture provisions detailed in Section 5.2 and Article 8. Articles 4 and 5
explain how a Participant achieves vested status.
1.16 "Years of Service" means the total number of continuous years of
employment with the Corporation or any of its subsidiaries, inclusive of any
approved leaves of absences approved by the Corporation.
Article 2
Participation
2.1 Eligibility to Participate. The Board of Directors in its sole
discretion may designate from time to time Participants who are eligible to
participate in this Plan. The Board may designate this authority to the Chief
Executive Officer or other senior management if it so chooses.
2.2 Participation. The eligible executive may participate in this Plan by
executing an Election to Participate (Exhibit A) and a Split Dollar Endorsement.
The Split Dollar Endorsement shall bind the Participant and his or her
beneficiaries, assigns and transferees, to the terms and conditions of this
Plan. A Participant's participation is limited to only Policies where he or she
is the Insured. Exhibit A sets forth the information about the Policy or
Policies and maximum Participant benefit under the Plan.
2.3 Termination of Participation. A Participant's rights under this Plan
shall cease and his or her participation in this Plan shall terminate if one of
the following events occur: (1) the Participant informs the Bank in writing that
he or she no longer wants to participate or (2) the Plan or any Participant's
rights under the Plan are terminated in accordance with Sections 5.2 or 12.1 of
this Agreement. In the event that the Bank decides to maintain the Policy after
the Participant's termination of participation in the Plan, the Bank shall be
the direct beneficiary of the entire death proceeds of the Policy. The Bank may
document the Participant's termination from the Plan by indicating the date of
termination on Exhibit A.
Article 3
Premium Payments
The Trustee, at the direction of the Bank, shall pay all premiums due on all
Policies under this Agreement.
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Article 4
Policy Ownership/Interests
4.1 Trust Ownership. The Trust shall own the Policies and shall have the
right to exercise all incidents of ownership and, subject to Article 7, the
Trust may terminate a Policy without the consent of the Insured. With respect to
each Policy, the Trust shall be the direct beneficiary of an amount of death
proceeds equal to the greatest of: (1) the cash surrender value of the policy;
(2) the aggregate premiums paid on the Policy by the Trust less any outstanding
indebtedness to the Insurer; or (3) the amount in excess of the Participant's
interest specified in Section 4.2. If the Trust owns more than one policy on a
Participant, the Policies shall be aggregated with respect to item (3) of this
paragraph.
4.2 Participant's Interest. Each Participant, or the Participant's
assignee, shall have the right to designate the beneficiary of the death
proceeds of the Policy as specified in Section 4.2.1 or 4.2.2. The Participant
shall also have the right to elect and change settlement options with the
consent of the Trustee and the Insurer.
4.2.1 Death Prior to Termination of Employment. If the Participant
dies while employed by the Bank, the Participant's beneficiary shall be
entitled to a benefit equal to 2.5 times the Participant's Base Annual
Salary at the date of death; but not in excess of the maximum benefit
amount specified in Exhibit A.
4.2.2 Death After Termination of Employment. If the Participant dies
after Termination of Employment, where such termination did not result from
Disability and did not follow a Change in Control, the Participant shall be
entitled to a Vested Insurance Benefit based on the Participant's combined
age and Years of Service as of the date of termination as follows:
Post -Retirement Benefit
Years of As a Multiple of Base
Age Service Annual Salary
--- ------- -------------
50 15 1.0
55 15 1.5
60 15 2.5
65 15 2.5
If the Participant has not achieved a Vested Insurance Benefit, the
Participant's beneficiary will be limited to a benefit of $25,000.
Article 5
Additional Vesting/Forfeiture
5.1 Disability and Change in Control. In lieu of the vesting schedule
detailed in Section 4.2.2, the Participant shall have a Vested Insurance Benefit
equal to 2.5 times Base Annual
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Salary if the Participant terminates employment due to Disability or if the
Participant is in the Bank's employ the date a Change in Control occurs.
5.2 Forfeiture of Benefit. Notwithstanding the provisions of Sections 4.2.2
and 5.1, the Participant will forfeit his or her Vested Insurance Benefit if:
(1) the Participant violates any of the provisions detailed in Article 8 or, (2)
in the case of a Disabled Participant, if such Participant becomes gainfully
employed by an entity other than the Bank.
Article 6
Imputed Income/Reimbursement
The Bank shall impute income to the Participant in an amount equal to the
annual cost of current life insurance protection on the life of the Participant
measured by the lesser of the Table 2001 rate set forth in Notice 2001-10 (or
the corresponding applicable provision of any later Revenue Ruling) or the
Insurer's current published premium rate for annually renewable term insurance
for standard risks; provided that the Insurer's current published premium rate
meets the limitations set forth in Notice 2001-10 (or the corresponding
applicable provision of any later Revenue Ruling.) The Bank will provide each
Participant with an annual statement of the amount of income reportable by the
Participant for federal and state income tax purposes as a result of such
imputed income.
After the Participant reaches Normal Retirement Age, the Bank shall
annually pay to the Participant an amount necessary to pay the federal and state
income taxes attributable to the imputed income and to the additional cash
payments under this section. In calculating the cash payments due from the Bank,
the Bank shall use the Corporation's actual marginal income tax rate for the
calendar year immediately preceding the payment to the Participant. The cash
payments shall continue until the Participant's death.
Article 7
Comparable Coverage
7.1 Insurance Policies. If a Participant has a Vested Insurance Benefit,
the Bank may direct the Trustee to provide such benefit through the Policies
purchased at the commencement of this Plan or may direct the Trustee to provide
comparable insurance coverage to the Participant through whatever means the Bank
deems appropriate. If the Participant waives his or her right to the benefit,
the Bank may direct the Trustee to cancel the Policy or Policies on the
Participant, or may continue such coverage and become the direct beneficiary of
the entire death proceeds.
7.2 Offer to Purchase. If the Bank discontinues a Policy on an active or
vested Participant for any reason, the Bank shall give the Participant at least
thirty (30) days to purchase such Policy. The purchase price shall be the cash
surrender value of the Policy. Such notification shall be in writing.
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Article 8
General Limitations
8.1 Excess Parachute or Golden Parachute Payment. Notwithstanding any
provision of this Agreement to the contrary, the benefit provided under this
Agreement shall be forfeited to the extent the benefit would be an excess
parachute payment under Section 280G of the Code or would be a prohibited golden
parachute payment pursuant to 12 C.F.R. ss.359.2 and for which the appropriate
federal banking agency has not given written consent to pay pursuant to 12
C.F.R. ss.359.4.
8.2 "Termination for Cause. Notwithstanding any provision of this Agreement
to the contrary, the benefit provided under this Agreement shall be forfeited if
the Bank terminates the Participant's employment for:
(a) Gross negligence or gross neglect of duties;
(b) Commission of a felony or of a gross misdemeanor involving moral
turpitude; or
(c) Fraud, disloyalty, dishonesty or willful violation of any law or
significant Bank policy resulting in an adverse effect on the
Bank.
8.3 Removal. Notwithstanding any provision of this Agreement to the
contrary, the benefit provided under this Agreement shall be forfeited if the
Participant 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.
8.4 Competition After Termination of Employment. The Participant shall
forfeit his right to any further benefits if the Participant, without the prior
written consent of the Bank, violates the following described restrictive
covenants.
8.4.1 Non-compete Provision. The Participant shall not, for the term
of this Agreement and until all benefits have been distributed, directly or
indirectly, either as an individual or as a proprietor, stockholder,
partner, officer, director, employee, agent, consultant or independent
contractor of any individual, partnership, corporation or other entity
(excluding an ownership interest of five percent (5%) or less in the stock
of a publicly traded company):
(i) participate in any way in hiring or otherwise engaging, or
assisting any other person or entity in hiring or otherwise
engaging, on a temporary, part-time or permanent basis, any
individual who was employed by the Corporation or any of its
subsidiaries during the three (3) year period immediately prior
to the termination of the Participant's employment; or
(ii) divulge, disclose, or communicate to others in any manner
whatsoever, any confidential information of the Corporation or
any of its subsidiaries, including,
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but not limited to, the names and addresses of customers of the
Corporation or any of its subsidiaries, as they may have existed
from time to time or of any of the Corporation's or any of its
subsidiaries prospective customers, work performed or services
rendered for any customer, any method and/or procedures relating
to projects or other work developed for the Corporation or any of
its subsidiaries, earnings or other information concerning the
Corporation or any of its subsidiaries. The restrictions
contained in this subparagraph (ii) apply to all information
regarding the Corporation or any of its subsidiaries unless and
until it becomes known to the general public from sources other
than the Participant.
8.4.2 Judicial Remedies. In the event of a breach or threatened breach
by the Participant of any provision of these restrictions, the Participant
recognizes the substantial and immediate harm that a breach or threatened
breach will impose upon the Corporation or any of its subsidiaries or
Affiliates, and further recognizes that in such event monetary damages may
be inadequate to fully protect the Corporation or any of its subsidiaries
or Affiliates. Accordingly, in the event of a breach or threatened breach
of this Agreement, the Participant consents to the Corporation's or any of
its subsidiaries entitlement to such ex parte, preliminary, interlocutory,
temporary or permanent injunctive, or any other equitable relief,
protecting and fully enforcing the Corporation' or any of its subsidiaries
rights hereunder and preventing the Participant from further breaching any
of his obligations set forth herein. The Participant expressly waives any
requirement, based on any statute, rule of procedure, or other source, that
the Corporation or any of its subsidiaries or Affiliates post a bond as a
condition of obtaining any of the above-described remedies. Nothing herein
shall be construed as prohibiting the Corporation or any of its
subsidiaries or Affiliates from pursuing any other remedies available to
the Corporation or any of its subsidiaries or Affiliates at law or in
equity for such breach or threatened breach, including the recovery of
damages from the Participant. The Participant expressly acknowledges and
agrees that: (i) the restrictions set forth in Section 8.4.1 are
reasonable, in terms of scope, duration, geographic area, and otherwise,
(ii) the protections afforded the Corporation or any of its subsidiaries or
Affiliates in Section 8.4.1 are necessary to protect its legitimate
business interest, (iii) the restrictions set forth in Section 8.4.1 will
not be materially adverse to the Participant's employment with the Bank,
and (iv) his agreement to observe such restrictions forms a material part
of the consideration for this Agreement.
8.4.3 Overbreadth of Restrictive Covenant. It is the intention of the
parties that if any restrictive covenant in this Agreement is determined by
a court of competent jurisdiction to be overly broad, then the court should
enforce such restrictive covenant to the maximum extent permitted under the
law as to area, breadth and duration.
8.4.4 Change in Control. The non-compete provision detailed in Section
8.4.1 shall not apply if there is a Change in Control.
8.5 Suicide or Misstatement. The Participant shall forfeit his benefit
under this Agreement if the Participant commits suicide within two years after
the date of this Agreement, or if the insurance company denies coverage for
material misstatements of fact made by the Participant on any application for
life insurance purchased by the Trust, or any other reason.
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Article 9
Assignment
Any Participant may assign without consideration all interests in his or
her Policy and in this Plan to any person, entity or trust. In the event a
Participant shall transfer all of his/her interest in the Policy, then all of
that Participant's interest in his or her Policy and in the Plan shall be vested
in his/her transferee, subject to such transferee executing agreements binding
them to the provisions of this Plan, who shall be substituted as a party
hereunder, and that Participant shall have no further interest in his or her
Policy or in this Plan.
Article 10
Insurer
The Insurer shall be bound only by the terms of their corresponding Policy.
Any payments the Insurer makes or actions it takes in accordance with a Policy
shall fully discharge it from all claims, suits and demands of all persons
relating to that Policy. The Insurer shall not be bound by the provisions of
this Plan, except to the extent of any endorsement filed with the Insurer. The
Insurer shall have the right to rely on the Trustee's representations with
regard to any definitions, interpretations, or Policy interests as specified
under this Plan.
Article 11
Claims Procedure
11.1 Claims Procedure. The Bank shall notify any person or entity that
makes a claim against this Plan (the "Claimant"), in writing, within ninety (90)
days of Claimant's written application for benefits, of Claimant's eligibility
or ineligibility for benefits under this Plan. If the Bank determines that
Claimant is not eligible for benefits or full benefits, the notice shall set
forth (1) the specific reasons for such denial, (2) a specific reference to the
provisions of this Plan on which the denial is based, (3) a description of any
additional information or material necessary for the Claimant to perfect
Claimant's claim, and a description of why it is needed, and (4) an explanation
of this Plan's claims review procedure and other appropriate information as to
the steps to be taken if the Claimant wishes to have the claim reviewed. If the
Bank determines that there are special circumstances requiring additional time
to make a decision, the Bank shall notify the Claimant of the special
circumstances and the date by which a decision is expected to be made, and may
extend the time for up to an additional ninety-day period. Upon resolution of
all open issues, the Bank shall receive the proceeds and upon recovering the
share of the proceeds to which it is entitled, shall distribute the Claimant's
proceeds.
11.2 Review Procedure. If a Claimant is determined by the Bank not to be
eligible for benefits, or if the Claimant believes that Claimant is entitled to
greater or different benefits, the Claimant shall have the opportunity to have
such claim reviewed by the Bank by filing a petition for review with the Bank
within sixty (60) days after receipt of the notice issued by the Bank. Said
petition shall state the specific reasons, which the Claimant believes, entitle
Claimant to benefits or to greater or different benefits. Within sixty (60) days
after receipt by the Bank of
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the petition, the Bank shall afford the Claimant (and counsel, if any) an
opportunity to present Claimant's position to the Bank verbally or in writing,
and the Claimant (or counsel) shall have the right to review the pertinent
documents. The Bank shall notify the Claimant of its decision in writing within
the sixty-day period, stating specifically the basis of its decision, written in
a manner calculated to be understood by the Claimant and the specific provisions
of this Plan on which the decision is based. If, because of the need for a
hearing, the sixty-day period is not sufficient, the decision may be deferred
for up to another sixty-day period at the election of the Bank, but notice of
this deferral shall be given to the Claimant.
Article 12
Amendment or Termination of Plan
12.1 Non-Vested Insurance Benefit. Unless a Participant has a Vested
Insurance Benefit pursuant to Sections 4.2.2 or 5.1, the Bank may amend or
terminate the Plan at any time, or may amend or terminate a Participant's rights
under the Plan at any time prior to a Participant's death by written notice to
the Participant.
12.2 Vested Insurance Benefit. If a Participant has a Vested Insurance
Benefit, the Bank may amend or terminate the Plan for that Participant only if:
(1) continuation of the Plan would cause significant financial harm to the Bank
and (2) the Participant agrees to such action.
Article 13
Miscellaneous
13.1 Binding Effect. This Agreement shall bind the Participant and the
Bank, and their beneficiaries, survivors, executors, successors, administrators
and transferees.
13.2 No Guarantee of Employment. This Agreement is not an employment policy
or contract. It does not give the Participant the right to remain an employee of
the Bank, nor does it interfere with the Bank's right to terminate the
Participant's employment. It also does not require the Participant to remain in
employment nor interfere with the Participant's right to terminate employment at
any time.
13.3 Reorganization. The Bank shall not merge or consolidate into or with
another company, or reorganize, or sell substantially all of its assets to
another company, firm, or person unless such succeeding or continuing company,
firm, or person agrees to assume and discharge the obligations of 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 company.
13.4 Tax Withholding. The Bank shall withhold any taxes that are required
to be withheld from the benefits provided under this Agreement.
13.5 Applicable Law. The Agreement and all rights hereunder shall be
governed by the laws of the Commonwealth of Pennsylvania, except to the extent
preempted by the laws of the
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United States of America; provided, however, that with respect to insurance
policies owned by the Bank or any insurable interest issues, the laws of
Delaware shall govern.
13.6 Entire Agreement. This Agreement constitutes the entire agreement
between the Bank and the Participant as to the subject matter hereof. No rights
are granted to the Participant by virtue of this Agreement other than those
specifically set forth herein.
13.7 Administration. The Bank shall have powers which are necessary to
administer this Agreement, including but not limited to:
(a) Interpreting the provisions of the Agreement;
(b) Establishing and revising the method of accounting for the
Agreement;
(c) Maintaining a record of benefit payments; and
(d) Establishing rules and prescribing any forms necessary or
desirable to administer the Agreement.
13.8 Named Fiduciary. The Bank shall be the named fiduciary and plan
administrator under this Agreement. It may delegate to others certain aspects of
the management and operational responsibilities including the service of
advisors and the delegation of ministerial duties to qualified individuals.
13.9 Recovery of Estate Taxes. If the Participant's gross estate for
federal estate tax purposes includes any amount determined by reference to and
on account of this Plan, and if the beneficiary is other than the Participant's
estate, then the Participant's estate shall be entitled to recover from the
beneficiary receiving such benefit under the terms of the Plan, an amount by
which the total estate tax due by the Participant's estate, exceeds the total
estate tax which would have been payable if the value of such benefit had not
been included in the Participant's gross estate. If there is more than one
person receiving such benefit, the right of recovery shall be against each such
person. In the event the beneficiary has a liability hereunder, the beneficiary
may petition the Bank for a lump sum payment in an amount not to exceed the
beneficiary's liability hereunder.
IN WITNESS WHEREOF, the Bank executes this Plan as of the date indicated
above.
BANK:
PEAPACK-GLADSTONE BANK
By ARTHUR F. BIRMINGHAM
Title Chief Financial Officer
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By execution hereof, Peapack-Gladstone Financial Corporation consents to
and agrees to be bound by the terms and condition of this Plan document.
ATTEST: CORPORATION:
Peapack-Gladstone
Financial Corporation
MARY M. RUSSELL By ARTHUR F. BIRMINGHAM
Title Chief Financial Officer
ATTEST: TRUSTEE:
CHRISTIANA BANK & TRUST COMPANY
MARY ANN BENKO By JOSEPH D. FRENEY
Title Vice President
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