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EXHIBIT 10.5b
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DEFERRED COMPENSATION AGREEMENT
THIS AGREEMENT is made this 27 day of December, 1996, by and between
Suburban Bank of Maryland, a Maryland corporation (the "Company") and Xxxxxxx
X. Xxxxxxx (the "Employee").
WITNESSETH:
WHEREAS, the Company wishes to promote in its employees increased
efficiency in their work and the strongest interest in the successful operation
of the Company, and to provide the its employees with benefits upon their
retirement, death or other termination of employment; and
WHEREAS, in order to achieve these goals the Company is entering into
this Agreement with the Employee and is entering into similar agreements with
other executive employees of the Company;
NOW THEREFORE, it is agreed as follows:
1. Definitions:
A. Administrative Committee - "Administrative Committee"
shall mean the committee appointed pursuant to Section 4.
B. Age. - "Age" shall mean the Employee's age as of his last
birth date.
C. Benefit Schedule - "Benefit Schedule" shall mean the
separate schedule setting forth the Employee's benefits under this Agreement.
D. Compensation - "Compensation" shall mean all cash
remuneration due the Employee.
E. Normal Benefit - "Normal benefit" shall mean the entire
remaining principal and interest balance of the Trust, payable in the
installments described in Section 3.1, below.
F. Retirement Date - "Retirement Date" shall mean the earlier
of (i), the Employee's attaining the age of SIXTY-FIVE (65) years, or (ii), the
Employee's death prior to attaining such age.
G. Termination of Employment - "Termination of Employment"
shall mean the Employee's ceasing to be employed by the Company of any reason
whatsoever, voluntary or involuntary, including by reason of death or
disability. A leave of absence granted by the Administrative Committee in
accordance with uniform rules applied in a non-discriminatory manner shall not
constitute Termination of Employment.
H. Trust - The "Trust" shall mean the Trust under Deferred
Compensation Agreement of even date herewith.
J. Trustee - The "Trustee" shall mean the Trustee provided
of the Trust as therein.
2. Participant Compensation Deferral.
2.1 Deferral and Reduction of Compensation.
a. Funding. The Employee shall be entitled to
the funding of deferred compensation as provided in Paragraph 4 (i) (1) of the
Employee's Employment Agreement of even date herewith.
b. Manner of Funding. The Employee's compensation
deferral shall be automatic, not requiring any further act by the Employee.
2.3 Maximum Deferrals. The Employee does hereby elect to defer under the
Agreement all of that Deferred Compensation described in paragraph 4 (i) of
the Employee's Employment Agreement of even date herewith.
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3. Payment of Benefits.
3.1 Benefits Upon Retirement. Upon the Retirement Date, the Company shall
cause the Trustee to pay to him the Normal Benefit in 120 monthly installments
commencing on the first day of the month coincident with or next following the
Employee's Termination of Employment and continuing on the first day of each
month thereafter for 119 months.
3.2 Benefits upon Termination of Employment. N/A
3.3 Survivorship Benefits. In the event of the Employee's death, the
Company shall cause the Trustee to begin to pay the monthly normal benefit
payments (or the then remaining unpaid payments) to his beneficiary; in the
installments provided in Paragraph 3.1, above.
3.4 Recipients of Payments: Designation of Beneficiary. The Employee
shall designate a beneficiary by filing a written notice of such designation
with the Administrative Committee in such form as the Administrative Committee
may prescribe. The Employee may revoke or modify said designation at any time
by a further written designation. The Employee's beneficiary designation shall
be deemed automatically revoked int the event of the death of the beneficiary
or, if the beneficiary is the Employee's spouse, in the event of dissolution of
marriage. If the Employee's Compensation constitutes community property, then
any beneficiary designation made by the Employee other than a designation of
his spouse shall not be effective if any such beneficiary or beneficiaries are
to receive more than fifty percent (50%) of the aggregate benefits payable
hereunder unless such spouse shall approve such designation in writing. If no
designation shall be in effect at the time when any benefits payable under this
Agreement shall become due, the beneficiary shall be the spouse of the
Employee, or if no spouse is them living, the Employee's children and their
issue by right of representation or, if none, the legal representatives of
the Employee's estate.
In the event a benefit is payable to a minor or person declared
incompetent or to a person incapable of handling the disposition of his
property, the Company may pay such benefit to the guardian, legal
representative or person having the care or custody of such minor, incompetent
or person. The Administrative Committee may require proof of incompetency,
minority or guardianship as it may deem appropriate prior to distribution of
the benefit. Such distribution shall completely discharge the Administrative
Committee and the Company from all liability with respect to such benefit.
4. Administration and Interpretation of this Agreement. The Board of
Directors of The Company shall appoint an Administrative Committee consisting
of THREE (3) or more persons to administer and interpret this Agreement.
Interpretation by the Administrative Committee shall be final and binding upon
the Employee subject to the Employee's right to seek review thereof as provided
in Paragraph 6 below. The Administrative Committee may adopt rules and
regulations relating to and consistent with the terms of this Agreement as it
may deem necessary or advisable for the administration of this Agreement.
5. Claims Procedure. If the Employee or the Employee's beneficiary
(hereinafter referred to as a "Claimant") is denied all or a portion of an
expected benefit under this Agreement for any reason, he or she may file a
claim with the Administrative Committee. The Administrative Committee shall
notify the Claimant within sixty (60) days of allowance or denial of the claim,
unless the Claimant receives written notice from the Administrative Committee
prior to the end of the sixty (60) -day period stating that special
circumstances require an extension of the time for decision. The notice of the
Administrative Committee's decision shall be in writing, sent by mail to
Claimant's last known address, and, if a denial of the claim, must contain the
following information:
a. The specific reason for the denial;
b. Specific reference to pertinent provisions of this
Agreement on which the denial is based; and
c. If applicable, a description of any additional
information or material necessary to perfect the claim, an
explanation of why such information or material is necessary,
and an explanation of the claims review procedure.
6. Review Procedure.
a. A Claimant is entitled to request a review of any
denial of his claim or a review of any
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Administrative Committee interpretation or Administration of
this Agreement by the Administrative Committee. The request
for review must be submitted in writing within sixty (60) days
of mailing of notice of the denial of any claim or notice of
any such act of interpretation or administration. Absent a
request for review within the sixty (60) -day period, the
claim will be deemed to be conclusively denied. The Claimant
or his representative shall be entitled to review all
pertinent documents, and to submit issues and comments orally
and in writing.
b. The review shall be conducted by the Administrative
Committee, which shall afford the Claimant a hearing and the
opportunity to review all pertinent documents and submit
issues and comments orally and in writing and shall render a
review decision in writing, all within sixty (60) days after
receipt of a request for a review, provided that, in special
circumstances (such as the necessity of holding a hearing) the
Administrative Committee may extend the time for decision by
not more than sixty (60) days upon written notice to the
Claimant. The Claimant shall receive written notice of the
Administrative Committee's review decision, together with
specific reasons for the decision and reference to the
pertinent provisions of this Agreement.
c. The Claimant may further appeal any decision of the
Administrative Committee by arbitration before the American
Arbitration Association notice of election to arbitrate to be
filed by the Claimant within Thirty (30) days of Claimant's
receipt of such decision.
7. Life Insurance and Funding. The Company in its discretion may apply
for and procure as owner and for its own benefit insurance on the life of the
Employee in such amounts and in such forms as the Company may choose. The
Employee shall have no interest whatsoever in any such policy or policies, but
at the request of the Company shall submit to medical examinations and supply
such information and execute such documents as may be required by the insurance
company or companies to whom the Company has applied for insurance.
The rights of the Employee, or his beneficiary, or estate, to benefits
under this Agreement shall be solely those of an unsecured creditor of the
Company. Any insurance policy or other assets acquired by or held by the
Company in connection with the liabilities assumed by it pursuant to this
Agreement shall not be deemed to be held under any trust for the benefit of the
Employee, his beneficiary, or his estate, or to be security for the performance
of the obligations of the Company but shall be, and remain, a general,
unpledged, and unrestricted asset of the Company.
8. Assignment of Benefits. Neither the Employee nor any beneficiary
under this Agreement shall have any right to assign the right to receive any
benefits hereunder, and in the event of any attempted assignment or transfer,
the Company shall have no further liability hereunder.
9. Miscellaneous.
a. Employment Not Guaranteed. Neither this Agreement
nor any action taken hereunder shall be construed as giving
the Employee the right to be retained as an employee of the
Company for any period.
b. Taxes. The Company shall deduct from all payments
made hereunder all applicable federal or state taxes required
by law to be withheld from such payments.
c. Amendment and Termination. The Board of Directors of
the Company together with the Employee (or his surviving
beneficiary) may, at any time, amend or terminate this
Agreement.
d. Tax Consequences. The Employee has been advised by
the Company to consult the Employee's own tax advisor
concerning the income and estate tax consequences of
deferring Compensation and receiving benefits under this
Agreement, and the Company makes no representations or
warranties in that respect.
e. Construction. The Plan shall be construed according
to the laws of the State of Maryland.
f. Form of Communication. Any election, application,
claim, notice or other communication required or permitted to
be made by the Employee to the Administrative Committee shall
be made in writing and in such form as the Administrative
Committee shall prescribe. Such communication shall
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be effective upon mailing, if sent by first class mail,
postage pre-paid, and addressed to the Company's offices at
0000 Xxxxxxxx Xxxxxx Xxxxx, X.X. Xxx 000, Xxxxxxxxx, Xxxxxxxx
00000-0000.
g. Captions. The captions at the head of a section or a
paragraph of this Agreement are designed for convenience of
reference only and are not to be resorted to for the purpose
of interpreting any provision of this Plan.
h. Severability. The invalidity of any portion of this
Agreement shall not invalidate the remainder thereof, and said
remainder shall continue in full force and effect.
i. Binding Agreement. The provisions of this Agreement
shall be binding upon the Employee and the Company and their
successors, assigns, heirs, executors and beneficiaries.
j. Costs. All costs of administration under this
Agreement shall be borne by the Company.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
day and year first above written.
ATTEST: SUBURBAN BANK OF MARYLAND
/s/ /s/
Xxxxx X. Xxxxxx Xxxxxxxx X. Xxxxx, Xx.
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SECRETARY ITS CHAIRMAN
WITNESS:
/s/ /s/
Xxxxxxx X. Xxxxx Xxxxxxx X. Xxxxxxx
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XXXXXXX X. XXXXXXX
