EXHIBIT 4.5
TRUST AGREEMENT
BETWEEN
PEAPACK-GLADSTONE BANK
AND
PEAPACK-GLADSTONE BANK
FOR THE
PEAPACK-GLADSTONE BANK EMPLOYEES' SAVINGS AND INVESTMENT PLAN
TABLE OF CONTENTS
SECTION 1. CREATION OF TRUST................................................54
1.1 TRUSTEE.................................................................54
1.2 TRUST FUND..............................................................54
1.3 INCORPORATION OF PLAN...................................................54
1.4 NAME....................................................................54
1.5 NONDIVERSION OF ASSETS..................................................54
SECTION 2. INVESTMENT OF TRUST FUND AND ADMINISTRATIVE POWERS OF THE TRUSTEE.54
2.1 RESPONSIBILITY FOR INVESTMENT...........................................54
2.2 DELEGATION OF INVESTMENT RESPONSIBILITY.................................55
2.3 TRUSTEE POWERS..........................................................56
SECTION 3. COMPENSATION AND INDEMNIFICATION OF TRUSTEE.......................58
AND PAYMENT OF EXPENSES AND TAXES............................................58
3.1 COMPENSATION............................................................58
3.2 INDEMNIFICATION.........................................................59
3.3 EXPENSES................................................................59
3.4 TAXES...................................................................59
SECTION 4. RECORDS AND VALUATION............................................59
4.1 RECORDS.................................................................59
4.2 VALUATION...............................................................59
SECTION 5. INSTRUCTIONS FROM ADMINISTRATOR..................................60
5.1 CERTIFICATION OF MEMBERS AND EMPLOYEES..................................60
5.2 INSTRUCTIONS TO TRUSTEE.................................................60
5.3 PLAN CHANGES............................................................60
5.4 POLICIES................................................................60
SECTION 6. CHANGE OF TRUSTEES...............................................60
SECTION 7. MISCELLANEOUS....................................................61
7.1 RIGHT TO AMEND..........................................................61
7.2 COMPLIANCE WITH ERISA...................................................61
7.3 NONRESPONSIBILITY FOR FUNDING...........................................61
7.4 REPORTS.................................................................62
7.5 DEALINGS WITH TRUSTEE...................................................62
7.6 LIMITATIONS UPON RESPONSIBILITIES.......................................62
7.7 SUCCESSOR TRUSTEES......................................................62
7.8 GOVERNING STATE LAW.....................................................62
This TRUST AGREEMENT dated 10/1, 1993,
BETWEEN PEAPACK-GLADSTONE BANK, a Banking Corporation of the state of New Jersey
(hereinafter called the "Company"),
AND PEAPACK-GLADSTONE BANK (hereinafter called the "Trustee"),
W I T N E S S E T H T H A T :
WHEREAS, effective October 1, 1993, the Company approved and adopted a
retirement plan for the benefit of its employees (hereinafter called the
"Plan"); and
WHEREAS, the Board has authorized the execution of this Trust Agreement and
has appointed Peapack-Gladstone Bank as Trustee of the Trust Fund created
pursuant to the Plan; and
WHEREAS, said Trustee agrees to hold and administer the assets of the Plan
in accordance with the terms of this Trust Agreement;
NOW, THEREFORE, in consideration of the appointment of Peapack-Gladstone
Bank as Trustee and in consideration of the premises and covenants contained
herein, the Company and the Trustee agree as follows:
Section 1. Creation of Trust
1.1 Trustee.
Peapack-Gladstone Bank shall be Trustee of the Trust Fund created in
accordance with and in furtherance of the Plan, and shall serve as Trustee until
removal or resignation in accordance with section 6 hereof. The effective date
of said trusteeship for purposes of this instrument shall be the data on which
the Plan, of which this Trust Agreement compliments, is considered effective.
1.2 Trust Fund.
The Trustee hereby agrees to accept contributions from the Company and the
Participants and amounts transferred from other qualified retirement plans from
time to time in accordance with the terms of the Plan. All such property and
contributions, together with income thereon and increments thereto, shall
constitute the "Trust Fund" to be held in accordance with the terms of this
Trust Agreement.
1.3 Incorporation of Plan.
An instrument entitled Peapack-Gladstone Bank Employees' Savings and
Investment Plan is incorporated herein by reference, and this Trust Agreement
shall be interpreted consistently with that Plan. All words and phrases defined
in that Plan shall have the same meaning when used in this Trust Agreement.
1.4 Name.
The name of this trust shall be Peapack-Gladstone Bank Employees'
Savings and Investment Trust.
1.5 Nondiversion of Assets.
In no event shall any part of the corpus or income of the Trust Fund be
used for, or diverted to, purposes other than for the exclusive benefit of the
Participants and their Beneficiaries prior to the satisfaction of all
liabilities under the Plan, except to the extent that assets may be returned to
the Employers in accordance with the Plan where the Plan fails to qualify
initially under section 401(a) of the Code, or where they are attributable to
contributions made by mistake of fact or conditioned upon their deductibility.
Section 2. Investment of Trust Fund and Administrative Powers of the Trustee.
2.1 Responsibility for Investment.
If authorized by the Plan, the Trustee shall from time to time purchase
policies in accordance with the Plan and pay the premiums from the Trust Fund.
The Trustee shall invest the balance of the Trust Fund in such property as the
Trustee, in its discretion, shall deem advisable, subject to any
instructions by the Administrator or an investment manager or a Participant as
to the investment of all or a portion of the Trust Fund pursuant to section 2.2.
However, the Trustee shall not make any investment or take any action involving
those assets for which it remains responsible which (i) is inconsistent with the
prudence and diversification requirements set forth in sections 404(a)(1)(B) and
(C) of ERISA, or (ii) is prohibited by section 406 of ERISA, or (iii) would
impair the qualification of the Plan or the exemption of the Trust under
sections 401 and 501 of the Code. Notwithstanding the foregoing, the Company's
discretionary contributions for allocations to Participants' Regular Accounts
pursuant to Section 4.4 of the Plan shall be in the form of qualifying employer
securities (as defined in section 407(d)(5) of ERISA), provided that such
contributions comply with section 408(e) of ERISA.
2.2 Delegation of Investment Responsibility.
The Administrator may, by written notice, direct the Trustee to segregate
any portion or all of the Trust Fund into one or more separate accounts for each
of which full investment responsibility will be delegated to an investment
manager appointed in such notice pursuant to section 402(c)(3) of ERISA
(hereinafter a "Manager") or to an individual Participant. For any separate
account where the Trustee is to maintain custody of the assets, the Trustee and
the Manager or the Participant shall agree upon procedures for the transmittal
of investment instructions from the Manager or the Participant to the Trustee,
and the Trustee may provide the Manager or the Participant with such documents
as may be necessary to authorize the Manager or the Participant to effect
transactions directly on behalf of the segregated account. Further, the
Administrator may, by written notice, direct the Trustee to segregate any
portion or all of the Trust Fund into one or more separate accounts for each of
which full investment responsibility will be delegated to an insurance company
through one or more group annuity contracts, deposit administration contracts,
or similar contracts, which may provide for investments in any commingled
separate accounts established under such contracts. An insurance company shall
be a Manager with respect to any amounts held under such a contract except to
the extent the insurer's assets are not deemed assets of the Plan and Trust Fund
pursuant to section 401(b)(2) of ERISA. The allocation of amounts held under
such a contract among the insurer's general account and one or more individual
or commingled separate accounts shall be determined by the Administrator except
as otherwise agreed by the Administrator and the insurer. Any Manager shall have
all of the powers given to the Trustee pursuant to section 2.3 with respect to
the portion of the Trust Fund committed to its investment discretion and
control. The Trustee shall be responsible for the safekeeping of any assets
which remain in its custody, but in no event shall the Trustee be under any duty
to question or make any inquiry or suggestion regarding the action or inaction
of a Manager, or an insurer, or a Participant, or the advisability of acquiring,
retaining, or disposing of any asset of a segregated account. The Employers
shall indemnify and hold the Trustee harmless from any and all costs, damages,
expenses, and liabilities which the Trustee may incur by reason of any action
taken or omitted to be taken by the Trustee upon directions from the
Administrator, a Manager, or an insurer, or a Participant pursuant to this
section 2.2.
2.3 Trustee Powers.
In addition to and not by way of limitation upon the fiduciary powers
granted to it by law, the Trustee shall have the following specific powers,
subject to the limitations set forth in section 2.1:
2.3-1 to receive, hold, manage, invest and reinvest the money or other
property which constitutes the Trust Fund, without distinction between principal
and income;
2.3-2 to hold funds uninvested temporarily without liability for interest
thereon, and to deposit funds in one or more savings or similar accounts with
any banks and savings and loan associations which are insured by an
instrumentality of the federal government, including the Trustee if it is such
an institution;
2.3-3 to invest or reinvest the whole or any portion of the money or other
property which constitutes the Trust Fund in such common or preferred stocks,
investment trust shares, mutual funds, commingled trust funds, partnership
interests, bonds, notes, or other evidences of indebtedness, and real and
personal property as the Trustee in its absolute judgment and discretion may
deem to be for the best interests of the Trust Fund, regardless of
nondiversification to the extent that such nondiversification is clearly
prudent, and regardless of whether any such investment or property is authorized
by law regarding the investment of trust funds, of a wasting asset nature,
temporarily nonincome producing, or within or without the State of New Jersey or
the United States;
2.3-4 to invest in common and preferred stocks, bonds, notes, or other
obligations of any corporation or business enterprise in which an Employer or
its owners may own an interest;
2.3-5 to invest in real property purchased from, leased to, and managed or
operated by or for an Employer and any other corporation or business enterprise
in which an Employer or its owners may own an interest, upon such terms and
conditions as the Trustee in its absolute discretion may deem advisable;
2.3-6 to exchange any investment or property, real or personal, for other
investments or properties at such time and upon such terms as the Trustee shall
deem proper;
2.3-7 to sell, transfer, convey or otherwise dispose of any investment or
property, real or personal, for cash or on credit, in such manner and upon such
terms and conditions as the Trustee shall deem advisable, and no person dealing
with the Trustee shall be under any duty to inquire as to the validity,
expediency, or propriety of any such sale or as to the application of the
purchase money paid to the Trustee;
2.3-8 to hold any investment or property in the name of the Trustee, with
or without the designation of any fiduciary capacity, or in name of a nominee,
or unregistered, or in such other form that title may pass by delivery;
provided, however, that the Trustee's records always shall show that such
investment or property belongs to the Trust and the Trustee shall not be
relieved hereby of its responsibility to maintain safe custody of the Trust
Fund;
2.3-9 to organize one or more corporations to hold, manage, or liquidate
any property, including real estate, owned or acquired by the Trust Fund if in
the sole discretion of the Trustee the organization of such corporation or
corporations is for the best interest of the Trust;
2.3-10 to extend the time for payment of, to modify, to renew, or to
release security from any mortgage, note or other evidence of indebtedness, or
to take advantage of or waive any default; to foreclose mortgages and bid in
property under foreclosure or to take title to property by conveyance in lieu of
foreclosure, either with or without the payment of additional consideration;
2.3-11 to vote in person or by proxy all stocks and other securities having
voting privileges; to exercise or refrain from exercising any option or
privilege with respect to stocks and other securities, including any right or
privilege to subscribe for or otherwise to acquire stocks and other securities;
or to sell any such right or privilege; to assent to and join in any plan of
refinance, merger, consolidation, reorganization or liquidation of any
corporation or other enterprise in which this Trust may have an interest, to
deposit stocks and other securities with any committee formed to effectuate the
same, to pay any expense incidental thereto, to exchange stocks and other
securities for those which may be issued pursuant to any such plan, and to
retain as an investment the stocks and other securities received by the Trustee;
and to deposit any investment in a voting trust;
2.3-12 to abandon any property, real or personal, which the Trustee shall
consider to be worthless or not of sufficient value to warrant its keeping or
protecting; to abstain from the payment of taxes, water rents, assessments,
repairs, maintenance, and upkeep of any such property; to permit any such
property to be lost by tax sale or other proceedings, and to convey any such
property for a nominal consideration or without consideration;
2.3-13 to borrow money from an Employer or from others (including the
Trustee) upon such terms and conditions and at such reasonable rates of interest
as the Trustee may deem to be advisable; to issue its promissory note as Trustee
to evidence such debt; and to secure the payment of such note by pledging any
property of the Trust Fund;
2.3-14 to manage and operate any real property which shall at any time
constitute an asset of the Trust Fund; to make repairs, alterations, and
improvements thereto; to insure such property against loss by fire or other
casualty; to lease or grant options for the sale of such property, which lease
or option may be for a period of time which may extend beyond the life of this
Trust; and to take any other action or enter into any other contract respecting
such property which is consistent with the best interests of the Trust;
2.3-15 to employ and compensate agents, investment counsel, custodians,
actuaries, attorneys, and accountants and to pay any and all expenses incurred
in connection with the exercise of any power, right, authority or discretion
granted herein;
2.3-16 to employ and consult with any legal counsel, who also may be
counsel to an Employer or the Administrator, with respect to the meaning or
construction of this Trust Agreement, the extent of the Trustee's obligations
and duties hereunder, and whether the Trustee should take or decline to take a
particular action hereunder, and the Trustee shall be fully protected with
respect to any action taken or omitted by it in good faith pursuant to such
advice;
2.3-17 to defend any action or proceeding instituted against the Trust
Fund, to institute any action on behalf of the Trust Fund, and to compromise or
submit to arbitration any dispute concerning the Trust Fund;
2.3-18 to make, execute, acknowledge and deliver any and all documents of
transfer and conveyance and any and all other instruments that may be necessary
or appropriate to carry out the powers herein granted;
2.3-19 to commingle the Trust Fund created pursuant hereto, in whole or in
part, in a single trust with all or any portion of any other trust fund,
assigning an undivided interest to each such commingled trust fund, provided
that such commingled trust is itself exempt from taxation pursuant to section
501(a) of the Code, or its successor section; and provided further that the
trust agreement governing such commingled trust shall be deemed incorporated by
reference in the Plan;
2.3-20 where two or more trusts governed by this Trust Agreement have an
undivided interest in any property, to credit the income from such property to
such trusts in proportion to their undivided interests, and when non pro-rata
distributions of property or money are made from such trusts, to make
appropriate adjustments to the undivided fractional interests of such trusts;
2.3-21 to invest all or any portion of the Trust Fund in one or more group
annuity contracts, deposit administration contracts, and other such contracts
with insurance companies, including any commingled separate accounts established
under such contracts, as shall be determined by the Trustee to be desirable and
for the best interest of the Trust Fund;
2.3-22 generally, with respect to all cash, stocks and other securities,
and property, both real and personal, received or held in the Trust Fund by the
Trustee, to exercise all the same rights and powers as are or may be lawfully
exercised by persons owning cash, or stocks and other securities, or such
property in their own right; and to do all other acts, whether or not expressly
authorized, which it may deem necessary or proper for the protection of the
Trust Fund; and
2.3-23 whenever more than two persons shall qualify to act as co-trustees,
to exercise and perform every power (including discretionary powers), authority
or duty by the concurrence of a majority of them with the same effect as if all
had joined therein, except that the unanimous vote of such persons shall be
necessary to determine the number (one or more) and identity of persons who may
sign checks, make withdrawals from financial institutions, have access to safe
deposit boxes, or direct the sale of trust assets and the disposition of the
proceeds.
Section 3. Compensation and Indemnification of Trustee and Payment of Expenses
and Taxes.
3.1 Compensation.
The Trustee shall receive as its compensation and as reimbursement for
expenses such amounts as shall be agreed upon from time to time between it and
the Board. However, in no event shall any compensation be paid from the Trust
Fund to an individual trustee who receives full-time compensation as an employee
of an Employer.
3.2 Indemnification.
Notwithstanding any other provision of this Trust Agreement, any individual
designated as a trustee hereunder shall be indemnified and held harmless by the
Employer to the fullest extent permitted by law against any and all costs,
damages, expenses and liabilities reasonably incurred by or imposed upon such
individual in connection with any claim made against him or in which he may be
involved by reason of his being, or having been, a trustee hereunder, to the
extent such amounts are not satisfied by insurance maintained by the Employers.
Further, any corporate trustee shall be indemnified and held harmless by the
Employers to the fullest extent permitted by law against any and all costs,
damages, expenses and liabilities reasonably incurred by or imposed upon such
corporation in connection with any claim made against it or in which it may be
involved by reason of its being, or having been, a trustee hereunder, to the
extent such claim is not based upon the trustee's negligence or breach of
fiduciary duty and such amounts are not satisfied by insurance.
3.3 Expenses.
All expenses of administering this Trust and the Plan, whether incurred by
the Trustee or the Administrator, shall be paid by the Trustee from the Trust
Fund to the extent such expenses shall not have been assumed by the Employers or
the Trustee.
3.4 Taxes.
All taxes of any kind that may be levied or assessed upon the Trust Fund,
its income or assets, shall be paid from the Trust Fund, but the Trustee shall
not be obliged to pay such tax so long as it shall contest the validity of such
levy or assessment upon the advice of counsel.
Section 4. Records and Valuation.
4.1 Records.
The Trustee, and any investment manager appointed pursuant to section 2.2,
shall maintain accurate and detailed records and accounts of all investments,
receipts, disbursements and other transactions made by it with respect to the
Trust Fund, and all accounts, books and records relating thereto shall be open
at all reasonable times to inspection and audit by the Administrator and the
Employers.
4.2 Valuation.
From time to time upon the request of the Administrator, but at least
annually as of the last day of each Plan Year, the Trustee shall prepare a
balance sheet and income statement of the Trust Fund and shall deliver copies of
the balance sheet and income statement to the Administrator and the Employers.
For this purpose, the Trustee shall record each asset (including any
contribution receivable from the Employers) at its fair market value. Any
liability with respect to short positions or options and any item of accrued
income or expense and unrealized appreciation or depreciation shall be included;
provided, however, that such an item may be excluded if it is not readily
ascertainable unless its exclusion would result in a material distortion. In the
absence of any written objections to the balance sheet by the Administrator or
an Employer within 90 days after its delivery to them, the Trustee shall be
entitled to presume and to rely upon its correctness for all purposes.
Section 5. Instructions from Administrator.
5.1 Certification of Members and Employees.
From time to time the Company shall certify to the Trustee in writing the
names of the individuals comprising the Administrator and shall furnish to the
Trustee specimens of their signatures and the signatures of their agents, if
any. The Trustee shall be entitled to presume that the identities of such
individuals and their agents are unchanged until receipt of a certification from
the Company notifying it of any changes.
5.2 Instructions to Trustee.
The Trustee shall pay such sums to such persons and shall take such other
actions as shall be set forth in written instructions from the Administrator.
The Trustee shall be fully protected in taking any action based upon such
written instructions and shall have no power, authority, or duty to interpret
the Plan or to inquire into the decisions or determinations of the
Administrator, or to question the instructions given to it by the Administrator.
5.3 Plan Changes.
In the event of an amendment, merger, division, or termination of the Plan,
the Trustee shall continue to disburse funds and to take other proper actions in
accordance with the instructions of the Administrator.
5.4 Policies.
With respect to Policies purchased pursuant to the Plan, the Trustee shall
take such action and execute such documents as shall be requested in written
instructions given to the Trustee by the Administrator.
Section 6. Change of Trustees.
The Company may at any time, by action of the Board, remove any person or
corporation serving as a trustee hereunder by giving to such person or
corporation written notice of removal and, if applicable, the name and address
of the successor trustee. Any person or corporation serving as a trustee
hereunder may resign at any time by giving written notice to the Company. Any
such removal or resignation shall take effect within 30 days after notice has
been given by the trustee or by the Company, as the case may be. Within those 30
days, the removed or resigned trustee shall transfer, pay over and deliver any
portion of the Trust Fund in its possession or control (less an appropriate
reserve for any unpaid fees, expenses, and liabilities) and all pertinent
records to the successor or remaining trustee; provided, however, that any
assets which are invested in a collective fund or in some other manner which
prevents their immediate transfer shall be transferred and delivered to the
successor trustee as soon as may be practicable. Thereafter, the removed or
resigned trustee shall have no liability for the Trust Fund or for its
administration by the successor or remaining trustee, but shall render an
accounting to the Administrator of its administration of the Trust Fund to the
date on which its trusteeship shall have been terminated. The Company may also,
upon 30 days' notice to each person currently serving as a trustee, appoint one
or more persons to serve as co-trustees hereunder.
Section 7. Miscellaneous.
7.1 Right to Amend.
This Trust Agreement may be amended from time to time by an instrument
executed by the Company; provided, however, that any amendment affecting the
powers or duties of the Trustee must be approved by the Trustee, and provided,
further, that no amendment may divert any portion of the Trust Fund to purposes
other than the exclusive benefit of the Participants and their Beneficiaries
prior to the satisfaction of all liabilities for benefits. Any amendment shall
apply to the Trust Fund as constituted at the time of the amendment as well as
to that portion of the Trust Fund which is subsequently acquired.
7.2 Compliance with ERISA.
In the exercise of its powers and the performance of its duties hereunder,
the Trustee shall act in good faith and in accordance with the applicable
requirements under ERISA. Except as may be otherwise required by ERISA, the
Trustee shall not be required to furnish any bond in any jurisdiction for the
performance of its duties hereunder and, if a bond is required despite this
provision, no surety shall be required on it.
7.3 Nonresponsibility for Funding.
The Trustee shall be under no duty to enforce the payment of any
contributions and shall not be responsible for the adequacy of the Trust Fund to
satisfy any obligations for benefits under the Plan.
7.4 Reports.
The Trustee shall file any report which it is required by law to file with
any governmental authority with respect to this Trust, and the Administrator
shall furnish to the Trustee whatever information is necessary to prepare the
report.
7.5 Dealings with Trustee.
Persons dealing with the Trustee, including but not limited to banks,
brokers, dealers, and insurers, shall be under no obligation to inquire
concerning the validity of anything which the Trustee purports to do, nor need
any person see to the proper application of any money paid or any property
transferred upon the order of the Trustee or to inquire into the Trustee's
authority as to any transaction.
7.6 Limitations Upon Responsibilities.
The Trustee shall have no responsibilities under this Trust Agreement other
than those specifically enumerated or explicitly allocated to it under the
provisions of ERISA. All other responsibilities are retained and shall be
performed by one or more of the Employers, the Administrator, and such advisors
or agents as they choose to engage.
7.7 Successor Trustees.
This Trust Agreement shall apply to any person or corporation who shall be
appointed to succeed one or more of the persons or corporations currently
appointed as a trustee; and any reference herein to the Trustee shall be deemed
to include any one or more individuals or corporations or any combination
thereof who or which shall at any time act as a co-trustee or as the sole
trustee.
7.8 Governing State Law.
This Trust Agreement shall be interpreted in accordance with the laws of
the State of New Jersey to the extent those laws may be applicable under the
provisions of ERISA.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
WITNESS: PEAPACK-GLADSTONE BANK
TONI ROSELL By: FRANK A. KISSEL
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Toni Rosell Frank A. Kissel, President
WITNESS: PEAPACK-GLADSTONE BANK, TRUSTEE
TONI ROSELL CRAIG C. SPENGEMAN
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Toni Rosell Craig C. Spengeman, Senior Trust Officer