EXHIBIT 10.1
FORM OF
DIRECTOR DEFERRED COMPENSATION JOINDER AGREEMENT
I, ________________, and COMMUNITY BANK OF NEW JERSEY hereby agree for
good and valuable consideration, the value of which is hereby acknowledged, that
I shall participate in the Director Deferred Compensation Plan (':Plan"),
effective July 1, 2001, as such Plan may now exist or hereafter be amended or
modified, and do further agree to the terms and conditions thereof.
I understand that I must execute this Director Deferred Compensation
Joinder Agreement ("Joinder Agreement") as well as notify the Administrator of
such execution, on or before July 1, 2001 in order to participate in the Plan
from its Effective Date. Otherwise, I may execute this Joinder Agreement and
give notice of such execution to the Administrator at least thirty (30) days
prior to any January 1st or July 1st.
I hereby elect to defer $________ of my monthly Board fees for the first
six (6) months of the plan; $____ for the next twelve (12) months; $____ for the
next twelve (12) months; and $______ per month for the final thirty (30) months
of this plan. For the last two (2) years of the Plan, I also elect to defer my
$________ annual retainer. Such deferrals shall commence on July 1, 2001 and
shall continue for a period of Sixty (60) months known as the "Deferral Period",
and will result in a "Projected Deferral" in the amount of $_______.
I understand that my election to defer shall continue in accordance with
this Joinder Agreement until such time as I submit a "Notice of Adjustment of
Deferral Amount" (Exhibit B, hereto) to the Administrator, at least thirty (30)
days prior to any January 1st or July 1st of my Deferral Period. A Notice of
Adjustment of Deferral Amount can be used to adjust the amount of Board fees
and/or retainer to be deferred or to discontinue deferrals altogether.
I hereby elect a "Benefit Age" of_________ years and ______ months and a
"Payout Period" of _________ months.
In general, I understand that I shall be entitled to a "Deferred
Compensation Benefit" monthly payment of $______, pursuant to Subsection 5.1 of
the Plan and subject to all relevant Subsections of the Plan.
In general, I understand that my designated Beneficiary shall be entitled
to a "Survivor's Benefit" equal to the annuitized value of my Accrued Benefit
Account using the Interest Factor.
I hereby designate the following individuals as my "Beneficiary" and I am
aware that I can subsequently change such designation by submitting to the
Administrator, at any subsequent time and in substantially the form attached
hereto as Exhibit A, a written designation of the primary and secondary
Beneficiaries to whom payment under the Plan shall be made in the event of my
death prior to complete distribution of the benefits due and payable under the
Plan. I understand that any Beneficiary designation made subsequent to execution
of the Joinder Agreement shall become effective only when receipt thereof is
acknowledged in writing by the Administrator.
PRIMARY BENEFICIARY _________________________
SECONDARY BENEFICIARY _________________________
1 understand that I am entitled to review or obtain a copy of the Plan, at
any time, and may do so by contacting the Administrator.
This Joinder Agreement shall become effective upon execution (below) by
both the Director and a duly authorized officer of the Association.
Dated this 1st day of July 2, 2001.
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(Director)
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(Bank's duly authorized Officer)
DIRECTOR DEFERRED COMPENSATION PLAN
BENEFICIARY DESIGNATION
The Director, under the terms of the Director Deferred Compensation Plan
executed by the Bank on July 1, 2001, hereby designates the following
Beneficiary to receive any guaranteed payments or death benefits under such
Plan, following his death:
PRIMARY BENEFICIARY: _________________________
SECONDARY BENEFICIARY: _________________________
This Beneficiary Designation hereby revokes any prior Beneficiary
Designation which may have been in effect.
This Beneficiary Designation is revocable by a subsequent Beneficiary
Designation, properly executed and filed with the Administrator, in accordance
with Section VII of the Plan.
DATE:______________, 20___
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WITNESS DIRECTOR
Exhibit A
DIRECTOR DEFERRED COMPENSATION JOINDER AGREEMENT
NOTICE OF ADJUSTMENT OF DEFERRAL AMOUNT
TO, Bank
Attention:
I hereby give notice of my election to adjust the amount of my
compensation deferral in accordance with my Director Deferred Compensation
Joinder Agreement, dated the ____day of ______ 20__. . Thus notice is submitted
thirty (30) days prior to January 1st or July 1st, and shall become effective
January 1st or July 1st, as specified below.
Adjust deferral as of:. January 1st, 20__
July 1st, 20___
Previous Deferral Amount _______ per month
New Deferral Amount _______ per month
(to discontinue deferral, enter $0)
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DIRECTOR
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DATE
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ACKNOWLEDGED
BY:
TITLE:
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DATE
Exhibit B
DIRECTOR DEFERRED
COMPENSATION PLAN
COMMUNITY BANK OF NEW JERSEY
JULY 1, 2001
Financial Institution Consulting Corporation
700 Colonial Road, Suite 102
Memphis, Tennessee 38117
WATS: 1-800-873-0089
FAX: (901) 684-1414
(901) 684-7400
DIRECTOR DEFERRED
COMPENSATION PLAN
This Director Deferred Compensation Plan (the "Plan"), effective as
of the 1st day, of July, 2001 formalizes the understanding by and between
COMMUNITY BANK OF NEW JERSEY, a state chartered commercial bank having its
principal place of business in New Jersey or any successor corporation (the
"Bank"), and certain eligible Directors, hereinafter referred to as "Director",
who shall be approved by the Bank to participate and who shall elect to become a
party to this Director Deferred Compensation Plan by execution of a Director
Deferred Compensation Joinder Agreement ("Joinder Agreement") in a form provided
by the Bank.
WITNESSETH:
WHEREAS, the Directors serve the Bank as members of the Board;
and
WHEREAS, the Bank recognizes the valuable services heretofore
performed for it by such Directors and wishes to encourage continued
service of each; and
WHEREAS, the Bank values the efforts, abilities and
accomplishments of such Directors and recognizes that the Directors'
services substantially contribute to its continued growth and
profits in the future; and
WHEREAS, the Bank desires to adopt a deferred compensation
plan for Directors in order to permit the Directors to defer a
portion of their fees;
WHEREAS, these Directors wish to defer a certain portion of
their fees to be earned in the future; and
WHEREAS, the Directors and the Bank desire to adopt this
restatement of the Plan in order to amend the terms and conditions
upon which the Bank shall pay such deferred compensation to the
Directors or their designated beneficiaries; and
WHEREAS, the Bank and the Directors intend this Plan to be
considered an unfounded arrangement, maintained primarily to provide
retirement income for such Directors, for tax purposes and for
purposes of the Employee Retirement Income Security Act of 1974, as
amended; and
WHEREAS, the Bank has adopted this Director Deferred
Compensation Plan which controls all issues relating to the Deferred
Compensation Benefits as described herein;
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties hereto agree to the following terms and
conditions:
SECTION I
DEFINITIONS
When used herein, the following words and phrases shall have the meanings
below unless the context clearly indicates otherwise:
1.1 "Accrued Benefit Account" means the sum of all deferred amounts and interest
credited to the Director using generally accepted accounting principles (GAAP)
which are due and owing to the Director or Beneficiaries pursuant to the Joinder
Agreement.
1.2 "Bank" means COMMUNITY BANK OF NEW JERSEY and any successor thereto.
1.3 "Beneficiary" means the person or persons (and their heirs) designated as
Beneficiary in the Director's Joinder Agreement to whom the deceased Director's
benefits are payable. If no Beneficiary is so designated, then the Director's
Spouse, if living, will be deemed the Beneficiary. If the Director's Spouse is
not living, then the Children of the Director will be deemed the Beneficiaries
and will take on a per stirpes basis. If there are no Children, then the Estate
of the Director will be deemed the Beneficiary.
1.4 "Benefit Age" shall be the birthday on which the Director becomes eligible
to receive benefits under the plan. Such birthday shall be designated in the
Directors Joinder Agreement.
1.5 "Benefit Eligibility Date" shall be the date on which a Director is entitled
to receive his Deferred Compensation Benefit. It shall be the first day of the
month following the month in which the Director attains the Benefit Age
designated in his Joinder Agreement.
1.6 "Cause" means personal dishonesty, willful misconduct, willful malfeasance,
breach of fiduciary duty involving personal profit, intentional failure to
perform stated duties, willful violation of any law, rule, regulation (other
than traffic violations, including driving while intoxicated, or similar
offenses), or final cease-and-desist order, material breach of any provision of
this plan, or gross negligence in matters of material importance to the Bank.
1.7 "Change in Control" shall mean and include the following with respect to the
Bank:
(i) a reorganization, merger, merger conversion, consolidation or
sale of all or substantially all of the assets of the Bank, or
a similar transaction in which the Bank is not the resulting
entity; or
(ii) individuals who constitute the board of directors of the Bank
on the date hereof (the "Incumbent Board") cease for any
reason to constitute at least a majority thereof, provided
that any person becoming a director subsequent to the date
hereof whose election was approved by a vote of at least
three-quarters of the directors comprising the Incumbent
Board, shall be, for purposes of this clause (ii) considered
as though he were a member of the Incumbent Board.
1.8 "Children" means the Director's children, both natural and adopted,
determined at the time payments am due the Children under this plan.
1.9 "Deferral Period" means the period of months designated in the Directors
Joinder Agreement during which the Director shall defer current Board fees
and/or retainer.
1.10 "Deferred Compensation Benefit" means the annuitized value (using the
Interest Factor) of the Director's Accrued Benefit Account, measured as of the
Director's Benefit Age, payable in monthly installments throughout the Payout
Period and commencing on the Director's Benefit Eligibility Date.
1.11 "Disability Benefit" means the monthly benefit payable to the Director
following a determination, in accordance with Subsection 5.2, that he is no
longer able, properly and satisfactorily, to perform his duties as a Director.
1.12 "Effective Date" of this Plan is July 1, 2001.
1.13 "Estate" means the estate of the Director.
1.14 "Financial Hardship" means an unforeseeable emergency resulting from a
sudden and unexpected illness or accident of the Director or of a dependent of
the Director, loss of the Director's property due to casualty, or other similar
extraordinary and unforeseeable circumstances which arise as a result of an
event not within the control of the Director. The circumstances that shall
constitute an unforeseeable emergency will depend upon the facts of each case,
but, in any instance, payment may not be made to the extent that such hardship
is or may be relieved (i) through reimbursement or compensation by insurance or
otherwise, (ii) by liquidation of the Director's assets to the extent such
liquidation would not itself cause severe financial hardship, or (iii) by
cessation of deferrals under the Plan. Examples of what are not considered to be
unforeseeable emergencies include the need to send the Director's child to
college or the decision to purchase a home.
1.15 "Financial Hardship Benefit" means a withdrawal or withdrawals of an amount
or amounts attributable to a Financial Hardship and limited to the extent
reasonably needed to satisfy the emergency need.
1.16 "Interest Factor" means monthly compounding or discounting, as applicable,
at Six Percent (6%) per annum.
1.17 "Payout Period" means the time frame during which certain benefits payable
hereunder shall be distributed. Payments shall be made in equal monthly
installments commencing on the first day of the month following the occurrence
of the event which triggers distribution and continuing for a period of months,
as designated in the Director's Joinder Agreement.
1.18 "Plan Year" shall mean the twelve (12) month period from July 1 to June 30
of each year.
1.19 "Projected Deferral" is an estimate, determined upon execution of a Joinder
Agreement, of the total amount of compensation to be deferred by the Director
during his Deferral Period (excluding any interest accrued on such deferrals),
and so designated in the Director's Joinder Agreement.
1.20 "Spouse" means the individual to whom the Director is legally married at
the time of the Director's death.
1.21 "Survivor's Benefit" means a stream of monthly installments payable to the
Beneficiary throughout the Payout Period. The Survivor's Benefit is equal to the
amount designated in the Joinder Agreement, and subject to Subsection 6.1.
SECTION II
ESTABLISHMENT OF RABBI TRUST
The Bank shall establish a rabbi trust into which the Bank shall
contribute assets which shall be held therein, pursuant to the agreement which
establishes such rabbi trust. The contributed assets shall be subject to the
claims of the Bank's creditors in the event of the Bank's "Insolvency" as
defined in the agreement which establishes such rabbi trust, until the
contributed assets are paid to the Director and his Beneficiary(ies) in such
manner and at such times as specified in this Plan. It is the intention of the
Bank to make a contribution or contributions to the rabbi trust to provide the
Bank with a source of funds to assist it in meeting the liabilities of this
Plan. The rabbi trust and any assets held therein shall conform to the terms of
the rabbi trust agreement which has been established in conjunction with this
Plan. Any contribution(s) to the rabbi trust shall be made in accordance with
the rabbi trust agreement. The amount and timing of such contribution(s) shall
be specified in the agreement which establishes such rabbi trust.
SECTION III
DEFERRED COMPENSATION
Commencing on the Effective Date and continuing through the end of the
Deferral Period, the Director and the Bank agree that the Director shall defer
into his Accrued Benefit Account up to One Hundred Percent (100%) of the monthly
Board fees and/or retainer which the Director would otherwise be entitled to
receive from the Bank for each month of the Deferral Period. The specific amount
of the Director's monthly deferred compensation shall be designated in the
Director's Joinder Agreement and shall apply only to compensation attributable
to services not yet performed.
SECTION IV
ADJUSTMENT OF DEFERRAL AMOUNT
Deferral of the specific amount of fees and/or retainer designated in the
Director's Joinder Agreement shall continue in effect pursuant to the terms of
this Plan unless and until the Director amends his Joinder Agreement by filing
with the Administrator a Notice of Adjustment of Deferral Amount (Exhibit B of
the Joinder Agreement). If the Bank increases the amount of fees and/or retainer
earned by the Director, the Director can include such additional amounts in his
monthly deferral, provided approval from the Board of Directors is obtained, by
filing a Notice of Adjustment of Deferral Amount. A Notice of Adjustment of
Deferral Amount shall be effective if filed with the Administrator at least
thirty (30) days prior to any January 1st or July 1st during the Director's
Deferral Period. Such Notice of Adjustment of Deferral Amount shall be effective
commencing with the January 1st or July 1st following its filing and shall be
applicable only to compensation attributable to services not yet performed by
the Director.
SECTION V
RETIREMENT BENEFIT
5.1 Retirement Benefit. Subject to Subsection 6.1 of this Plan and provided that
the Director has not received and is not entitled to receive a benefit pursuant
to Subsection 5.2, 5.3, or 5.4 the Bank agrees to pay the Director the Deferred
Compensation Benefit commencing on the Director's Benefit Eligibility Date. Such
payments will be made over the term of the Payout Period. In the event of the
Director's death after commencement of he Deferred Compensation Benefit, but
prior to completion of all such payments due and owing hereunder, the Bank shall
pay to the Director's Beneficiary a continuation of the monthly installments for
the number of months remaining in the Payout Period.
5.2 Disability Benefit. If requested by the Director and approved by the Board
of Directors, the Director shall be entitled to receive the Disability Benefit
hereunder, in any case in which it is determined by a duly licensed independent
physician selected by the Bank, that the Director is no longer able, properly
and satisfactorily, to perform his regular duties as a Director because of ill
health, accident, disability or general inability due to age. If the Director's
service is terminated pursuant to this Subsection and Board of Director approval
is obtained, the Director may elect to begin receiving the Disability Benefit in
lieu of the Deferred Compensation Benefit, which is not available prior to the
Director's Benefit Eligibility Date. The benefit shall begin within thirty (30)
days of Board of Director approval of such benefit. The amount of the monthly
benefit shall be the annuitized value using the Interest Factor of the
Director's Accrued Benefit Account measured as of the date of the disability
determination and payable over the Payout Period. In the event the Director dies
while receiving Disability Benefit payments pursuant to this Subsection, or
after becoming eligible for such payments but before the actual commencement of
such payments, his Beneficiary shall be entitled to receive those benefits
provided for in Subsection 6.1 (a) and the Disability Benefits provided for in
this Subsection shall terminate upon the Director's death.
5.3 Removal For Cause. In the event the Director is removed for Cause at any
tune prior to reaching his Benefit Age, he shall be entitled to receive that
portion of the Accrued Benefit Account that is made up of his deferred
compensation, measured as of the date of removal. Such amount shall be paid in a
lump sum within thirty (30) days of the Director's date of removal. All other
benefits provided for the Director or his Beneficiary under this Plan shall be
forfeited and the Plan shall become null and void with respect to such Director.
5.4 Voluntary or Involuntary Termination. If the Director's service with the
Bank is voluntarily or involuntarily terminated prior to the attainment of his
Benefit Eligibility Date, for any reason, other than for Cause, the Director's
death, disability, or a Change in Control, then commencing on his Benefit
Eligibility Date, the Director shall be entitled to the annuitized value of (i)
his Accrued Benefit Account calculated as of the date of his termination of
service, plus (ii) interest accrued on such Accrued Benefit Account from the
date of termination until his Benefit Age and payable over the Payout Period.
5.5 Financial Hardship Benefit. In the event the Director incurs a Financial
Hardship, the Director may request a Financial Hardship Benefit. Such request
shall be either approved or rejected by the Bank in the exercise of its sole
discretion. The Director will be required to demonstrate to the satisfaction of
the Bank that a Financial Hardship has occurred arid that the Director is
otherwise entitled to a Financial Hardship Benefit in accordance with Sections
1.14 and 1.15. If a Financial Hardship Benefit is approved, it shall be paid in
a lump sum within thirty (30) days of the event which triggers payment and only
to the extent of the Director's account balances when paid. Any Deferred
Compensation Benefit or Disability Benefit shall be actuarially adjusted to
reflect such distribution.
5.6 Termination Following a Change in Control. If the Director is terminated,
either voluntarily or involuntarily within three (3) years following a Change in
Control as defined, the Director is entitled to his full Deferred Compensation
Benefit as though he had completed all of his planned deferrals. Such benefit
shall be paid over the Payout period commencing within thirty (30) days of such
termination. In the event the Director dies prior to the commencement of such
benefit, his beneficiary is entitled to the Survivor's Benefit as stated in the
Director's Joinder Agreement.
SECTION VI
DEATH BENEFITS
6.1 Death Benefit Prior to Commencement of Deferred Compensation Benefit. In the
event of the Director's death prior to commencement of the Deferred Compensation
Benefit, the Bank shall pay the Director's Beneficiary a monthly benefit for the
Payout Period, commencing within thirty (30) days of the Director's death. The
amount of such monthly benefit payments shall be determined as follows:
(a) (1) In the event death occurs (i) while the Director is
receiving the Disability Benefit provided for in Subsection
5.2, or (ii) after the Director has become eligible for such
Disability Benefit payments but before such payments have
commenced, the Director's Beneficiary shall be entitled to
receive the Survivor's Benefit for the number of months in the
Payout Period, reduced by the number of months Disability
Benefit payments were made to the Director. In the event death
occurs after the Director has received the Disability Benefit
provided for in Subsection 5.2 for the entire Payout Period,
the Director's Beneficiary shall not be entitled to the
Survivor's Benefit for any length of time. However, the lump
sum payment described in paragraph two (2) of this Subsection
6.1(a) shall still be applicable to such Beneficiary. (2) If
(i) the total dollar amount of Disability Benefit payments
received by the Director under Subsection 5.2 is less than the
total dollar amount of payments which would have been received
had the Survivor's Benefit been paid in lieu of the Disability
Benefit which was paid during the Director's life, and (ii)
Board of Director approval is obtained, the Bank shall pay the
Director's Beneficiary a lump sum payment for the difference.
This lump sum payment shall be made within thirty (30) days of
the Director's death.
(b) In the event death occurs while the Director is (i) in the
service of the Bank, (ii) deferring fees pursuant to Section
II and (iii) prior to any reduction or discontinuance (via an
effective filing of a Notice of Adjustment of Deferral Amount)
in the level of deferrals reflected in the Director's Joinder
Agreement, the Director's Beneficiary shall be paid the
Survivor's Benefit.
(c) In the event the Director completes less than One Hundred
Percent (100%) of his Projected Deferrals due to any voluntary
or involuntary termination other than removal for Cause,
death, disability, or a Change in Control, the Director's
Beneficiary shall be paid a reduced Survivor's Benefit based
on the annuitized value, using the Interest Factor, of the
Director's Accrued Benefit Account measured as of the time of
the Director's death.
(d) In the event the Director completes One Hundred Percent (100%)
of his Projected Deferrals prior to any voluntary or
involuntary termination other than removal for Cause, and
provided no payments have been made pursuant to Subsection
5.2, the Director's Beneficiary shall be paid the Survivor's
Benefit.
6.2 Additional Death Benefit - Burial Expense. In addition to the
above-described death benefits, upon the Director's death, the Director's
Beneficiary shall be entitled to receive a one-time lump sum death benefit in
the amount of Ten Thousand Dollars ($10,000.00). This benefit shall be provided
specifically for the purpose of providing payment for burial and/or funeral
expenses of the Director. Such benefit shall be payable within thirty (30) days
of the Director's death. The Director's Beneficiary shall not be entitled to
such benefit if the Director is removed for Cause prior to death.
SECTION VII
BENEFICIARY DESIGNATION
The Director shall make an initial designation of primary and secondary
Beneficiaries upon execution of his Joinder Agreement and shall have the right
to change such designation, at any subsequent time, by submitting to the
Administrator in substantially the form attached as Exhibit A to the Joinder
Agreement, a written designation of primary and secondary Beneficiaries. Any
Beneficiary designation made subsequent to execution of the Joinder Agreement
shall become effective only when receipt thereof is acknowledged in writing by
the Administrator.
SECTION VIII
DIRECTOR'S RIGHT TO ASSETS
The rights of the Director, any Beneficiary, or any other person claiming
through the Director under this Plan, shall be solely those of an unsecured
general creditor of the Bank. The Director, the Beneficiary, or any other person
claiming through the Director, shall only have the right to receive from the
Bank those payments so specified under this Plan. The Director agrees that he,
his Beneficiary, or any other person claiming through him shall have no rights
or interests whatsoever in any asset of the Bank, including any insurance
policies or contracts which the Bank may possess or obtain to informally fund
this Plan. Any asset used or acquired by the Bank in connection with the
liabilities it has assumed under this Plan, unless expressly provided herein,
shall not be deemed to be held under any trust for the benefit of the Director
or his Beneficiaries, nor shall any asset be considered security for the
performance of the obligations of the Bank. Any such asset shall be and remain,
a general, unpledged, and unrestricted asset of the Bank.
SECTION IX
RESTRICTIONS UPON FUNDING
The Bank shall have no obligation to set aside, earmark or entrust any
fund or money with which to pay its obligations under this Plan. The Director,
his Beneficiaries or any successor in interest to him shall be and remain simply
a general unsecured creditor of the Bank in the same manner as any other
creditor having a general claim for matured and unpaid compensation. The Bank
reserves the absolute right in its sole discretion to either purchase assets to
meet its obligations undertaken by this Plan or to refrain from the same and to
determine the extent, nature, and method of any such asset purchases. Should the
Bank decide to purchase assets such as life insurance, mutual funds, disability
policies or annuities, the Bank reserves the absolute right, in its sole
discretion, to terminate such assets at any time, in whole or in part. At no
time shall the Director be deemed to have any lien, right, title or interest in
or to any specific investment or to any assets of the Bank. If the Bank elects
to invest in a life insurance, disability or annuity policy upon the life of the
Director, then the Director shall assist the Bank by freely submitting to a
physical examination and by supplying such additional information necessary to
obtain such insurance or annuities.
SECTION X
ALIENABILITY AND ASSIGNMENT PROHIBITION
Neither the Director nor any Beneficiary under this Plan shall have any
power or right to transfer, assign, anticipate, hypothecate, mortgage, commute,
modify or otherwise encumber in advance any of the benefits payable hereunder,
nor shall any of said benefits be subject to seizure for the payment of any
debts, judgments, alimony or separate maintenance owed by the Director or his
Beneficiary, nor be transferable by operation of law in the event of bankruptcy,
insolvency or otherwise. In the event the Director or any Beneficiary attempts
assignment, communication, hypothecation, transfer or disposal of the benefits
hereunder, the Bank's liabilities shall forthwith cease and terminate.
SECTION XI
ACT PROVISIONS
11.1 Named Fiduciary and Administrator. The Bank shall be the Named Fiduciary
and Administrator (the "Administrator") of this Plan. As Administrator, the Bank
shall be responsible for the management, control and administration of the Plan
as established herein. The Administrator may delegate to others certain aspects
of the management and operational responsibilities of the Plan, including the
employment of advisors and the delegation of ministerial duties to qualified
individuals.
11.2 Claims Procedure and Arbitration. In the event that benefits under this
Plan are not paid to the Director (or to his Beneficiary in the case of the
Director's death) and such claimants feel they are entitled to receive such
benefits, then a written claim must be made to the Administrator within sixty
(60) days from the date payments are refused. The Administrator shall review the
written claim and, if the claim is denied, in whole or in part, they shall
provide in writing, within ninety (90) days of receipt of such claim, their
specific reasons for such denial, reference to the provisions of this Plan or
the Joinder Agreement upon which the denial is based, and any additional
material or information necessary to perfect the claim. Such writing by the
Administrator shall further indicate the additional steps which must be
undertaken by claimants if an additional review of the claim denial is desired.
If claimants desire a second review, they shall notify the Administrator in
writing within sixty (60) days of the first claim denial. Claimants may review
this Plan, the Joinder Agreement or any documents relating thereto and submit
any issues and comments, in writing, they may feel appropriate. In its sole
discretion, the Administrator shall then review the second claim and provide a
written decision within sixty (60) days of receipt of such claim. This decision
shall state the specific reasons for the decision and shall include reference to
specific provisions of this Plan or the Joinder Agreement upon which the
decision is based. If claimants continue to dispute the benefit denial based
upon completed performance of this Plan and the Joinder Agreement or the meaning
and effect of the terms and conditions thereof, then claimants may submit the
dispute to mediation, administered by the American Arbitration Bank ("AAA") (or
a mediator selected by the parties) in accordance with the AAA's Commercial
Mediation Rules. If mediation is not successful in resolving the dispute, it
shall be settled by arbitration administered by the AAA under its Commercial
Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may
be entered in any court having jurisdiction thereof.
SECTION XII
MISCELLANEOUS
12.1 No Effect on Directorship Rights. Nothing contained herein will confer upon
the Director the right to be retained in the service of the Bank nor limit the
right of the Bank to discharge or otherwise deal with the Director without
regard to the existence of the Plan. Pursuant to 12 C.F.R. ss. 563.39(b), the
following conditions shall apply to this Plan:
(1) The Bank's Board of Directors may remove the Director at any
time, but any removal by the Bank's Board of Directors other
than removal for Cause shall not prejudice the Director's
vested right to compensation or other benefits under the
contract. As provided in Section 5.3, the Director shall be
paid the portion of his Accrued Benefit Account that
corresponds to his deferred compensation plus interest up
until the date of this termination in a lump sum within thirty
(30) days of his removal in the event he is removed for Cause.
He shall have no right to receive additional compensation or
other benefits for any period after removal for Cause.
(2) If the Director is suspended and/or temporarily prohibited
from participating in the conduct of the Bank's affairs by a
notice served under Section 8(e)(3) or (g)(1) of the Federal
Deposit Insurance Act (12 U.S.C. 1818(e)(3) and (g)(1)) the
Bank's obligations under the contract shall be suspended
(except vested rights) as of the date of termination of
service unless stayed by appropriate proceedings. If the
charges in the notice are dismissed, the Bank may in its
discretion (i) pay the Director all or part of the
compensation withheld while its contract obligations were
suspended and (ii) reinstate (in whole or in part) any of its
obligations which were suspended.
(3) If the Director is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order
issued under Section 8(e)(4) or (g)(1) of the Federal Deposit
Insurance Act (12 U.S.C. 1818(e)(4) or (g)(1)), all non-vested
obligations of the Bank under the contract shall terminate as
of tile effective date of the order, but vested rights of the
Director shall not be affected.
(4) If the Bank is in default (as defined in Section 3(x)(1) of
the Federal Deposit Insurance Act), all non-vested obligations
under the contract shall terminate as of the date of default.
(5) All non-vested obligations under the contract shall be
terminated, except to the extent determined that continuation
of the contract is necessary for the continued operation of
the Bank:
(i) by the Director of the Federal Deposit Insurance
Corporation or his designee at the time the Federal
Deposit Insurance Corporation enters into an agreement
to provide assistance to or on behalf of the Bank under
the authority contained in ss. 13(c) of the Federal
Deposit Insurance Act; or
(ii) by the Director of the Federal Deposit Insurance
Corporation or his designee, at the time the Director or
his designee approves a supervisory merger to resolve
problems related to operation of the Bank or when the
Bank is determined by the Director to be in an unsafe or
unsound condition.
Any rights of the parties that have already vested, (i.e., the Accrued Benefit
Account), however, shall not be affected by such action.
12.2 State Law. The Plan is established under, and will be construed according
to, the laws of the State of New Jersey.
12.3 Severability. In the event that any of the provisions of this Plan or
portion thereof, are held to be inoperative or invalid by any court of competent
jurisdiction, then: (1) insofar as is reasonable, effect will be given to the
intent manifested in the provisions held invalid or inoperative, and (2) the
validity and enforceability of the remaining provisions will not be affected
thereby.
12.4 Incapacity of Recipient. In the event the Director is declared incompetent
and a conservator or other person legally charged with the care of his person or
Estate is appointed, any benefits under the Plan to which such Director is
entitled shall be paid to such conservator or other person legally charged with
the care of his person or Estate.
12.5 Unclaimed Benefit. The Director shall keep the Bank informed of his current
address and the current address of his Beneficiaries. If the location of the
Director is not made known to the Bank within three (3) years after the date on
which any payment of the Deferred Compensation Benefit may first be made,
payment may be made as though the Director had died at the end of the three (3)
year period.
12.6 Limitations on Liability. Notwithstanding any of the preceding provisions
of the Plan, no individual acting as an employee or agent of the Bank, or as a
member of the Board of Directors shall be personally liable to the Director or
any other person for any claim, loss, liability or expense incurred in
connection with this Plan.
12.7 Gender. Whenever in this Plan words are used in the masculine or neuter
gender, they shall be read and construed as in the masculine, feminine or neuter
gender, whenever they should so apply.
12.8 Effect on Other Corporate Benefit Plans. Nothing contained in this Plan
shall affect the right of the Director to participate in or be covered by any
qualified or non-qualified pension, profit sharing, group, bonus or other
supplemental compensation or fringe benefit agreement constituting a part of the
Bank's existing or future compensation structure.
12.9 Suicide. Notwithstanding anything to the contrary in this Plan, the
benefits otherwise provided herein shall not be payable if the Director's death
results from suicide, whether sane or insane, within twenty-four (24) months
after the execution of his Joinder Agreement. If the Director dies during this
twenty-four (24) month period due to suicide, the balance of his Accrued Benefit
Account will be paid to the Director's Beneficiary in a single payment. Payment
is to be made within thirty (30) days after the Director's death is declared a
suicide by competent legal authority. Credit shall be given to the Bank for
payments made prior to determination of suicide.
12.10 Inurement. This Plan shall be binding upon and shall inure to the benefit
of the Bank, its successors and assigns, and the Director, his successors,
heirs, executors, administrators, and Beneficiaries.
12.11 Source of Payments. All payments provided in this Plan shall be timely
paid in cash or check from the general funds of the Bank or the assets of the
rabbi trust.
12.12 Modification of Benefit Eligibility Date. In the event that a Director
desires to modify his Benefit Eligibility Date or Payout Period with respect to
future deferrals, the Director may do so at the time and in the manner that the
Director is entitled to adjust his deferral amounts, pursuant to Section IV of
the Plan. In the event that a ]Director desires to modify his Benefit
Eligibility Date or Payout Period with respect to amounts accrued in his Accrued
Benefit Account the Director may do so, provided, however, that any such
modification is made no later than twenty-four (24) months prior to the date of
both (i) the Director's existing Benefit Eligibility (at the time of such
modification) and (ii) the Director's Benefit Eligibility Date, as modified.
12.13 Early Distribution Following a Change in Control. In the event of a Change
in Control of the Bank, a Director may apply to the Board of Directors of the
acquiring corporation ("Acquirer's Board") to commence the distribution of his
Deferred Compensation Benefit prior to the Benefit Eligibility Date and/or to
receive his Deferred Compensation Benefit in a lump sum or over some alternative
Payout Period. The determination whether to permit such change in election shall
be within the sole discretion of the Acquirer's Board.
12.14 Tax Withholding. The Bank may withhold from any benefits payable under
this Plan all federal, state, city, or other taxes as shall be required pursuant
to any law or governmental regulation then in effect.
12.15 Headings. Headings and sub-headings in this Plan are inserted for
reference and convenience only and shall not be deemed a part of this Plan.
SECTION XIII
AMENDMENT/REVOCATION
This Plan shall not be amended, modified or revoked at any time, in whole
or part, without the mutual written consent of the Director and the Bank, and
such mutual consent shall be required even if the Director is no longer serving
the Bank as a member of the Board.
SECTION XIV
EXECUTION
14.1 This plan, sets forth the entire understanding of the parties hereto with
respect to the transactions contemplated hereby, and any previous agreements or
understandings between the parties hereto regarding the subject matter hereof
are merged into and superseded by this Plan.
14.2 This Plan shall be executed in triplicate, each copy of which, when so
executed and delivered, shall be an original, but all three copies shall
together constitute one and the same instrument.
[Remainder of Page Intentionally Blank]
IN WITNESS WHEREOF, the Bank has caused this Plan to be executed on the
day and date first above written.
WITNESS: COMMUNITY BANK OF NEW JERSEY
/s/ Geraldine Davis By: /s/ Robert D. O'Donnell
- ------------------- -----------------------
Title: President and Chief Executive Officer
DIRECTOR DEFERRED COMPENSATION PLAN
First Amendment
The Director Deferred Compensation Plan of the Community Bank of New
Jersey dated July 1, 2002 (the "Plan") is hereby amended in accordance with the
following:
1. Effective immediately each Director shall be entitled to execute an
Amended Director Deferred Compensation Joinder Agreement for the
purpose for of extending the Deferral Period from Sixty (60) months
to One Hundred and Twenty (120) months, changing their Benefit Age,
and their Projected Deferral, thereby, affecting all related
benefits.
2. In all other respects the Plan shall remain I full force and effect.
In WITNESS WHEREOF, the First Amendment has been executed by the
duly authorized officer of Community Bank of New Jersey and each of the
Directors on the 23rd day of October, 2003.
WITNESS: COMMUNITY BANK OF NEW JERSEY
- ------------------------- By: /s/ Robert D. O'Donnell
------------------------------
DIRECTORS:
/s/ Charles P. Kaempffer
----------------------------------
Charles P. Kaempffer
/s/ Morris J. Kaplan
----------------------------------
Morris J. Kaplan
/s/ Eli Kramer
----------------------------------
Eli Kramer
/s/ William J. Mehr
----------------------------------
William J. Mehr
/s/ Howard M. Schoor
----------------------------------
Howard M. Schoor
/s/ Arnold G. Silverman
----------------------------------
Arnold G. Silverman
/s/ Lewis Wetstein
----------------------------------
Lewis Wetstein
/s/ Robert D. O'Donnell
----------------------------------
Robert D. O'Donnell
/s/ James A. Kinghorn
----------------------------------
James A. Kinghorn
FORM OF
AMENDED DIRECTOR DEFERRED COMPENSATION JOINDER AGREEMENT
I, __________________, and COMMUNITY BANK OF NEW JERSEY hereby agree for
good and valuable consideration, the value of which is hereby acknowledged, that
I shall participate in the Director Deferred Compensation Plan ("Plan"),
effective July 1, 2001, as such Plan may now exist or hereafter be amended or
modified, and do further agree to the terms and conditions thereof.
I understand that I must execute this Director Deferred Compensation
Joinder Agreement ("Joinder Agreement') as well as notify the Administrator of
such execution, on or before July 1, 2001, in order to participate in the Plan
from its Effective Date. Otherwise, I may execute this Joinder Agreement and
give notice of such execution to the Administrator at least thirty (30) days
prior to any January 1st or July 1st.
I hereby elect to defer the following monthly amounts for a period of One
Hundred Twenty (120) months known as the "Deferral Period" and will result in a
"Projected Deferral" in the amount of $____________.
Monthly No. of
Period Amount Months Total
7/1/01-12/01 $_________ 6 $ ______
1/02 -12/02 _________ 12 ______
1/03 - 12/03 _________ 12 ______
1/04 -12/04 _________ 12 ______
1/05 -12/05 _________ 12 ______
1/06 -12/06 _________ 12 ______
1/07 - 12/07 _________ 12 ______
1/08 - 12/08 _________ 12 ______
1/09 - 12/09 _________ 12 ______
1/10 - 12/10 _________ 12 ______
1/11- 6/11 _________ 6 ______
Total Deferral
======
I understand that my election to defer shall continue in accordance with
this Joinder Agreement until such time as I submit a "Notice of Adjustment of
Deferral Amount" (Exhibit B, hereto) to the Administrator, at least thirty (30)
days prior to any January 1st or July 1st of my Deferral Period. A Notice of
Adjustment of Deferral Amount can be used to adjust the amount of the Board fees
and/or retainer to be deferred or to discontinue deferrals altogether.
I hereby elect a "Benefit Age" of _________ years and ______ months and a
"Payout Period" of _____________ months.
In general, I understand that I shall be entitled to a "Deferred
Compensation Benefit" monthly payment of $_______, pursuant to Subsection 5.1 of
the Plan and subject to all relevant Subsections of the Plan.
In general, l understand that my designated Beneficiary shall be entitled
to a "Survivor's Benefit" equal to the annuitized value of my Accrual Benefit
Account using the Interest Factor.
I hereby designate the following individuals as my "Beneficiary" and I am
aware that I can subsequently change such designation by submitting to the
Administrator, at any subsequent time and in substantially the form attached
hereto as Exhibit A, a written designation of the primary and secondary
Beneficiaries to whom payment under the Plan shall be made in the event of my
death prior to complete distribution of the benefits is due and payable under
the Plan. I understand that any Beneficiary designation made subsequent to
execution of the Joinder Agreement shall become effective only when receipt
thereof is acknowledged in writing by the Administrator.
PRIMARY BENEFICIARY: _________________________
SECONDARY BENEFICIARY: _________________________
I understand that I am. entitled to review or obtain a copy of the Plan,
at any time, and may do so by contacting the Administrator.
This Joinder Agreement shall become effective upon execution (below) by
both the Director and a duly authorized officer of the Association.
Dated this ____day of _________, 2003
- ---------------------------------
(Director)
- ---------------------------------
(Bank's duly authorized Officer)