Exhibit
10.2
SHORE
BANCSHARES, INC.
Amended
and Restated Executive Deferred Compensation Plan
Effective
October 1, 2006
TABLE
OF CONTENTS
I.
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Introduction
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3
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II.
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Definitions
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3
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III.
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Eligibility
& Participation
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9
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IV.
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Elections,
Deferrals & Contributions
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9
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V.
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Accounts
& Account Crediting
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11
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VI.
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Vesting
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13
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VII.
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Distributions
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13
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VIII.
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Administration
& Claims Procedure
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16
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IX.
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Amendment,
Termination & Reorganization
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19
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X.
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General
Provisions
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20
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PREAMBLE
The
Board
of Directors of Shore Bancshares, Inc. (the “Employer”), upon the recommendation
of its Compensation Committee, adopted the Executive Deferred Compensation
Plan
(the Plan), effective October 1, 2006, for the benefit of its selected key
executives. The Plan is intended to comply with the requirements of Section
409A
of the Internal Revenue Code, as enacted by the American Jobs Creation Act
of
2004, in both form and operation. On February 8, 2007, the Board of Directors,
upon the recommendation of its Compensation Committee, amended and restated
the
Plan as set forth below to correct certain errors that appeared in the
provisions of the Plan as originally adopted.
ARTICLE
I--INTRODUCTION
1.1
Name.
The
name
of this Plan is the Shore Bancshares, Inc. Executive Deferred Compensation
Plan
(the Plan).
1.2
Purpose.
The
purpose of the Plan is to offer Participants the opportunity to defer
voluntarily current Compensation for retirement income and other significant
future financial needs for themselves, their families and other dependents,
and
to provide the Employer, if appropriate, a vehicle for crediting matching,
discretionary or other amounts for the benefit of Participants. This Plan is
intended to be a nonqualified “top-hat” plan; that is, an unfunded plan of
deferred compensation maintained for a select group of management or highly
compensated employees pursuant to Sections 201(2), 301(a)(3), and 401(a)(1)
of
ERISA, and an unfunded plan of deferred compensation under the
Code.
1.3
Interpretation.
Throughout
the Plan, certain words and phrases have meanings, which are specifically
defined for purposes of the Plan. These words and phrases can be identified
in
that the first letter of the word or words in the phrase is capitalized. The
definitions of these words and phrases are set forth in Article II and elsewhere
in the Plan document. Wherever appropriate, pronouns of any gender shall be
deemed synonymous, as shall singular and plural pronouns. Headings of Articles
and Sections are for convenience or reference only, and are not to be considered
in the construction or interpretation of the Plan. The Plan shall be interpreted
and administered to give effect to its purpose in Section 1.3 and to qualify
as
a nonqualified, unfunded plan of deferred compensation
.
ARTICLE
II--DEFINITIONS
2.1
Generally.
Certain
words and phrases are defined when first used in later paragraphs of this
Agreement. Unless the context clearly indicates otherwise, the following words
and phrases when used in this Agreement shall have the following respective
meanings:
2.2
Account.
“Account”
shall mean the interest of a Participant in the Plan as represented by the
hypothetical bookkeeping entries kept by the Employer for each Participant.
Each
Participant’s interest may be divided into two separate accounts or
sub-accounts, the Participant Deferral Account, and the Employer Funded Account,
which reflect not only the deemed Contributions into the Plan, but also gains
and losses, and income and expenses allocated thereto, as well as distributions
or any other withdrawals. The value of these accounts or sub-accounts shall
be
determined as of the Valuation Date. The existence of an account or bookkeeping
entries for a Participant (or his Designated Beneficiary) does not create,
suggest or imply that a Participant, Designated Beneficiary, or other person
claiming through them under this Plan, has a beneficial interest in any asset
of
the Employer.
2.3
Administrator.
“Administrator”
shall mean one or more persons appointed by the Employer to administer the
terms
of the Plan, as provided in Article VIII.
2.4
Balance.
“Balance”
shall mean the total of Contributions and Deemed Earnings credited to a
Participant’s Account under Article V, as adjusted for distributions or other
withdrawals in accordance with the terms of this Plan and the standard
bookkeeping rules established by the Employer.
2.5
Board
Committee.
“Board
Committee” or “Committee” shall mean the Compensation Committee of the
Employer’s Board of Directors, or such other Committee of the Board as may be
delegated with the duty of determining Participant eligibility under the
Plan.
2.6
Board
of Directors.
“Board
of
Directors” or “Board” shall mean the Board of Directors of the
Employer.
2.7
Change
of Control.
“Change
of Control” shall mean a change in the ownership or effective control of the
Employer,
or
in the
ownership of a substantial portion of the assets of the Employer, as provided
in
Treasury
regulations
issued pursuant to Code Section 409A.
2.8
Code.
“Code”
shall mean the Internal Revenue Code of 1986 and the Regulations thereto, as
amended from time to time.
2.9
Compensation.
“Compensation”
shall mean the base or regular cash salary payable to an Employee by the
Employer,
as well as incentives or bonuses payable to an Employee by the Employer,
commissions
payable to an Employee by the Employer, including any such amounts which are
not
includible
in the Participant’s gross income under Sections 125, 401(k), 402(h) or 403(b)
of the
Internal
Revenue Code of 1986, as amended.
2.10
Contributions.
“Contributions”
shall mean the total of Participant Deferrals, Matching Contributions,
Discretionary Contributions, and Mandatory Contributions which represent each
Participant’s credits to his Account.
2.11
Deemed
Earnings.
“Deemed
Earnings” shall mean the gains and losses (realized and unrealized), and income
and expenses credited or debited to Contributions based upon the Deemed
Crediting Options in a Participant’s Account as of any Valuation
Date.
2.12
Deemed
Crediting Options.
“Deemed
Crediting Options” shall mean the hypothetical options made available to Plan
Participants by the Employer for the purposes of determining the proper
crediting of gains and losses, and income and expenses to each Participant’s
Account, subject to procedures and requirements established by the Board
Committee. A Participant may reallocate his Account among such Deemed Crediting
Options periodically at such frequency and upon such terms as the Board
Committee may determine from time to time.
2.13
Deferral
Election Form.
“Deferral
Election Form” or “Annual Deferral Election Form” shall mean that written
agreement of a Participant. The Deferral Election Form shall be in such form
or
forms as may be prescribed by the Administrator, filed annually with the
Employer, according to procedures and at such times as established by the
Administrator. Among other information the Administrator may require of the
Participant for proper administration of the Plan, such agreement shall
establish the Participant’s election to defer Compensation for a Plan Year under
the Plan; the amount of the deferral into the Plan for the Plan Year; the
Participant’s elections as to distribution of his Account, and the allocation of
his Accounts among the Deemed Crediting Options provided under the Plan; and
the
Designated Beneficiary.
2.14
Designated
Beneficiary.
“Designated
Beneficiary” or "Beneficiary" shall mean the person, persons or trust
specifically named to be a direct or contingent recipient of all or a portion
of
a Participant’s benefits under the Plan in the event of the Participant’s death
prior to the distribution of his full Account Balance. Such designation of
a
recipient or recipients may be made and amended, at the Participant’s
discretion, on the Deferral Election Form and according to procedures
established by the Administrator. No beneficiary designation or change of
Beneficiary shall become effective until received and acknowledged by the
Employer. In the event a Participant does not have a beneficiary properly
designated, the beneficiary under this Plan shall be the Participant’s
estate.
2.15
Disability.
“Disability”
shall mean that 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 Participant’s employer, or as provided by Treasury Regulations issued
pursuant to Code Section 409A.
2.16
Discretionary
Contribution.
“Discretionary
Contribution” shall mean an amount, determined in the sole discretion of the
Committee, to be credited to the Account of a Participant. Participants may
or
may not receive any such Discretionary Contribution, and amounts of such
Contributions may vary among Participants.
2.17
Effective
Date.
“Effective
Date” of the Plan shall mean October 1, 2006.
2.18
Eligible
Employee.
“Eligible
Employee” shall mean a person who (for any Plan Year or portion thereof) is: (1)
an Employee of the Employer; (2) a member of a select group of management or
highly compensated employees of the Employer; and (3) selected by the Board
Committee to participate in the Plan.
2.19
Employee.
“Employee”
shall mean a full time common law employee of the Employer.
2.20
Employer.
“Employer”
shall mean Shore Bancshares, Inc., designated subsidiaries and any corporate
successors and assigns, unless otherwise provided herein.
2.21
ERISA.
“ERISA”
shall mean the Employee Retirement Income Security Act of 1974, as amended
from
time to time.
2.23
Leave
of Absence.
“Leave
of
Absence” shall mean a period of time, not to exceed twelve (12) consecutive
calendar months during which time a Participant shall not be an active Employee
of the Employer, but shall be treated for purposes of this Plan as in continuous
service with the Employer. A Leave of Absence may be either paid or unpaid,
but
must be agreed to in writing by both the Employer and the Participant. A Leave
Of Absence that continues beyond the twelve (12) consecutive months shall be
treated as a Termination of Service as of the first business day of the
thirteenth month for purposes of the Plan.
2.24
Mandatory
Contribution.
“Mandatory
Contribution” shall mean such amount indicated in Schedule A to be credited to a
Participant’s Account each Plan Year for which the Participant was an employee
of the Employer.
2.25
Matching
Contribution.
“Matching
Contribution” shall mean such amount to be credited to a Participant’s Account
as a match for Participant Deferrals. The amount of any such Matching
Contribution shall be announced by the Committee prior to each Plan Year and
shall remain in effect thereafter until modified prior to the beginning of
a
Plan Year for which such change shall be effective.
2.26
Participant.
“Participant”
shall mean an Eligible Employee who participates in the Plan under Article
III;
a former Eligible Employee who has participated in the Plan and continues to
be
entitled to a benefit (in the form of an undistributed Account Balance) under
the Plan, and any former Eligible Employee who has participated in the Plan
under Article III and has not yet exceeded any Leave of Absence.
2.27
Participant
Deferral.
“Participant
Deferral” shall mean voluntary Participant deferral amounts, which could have
been received currently but for the election to defer and are credited to his
Account for later distribution, subject to the terms of the Plan.
2.28
Performance
Based Compensation.
“Performance-based
compensation” shall mean compensation that is (i) variable and contingent on the
satisfaction of pre-established organizational or individual performance
criteria; (ii) not readily ascertainable at the time; and (iii) based on
services performed over a period of at least twelve months, as provided by
Treasury Regulations issued pursuant to Code Section 409A.
2.29
Plan
Year.
“Plan
Year” shall mean the twelve (12) consecutive month period constituting a
calendar year, beginning on January 1 and ending on December 31. However, in
any
partial year of the Plan that does not begin on January 1, “Plan Year” shall
also mean the remaining partial year ending on December 31. For purposes of
vesting as provided in Section 6.3, Plan Years shall mean years of participation
in the Plan.
2.30
Separation
from Service.
“Separation
from Service” shall mean a Participant’s separation from service as an Employee
with the Employer, other than for death, Disability, or Leave of Absence. A
transfer of employment within and among the Employer and any member of a
controlled group, as provided in Code Section 409A (d)(6), shall not be deemed
a
Separation from Service.
2.31
Specified
Employee.
“Specified
Employee” shall mean any Participant who is (i) one of the top-fifty most highly
compensated officers with annual compensation in excess of $130,000 (as adjusted
from time to time by Treasury regulations); (ii) a five percent owner of the
Employer; or (iii) a one percent owner of the Employer with annual compensation
in excess of $150,000 (as adjusted from time to time by Treasury regulations)
of
a publicly traded corporation, as provided by Treasury Regulations issued
pursuant to Code Section 409A.
2.32
Unforeseeable
Emergency
.
“Unforeseeable
emergency” shall mean a severe financial hardship to the Participant, the
Participant’s spouse, or a dependent (as defined in Section 152(a) of the Code)
of the participant, loss of the Participant’s property due to casualty, or other
similar extraordinary and unforeseeable circumstances arising as a result of
events beyond the control of the Participant, as provided by Treasury
Regulations issued pursuant to Code Section 409A..
2.33
Valuation
Date.
“Valuation
Date” shall mean the close of each business day, as established and amended from
time to time by guidelines and procedures of the Administrator in its sole
and
exclusive discretion.
ARTICLE
III--ELIGIBILITY & PARTICIPATION
3.1
Eligibility
Requirements.
Only
an
Eligible Employee selected by the Board Committee may become a Participant
in
this Plan. Moreover, a Participant shall not be permitted to make new
Participant Deferrals to the Plan, if he ceases to be an Eligible Employee
because he is no longer a member a select group of management or highly
compensated employees, or otherwise. The Board Committee shall notify an
Eligible Employee of his eligibility for a Plan Year in such form as it may
determine most appropriate. Current Participants remain eligible until notified
otherwise.
3.2
Participation.
An
Eligible Employee shall become a Participant in the Plan by the completion
and
timely filing with, and subsequent acceptance by, the Employer of the Deferral
Election Form, according to the terms and conditions established by the
Administrator. A Participant (or any Designated Beneficiary who becomes
entitled) remains a Participant until his Account Balance is fully distributed
under the terms of the Plan.
ARTICLE
IV—ELECTIONS, DEFERRALS & CONTRIBUTIONS
4.1
Participant
Election to Defer Compensation.
A.
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Prior
to December 31 or an earlier date set by the Administrator, a Participant
may elect to defer Compensation for services to be performed in the
next
following Plan Year by the execution and timely filing, and Employer’s
acceptance of, a Deferral Election Form in such form and according
to such
procedures as the Administrator may prescribe from time to time.
Each such
Deferral Election Form shall be effective for the Plan Year to which
the
Deferral Election Form pertains.
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B.
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Each
Participant may elect annually to have his Compensation for the Plan
Year
reduced by a whole percentage of up to (i) 100% of base salary and
(ii)
100% of any annual bonuses by timely filing, and the acceptance by
the
Employer of, his Deferral Election Form detailing such deferral.
The
amount of this Participant Deferral shall be deferred into the Plan
and
credited to the Participant’s Account as provided in Article
V
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C.
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An
election to defer Performance-Based Compensation may be made at such
time
and in such manner as the Administrator may specify, but in any event
not
later than six months before the end of the period for which it is
earned.
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D.
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Under
such Deferral Election Form, a Participant shall indicate the amount
of
such Participant Deferral; designate and allocate such Participant
Deferral in or among the elective distribution Account option(s);
and,
allocate such Accounts among the Deemed Crediting Options. The Deferral
Election Form may also request other information, such as a Participant’s
Designated Beneficiary, as may be required or useful for the
administration of the Plan.
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4.2
New
Participants and Partial Years.
The
initial Deferral Election Form of a new Participant shall be filed with the
Employer on a date established by the Administrator, but in any event not later
than 30 days following the date the Participant becomes eligible to participate
in the Plan and shall be effective only with respect to services to be performed
and income earned subsequent to the election. Such first Deferral Election
Form
shall be applicable to a Participant’s Compensation beginning with the first
payroll in the month after such Form is filed and accepted by the
Employer.
4.3
Irrevocable
Elections.
An
election in a Deferral Election Form to defer Compensation for a Plan Year,
once
made by a Participant, shall be irrevocable. The Administrator, however, shall
reduce or eliminate Participant Deferrals upon granting a Participant’s request
for a distribution based upon an Unforeseeable Emergency.
4.4
Matching
Contribution.
Prior
to
the beginning of a Plan Year, the Administrator shall announce the amount,
if
any, that the Employer has determined to credit to a Participant’s Employer
Funded Account for that Plan Year as a match for Participant Deferrals.
The
Employer may credit such Matching Contribution to the Participant’s Employer
Funded Account at any time during the applicable Plan Year.
4.5
Discretionary
Contribution.
The
Employer may, in its discretion, credit an amount to the Employer Funded Account
of a Participant at any time during a Plan Year that shall be in addition to
any
Matching Contribution or Mandatory Contribution made on his or her behalf.
Such
Discretionary Contribution, if any, may vary among Participants.
The
initial Participants who shall be entitled to receive Discretionary
Contributions and the amounts thereof are set forth in Schedule A
hereto.
4.6
Mandatory
Contribution.
The
Employer may determine from time to time that certain Participants shall be
entitled to receive a credit to their Employer Funded Accounts that is in
addition to any Matching Contributions or Discretionary Contributions made
on
their behalf. The crediting of such Mandatory Contributions may take place
at
any time during the applicable Plan Year. The initial Participants who shall
be
entitled to receive Mandatory Contributions and the amounts thereof are set
forth in Schedule A hereto.
For
any
partial Plan Year, or year in which a Participant has a Separation from Service,
a pro-rata reduction in the Mandatory Contribution will be made at the
discretion of the Board Committee.
ARTICLE
V--ACCOUNTS & ACCOUNT CREDITING
5.1
Establishment
of a Participant’s Account.
A.
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Bookkeeping
Account.
The
Administrator shall cause a deemed bookkeeping Account and appropriate
sub-accounts, based upon the primary elective distribution option(s)
to be
established and maintained in the name of each Participant, according
to
his annual Deferral Election Form for the Plan Year. This Account
shall
reflect the amount of Participant Deferrals, Matching Contributions,
Discretionary Contributions, and Mandatory Contributions, as well
as
Deemed Earnings credited on behalf of each Participant under this
Plan.
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B.
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Bookkeeping
Activity.
Participant
Deferrals shall be credited to a Participant’s Account on the business day
they would otherwise have been made available as cash to the Participant.
Matching Contributions, Discretionary Contributions,
and
Mandatory Contributions
shall
be credited to a Participant’s Account on the Valuation Date the Employer
designates. Deemed Earnings shall be credited or debited to each
Participant’s Account, as well as any distributions or any other
withdrawals under this Plan, as of a Valuation Date. Accounts shall
continue to be valued on each Valuation Date until the Participant’s
Account is fully distributed under the terms of the
Plan.
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5.2
Deemed
Crediting Options.
A.
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General.
The
Board Committee shall establish a portfolio of one or more Deemed
Crediting Options, among which a Participant may allocate amounts
credited
to his Account, which are subject to Participant direction under
this
Plan. The Board Committee reserves the right, in its sole and exclusive
discretion, to substitute, eliminate and otherwise change this portfolio
of Deemed Crediting Options, as well as the right to establish rules
and
procedures for the selection and offering of these Deemed Crediting
Options.
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B.
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Deemed
Crediting Options.
The
initial Deemed Crediting Options under the Plan shall include the
following:
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S&P
500 Index
S&P
400 MidCap Index
Lehman
Bond Index
Money
Market
The
performance of such Deemed Crediting Options selected by the Participant shall
determine the amount of gain or loss to be credited to such Participant’s
account.
5.3
Allocation
Of Account Among Deemed Crediting Options.
A.
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Each
Participant shall elect the manner in which his Account is divided
among
the Deemed Crediting Options by giving allocation instructions in
a
Deferral Election Form supplied by and filed with the Administrator,
or by
such other procedure, including electronic communications, as the
Administrator may prescribe. A Participant’s election shall specify the
percentage of his Account (in any whole percentage) to be deemed
to be
invested in any Deemed Crediting Option. Such election shall remain
in
effect until a new election is made.
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B.
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Amounts
credited to a Participant’s Account shall be deemed to be invested in
accordance with the most recent effective Deemed Crediting Option
election. As of the effective date of any new Deemed Crediting Option
election, all or a portion of the Participant’s Account shall be
reallocated among the designated Deemed Crediting Options and according
to
the percentages specified in the new instructions, until and unless
subsequent instructions shall be filed and become effective. If the
Administrator receives a Deemed Crediting Option election, which
is
unclear, incomplete or improper, the Deemed Crediting Option election
then
in effect shall remain in effect.
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5.4
Valuation
and Risk of Decrease in Value.
The
Participant’s Account will be valued on the Valuation Date at fair market value.
On such date, Deemed Earnings will be allocated to each Participant’s Account.
Each Participant and Designated Beneficiary assumes the risk in connection
with
any decrease in the fair market value of his Account.
5.5
Limited
Function of Administrator.
By
deferring compensation pursuant to the Plan, each Participant hereby agrees
that
the Employer and Administrator are in no way responsible for or guarantor of
the
investment results of the Participant’s Account. The Administrator shall have no
duty to review, or to advise the Participant on, the investment of the
Participant’s Account; and in fact, shall not review or advise the Participant
thereon. Furthermore, the Administrator shall have no power to direct the
investment of the Participant’s Account other than promptly to carry out the
Participant’s deemed investment instructions when properly completed and
transmitted to the Administrator and accepted according to its rules and
procedures.
ARTICLE
VI--VESTING
6.1
Vesting
of Participant Deferrals.
A
Participant shall be fully vested at all times in Participant Deferrals, as
well
as Deemed Earnings upon Participant Deferrals, credited to his Participant
Deferral Account.
6.2
Employer
Funded Account.
A
Participant shall vest (become non-forfeitable) with respect to Mandatory
Contributions, Matching Contributions, and Discretionary Contributions (Employer
Funded Account) in accordance with the following schedule:
Years
in Plan
|
Vesting
Percent
|
1
|
0%
|
2
|
25%
|
3
|
50%
|
4
|
75%
|
5
|
100%
|
Notwithstanding
the above vesting schedule, a Participant shall become 100% vested with respect
to Mandatory Contributions, Matching Contributions, and Discretionary
Contributions (Employer Funded Account) upon his or her death, upon a Change
of
Control, or upon attaining age 70.
If
a
Participant separates from service for any reason other than death, Disability,
Change of Control, or Retirement at or after age 70, any non-vested portion
of
his Employer Funded Account shall be forfeited.
ARTICLE
VII--DISTRIBUTIONS
7.1
Distributions
Generally.
A
Participant’s Account shall be distributed only in accordance with the
provisions of this Article
VII.
All
distributions from Accounts under the Plan shall be made in cash in American
currency.
7.2
Automatic
Distributions.
A.
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Participant’s
Death.
If
the Participant dies while employed by the Employer in the capacity,
his
Account shall be valued as of the Valuation Date next following his
date
of death and shall be distributed in lump sum to his Designated
Beneficiary.
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B.
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Participant’s
Disability.
If
a Participant becomes disabled while employed by the Employer, his
Account
shall be valued as of the Valuation Date next following his date of
Disability and shall be distributed in lump sum to
him.
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C.
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Separation
from Service.
If
a Participant incurs a Separation from Service, his vested Account
shall
be valued as of the Valuation Date next following his official date
of
separation and shall be distributed to him in a lump sum or in
installments, as the Participant may have
elected.
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D.
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Change
of Control Distribution.
If
a Change of Control should occur during the Plan Year,
a
Participant’s elective distribution election(s) shall be overridden and
his entire Account shall valued as of the Valuation Date next following
the Change of Control event and be distributed to him in a lump
sum.
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E.
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Time
of Payment.
Payment,
or the commencement of payments, under the Plan shall be made within
sixty
(60) days following the Valuation Date following the event of
distribution; provided, however, that the Account of a Specified
Employee
shall not be distributed or payments commenced until six months following
Separation from Service or the Change of Control event. Notwithstanding
the foregoing provision, no distribution shall be made to any Participant
until the earliest date and upon such conditions as may be set forth
under
Treasury regulations issued pursuant to Code Section 409A
(e).
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7.3
Elective
Distributions.
A
Participant shall become entitled to receive a distribution from his Account
at
such time or times and by such method of payment as elected and specified in
the
Participant’s applicable annual Deferral Election Form, and/or as may be
mandated by the provisions of this Article VII based upon the following
distribution options:
A.
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In-Service
Distributions.
If
a Participant elects in his annual Deferral Election Form, he can
receive
a distribution from the Participant Deferral Account of his Account,
as
soon as three (3) years after the end of the deferral Plan Year,
all of
his annual deferral amount, plus amounts credited/debited based on
the
performance of the Participant’s Deemed Crediting Options. The election is
made on an annual basis, applies only to the Participant’s current Plan
Year deferrals, is irrevocable and is payable according to the method
of
payment elected in the Participant’s applicable annual Deferral Election
Form. If the Participant dies while receiving In-Service installment
payments, his Designated Beneficiary shall be paid the balance of
the
Account in a lump sum.
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B.
|
Timing
and
Method
of Payment for In-Service Distributions.
At
the election of a Participant in the applicable Deferral Election
Form, an
In-Service Distribution will be either in the form of a lump-sum,
occurring no later than sixty (60) days following the distribution
date
elected on the Deferral Election Form, or in annual installment payments
beginning with the first business day on or after the commencement
date as
selected by the Participant in the annual Deferral Election Form
and for a
duration as selected by the Participant in the annual Deferral Election
Form and to be paid thereafter within ten (10) days of the anniversary
of
the Valuation Date next preceding the distribution date of each calendar
year until the In-Service Distribution amount has been fully
distributed.
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7.4
Form
of Payment
A.
|
Installment
Payments.
In
any distribution in which a Participant has elected or will receive
distribution in annual installments of up to ten (10) years, the
amount of
each annual installment shall be determined by applying a formula
to the
Account in which the numerator is the number one and the denominator
is
the number of remaining installments to be paid. For example, if
a
Participant elects ten (10) annual installments for a distribution,
the
first payment will be 1/10 of the Account, the second will be 1/9,
the
third will be 1/8; the fourth will be 1/7 and so on until the Account
is
entirely distributed.
|
B.
|
Failure
to Designate a Method of Payment.
In
any situation in which the Administrator is unable to determine the
method
of payment because of incomplete, unclear, or uncertain instructions
in a
Participant’s Deferral Election Form, the Participant will be deemed to
have elected a lump sum
distribution.
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C.
|
Subsequent
Elections.
A
Participant who has made an In-Service distribution or a Separation
from
Service distribution election may make one or more subsequent elections
to
postpone the distribution date or to change the form of payment to
another
form permitted by the Plan. Such Subsequent Election shall be made
in
writing in such form as is acceptable to the Administrator and (i)
is made
at least twelve months prior to the original distribution date; (ii)
provides for an effective date at least twelve months following the
Subsequent Election; and (iii) postpones the commencement of payment
for a
period of not less than five years from the previous distribution
date.
|
7.5
Distributions
Resulting from Unforeseeable Emergency.
A
Participant may request that all or a portion of his Account be distributed
at
any time prior to Separation from Service from the Employer by submitting a
written request to the Administrator, provided that the Participant has incurred
an Unforeseeable Emergency, and the distribution is necessary to alleviate
such
Unforeseeable Emergency.
Such
distribution shall be limited to an amount that does not exceed the amount
necessary to
satisfy
such emergency, plus amounts necessary to pay taxes reasonably anticipated
as a
result of
the
distribution, after taking into account the extent to which such hardship is
or
may be relieved
through
reimbursement or compensation by insurance or otherwise or by liquidation of
the
Participant’s
assets (to the extent the liquidation of such assets would not itself cause
severe
financial
hardship).
Such
distribution shall be made within thirty (30) days after the Valuation. Date
immediately following the determination that such Unforeseeable Emergency
exists, or as soon as administratively practicable. The balance not distributed
from the Participant’s Account shall remain in the Plan.
7.6
Distribution
of Small Accounts.
If
at any
time the value of the Participant’s Account is less than $10,000 (or such other
greater or lesser amount as may be specified as “minimal” under Treasury
regulations), the Administrator, in its sole and exclusive discretion, may
make
a distribution in lump sum of the value of the entire Account. If the value
of a
Participant’s Account is zero upon the Valuation Date of any distribution, the
Participant shall be deemed to have received a distribution of such Account
and
his participation in the Plan terminates.
ARTICLE
VIII--ADMINISTRATION & CLAIMS PROCEDURE
8.1
Duties
of the Employer.
The
Employer shall have overall responsibility for the establishment, amendment,
termination, administration, and operation of the Plan. The Employer shall
discharge this responsibility by the appointment and removal (with or without
cause) of the members of the Administrator, to which is delegated overall
responsibility for administering, managing and operating the Plan.
The
Administrator shall consist of one or more members who shall be appointed by,
and may be removed by, the Employer, and one of whom (who must be an officer
of
the Employer) shall be designated by the Employer as Chairman. In the absence
of
such appointment, the Employer shall serve as the Administrator. The
Administrator shall consist of officers or other Employees of the Employer,
or
any other persons who shall serve at the request of the Employer. Any member
of
the Administrator may resign by delivering a written resignation to the Employer
and to the Administrator, and this resignation shall become effective upon
the
date specified therein. The members of the Administrator shall serve at the
will
of the Employer, and the Employer may from time to time remove any Administrator
member with or without cause and appoint their successors. In the event of
a
vacancy in membership, the remaining members shall constitute the Administrator
with full order to act.
8.3
Administrator’s
Powers and Duties to Enforce Plan
.
The
Administrator shall be the “Administrator” and “Named Fiduciary” only to the
extent required by ERISA for top-hat plans and shall have the complete control
and authority to enforce the Plan on behalf of any and all persons having or
claiming any interest in the Plan in accordance with its terms. The
Administrator, in its sole and absolute discretion, shall interpret the Plan
and
shall determine all questions arising in the administration and application
of
the Plan. Any such interpretation by the Administrator shall be final,
conclusive and binding on all persons.
8.4
Organization
of the Administrator.
The
Administrator shall act by a majority of its members at the time in office.
Administrator action may be taken either by a vote at a meeting or by written
consent without a meeting. The Administrator may authorize any one or more
of
its members to execute any document or documents on behalf of the Administrator.
The Administrator shall notify the Employer, in writing, of such authorization
and the name or names of its member or members so designated in such cases.
The
Employer thereafter shall accept and rely on any documents executed by said
member of the Administrator or members as representing action by the
Administrator until the Administrator shall file with the Employer a written
revocation of such designation. The Administrator may adopt such by-laws and
regulations, as it deems desirable for the proper conduct of the Plan and to
change or amend these by-laws and regulations from time to time. With the
permission of the Employer, the Administrator may employ and appropriately
compensate accountants, legal counsel, benefit specialists, actuaries, plan
administrators and record keepers and any other persons as it deems necessary
or
desirable in connection with the administration and maintenance of the Plan.
Such professionals and advisors shall not be considered members of the
Administrator for any purpose.
8.5
Limitation
of Liability.
A.
|
No
member of the Board of Directors, the Employer and no officer or
Employee
of the Employer shall be liable to any Employee, Participant, Designated
Beneficiary or any other person for any action taken or act of omission
in
connection with the administration or operation of this Plan unless
attributable to his own fraud or willful misconduct. Nor shall the
Employer be liable to any Employee, Participant, Designated Beneficiary
or
any other person for any such action taken or act of omission unless
attributable to fraud, gross negligence or willful misconduct on
the part
of a Director, officer or Employee of the Employer. Moreover, each
Participant, Designated Beneficiary, and any other person claiming
a right
to payment under the Plan shall only be entitled to look to the Employer
for payment, and shall not have the right, claim or demand against
the
Administrator (or any member thereof), any Director, Officer or Employee
of the Employer.
|
B.
|
To
the fullest extent permitted by the law and subject to the Employer’s
Certificate of Incorporation and By-laws, the Employer shall indemnify
the
Administrator, each of its members, and the Employer’s officers and
Directors (and any Employee involved in carrying out the functions
of the
Employer under the Plan) for part or all expenses, costs, or liabilities
arising out of the performance of duties required by the terms of
the Plan
agreement, except for those expenses, costs, or liabilities arising
out of
a member’s fraud, willful misconduct or gross
negligence.
|
8.6
Administrator
Reliance on Records and Reports.
The
Administrator shall be entitled to rely upon certificates, reports, and opinions
provided by an accountant, tax or pension advisor, actuary or legal counsel
employed by the Employer or Administrator. The Administrator shall keep a record
of all its proceedings and acts, and shall keep all such books of account,
records, and other data as may be necessary for the proper administration of
the
Plan. The regularly kept records of the Administrator and the Employer shall
be
conclusive evidence of the service of a Participant, Compensation, age, marital
status, status as an Employee, and all other matters contained therein and
relevant to this Plan. The Administrator, in any of its dealings with
Participants hereunder, may conclusively rely on any Deferral Election Form,
written statement, representation, or documents made or provided by such
Participants.
8.7
Costs
of the Plan.
All
the
costs and expenses for maintaining the administration and operation of the
Plan
shall be borne by the Employer unless the Employer shall give notice (that
Plan
Participants bear this expense, in whole or in part) to: (a) Eligible
Participants at the time they become a Participant by completion and filing
of a
Deferral Election Form; or (b) to existing Participants during annual
re-enrollment. Such notice shall detail the administrative expense to be
assessed a Plan Participant, how that expense will be assessed and allocated
to
the Participant Accounts, and any other important information concerning the
imposition of this administrative expense. This administration charge, if any,
shall operate as a reduction to the bookkeeping Account of a Participant or
his
designated Beneficiary, and in the absence of specification otherwise shall
reduce the Account, and be charged annually during the month of
January.
8.8
Claims
Procedure.
A.
|
Claim.
Benefits
shall be paid in accordance with the terms of this Plan. A Participant,
Designated Beneficiary or any person who believes that he is being
denied
a benefit to which he is entitled under the Plan (hereinafter referred
to
as a “Claimant”) may file a written request for such benefit with the
Employer, setting forth his claim. The request must be addressed
to the
Administrator care of Secretary of the Employer at its then principal
place of business.
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B.
|
Claim
Decision.
Upon
the receipt of a claim, the Administrator shall advise the Claimant
that a
reply will be forthcoming within ninety (90) days and shall, in fact,
deliver such reply within such period. However, the Administrator
may
extend the reply period for an additional ninety (90) days for reasonable
cause. Any claim not granted or denied within such time period shall
be
deemed to have been denied. If the claim is denied in whole or in
part,
the Administrator shall adopt a written opinion, using language calculated
to be understood by the Claimant, setting
forth:
|
(1)
|
The
specific reason or reasons for such
denial;
|
(2)
|
The
specific reference to pertinent provisions of this Agreement on which
such
denial is based;
|
(3)
|
A
description of any additional material or information necessary for
the
Claimant to perfect his claim and an explanation why such material
or such
information is necessary;
|
|
(4)
|
Appropriate
information as to the steps to be taken if the Claimant wishes to
submit
the claim for review; and
|
|
(5)
|
The
time limits for requesting a review under Subsection C and for review
under Subsection D hereof.
|
C.
|
Request
for Review.
Within
sixty (60) days after the receipt by the Claimant of the written
opinion
described above, the Claimant may request in writing that the Secretary
of
the Employer review the determination of the Administrator. Such
request
must be addressed to the Secretary of the Employer, at its then principal
place of business. The Claimant or his duly authorized representative
may,
but need not, review the pertinent documents and submit issues and
comments in writing for consideration by the Employer. If the Claimant
does not request a review of the Administrator’s determination by the
Secretary of the Employer within such sixty (60) day period, he shall
be
barred and estopped from challenging the Administrator’s
determination.
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D.
|
Review
of Decision.
Within
sixty (60) days after the Secretary’s receipt of a request for review, he
will review the Administrator’s determination. After considering all
materials presented by the Claimant, the Secretary will render a
written
opinion, written in a manner calculated to be understood by the Claimant,
setting forth the specific reasons for the decision and containing
specific references to the pertinent provisions of this Agreement
on which
the decision is based. If special circumstances require that the
sixty
(60) day time period be extended, the Secretary will so notify the
Claimant and will render the decision as soon as possible, but no
later
than one hundred twenty (120) days after receipt of the request for
review. Any claim not granted or denied within such time period shall
be
deemed to have been denied.
|
It
shall
only be necessary to join the Employer as a party in any action or judicial
proceeding affecting the Plan. No Participant or Designated Beneficiary or
any
other person claiming under the Plan shall be entitled to service of process
or
notice of such action or proceeding, except as may be expressly required by
law.
Any final judgment in such action or proceeding shall be binding on all
Participants, Designated Beneficiaries or persons claiming under the
Plan.
ARTICLE
IX--AMENDMENT, TERMINATION & REORGANIZATION
9.1
Amendment.
The
Employer by action of its Board of Directors, or duly authorized Administrator
thereof, in accordance with its by-laws, reserves the right to amend the Plan,
by resolution of the Employer, to the extent permitted under the Code and ERISA.
However, no amendment to the Plan shall be effective to the extent that it
has
the effect of decreasing a Participant’s (or Designated Beneficiary’s) accrued
benefit prior to the date of the amendment.
9.2
Amendment
Required By Law.
Notwithstanding
Section 9.1, the Plan may be amended at any time, if in the opinion of the
Employer, such amendment is necessary to ensure the Plan is treated as a
nonqualified plan of deferred compensation under the Code and ERISA, or to
bring
it into conformance with Treasury or SEC regulations or requirements for such
plans. This includes the right to amend this Plan, so that any Trust, if
applicable, created in conjunction with this Plan, will be treated as a grantor
Trust under Sections 671 through 679 of the Code, and to otherwise conform
the
Plan provisions and such Trust, if applicable, to the requirements of any
applicable law.
9.3
Termination.
The
Employer intends to continue the Plan indefinitely. However, the Employer by
action of its Board of Directors or a duly authorized committee thereof, in
accordance with its by-laws, reserves the right to terminate the Plan at any
time. However, no such termination shall deprive any participant or Designated
Beneficiary of a right accrued under the Plan prior to the date of
termination.
9.4
Consolidation/Merger.
The
Employer shall not enter into any consolidation or merger without the guarantee
and assurance of the successor or surviving company or companies to the
obligations contained under the Plan. Should such consolidation or merger occur,
the term “Employer” as defined and used in this Agreement shall refer to the
successor or surviving company.
ARTICLE
X--GENERAL PROVISIONS
10.1
Applicable
Law.
Except
insofar as the law has been superseded by Federal law, Maryland law shall govern
the construction, validity and administration of this Plan as created by this
Agreement. The parties to this Agreement intend that this Plan shall be a
nonqualified unfunded plan of deferred compensation without plan assets and
any
ambiguities in its construction shall be resolved in favor of an interpretation
which will effect this intention.
10.2
Benefits
Not Transferable or Assignable.
A.
|
Benefits
under the Plan shall not be subject to anticipation, alienation,
sale,
transfer, assignment, pledge, encumbrance or charge and any attempt
to
anticipate, alienate, sell, transfer, assign, pledge, encumber or
charge
such benefits shall be void, nor shall any such benefits be in any
way
liable for or subject to the debts, contracts, liabilities, engagements
or
torts of any person entitled to them. However, a Participant may
name a
recipient for any benefits payable or which would become payable
to a
Participant upon his death. This Section shall also apply to the
creation,
assignment or recognition of a right to any benefit payable with
respect
to a Participant pursuant to a domestic relations order, including
a
qualified domestic relations order under Section 414(p) of the Code.
In
addition, the following actions shall not be treated or construed
as an
assignment or alienation: (a) Plan Contribution or distribution tax
withholding; (b) recovery of distribution overpayments to a Participant
or
Designated Beneficiary; (c) direct deposit of a distribution to a
Participant’s or Designated Beneficiary’s banking institution account; or
(d) transfer of Participant rights from one Plan to another Plan,
if
applicable.
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B.
|
The
Employer may bring an action for a declaratory judgment if a
Participant’s, Designated Beneficiary’s or any Beneficiary’s benefits
hereunder are attached by an order from any court. The Employer may
seek
such declaratory judgment in any court of competent jurisdiction
to:
|
(1)
|
determine
the proper recipient or recipients of the benefits to be paid under
the
Plan;
|
(2)
|
protect
the operation and consequences of the Plan for the Employer and all
Participants; and
|
(3)
|
request
any other equitable relief the Employer in its sole and exclusive
judgment
may feel appropriate.
|
Benefits
which may become payable during the pendency of such an action shall, at the
sole discretion of the Employer, either be:
(1)
paid
into
the court as they become payable or
(2)
held in
the Participant’s or Designated Beneficiary’s Account subject to the court’s
final distribution order.
10.3
Not
an Employment Contract.
The
Plan
is not and shall not be deemed to constitute a contract between the Employer
and
any Employee, or to be a consideration for, or an inducement to, or a condition
of, the employment of any Employee. Nothing contained in the Plan shall give
or
be deemed to give an Employee the right to remain in the employment of the
Employer or to interfere with the right to be retained in the employ of the
Employer, any legal or equitable right against the Employer, or to interfere
with the right of the Employer to discharge any Employee at any time. It is
expressly understood by the parties hereto that this Agreement relates to the
payment of deferred compensation for the Employee’s services, generally payable
after separation from employment with the Employer, and is not intended to
be an
employment contract.
A.
|
Any
notices required or permitted hereunder shall be in writing and shall
be
deemed to be sufficiently given at the time when delivered personally
or
when mailed by certified or registered first class mail, postage
prepaid,
addressed to either party hereto as
follows:
|
If
to the
Employer:
Shore
Bancshares, Inc.
18
East
Dover Street
Easton,
MD 21601
If
to the
Participant:
At
his
last known address, as indicated by the records of the Employer.
or
to
such changed address as such parties may have fixed by notice. However, any
notice of change of address shall be effective only upon receipt.
|
B.
|
Any
communication, benefit payment, statement of notice addressed to
a
Participant or Designated Beneficiary at the last post office address
as
shown on the Employer’s records shall be binding on the Participant or
Designated Beneficiary for all purposes of the Plan. The Employer
shall
not be obligated to search for any Participant or Designated Beneficiary
beyond sending a registered letter to such last known
address.
|
The
Plan
as contained in the provisions of this Agreement constitutes the entire
Agreement between the parties. If any provision or provisions of the Plan shall
for any reason be invalid or unenforceable, the remaining provisions of the
Plan
shall be carried into effect, unless the effect thereof would be to materially
alter or defeat the purposes of the Plan. All terms of the plan and all
discretion granted hereunder shall be uniformly and consistently applied to
all
the Employees, Participants and Designated Beneficiaries.
10.6
Participant
is General Creditor with No Rights to Assets.
A.
|
The
payments to the Participant or his Designated Beneficiary or any
other
beneficiary hereunder shall be made from assets which shall continue,
for
all purposes, to be a part of the general, unrestricted assets of
the
Employer, no person shall have any interest in any such assets b
y virtue
of the provisions of this Agreement. The Employer’s obligation hereunder
shall be an unfunded and unsecured promise to pay money in the future.
To
the extent that any person acquires a right to receive payments from
the
Employer under the provisions hereof, such right shall be no greater
than
the right of any unsecured general creditor of the Employer; no such
person shall have nor require any legal or equitable right, or claim
in or
to any property or assets of the Employer. The Employer shall not
be
obligated under any circumstances to fund obligations under this
Agreement.
|
B.
|
The
Employer at its sole discretion and exclusive option, may acquire
and/or
set-aside assets or funds, in a trust or otherwise, to support its
financial obligations under this Plan. No such trust established
for this
purpose shall be established in or transferred to a location that
would
cause it to be deemed to be an “offshore trust” for purposes of Code
Section 409A (b)(1). No such acquisition or set-aside shall impair
or
derogate from the Employer’s direct obligation to a Participant or
Designated Beneficiary under this Plan. However, no Participant or
Designated Beneficiary shall be entitled to receive duplicate payments
of
any Accounts provided under the Plan because of the existence of
such
assets or funds.
|
C.
|
In
the event that, in its discretion, the Employer purchases an asset(s)
or
insurance policy or policies insuring the life of the Participant
to allow
the Employer to recover the cost of providing benefits, in whole
or in
part hereunder, neither the Participant, Designated Beneficiary nor
any
other beneficiary shall have any rights whatsoever therein in such
assets
or in the proceeds therefrom. The Employer shall be the sole owner
and
beneficiary of any such assets or insurance policy and shall possess
and
may exercise all incidents of ownership therein. No such asset or
policy,
policies or other property shall be held in any trust for the Participant
or any other person nor as collateral security for any obligation
of the
Employer hereunder. Nor shall any Participant’s participation in the
acquisition of such assets or policy or policies be a representation
to
the Participant, Designated Beneficiary or any other beneficiary
of any
beneficial interest or ownership in such assets, policy or policies.
A
Participant may be required to submit to medical examinations, supply
such
information and to execute such documents as may be required by an
insurance carrier or carriers (to whom the Employer may apply from
time to
time) as a precondition to participate in the
Plan.
|
10.7
No
Trust Relationship Created.
Nothing
contained in this Agreement shall be deemed to create a trust of any kind or
create any fiduciary relationship between the Employer and the Participant,
Designated Beneficiary, other beneficiaries of the Participant, or any other
person claiming through the Participant. Funds allocated hereunder shall
continue for all purposes to be part of the general assets and funds of the
Employer and no person other than the Employer shall, by virtue of the
provisions of this Plan, have any beneficial interest in such assets and funds.
The creation of a grantor Trust (so called “Rabbi Trust”) under the Code (owned
by and for the benefit of the Employer) to hold such assets or funds for the
administrative convenience of the Employer shall not give nor be a
representation to a Participant, Designated Beneficiary, or any other person,
of
a property or beneficial ownership interest in such Trust assets or funds even
though the incidental advantages or benefits of the Trust to Plan Participants
may be communicated to them.
10.8
Limitations
on Liability of the Employer.
Neither
the establishment of the Plan nor any modification hereof nor the creation
of
any Account under the Plan nor the payment of any benefits under the Plan shall
be construed as giving to any Participant or any other person any legal or
equitable right against the Employer or any Director, officer or Employee
thereof except as provided by law or by any Plan provision.
10.9
Agreement
Between Employer and Participant Only.
This
Agreement is solely between the Employer and Participant. The Participant,
Designated Beneficiary, estate or any other person claiming through the
Participant, shall only have recourse against the Employer for enforcement
of
this Agreement. This Agreement shall be binding upon and inure to the benefit
of
the Employer and its successors and assigns, and the Participant, successors,
heirs, executors, administrators and beneficiaries.
10.10
Independence
of Benefits.
The
benefits payable under this Agreement are for services already rendered and
shall be independent of, and in addition to, any other benefits or compensation,
whether by salary, bonus, fees or otherwise, payable to the Participant under
any compensation and/or benefit arrangements or plans, incentive cash
compensations and stock plans and other retirement or welfare benefit plans,
that now exist or may hereafter exist from time to time.
10.11
Unclaimed
Property.
Except
as
may be required by law, the Employer may take any of the following actions
if it
gives notice to a Participant or Designated Beneficiary of an entitlement to
benefits under the Plan, and the Participant or Designated Beneficiary fails
to
claim such benefit or fails to provide their location to the Employer within
three (3) calendar years of such notice:
(1)
|
Direct
distribution of such benefits, in such proportions as the Employer
may
determine, to one or more or all, of a Participant’s next of kin, if their
location is known to the Employer;
|
(2)
|
Deem
this benefit to be forfeiture and paid to the Employer if the location
of
a Participant’s next of kin is not known. However, the Employer shall pay
the benefit, unadjusted for gains or losses from the date of such
forfeiture, to a Participant or Designated Beneficiary who subsequently
makes proper claim to the benefit.
|
The
Employer shall not be liable to any person for payment pursuant to applicable
state unclaimed property laws.
10.12
Required
Tax Withholding and Reporting.
The
Employer shall withhold and report Federal, state and local income and payroll
tax amounts on all Contributions to and distributions and withdrawals from
a
Participant’s Account as may be required by law from time to time.
SHORE
BANCSHARES, INC.
By:
|
/s/
W. Moorhead Vermilye
|
Date:
|
February
8, 2007
|
|
President/CEO
|
|
|
Schedule
A
Mandatory
Contributions:
Mr.
Duncan
Commencing
after the first Plan Year (
i.e.
,
October
1, 2006 through December 31, 2006), an annual contribution of 21% of cash
compensation over the IRS Section 401(a) (17) limit, plus the
following:
2007
|
$28,914
|
2008
|
$30,649
|
2009
|
$32,488
|
2010
|
$34,437
|
2011
|
$36,503
|
Mr.
Vermilye
Commencing
after the first Plan Year (
i.e.
,
October
1, 2006 through December 31, 2006), an a
nnual
contribution of $20,000.
2007
Discretionary Contributions:
Mr.
Vermilye
$60,000.
Mr.
Beatty
$40,000