AMENDED AND RESTATED PARTICIPATION AGREEMENT UNDER THE FIRST UNITED BANK & TRUST SUPPLEMENT EXECUTIVE RETIREMENT PLAN
Exhibit
10.6
AMENDED
AND RESTATED PARTICIPATION AGREEMENT
UNDER
THE
FIRST
UNITED BANK & TRUST SUPPLEMENT EXECUTIVE RETIREMENT
PLAN
THIS
AMENDED AND RESTATED PARTICIPATION AGREEMENT (this “Participation Agreement”) is
entered into this 14th
day of
February, 2007 (the “Execution Date”) by and between First
United Bank & Trust (“Employer”)
and ___________________________, an executive officer of the Employer (the
“Participant”).
RECITALS:
WHEREAS,
the Employer adopted the First United Bank & Trust Supplemental Executive
Retirement Plan effective as of November 1, 2001 (the “Original Plan”), and the
Employer and the Participant entered into a Participation Agreement pursuant
thereto on _________________, _____ (the “Original Participation
Agreement”);
WHEREAS,
the Employer amended and restated the Original Plan on February 14, 2007 to
make
certain clarifying and other changes, a copy of which is attached hereto as
Exhibit
A
(as
amended and restated, the “Plan”); and
WHEREAS,
the Employer and Participant desire to amend and restate the Original
Participation Agreement so that it conforms with the terms and conditions of
the
Plan.
NOW,
THEREFORE, in consideration of the foregoing, the agreements and covenants
set
forth herein, and other valuable consideration, the receipt and sufficiency
of
which is hereby acknowledged, the parties agree to amend and restate the
Original Participation Agreement, effective January 1, 2005, as follows:
1. Definitions.
Except
as defined in the Recitals and below, capitalized terms in this Participation
Agreement shall have the meanings given those terms in the Plan.
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(a)
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“Cause”
has the meaning given that term in Section
8(a)
hereof.
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(b)
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“Change
of Control SERP Benefit” means the SERP Benefits payable pursuant to
Section
3(b)
hereof.
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(c)
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“Competitive
Employment” means the Participant engages, directly or indirectly, as an
owner, partner, member, director, officer, employee or agent of any
sole
proprietorship or entity, in the business of providing goods or services
that are substantially similar to those provided by the Employer
in any
county in which the Employer has a
branch.
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(d)
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“Disability”
shall have the meaning given that term under the First United Bank
&
Trust Long Term Disability Plan, as in effect at the time a determination
of Disability is to be made.
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(e)
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“Disability
SERP Benefit” means the SERP Benefits payable pursuant to Section
3(c)
hereof.
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(f)
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“Employer”
means First United Bank & Trust, a Maryland commercial bank, and any
successor entity.
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(g)
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“Final
Pay” means the sum of (i) the Participant’s annual salary for the year in
which employment terminates, regardless of whether all such salary
has
been paid at the time of termination of employment and (ii) the greater
of
(A) the Participant’s targeted cash bonus for the year in which employment
terminates or (B) the actual cash bonus earned by Participant for
the year
immediately prior to the year in which employment
terminates.
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(h)
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“Guaranteed
Payment Lifetime Annuity” means the distribution method described in
Section
3(a)(ii)(C)
hereof.
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(i)
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“Key
Employee” means, for the 12-month period beginning on a particular April
1, a Participant described in Section 416(i) of the Code (applied
in
accordance with Section 416 regulations and disregarding Section
416(i)(5)
of the Code) at any time during the 12-month period ending on the
preceding December 31.
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(j)
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“Normal
Retirement” means Participant’s Separation from Service with the Employer
for any reason other than Cause after such Participant has both (i)
completed ten (10) Years of Service and (ii) attained his or her
Normal
Retirement Age.
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(k)
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“Normal
Retirement Age” means sixty (60) years of
age.
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(l)
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“Normal
Retirement SERP Benefit” means the SERP Benefit spayable pursuant to
Section
3(a)(i)
hereof.
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(m)
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“Post-Retirement
Survivor Benefit” means the SERP Benefits payable pursuant to Section
3(f)
hereof.
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(n)
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“Pre-Retirement
Death Benefit” means the SERP Benefits payable pursuant to Section
3(e)
hereof.
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(o)
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“Pre-Retirement
Termination SERP Benefit” means the SERP Benefits payable pursuant to
Section
3(d)
hereof.
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(p)
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“Separation
from Service” means a termination of the Participant’s employment with the
Employer in accordance with Section 409A(a)(2)(A)(i) of the Code
and any
related regulations or other guidance promulgated with respect to
Section
409A of the Code (and any successor section or
regulations).
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(q)
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“Total
Pay” for any given year means the Participant’s salary and targeted cash
bonus for such year.
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(r)
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“Triggering
Event” means the occurrence of any one of the following events subsequent
to a Change of Control:
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(i)
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Participant's
receipt of a letter of intent to dismiss without Cause, as defined
in the
Plan; or
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(ii)
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termination
of the Plan; or
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(iii)
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relocation
of Participant's employment to a location more than 50 miles from
the
Participant’s place of employment at the time of the Change of Control;
or
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(iv)
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a
10% or greater reduction
in Participant’s Total Pay for the year in which the Triggering Event
occurs from the prior year’s Total Pay, but disregarding any reduction in
bonus or incentive compensation payments which occurs in accordance
with
the terms of any written bonus or incentive compensation program
as it
reads before the occurrence of a Change of Control;
or
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(v)
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a
change to Participant’s position that results in Participant not being
deemed an executive officer of
Employer.
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(s)
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“Pre-Retirement
Termination” has the meaning given that term in Section
3(d)
hereof.
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(t)
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“Pre-Retirement
Termination SERP Benefit” has the meaning given that term in Section
3(d)
hereof.
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(u)
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“Year
of Service” means each twelve (12) consecutive month period of full time
employment with the Employer. No credit will be received for a partial
Year of Service.
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2. Effective
Date of Participation.
The
effective date of the Participant’s participation in the Plan shall be
__________________, _______.
2
3. SERP
Benefits.
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(a)
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Normal
Retirement SERP Benefit.
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| (i) |
Subject
to Section
3(g) hereof,
upon Normal Retirement, the Participant shall be entitled to a normal
retirement SERP benefit, expressed as a monthly lifetime annuity
under
Section
4(a)(ii)
hereof,
equal to one-twelfth (1/12) of the sum of (A) two and one-half percent
(2.5%) of Final Pay for each completed Year of Service, up to a maximum
of
twenty-four (24) Years of Service (or sixty percent (60%) of Final
Pay),
and (B) one percent (1%) of Final Pay for each Year of Service beyond
twenty-four (24) Years of Service that is completed after the Participant
attains Normal Retirement Age, up to a maximum of five (5) Years
of
Service (or five percent (5%) of Final Pay) (collectively, the “Normal
Retirement SERP Benefit”). To avoid any doubt with respect to the
foregoing sentence, the sum of items (A) and (B) above shall not
exceed
sixty-five percent (65%) of the Participant’s Final
Pay.
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| (ii) |
Notwithstanding
anything to the contrary contained in subparagraph
(i)
of
this paragraph
(a),
for purposes of calculating the Participant’s Normal Retirement SERP
Benefit, the Participant shall be deemed to have twenty-four (24)
Years of
Service as of the Execution Date; provided,
however, that,
if the Participant voluntarily terminates his or her employment with
the
Employer for any reason other than because of (A) the relocation
by the
Employer of his or her employment to a location more than 50 miles
from
the Participant’s place of employment immediately prior to the relocation,
(B) a 10% or greater reduction
by the Employer in the Participant’s Total Pay for any year from the prior
year’s Total Pay, but disregarding any reduction in bonus or incentive
compensation payments which occurs in accordance with the terms of
any
written bonus or incentive compensation program, or (C) a
change by the Employer to the Participant’s position that results in the
Participant not being deemed an executive officer of the Employer,
then
this subparagraph
(ii)
shall be of no force or effect and the Participant’s Normal Retirement
SERP Benefit shall be calculated based on actual Years of Service.
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| (iii) |
The
Normal Retirement SERP Benefit shall be distributed in accordance
with the
election made by the Participant pursuant to Section
4
hereof and shall be made or begin not later than the 15th
day of the third (3rd)
calendar month following Normal
Retirement.
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(b)
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Change
of Control SERP Benefit.
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(i)
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Subject
to Section
3(g) hereof,
in the event the Participant has a Separation from service following
a
Change of Control and a subsequent Triggering Event, the Participant
shall
be entitled to a change of control SERP benefit, expressed as a monthly
lifetime annuity under Section
4(a)(ii) hereof,
equal to one-twelfth (1/12) of the greater of (A) 60% of Final Pay
or (B)
his or her Normal Retirement SERP Benefit earned under Section 3(a)
hereof
as of the date of the Separation of Service (the “Change of Control SERP
Benefit”). Notwithstanding the foregoing, in no event will the Change of
Control SERP Benefit, together with amounts payable by Employer and
its
affiliated companies under all other plans and arrangements upon
a change
in the ownership or effective control of the Employer (as contemplated
by
Section 280G of the Code), exceed the maximum amount that can be
paid
without triggering a loss of Employer deduction under Section 280G
of the
Code or imposition of an excise tax under Section 4999 of the Code.
All
rights and liabilities associated with the Participant's SERP Benefit
shall not be adversely affected, limited or reduced in any way due
to a
Change of Control and Triggering
Event.
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(ii)
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The
Change of Control SERP Benefit shall be distributed in accordance
with the
election made by the Participant pursuant to Section
4
hereof and shall be made or begin not later than the 15th
day of the third (3rd)
calendar month following the later of (A) the Participant’s Separation
from Service or (B) the date the Participant attains Normal Retirement
Age.
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3
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(c)
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Disability
SERP Benefit.
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| (i) |
Subject
to Section
3(g)
hereof, if the Participant has a Separation from Service due to the
Participant's Disability, then the Participant will be entitled to
receive
a lump sum equal to the actuarial equivalent of his or her Normal
Retirement SERP Benefit earned under Section
3(a)
hereof as of the date of the Separation from Service, less all payments
received under any disability insurance benefit provided by the Employer
regardless of whether the Participant is taxed on premium payments
made by
the Employer with respect to such insurance policy (“Disability SERP
Benefit”).
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| (ii) |
The
Disability SERP Benefit shall be paid not later than the 15th
day of the third (3rd)
calendar month following the Participant’s Separation from
Service.
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(d)
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Pre-Retirement
Termination SERP Benefit.
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(i)
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Subject
to Section
3(g)
hereof, in the event the Participant has a Separation from Service
for any
reason other than due to Normal Retirement, after a Change of Control
and
subsequent Triggering Event, or due to death, Disability, or Cause
(a
“Pre-Retirement Termination”), and provided the Participant is vested
pursuant to Section
5(d)
hereof, the Participant shall be entitled to receive his or her Normal
Retirement SERP Benefit earned under Section
3(a)
hereof as of the date of the Separation from Service (the “Pre-Retirement
Termination SERP Benefit”).
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(ii)
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The
Pre-Retirement Termination SERP Benefit shall be distributed in accordance
with the election made by the Participant pursuant to Section
4
hereof and shall be made or begin not later than the 15th
day of the third (3rd)
calendar month following the Participant’s attainment of Normal Retirement
Age.
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| (e) |
Pre-Retirement
Death Benefit.
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(i)
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Subject
to Section
3(g)
hereof, if the Participant dies before the commencement of distribution
of
his or her Normal Retirement SERP Benefit, Change of Control SERP
Benefit,
or Pre-Retirement Termination SERP Benefit (as the case may be),
then the
Participant’s Beneficiary will be entitled to receive a lump sum equal to
the actuarial equivalent of the Participant’s SERP Benefit earned as of
the date of death, less any
death benefits payable to the beneficiary(ies) designated by the
Participant for purposes of any Employer owned life insurance covering
the
life of the Participant (but disregarding any group term life insurance)
(the “Pre-Retirement Death Benefit”).
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(ii)
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The
Pre-Retirement Death Benefit shall be
paid not later than the 15th
day of the third (3rd)
calendar month following the Participant’s
death.
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(f)
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Post-Retirement
Survivor Benefit.
If the Participant dies after the commencement of distribution of
his or
her Normal Retirement SERP Benefit, Change of Control SERP Benefit,
or
Pre-Retirement Termination SERP Benefit (as the case may be), then
distribution of such benefits shall continue after the Participant's
death
only if the Participant elected one of the following forms of distribution
methods, as provided in Section
4
hereof (“Post-Retirement Survivor
Benefit”):
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(i)
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50%
joint and survivor annuity; or
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(ii)
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75%
joint and survivor annuity; or
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(iii)
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100%
joint and survivor annuity; or
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(iv)
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Guaranteed
Payment Lifetime Annuity, but only until the guaranteed 120 months
of
payments have been made.
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4
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(g)
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Offset
of SERP Benefits.
The SERP Benefits paid hereunder shall be offset, dollar-for-dollar,
by an
amount equal to fifty-percent (50%) of the Participant's Social Security
benefits received (or deemed to have been received) by the Participant
and
one hundred-percent (100%) of the First United Bank & Trust Pension
Plan benefits received by the Participant. For purposes of this Plan
and
offset calculation (including the calculation of a lump sum payment
under Section
4(a)(i)
hereof paid before the earliest time allowed by law for receipt of
Social Security benefits), Participant shall be deemed to have begun
receiving Social Security benefits at the earliest time allowed by
law. In
no event shall military service certified to Participant as credited
service under the First United Bank & Trust Pension Plan cause an
increase to any offset amount under this Participation Agreement
and
Plan.
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(h)
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Restriction
on Timing of Distribution for Key Employees.
Notwithstanding any provision of this Participation Agreement to
the
contrary, if the Participant is a Key Employee and any class of securities
of the Employer (or of any person with whom the Employer would be
considered a single employer under Section 414(b) and (c) of the
Code) is
publicly traded as of the date of the Participant’s Separation from
Service, no distribution may be made to the Participant on account
of such
Separation from Service before the date that is six (6) months after
the
date of Separation from Service (or, if earlier, the date of the
Key
Employee’s death). Any lump sum payment delayed pursuant to this paragraph
will be paid, and any annuity payments delayed pursuant to this paragraph
will be accumulated and paid, during the seventh month following
the month
in which the Separation from Service
occurs.
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(i)
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Exclusivity
of SERP Benefits.
This Section
3
is
not intended to, and does not, confer on the Participant the right
to
receive more than one of the SERP Benefits described in paragraphs
(a) through
(e)
of
this Section
3.
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4. Method
of Distribution of SERP Benefits.
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(a)
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Initial
Election.
Concurrently
with the execution of this Participation Agreement (or at such later
time
as is permitted under Section 409A of the Code and applicable Internal
Revenue Service guidance adopted thereunder), the Participant shall
elect
any one of the following distribution methods, which, subject to
paragraph
(b) of
this Section
4,
shall be irrevocable:
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(i)
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lump
sum payment; or
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(ii)
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lifetime
annuity; or
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(iii)
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lifetime
annuity with 120 months of guaranteed payments;
or
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(iv)
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50%
joint and survivor annuity; or
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(v)
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75%
joint and survivor annuity; or
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(vi)
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100%
joint and survivor annuity.
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In
the event the Participant fails to elect any of the above forms of
distribution methods as required herein, the Participant shall be
deemed
to have chosen the lifetime annuity described in Section
4(a)(ii).
Except for a lump sum distribution, all distributions shall be made
on a
monthly basis.
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If
the Participant elects a lump sum payment method of distribution,
the
Participant acknowledges and accepts that the lump sum payment actually
received shall be the actuarial equivalent of the lifetime annuity
described in Section
4(a)(ii).
If the Participant elects any joint and survivor annuity method of
distribution or a Guaranteed Payment Lifetime Annuity method of
distribution, the Participant acknowledges and accepts the reduction
of
his or her monthly distribution to actuarially accommodate such
distribution election.
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5
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If
the Participant elects a distribution method other than a lifetime
annuity
described in Section
4(a)(ii),
the actuarial equivalent will be determined using the same actuarial
equivalent assumptions contained in the First
United Bank & Trust Pension Plan (or any successor or replacement
plan) in effect as of the date that distributions of SERP Benefits
commence hereunder.
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(b)
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Changes
to Distribution Method.
The Participant may make one or more subsequent elections with respect
to
the manner in which his or her SERP Benefit is to be distributed
pursuant
to a written election in such form as is acceptable to the Administrator.
A subsequent election may be made at any time prior to the commencement
of
SERP Benefits; provided, however, that a subsequent election changing
the
form of distribution to or from a lump sum payment must (i) be made
at
least 12 months prior to the date originally scheduled for distribution
of
the SERP Benefit; (ii) provide for an effective date at least 12
months
following the subsequent election, and (iii) postpone the commencement
of
distribution for a period of not less than five (5) years from the
previous distribution date.
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5. Vesting.
Subject
to Section
8
hereof,
a Participant shall become 100% vested in his or her SERP Benefit upon the
following events:
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(a)
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upon
the Participant’s Normal
Retirement;
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(b)
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upon
the Participant’s Separation from Service following a Change of Control
and subsequent Triggering
Event;
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(c)
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upon
a Separation from Service due to a Disability;
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(d)
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upon
completion of ten (10) Years of Service; or
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(e)
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upon
the Participant’s death.
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There
shall be no partial vesting of SERP Benefits.
6. Taxes;
Withholding.
The
Participant shall be responsible for the payment of all applicable local, state
and federal taxes associated with the Participant’s participation in the Plan
and the receipt of SERP Benefits hereunder, and the Employer shall have the
right to deduct from any distributions hereunder any such taxes or other amounts
required by law to be withheld therefrom.
7. Beneficiaries.
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(a)
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Pre-Retirement
Death Benefit.
The
Participant may designate a Beneficiary for the Pre-Retirement Death
Benefit in accordance with rules established by the Administrator.
A
Participant may change any prior Beneficiary designation, without
notice
to or consent of any previously designated Beneficiary, in accordance
with
rules established by the Administrator. In the absence of a Beneficiary
designation or if the Beneficiary predeceases the Participant, the
Beneficiary will be the death beneficiary designated by the Participant
for purposes of the life insurance policy owned by the Employer on
the
life of the Participant or, if no such beneficiary is named or no
life
insurance policy exists, the Participant’s estate. If more than one person
is the Beneficiary, each Beneficiary will receive equal divisible
amounts
of any death benefit payable, unless otherwise indicated on the applicable
form.
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(b)
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Post-Retirement
Survivor Benefit.
If the Participant elects a joint and survivor annuity or a Guaranteed
Payment Lifetime Annuity, he or she shall designate, in accordance
with
rules established by the Administrator, a Beneficiary to receive
the
Post-Retirement Survivor Benefit, if any, upon his or her
death.
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(c)
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Lost
Beneficiary.
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| (i) |
The
Participant and his or her Beneficiaries shall have the obligation
to keep
the Administrator informed of their current address until such time
as all
benefits due have been paid.
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| (ii) |
If
a Participant or Beneficiary cannot be located by the Administrator
exercising diligence, then, in its sole discretion, the Administrator
may
presume that the Participant or Beneficiary is deceased for purposes
of
the Participation Agreement and all unpaid amounts (net of due diligence
expenses) owed to the Participant or Beneficiary shall be paid
accordingly, or, if a Beneficiary cannot be so located, then such
amounts
may be forfeited. Any such presumption of death shall be final,
conclusive, and binding on all
parties.
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8. Forfeiture
of SERP Benefits.
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(a)
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No
Benefits Payable Upon Termination for Cause.
Notwithstanding anything contained herein to the contrary, no SERP
Benefits shall be payable to the Participant if his or her employment
with
the Employer is terminated for Cause, regardless of whether the
Participant would otherwise be vested in his or her SERP Benefit.
For
purposes hereof, a Participant whose employment is terminated for
any of
the following reasons shall be regarded as having been terminated
for
“Cause”:
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(i)
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willful
or grossly negligent misconduct that is materially injurious to the
Employer;
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(ii)
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embezzlement
or misappropriation of funds or property of the
Employer;
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(iii)
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conviction
of a felony or the entrance of a plea of guilty or nolo contendere
to a
felony;
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(iv)
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conviction
of any crime involving fraud, dishonesty, moral turpitude or breach
of
trust or the entrance of a plea of guilty or nolo contendere to such
a
crime;
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(v)
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failure
or refusal by the Participant to devote full business time and attention
to the performance of his or her duties and responsibilities if such
breach has not been cured within fifteen (15) days after notice is
given
to the Participant; or
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(vi)
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issuance
of a final non-appealable order or other direction by a Federal or
state
regulatory agency prohibiting the Participant’s employment in the business
of banking.
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(b)
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Competitive
Employment.
Notwithstanding
anything contained herein to the contrary, and regardless of whether
the
Participant would otherwise be vested in his or her SERP Benefit,
the
Employer’s obligation to make payments to the Participant or a Beneficiary
under this Participation Agreement will be conditioned upon (i) the
Participant refraining from Competitive Employment for a period of
three
(3) years following his or her Separation from Service with the Employer,
(ii) the Participant refraining from injurious disclosure of confidential
information concerning the Employer, and (iii) the Participant remaining
available, at the Employer’s reasonable request, to provide at least six
(6) hours’ of transition services per month for twelve (12) months
following his or her Separation from Service (except in the case
of a
Separation from Service due to death or Disability); provided, however,
that only condition (ii) of this paragraph
shall
apply if the Participant has a Separation from Service following
a Change
of Control and subsequent Triggering Event. If the Participant violates
any of the foregoing conditions, then the Participant will forfeit
all
then-unpaid amounts under this Participation Agreement and be obligated
to
reimburse the Employer for all amounts paid hereunder, plus interest
thereon at the rate of 10% per year. If the Employer engages an attorney
that is not its employee to collect any amounts owed by the Participant
pursuant to this paragraph,
then the Participant will be obligated to reimburse the Employer
for any
associated attorney’s fees and other costs of
collection.
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7
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9.
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General
Provisions
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(a)
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No
Assignment.
SERP Benefits under this Participation Agreement shall not be subject
in
any manner to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance, or charge, and any such action shall be void
for all
purposes of the Participation Agreement. SERP Benefits shall not
in any
manner be subject to the debts, contracts, liabilities, engagements,
or
torts of any person, nor shall they be subject to attachments or
other
legal process for or against any person, except to such extent as
may be
required by law. This paragraph
(a)
does not prohibit the transfer or assignment to the Participant’s spouse,
former spouse or child of the right to receive all or a portion of
the
benefits payable to the Participant under this Participation Agreement,
if
such transfer or assignment is made pursuant to a domestic relations
order
issued by a court that is legally binding on the Participant. Payment
of
SERP Benefits pursuant to such an order may not be made before the
earlier
of (i) when SERP Benefits are actually paid to the Participant or
(ii) a
date specified in the order that is not before the earliest date
that SERP
Benefits could actually begin being paid to the Participant if he
or she
terminated employment. Any provision of an order for payment of SERP
Benefits upon the election of the spouse, former spouse or child
cannot be
given effect. Any payment of SERP Benefits pursuant to a domestic
order
will be subject to tax withholding as provided by law. If a domestic
relations order is served on the Employer, it will be processed in
accordance with the Employer’s rules for processing qualified domestic
relations orders established pursuant to Section 414(p) of the Code.
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(b)
|
No
Employment Rights.
Participation in the Plan, and the execution of this Participation
Agreement, shall not be construed to confer upon the Participant
the legal
right to be retained in the employ of the Employer, or give the
Participant or any Beneficiary, or any other person, any right to
any
payment whatsoever, except to the extent of the benefits provided
for
hereunder. The Participant shall remain subject to discharge to the
same
extent as if this Plan had never been
adopted.
|
|
(c)
|
Incompetence.
If the Administrator determines that any person to whom a benefit
is
payable under this Participation Agreement is incompetent by reason
of
physical or mental disability, the Administrator shall have the power
to
cause the payments becoming due to such person to be made to another
individual for the Participant’s benefit without responsibility of the
Administrator or the Employer to see to the application of such payments.
Any payment made pursuant to such power shall, as to such payment,
operate
as a complete discharge of the Employer, the Administrator, and their
representatives.
|
(d)
Identity.
If, at
any time, any doubt exists as to the identity of any person entitled to any
payment hereunder or the amount or time of such payment, the Administrator
shall
be entitled to hold such sum until such identity or amount or time is determined
or until an order of a court of competent jurisdiction is obtained. The
Administrator shall also be entitled to pay such
sum
into court in accordance with the appropriate rules of law. Any expenses
incurred by the Employer or Administrator incident to such proceeding or
litigation shall be charged against the SERP Benefits of the Participant.
|
(e)
|
Amendment
and Termination.
Except as prohibited by applicable law, the Employer may unilaterally
modify, amend or terminate this Participation Agreement; provided,
however, that no modification, amendment or termination shall reduce
any
vested SERP Benefit to which the Participant has already become entitled
at the time of the modification, amendment or termination, including,
without limitation, SERP Benefits to which a Participant became entitled
due to a Change of Control, unless the Participant consents in writing
to
such modification, amendment or termination. Any modification,
amendment or termination shall be evidenced by a written instrument
executed by the Employer and delivered to the Participant.
|
8
|
(f)
|
Compliance
with Law.
Notwithstanding any other provision of this Participation Agreement
to the
contrary, the Employer may amend, modify or terminate this Participation
Agreement, without the consent of the Participant, as the Employer
deems
necessary or appropriate to ensure compliance with any law, rule,
regulation or other regulatory pronouncement applicable to the Plan,
including, without limitation, Section 409A of the Code and any related
regulations or other guidance promulgated with respect to Section
409A of
the Code.
|
|
(f)
|
Governing
Law.
To the extent not preempted by federal law, this Participation Agreement
shall be governed by, construed and administered under, the laws
of the
State of Maryland, exclusive of the conflict of laws principles of
that
State.
|
|
(g)
|
Severability.
Should any provision of this Participation Agreement be deemed or
held to
be unlawful or invalid for any reason, such fact shall not adversely
affect the other provisions hereof unless such invalidity shall render
impossible or impractical the functioning of this Participation Agreement
and, in such case, the Employer shall immediately adopt a new provision
to
take the place of the one held illegal or
invalid.
|
|
(h)
|
Headings.
The headings contained in this Participation Agreement are inserted
only
as a matter of convenience and for reference and in no way define,
limit,
enlarge, or describe the scope or intent of this Plan nor in any
way shall
they affect this Participation Agreement or the construction of any
provision thereof.
|
|
(i)
|
Terms.
Singular nouns shall be read as plural and masculine pronouns shall
be
read as feminine, and vice versa, as
appropriate.
|
|
(j)
|
Successors.
This Participation Agreement shall be binding upon each of the parties
and
shall also be binding upon their respective successors or assigns.
|
|
(k)
|
Application
of the Plan; Entire Agreement.
The
Participant acknowledges, by executing this Participation Agreement,
that
(i) this Participation Agreement is subject in all respects to the
provisions of the Plan, as amended from time to time, the terms of
which
are incorporated herein by reference and made a part hereof, (ii)
that a
copy of the Plan and all amendments thereto through the date hereof
were
provided to the Participant on the date hereof, and (iii) he or she
understands and accepts of all of the terms and conditions of the
Plan.
This
Participation Agreement sets forth the entire agreement of the parties
with respect to the subject matter hereof. Any and all prior agreements
or
understandings with respect to such matters are hereby
superseded.
|
IN
WITNESS WHEREOF, each of the parties has caused this Participation Agreement
to
be executed as of the day first above written.
| ATTEST: | FIRST UNITED BANK AND TRUST: | ||
|
By:
|
|||
|
|
Name: Xxxxxxx
X. Xxxxx
Title: Chairman/Chief
Executive Officer
|
||
| WITNESS: | PARTICIPANT | ||
|
By:
|
|||
|
|
Name:
|
||
9
