(d) “Change
in Control” shall mean a change in the ownership of the
Company or the Bank, a change in the effective control of the
Company or the Bank or a change in the ownership of a substantial
portion of the assets of the Company or the Bank, in each case as
provided under Section 409A of the Code and the regulations
thereunder.
(e) “Committee”
shall mean the Compensation Committee of the Board of Directors of
the Company.
(f) “Deferral
Account(s)” shall mean Non-Stock-Denominated Deferral
Accounts and Stock-Denominated Deferral Accounts, singularly or
collectively, as appropriate. Deferral Accounts will be
maintained solely as bookkeeping entries by the Company to evidence
the unfunded obligations of the Company hereunder.
(g) “Disability”
shall mean a Participant (i) is unable to engage in any substantial
gainful activity by reason of any medically determinable physical
or mental impairment which can be expected to result in death or
can be expected to last for a continuous period of not less than
twelve months; or (ii) is, by reason of any medically determinable
physical or mental impairment which can be expected to result in
death or can be expected to last for a continuous period of not
less than twelve months, receiving income replacement benefits for
a period of not less than three months under an accident and health
plan covering employees of the Company or the Bank (or would have
received such benefits for at least three months if the Participant
had been eligible to participate in such plan). The
determination of the Board as to Disability shall be binding on a
Participant.
(h) “Employee”
means any person who is employed by the Company or any of its
Subsidiaries, including employees who may also be directors of the
Company or its Subsidiaries.
(i) “Exchange
Act” shall mean the Securities Exchange Act of 1934, as
amended. References to any provision of the Exchange Act
or rule thereunder shall include any successor provisions or
rules.
(j) “Non-Employee
Director” means a member of the Board of Directors of the
Company or the Board of Directors of the Bank or any successor to
such entities who is not an Employee.
(k) “Non-Stock-Denominated
Deferral Account” shall mean the accounts or sub-accounts
established and maintained by the Company for specified deferrals
made by a Participant pursuant to Article 5 hereof.
(l) “Participant”
shall mean any Non-Employee Director of the Company or the Bank or
any Employee of the Company or any Subsidiary who is designated by
the Company’s Board of Directors or the Committee as eligible
to participate in this Plan and who makes an election to
participate in the Plan.
(m) “Restricted
Stock Award” shall mean awards granted pursuant to the
Company’s 1999, 2002 and 2005 Recognition and Retention Plans
or any similar and/or successor plans.
(n) “Retirement”
shall mean a Separation from Service on or after the age of
fifty-five (55).
(o) “Separation
from Service” shall mean a termination of the
Participant’s services (whether as an employee or as an
independent contractor) to the Company and its Subsidiaries for any
reason other than Disability. Whether a Separation from
Service has occurred shall be determined in accordance with the requirements of Section
409A of the Code based on whether the facts and
circumstances indicate that the Company, the Bank and the
Participant reasonably anticipated that no further services would
be performed after a certain date or that the level of bona fide
services the Participant would perform after such date (whether as
an employee or as an independent contractor) would permanently
decrease to no more than twenty percent (20%) of the average level
of bona fide services performed (whether as an employee or an
independent contractor) over the immediately preceding thirty-six
(36) month period.
(p) “Specified
Employee” shall mean a key employee as defined in Section
416(i) of the Code (without regard to Section 416(i)(5) of the
Code) and as otherwise defined in Section 409A of the Code and the
regulations thereunder.
(q) “Stock”
shall mean the common stock, with a par value of $0.01 per share,
of the Company or any other equity securities of the Company
designated by the Committee.
(r) “Stock-Denominated
Awards” shall mean a Restricted Stock Award or similar type
of award which has been made pursuant to a plan or arrangement
which has been approved by the Company’s shareholders and
which is determined by the Committee to be appropriate for deferral
under the terms of this Plan.
(s) “Stock-Denominated
Deferral Account” shall mean the accounts or sub-accounts
established and maintained by the Company for specified deferrals
made by a Participant pursuant to Article 6 hereof.
(t) “Subsidiary”
or “Subsidiaries” means the Bank and any of the
subsidiaries of the Company or the Bank which, with the consent of
the Board of Directors of the Company, agree to participate in this
Plan.
(u) “Trust”
shall mean the trust or trusts established by the Company pursuant
to Articles 5 and 6 hereof.
(v) “Trustee(s)”
shall mean the trustee(s) of the Trust(s).
(w) “Trust
Agreement” shall mean the agreement(s) entered into between
the Company and the Trustee(s), as amended or restated from time to
time.
(x) “Valuation
Date” shall mean the close of business on the last business
day of each calendar quarter; provided however, that in the case of
a Separation from Service or Disability, the Valuation Date shall
mean the close of business on the last business day of the month
preceding the date on which a payment is made, and in the case of a
Change in Control, the Valuation Date shall be the effective date
of such Change in Control.
(y) “Unforeseeable
Emergency” shall mean a severe financial hardship to the
Participant resulting from (1) an illness or accident of the
Participant, the Participant's spouse, or a dependent of the
Participant (within the meaning of Section 152(a) of the Code), (2)
a loss of the Participant's property due to casualty, or (3) other
extraordinary and unforeseeable circumstances arising as a result
of events beyond the control of the Participant. The
amount of such distribution may not exceed the amounts necessary to
satisfy the emergency. The circumstances that will
constitute an “Unforeseeable Emergency” will depend on
the facts of each case, but, in any case, payment may not be made
in the event that such hardship is or may be relieved:
(1) through
reimbursement or compensation by insurance or otherwise;
(2) by
liquidation of the Participant’s assets, to the extent that
liquidation of such assets would not itself cause severe financial
hardship; or
(3) by
cessation of deferrals under the Plan.
ARTICLE 3
ADMINISTRATION
(a)
Committee Authority. The Committee shall
administer the Plan in accordance with its terms and shall have all
powers necessary to accomplish such purpose, including the power
and authority to construe and interpret the Plan, to define the
terms used herein, to prescribe, amend and rescind rules and
regulations, agreements, forms and notices relating to the
administration of the Plan, and to make all other determinations
necessary or advisable for the administration of the
Plan.
(b)
Delegation of Duties; Powers. The Committee may
delegate its duties and responsibilities hereunder, as it deems
reasonable and appropriate, to the Administrator. If an
Administrator is appointed by the Committee, such Administrator
shall serve at the will of, and may be removed (with or without
cause) by the Committee. Any actions of the Committee or
the Administrator with respect to the Plan shall be conclusive and
binding upon all persons interested in the Plan, except that any
action of the Administrator will not be binding on the
Committee. The Committee and the Administrator may each
appoint agents and delegate thereto powers and duties under the
Plan, except as otherwise limited by the Plan.
(c)
Limitation of Liability. Each member of the
Committee and the Administrator shall be entitled to, in good
faith, rely or act upon any report or other information furnished
to him or her by any officer or other employee of the Company or
any Subsidiary, the Company’s independent public accountants
or any compensation consultant, legal counsel, or other
professional retained by the Company to assist in the
administration of the Plan. To the maximum extent
permitted by law, no member of the Committee or the Administrator,
nor any person to whom ministerial duties have been delegated,
shall be liable to any person for any action taken or omitted in
connection with the interpretation and administration of the
Plan. To the maximum extent permitted by law, the
Company shall indemnify the members of the Committee and the
Administrator against any and all claims, losses, damages,
expenses, including any counsel fees and costs incurred by them,
and any liability, including any amounts paid in settlement with
the Company’s approval, arising from their action or failure
to act.
3.2
Selection of Participants . The
Administrator will notify each person of his or her eligibility to
participate and the extent to which such person can participate in
the Plan within ten (10) days of the Committee’s designation
that such person is so eligible to participate in the
Plan.
ARTICLE 4
DEFERRAL ACCOUNTS
4.1
Enrollment Requirements; Deferral Accounts .
Each Participant shall complete, execute and return to
the Committee a deferral election and beneficiary designation form
prior to the election deadlines set forth in Section 4.2
below. The Company shall establish a Deferral Account
for each Participant which shall be administered pursuant to the
terms and provisions of this Plan.
4.2
Timing of Deferral Elections .
(a)
Generally . An election to defer compensation or
awards hereunder must be received by the Administrator prior to the
date specified in this Section 4.2 of the Plan. Any
elections to defer (i) salary, director’s fees, cash
compensation and annual incentive awards must be made on or prior
to the December 31 st preceding the calendar year in which such income
shall be earned, subject to the exception provided in Section
4.2(b) of the Plan, and (ii) Stock-Denominated Awards must be made
on or prior to the December 31 st preceding the calendar year in which the
restricted stock awards vest.
(b)
New Participant . Notwithstanding anything in the
Plan to the contrary, in the case of the first year in which a
Participant becomes eligible to participate in the Plan, elections
to defer compensation or awards hereunder may be made within 30
days of the date a Participant first becomes eligible to
participate in this Plan with respect to services to be performed
subsequent to the election, with such election in each case to be
effective as of the immediately following payroll period of the
Company. Under no circumstances may a Participant defer
compensation or awards to which the Participant has already
attained, at the time of deferral, a legally enforceable right to
receive such compensation or awards.
(c)
Non-Stock and Stock-Denominated Deferrals. With
the consent of the Committee, a Participant may elect to defer
otherwise taxable compensation, fees or awards which may be in the
form of cash or Stock to be received from the Company or a
Subsidiary, including salary, director’s fees, annual
incentive awards and taxable compensation payable under other plans
and programs, employment agreements or other arrangements or as
designated by the Committee; provided; however, that a Participant
who is an Employee may only defer, with respect to a given year,
receipt of only that portion of the Participant’s income that
exceeds the FICA maximum taxable wage base plus the amount
necessary to satisfy Medicare and all other payroll taxes (other
than federal, state or local income tax withholding) imposed on the
wages of such Participant from the Company and its
Subsidiaries. In addition to such limitation, the
Committee may impose limitations on the amounts permitted to be
deferred and other terms and conditions of deferral under this
Plan. Any such limitations, and other terms and
conditions of deferral, shall be set forth in the rules relating to
this Plan, or election forms, or other forms or instructions
approved by the Committee and/or the Administrator.
(d)
Subsequent Deferral Elections. A Participant may
not elect to change his or her deferral election that is in effect
for a calendar year. The Committee and/or Administrator
may, in its discretion, permit a Participant to change his or her
deferral election for a subsequent calendar year, provided that the
subsequent deferral election is made on or prior to the December
31 st
preceding the calendar year in which
such income shall be earned.
4.3
Prior Payment Elections . At the time of
a Participant’s initial deferral election, such Participant
shall also elect the number of installments (but not to exceed ten
(10) annual installment payments) in which the settlement of his or
her Deferral Account shall be completed. Any payment
elections made by a Participant before January 1, 2005 shall
continue in effect until such time as the Participant makes a
subsequent payment election pursuant to Section 4.4 below and such
payment election becomes effective as set forth
below. If no payment election was previously made, then
the current payment election shall be deemed to be ten (10) annual
installment payments.
4.4
Transitional Elections Prior to 2009 . On
or before December 31, 2008, if the Participant wishes to change
his payment election, the Participant may do so by completing a
payment election form approved by the Company, provided that any
such election (i) must be made at least 12 months before the date
on which benefit payments due to a Separation from Service or upon
a fixed date are scheduled to commence, (ii) must be made before
the Participant has a Separation from Service or a termination of
employment or service due to Disability, (iii) shall not take
effect before the date that is 12 months after the date the
election is made and accepted by the Company with respect to
payments to be made due to a Separation from Service or
