EXHIBIT 4.1
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The Dime Savings Bank of Williamsburgh 401(k) Savings Plan in
RSI Retirement Trust.
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THE DIME SAVINGS BANK OF WILLIAMSBURGH
401(K) Savings Plan
IN RSI RETIREMENT TRUST
AS AMENDED AND RESTATED EFFECTIVE
JANUARY 1, 1997 AND AS FURTHER AMENDED THROUGH APRIL 15, 1999
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TABLE OF CONTENTS
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TABLE OF CONTENTS
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TABLE OF CONTENTS.................................................................................................I
INTRODUCTION......................................................................................................1
ARTICLE I - DEFINITIONS..........................................................................................3
ARTICLE II - ELIGIBILITY AND PARTICIPATION......................................................................16
2.1 Eligibility Prior to January 1, 1997...........................................................16
2.2 Ineligible Employees...........................................................................16
2.3 Participation Prior to January 1, 1997.........................................................17
2.4 Termination of Participation...................................................................17
2.5 Eligibility upon Reemployment..................................................................17
ARTICLE III - CONTRIBUTIONS AND LIMITATIONS ON CONTRIBUTIONS....................................................19
3.1 Before-Tax Contributions Prior to January 1, 1997..............................................19
3.2 Limitation on Before-Tax Contributions.........................................................19
3.3 Changes in Before-Tax Contributions............................................................21
3.4 Bank Contributions.............................................................................22
3.5 Special Contributions..........................................................................22
3.6 Limitation on Bank Contributions...............................................................23
3.7 Aggregate Limit; Multiple Use of Alternative Limitation........................................24
3.8 Interest on Excess Contributions...............................................................25
3.9 Payment of Contributions.......................................................................27
3.10 Rollover Contributions.........................................................................27
3.11 Section 415 Limits on Contributions............................................................27
ARTICLE IV - VESTING AND FORFEITURES............................................................................33
4.1 Vesting........................................................................................33
4.2 Forfeitures....................................................................................34
4.3 Vesting upon Termination of Service and Subsequent Reemployment................................35
ARTICLE V - TRUST FUND AND INVESTMENT ACCOUNTS..................................................................36
5.1 Trust Fund.....................................................................................36
5.2 Interim Investments............................................................................36
5.3 Account Values.................................................................................36
5.4 Separate Assets................................................................................37
ARTICLE VI - INVESTMENT DIRECTIONS, CHANGES OF INVESTMENT DIRECTIONS AND TRANSFERS
BETWEEN INVESTMENT ACCOUNTS.......................................................................................38
6.1 Investment Directions..........................................................................38
6.2 Change of Investment Directions................................................................38
6.3 Transfers Between Investment Accounts..........................................................38
6.4 Employees Other than Participants..............................................................39
6.5 Investment of Bank Contributions...............................................................39
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717 i THE DIME SAVINGS BANK OF WILLIAMSBURGH
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6.6 Voting Rights..................................................................................39
6.7 Tender Rights..................................................................................40
6.8 Dissenters' Rights.............................................................................40
6.9 Dividend Reinvestment..........................................................................40
ARTICLE VII - PAYMENT OF BENEFITS...............................................................................41
7.1 General........................................................................................41
7.2 Non-Hardship Withdrawals.......................................................................41
7.3 Hardship Distributions.........................................................................42
7.4 Distribution of Benefits Following Retirement or Termination of Service........................45
7.5 Payments upon Retirement or Disability.........................................................46
7.6 Payments upon Termination of Service for Reasons Other Than
Retirement or Disability.......................................................................48
7.7 Payments upon Death............................................................................49
7.8 Direct Rollover of Eligible Rollover Distributions.............................................51
7.9 Commencement of Benefits.......................................................................52
7.9 Manner of Payment of Withdrawals and Distributions from
the Share Investment Account...................................................................54
ARTICLE VIII - LOANS TO PARTICIPANTS............................................................................55
8.1 Definitions and Conditions.....................................................................55
8.2 Loan Amount....................................................................................55
8.3 Term of Loan...................................................................................56
8.4 Operational Provisions.........................................................................56
8.5 Repayments.....................................................................................57
8.6 Default........................................................................................58
8.7 Coordination of Outstanding Account and Payment of Benefits....................................59
ARTICLE IX - ADMINISTRATION.....................................................................................60
9.1 General Administration of the Plan.............................................................60
9.2 Designation of Named Fiduciaries...............................................................60
9.3 Responsibilities of Fiduciaries................................................................60
9.4 Plan Administrator.............................................................................61
9.5 Committee......................................................................................61
9.6 Powers and Duties of the Committee.............................................................62
9.7 Certification of Information...................................................................63
9.8 Authorization of Benefit Payments..............................................................64
9.9 Payment of Benefits to Legal Custodian.........................................................64
9.10 Service in More Than One Fiduciary Capacity....................................................64
9.11 Payment of Expenses............................................................................64
9.12 Administration of Separate Assets..............................................................64
ARTICLE X - BENEFIT CLAIMS PROCEDURE............................................................................66
10.1 Definition.....................................................................................66
10.2 Claims.........................................................................................66
10.3 Disposition of Claim...........................................................................66
10.4 Denial of Claim................................................................................66
10.5 Inaction by Plan Administrator.................................................................67
10.6 Right to Full and Fair Review..................................................................67
10.7 Time of Review.................................................................................67
10.8 Final Decision.................................................................................67
ARTICLE XI - AMENDMENT, TERMINATION, AND WITHDRAWAL.............................................................68
11.1 Amendment and Termination......................................................................68
11.2 Withdrawal from the Trust Fund.................................................................68
ARTICLE XII - TOP-HEAVY PLAN PROVISIONS.........................................................................69
12.1 Introduction...................................................................................69
12.2 Definitions....................................................................................69
12.3 Minimum Contributions..........................................................................73
12.4 Impact on Section 415 Maximum Benefits.........................................................74
ARTICLE XIII - MISCELLANEOUS PROVISIONS.........................................................................76
13.1 No Right to Continued Employment...............................................................76
13.2 Merger, Consolidation, or Transfer.............................................................76
13.3 Nonalienation of Benefits......................................................................76
13.4 Missing Payee..................................................................................76
13.5 Affiliated Employers...........................................................................77
13.6 Successor Employer.............................................................................77
13.7 Return of Employer Contributions...............................................................77
13.8 Adoption of Plan by Affiliated Employer........................................................77
13.9 Construction of Language.......................................................................78
13.10 Headings.......................................................................................78
13.11 Governing Law..................................................................................78
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717 ii THE DIME SAVINGS BANK OF WILLIAMSBURGH
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INTRODUCTION
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INTRODUCTION
Effective as of July 1, 1973, The Dime Savings Bank of Williamsburgh
("Employer") adopted the Dime Savings Bank of Williamsburgh Incentive Savings
Plan ("1973 Plan").
Effective as of July 1, 1991, the Employer adopted resolutions wherein RSI
Retirement Trust was named successor trustee and the RSI Retirement Trust
Agreement and Declaration of Trust ("Agreement") was adopted.
Effective as of July 1, 1991, the 1973 Plan was amended and restated in its
entirety. The amended and restated plan became known as The Dime Savings Bank of
Williamsburgh 401(k) Savings Plan in RSI Retirement Trust ("Prior Plan").
Effective as of February 8, 1996, the Employer adopted resolutions which (a)
added an investment fund to the Plan consisting of common stock of the Employer
and (b) established the Plan as a Plan of Partial Participation as defined under
the Agreement. In conjunction with such resolutions, the Employer adopted a
Separate Agreement establishing a separate trust to hold the common stock of the
Employer and a designated Separate Agency to serve as trustee.
Effective as of May 31, 1996, the Employer adopted resolutions ceasing matching
Bank Contributions under Section 3.4 of the Plan.
Effective as of June 26, 1996, Pioneer Savings Bank, F.S.B. and its parent
Conestoga Bancorp, Inc. were acquired by the Employer. In connection with this
acquisition, the Employer amended the Plan to give credit to employees of
specified "acquired companies" for purposes of vesting and eligibility to
participate, and to permit immediate participation as of the date of such
acquisition for eligible employees with respect to compensation for the full
payroll period that includes the date of such acquisition.
Effective as of January 1, 1997, the Plan is amended to provide that there will
be no new enrollments in the Plan and there will be no future Before-Tax
Contributions under the Plan.
Effective March 1, 1997, the Pioneer Savings Bank, FSB Tax Deferral Savings Plan
in RSI Retirement Trust shall be merged with and into The Dime Savings Bank of
Williamsburgh 401(k) Savings Plan in RSI Retirement Trust. The accounts of
employees of Pioneer Savings Bank, FSB and Conestoga Bancorp, Inc. shall be
merged into the Accounts maintained on behalf of each Participant in accordance
with Section 1.1 of the Plan.
Effective January 21, 1999, The Dime Savings Bank of Williamsburgh acquired
Financial Federal Savings Bank. Effective April 15, 1999, Financial Federal
Savings Bank Incentive Savings Plan in RSI Retirement Trust shall be merged with
and into The Dime Savings Bank of Williamsburgh 401(k) Savings Plan in RSI
Retirement Trust. The accounts of employees of Financial Federal Savings Bank
shall be merged into the Accounts maintained on behalf of each Participant in
accordance with Section 1.1 of the Plan.
Effective as of January 1, 1997, the Prior Plan was amended and restated in its
entirety. The amended and restated plan shall be known as The Dime Savings Bank
of Williamsburgh 401(k)
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717 1 THE DIME SAVINGS BANK OF WILLIAMSBURGH
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INTRODUCTION
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Savings Plan in RSI Retirement Trust As Amended and Restated as of January 1,
1997 and as Further Amended Through April 15, 1999 ("Plan"), shall contain the
terms and conditions set forth herein, and shall in all respects be subject to
the provisions of the Agreement which are incorporated herein and made a part
hereof.
The Plan as amended and restated hereunder incorporates a cash or deferred
arrangement under Section 401(k) of the Internal revenue Code of 1986 ("Code").
The Plan shall constitute a profit-sharing plan within the meaning of Section
401(a) of the Code, without regard to current or accumulated profits of the
Employer, as provided in Section 401(a)(27) of the Code.
The Plan complies with all Internal Revenue Service legislation and regulations
issued to date addressing tax-qualified plans, including the Uniformed Services
Employment and Reemployment Rights Act of 1994, the Uruguay Round Agreements
Act, the Small Business Job Protection Act of 1996, the Taxpayer Relief Act of
1997 and the Restructuring and Reform Act of 1998.
Subject to any amendments that may subsequently be adopted by the Employer prior
to his Termination of Service, the provisions set forth in this Plan shall apply
to an Employee who is in the employment of the Employer on or after January 1,
1997. Except to the extent specifically required to the contrary under the terms
of this Plan, for terminations of employment prior to January 1, 1997, the
rights and benefits of a former participant shall be determined in accordance
with the provisions of the Prior Plan as in effect on the date of the former
participant's termination of employment.
The Employer has herein restated the Plan with the intention that (i) the Plan
shall at all times be qualified under Section 401(a) of the Code, (ii) the
Agreement and the Separate Agreement shall be tax-exempt under Section 501(a) of
the Code, and (iii) Employer contributions under the Plan shall be tax
deductible under Section 404 of the Code. The provisions of the Plan, the
Agreement and the Separate Agreement shall be construed to effectuate such
intentions.
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717 2 THE DIME SAVINGS BANK OF WILLIAMSBURGH
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ARTICLE I -
DEFINITIONS
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ARTICLE I -
DEFINITIONS
The following words and phrases shall have the meanings hereinafter ascribed to
them. Those words and phrases which have limited application are defined in the
respective Articles in which such terms appear.
1.1 ACCOUNTS means the Participant Contribution Account, Before-Tax
Contribution Account (including Special Contributions, if any), Bank
Contribution Account, Rollover Contribution Account and effective
March 1, 1997, Pioneer Prior Matching Contribution Account,
established under the Plan on behalf of an Employee. Effective March
1, 1997, Accounts shall also include accounts maintained on behalf of
employees of the Acquired Company, acquired on June 26, 1996.
Effective April 15, 1999, Accounts shall also include accounts
maintained on behalf of employees of Financial Federal Savings Bank,
acquired on January 21, 1999.
1.2 ACTUAL CONTRIBUTION PERCENTAGE means the ratio (expressed as a
percentage) of the Bank Contributions under the Plan which are made on
behalf of an Eligible Employee for the Plan Year to such Eligible
Employee's compensation (as defined under Section 414(s) of the Code)
for the Plan Year. An Eligible Employee's compensation hereunder shall
include compensation receivable from the Employer for that portion of
the Plan Year during which the Employee is an Eligible Employee, up to
a maximum of one hundred sixty thousand dollars ($160,000), adjusted in
multiples of ten thousand dollars ($10,000) for increases in the
cost-of-living, as prescribed by the Secretary of the Treasury under
Section 401(a)(17)(B) of the Code.
1.3 ACTUAL DEFERRAL PERCENTAGE means the ratio (expressed as a percentage)
of the sum of Before-Tax Contributions, and those Qualified Nonelective
Contributions taken into account under the Plan for the purpose of
determining the Actual Deferral Percentage, which are made on behalf of
an Eligible Employee for the Plan Year to such Eligible Employee's
compensation (as defined under Section 414(s) of the Code) for the Plan
Year. An Eligible Employee's compensation hereunder shall include
compensation receivable from the Employer for that portion of the Plan
Year during which the Employee is an Eligible Employee, up to a maximum
of one hundred sixty thousand dollars ($160,000), adjusted in multiples
of ten thousand dollars ($10,000) for increases in the cost-of-living
as prescribed by the Secretary of the Treasury under Section
401(a)(17)(B) of the Code.
1.4 ACQUIRED COMPANY means any of the following companies which is acquired
by, or merged or consolidated with, the Employer or its holding
company:
(a) Pioneer Savings Bank, F.S.B.
(b) Conestoga Bancorp, Inc.
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717 3 THE DIME SAVINGS BANK OF WILLIAMSBURGH
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ARTICLE I -
DEFINITIONS
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1.5 AFFILIATED EMPLOYER means a member of an affiliated service group (as
defined under Section 414(m) of the Code), a controlled group of
corporations (as defined under Section 414(b) of the Code), a group of
trades or businesses under common control (as defined under Section
414(c) of the Code) of which the Employer is a member, any leasing
organization (as defined under Section 414(n) of the Code) providing
the services of Leased Employees to the Employer, or any other group
provided for under any and all Income Tax Regulations promulgated by
the Secretary of the Treasury under Section 414(o) of the Code.
1.6 AFFILIATED SERVICE means employment with an employer during the period
that such employer is an Affiliated Employer.
1.7 AGREEMENT means the RSI Retirement Trust Agreement and Declaration of
Trust as amended and restated August 1, 1990, as amended from time to
time. The Agreement shall be incorporated herein and constitute a part
of the Plan.
1.8 AVERAGE ACTUAL CONTRIBUTION PERCENTAGE means the average of the Actual
Contribution Percentages of (a) the group comprised of Eligible
Employees who are Highly Compensated Employees or (b) the group
comprised of Eligible Employees who are Non-Highly Compensated
Employees, whichever is applicable.
1.9 AVERAGE ACTUAL DEFERRAL PERCENTAGE means the average of the Actual
Deferral Percentages of (a) the group comprised of Eligible Employees
who are Highly Compensated Employees or (b) the group comprised of
Eligible Employees who are Non-Highly Compensated Employees, whichever
is applicable.
1.10 BANK CONTRIBUTION ACCOUNT means the separate, individual account
established on behalf of a Participant to which the Bank Contributions
made on such Participant's behalf are credited, together with all
earnings and appreciation thereon, and against which are charged any
withdrawals, loans and other distributions made from such account and
any losses, depreciation or expenses allocable to amounts credited to
such account. Effective April 15, 1999, Bank Contribution Account shall
also mean matching contribution accounts maintained on behalf of
Employees of the acquired Financial Federal Savings Bank under the
former Financial Federal Plan, as in effect on April 14, 1999.
1.11 BANK CONTRIBUTIONS means the contributions made by the Employer
pursuant to Section 3.4. Bank Contributions also means those
contributions made by the Employer under the provisions of the Prior
Plan as in effect prior to July 1, 1991.
1.12 BEFORE-TAX CONTRIBUTION ACCOUNT means the separate, individual account
established on behalf of a Participant to which Before-Tax
Contributions and Special Contributions, if any, made on his behalf are
credited, together with all earnings and appreciation thereon, and
against which are charged any withdrawals, loans and other
distributions made from such account and any losses, depreciation or
expenses allocable to amounts credited to such account. Effective March
1, 1997, Before-Tax Contribution Account shall also mean before-tax
contribution accounts maintained on behalf of Employees of the
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717 4 THE DIME SAVINGS BANK OF WILLIAMSBURGH
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ARTICLE I -
DEFINITIONS
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Acquired Company under the former Pioneer Plan, as in effect on and
prior to February 28, 1997. Effective April 15, 1999, Before-Tax
Contribution Account shall also mean before-tax contribution accounts
maintained on behalf of Employees of Financial Federal under the
former Financial Federal Plan, as in effect on and prior to April 14,
1999.
1.13 BEFORE-TAX CONTRIBUTIONS means the contributions of the Employer made
in accordance with the Compensation Reduction Agreements of
Participants pursuant to Section 3.1. Effective as of January 1, 1997,
there are no future Before-Tax Contributions made in accordance with
the Compensation Reduction Agreements of Participants pursuant to
Section 3.1.
1.14 BENEFICIARY means any person who is receiving or is eligible to receive
a benefit under Section 7.7 of the Plan upon the death of an Employee
or former Employee.
1.15 BOARD means the board of trustees, directors or other governing body
of the Sponsoring Employer.
1.16 CODE means the Internal Revenue Code of 1986, as amended from time to
time.
1.17 COMMITTEE means the person or persons appointed by the Employer in
accordance with Section 9.2(b).
1.18 COMPENSATION means the base compensation receivable by an Employee from
the Employer for the calendar year prior to any reduction pursuant to a
Compensation Reduction Agreement. Base compensation shall include
salary, Before-Tax Contributions, wages and wage continuation payments
to an Employee who is absent due to illness or disability of a
short-term nature, overtime and commissions.
Compensation shall not exceed one hundred sixty thousand dollars
($160,000), adjusted in multiples of ten thousand dollars ($10,000) for
increases in the cost-of-living as prescribed by the Secretary of the
Treasury under Section 401(a)(17)(B) of the Code. For purposes of this
Section 1.18, if the Plan Year in which a Participant's Compensation is
being made is less than twelve (12) calendar months, the amount of
Compensation taken into account for such Plan Year shall be the
adjusted amount, as prescribed by the Secretary of the Treasury under
Section 401(a)(17) of the Code, for such Plan Year multiplied by a
fraction, the numerator of which is the number of months taken into
account for such Plan Year and the denominator of which is twelve (12).
In determining the dollar limitation hereunder, compensation received
from any Affiliated Employer shall be recognized as Compensation.
For purposes of determining Before-Tax Contributions, Compensation of
an Employee of an Acquired Company shall include amounts received from
the Acquired Company during the payroll period in which the date of the
transaction by which such company became an Acquired Company occurs, if
such amounts would otherwise be considered to be Compensation under
this Section 1.18.
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717 5 THE DIME SAVINGS BANK OF WILLIAMSBURGH
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ARTICLE I -
DEFINITIONS
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1.19 COMPENSATION REDUCTION AGREEMENT means an agreement between the
Employer and an Eligible Employee whereby the Eligible Employee agrees
to reduce his Compensation during the applicable payroll period by an
amount equal to any whole percentage thereof, to the extent provided in
Section 3.1, and the Employer agrees to contribute to the Trust, on
behalf of such Eligible Employee, an amount equal to the specified
reduction in Compensation.
1.20 COMPUTATION PERIOD means the twelve (12) consecutive month period
commencing with the Employee's Employment Commencement Date and each
Plan Year commencing subsequent to the Employee's Employment
Commencement Date.
1.21 DISABILITY means a physical or mental condition, determined after
review of those medical reports deemed satisfactory for this purpose,
which renders the Participant totally and permanently incapable of
engaging in any substantial gainful employment based on his education,
training and experience.
1.22 EARLY RETIREMENT DATE means the first day of any month coincident with
or following the date the Participant completes five (5) years of
credited service and either: (a) the Participant has attained age sixty
(60) or (b) the Participant has completed at least thirty (30) years of
vested service. For purposes of this Section 1.22, credited service and
vested service mean credited service and vested service as defined in
the Sponsoring Employer's defined benefit retirement plan. Effective
March 1, 1997, for Employees who were employed by the Acquired Company
as of the date of acquisition, June 26, 1996, Early Retirement Date
shall mean the first day of any month coincident with or following such
Employee's attainment of age fifty-five (55). Effective April 15, 1999,
for Employees who were employed by the Financial Federal as of the date
of acquisition, January 21, 1999, Early Retirement Date shall mean the
first day of any month coincident with or following the later of (i)
the Participant's attainment of age fifty-five (55) or (ii) the
completion of a Period of Service of ten (10) years.
1.23 EFFECTIVE DATE means July 1, 1973.
1.24 ELIGIBLE EMPLOYEE means an Employee who is eligible to participate in
the Plan pursuant to the provisions of Article II.
1.25 EMPLOYEE means any person employed by the Employer.
1.26 EMPLOYER means The Dime Savings Bank of Williamsburgh and any
Participating Affiliate or any successor organization which shall
continue to maintain the Plan set forth herein.
1.27 EMPLOYER RESOLUTIONS means resolutions adopted by the Board.
1.28 EMPLOYMENT COMMENCEMENT DATE means the date on which an Employee first
performs an Hour of Service for the Employer upon initial employment
or, if applicable, upon reemployment.
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717 6 THE DIME SAVINGS BANK OF WILLIAMSBURGH
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ARTICLE I -
DEFINITIONS
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1.29 ERISA means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
1.30 FINANCIAL FEDERAL means Financial Federal Savings Bank which was
acquired by the Employer on January 21, 1999.
1.31 FINANCIAL FEDERAL PLAN means financial Federal Savings Bank Incentive
Savings Plan in RSI Retirement Trust as in effect on and prior to April
14, 1999.
1.32 FORFEITURES means any amounts forfeited pursuant to Section 4.2.
1.33 HARDSHIP means the condition described in Section 7.3.
1.34 HIGHLY COMPENSATED EMPLOYEE means, with respect to a Plan Year, an
Employee or an employee of an Affiliated Employer who is such an
Employee or employee during the Plan Year for which a determination is
being made and who:
(a) during the Plan Year immediately preceding the Plan Year for
which a determination is being made, received compensation as
defined under Section 414(q)(4) of the Code ("Section 414(q)
Compensation") from the Employer, in excess of eighty thousand
dollars ($80,000), adjusted as prescribed by the Secretary of
the Treasury under Section 415(d) of the Code, or
(b) at any time during the Plan Year for which a determination is
being made or at any time during the Plan Year immediately
preceding the Plan Year for which a determination is being
made, was a five-percent owner as described under Section
414(q)(2) of the Code.
For purposes of subsection (a) above, effective for Plan Years
commencing after December 31, 1997, Section 414(q) Compensation shall
include (A) any elective deferral (as defined in Section 402(g)(3) of
the Code, and (B) any amount which is contributed or deferred by the
Employer at the election of the Employee and which is not includable in
the gross income of the Employee by reason of Section 125 or 457 of the
Code.
Highly Compensated Employee also means a former Employee who (A)
incurred a Termination of Service prior to the Plan Year of the
determination, (B) is not credited with an Hour of Service during the
Plan Year of the determination and (C) satisfied the requirements of
subsection (a) or (b) during either the Plan Year of his Termination of
Service or any Plan Year ending coincident with or subsequent to the
Employee's attainment of age fifty-five (55).
1.35 HOUR OF SERVICE means the following:
(a) each hour for which an Employee is directly or indirectly
paid, or entitled to payment, by the Employer for the
performance of duties. These hours shall be credited to the
Employee for the computation period or periods in which the
duties are performed; and
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717 7 THE DIME SAVINGS BANK OF WILLIAMSBURGH
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ARTICLE I -
DEFINITIONS
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(b) each hour for which an Employee is directly or indirectly paid
or entitled to payment by the Employer for reasons (such as
but not limited to vacation, sickness or disability) other
than for the performance of duties (irrespective of whether
the employment relationship has terminated). These hours shall
be credited to the Employee for the computation period or
periods in which the nonperformance of duties occur; and
(c) each hour for which back pay, irrespective of mitigation of
damage, has been either awarded or agreed to by the Employer.
These hours shall be credited to the Employee for the
computation period or periods to which the award or agreement
pertains rather than the computation period in which the
award, agreement, or payment was made. These same Hours of
Service shall not be credited under both paragraph (a) or
paragraph (b) of this Section, and under this paragraph (c).
(d) Hours of Service shall be computed and credited in accordance
with Section 2530.200b-2 of the Department of Labor
Regulations which are incorporated herein by reference.
(e) Hours of Service shall include Affiliated Service.
Hours of Service for Employees for whom records of hours are not
maintained shall be determined on the assumption that each Employee has
completed forty-five (45) Hours of Service during each week for which
he would be required to be credited with at least one (1) Hour of
Service.
1.36 INVESTMENT ACCOUNTS means any and all of the investment accounts
established by Board resolutions and presented to the Trustees or the
Share Investment Account for the purpose of investing contributions
made to the Trust Fund in accordance with the provisions of the
Agreement. The securities and other property in which contributions to
the Investment Accounts of the Trust Fund may be invested shall be
specified in the Agreement or the Separate Agreement and the rights of
the Trustees or Separate Agency shall be established in accordance with
the provisions of such Agreement or the Separate Agreement.
1.37 LEASED EMPLOYEE means any individual (other than an Employee of the
Employer or an employee of an Affiliated Employer) who, pursuant to an
agreement between the Employer or any Affiliated Employer and any other
person ("leasing organization"), has performed services for the
Employer or any Affiliated Employer on a substantially full-time basis
for a period of at least one (1) year, and such services are performed
under the primary direction of and control by the Employer or any
Affiliated Employer. A determination as to whether a Leased Employee
shall be treated as an Employee of the Employer or an Affiliated
Employer shall be made as follows: a Leased Employee shall not be
considered an Employee of the Employer if: (a) such employee is a
participant in a money purchase pension plan providing (i) a
nonintegrated Employer contribution rate of at least ten percent (10%)
of compensation, as defined in Section 415(c)(3) of the Code, however,
including amounts contributed pursuant to a compensation reduction
agreement
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717 8 THE DIME SAVINGS BANK OF WILLIAMSBURGH
<PAGE>
ARTICLE I -
DEFINITIONS
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which are excludable from the employee's gross income under Section
125, Section 402(e)(3), Section 402(h)(1)(B) or Section 403(b) of the
Code; (ii) immediate plan participation; and (iii) full and immediate
vesting; and (b) Leased Employees do not constitute more than twenty
percent (20%) of the Employer's Non-Highly Compensated Employees.
1.38 MERGED PLAN means a defined contribution plan permitting salary
reduction contributions or, if none, other defined contribution plan of
an Acquired Company.
1.39 NAMED FIDUCIARIES means the Trustees, the Committee and the Separate
Agency and such other parties who are designated by the Sponsoring
Employer to control and manage the operation and administration of the
Plan.
1.40 NET VALUE means the value of an Employee's Accounts as determined as of
the Valuation Date coincident with or next following the event
requiring such determination.
1.41 NON-HIGHLY COMPENSATED EMPLOYEE means, with respect to a Plan Year, an
Employee who is not a Highly Compensated Employee.
1.42 NORMAL RETIREMENT AGE means the date an Employee attains age
sixty-five (65).
1.43 NORMAL RETIREMENT DATE means the first day of the month coincident with
or next following the Participant's Normal Retirement Age.
1.44 ONE YEAR PERIOD OF SEVERANCE means a twelve (12) consecutive month
period following an Employee's Termination of Service with the Employer
during which the Employee did not perform an Hour of Service. Prior to
July 1, 1991, a One Year Period of Severance means a Plan Year during
which the Employee did not complete at least 501 Hours of Service.
Notwithstanding the foregoing, for purposes of determining a One Year
Period of Severance, an Employee who:
(a) was an employee of the Employer on June 30, 1991; and
(b) terminates employment with the Employer during his
Computation Period which includes July 1, 1991; and
(c) is credited with at least five hundred and one (501) Hours
of Service during his Computation Period which includes July
1, 1991
shall be deemed to incur a Termination of Service as of the first day
immediately following the last day of such Computation Period.
Notwithstanding the foregoing, if an Employee is absent from employment
for maternity or paternity reasons, such absence during the twenty-four
(24) month period commencing on the first date of such absence shall
not constitute a One Year Period of Severance. An
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717 9 THE DIME SAVINGS BANK OF WILLIAMSBURGH
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ARTICLE I -
DEFINITIONS
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absence from employment for maternity or paternity reasons means an
absence (i) by reason of pregnancy of the Employee, or (ii) by reason
of a birth of a child of the Employee, or (iii) by reason of the
placement of a child with the Employee in connection with the adoption
of such child by such Employee, or (iv) for purposes of caring for
such child for a period beginning immediately following such birth or
placement.
1.45 PARTICIPANT means an Eligible Employee who participated in accordance
with the provisions of Section 2.3, and whose participation in the Plan
has not been terminated in accordance with the provisions of Section
2.4.
1.46 PARTICIPANT CONTRIBUTION ACCOUNT means the separate, individual account
established on behalf of a Participant to which Participant
Contributions are credited, together with all earnings and appreciation
thereon, and against which are charged any withdrawals, loans and other
distributions made from such account and any losses, depreciation or
expenses allocable to amounts credited to such account.
1.47 PARTICIPANT CONTRIBUTIONS means those contributions made by a
Participant prior to July 1, 1991 under the provisions of the Prior
Plan as in effect prior to July 1, 1991.
1.48 PARTICIPATING AFFILIATE means any corporation that is a member of a
controlled group of corporations (within the meaning of Section 414(b)
of the Code) of which the Sponsoring Employer is a member and any
unincorporated trade or business that is a member of a group of trades
or businesses under common control (within the meaning of Section
414(c) of the Code) of which the Sponsoring Employer is a member,
which, with the prior approval of the Sponsoring Employer and subject
to such terms and conditions as may be imposed by such Sponsoring
Employer and the Trustees, shall adopt this Plan in accordance with the
provisions of Section 13.8 and the Agreement. Such entity shall
continue to be a Participating Affiliate until such entity terminates
its participation in the Plan in accordance with Section 13.8.
1.49 PERIOD OF SERVICE means the following:
(a) if an Employee's Employment Commencement Date occurred prior
to the July 1, 1991, the sum of:
(i) the number of years of service credited to such
Employee as of the last day of the Computation Period
which ended immediately prior to July 1, 1991 under
the provisions of the Prior Plan as in effect prior
to July 1, 1991; and
(ii) the period commencing with the first day of the
Computation Period which began immediately prior to
July 1, 1991 and ending on the date such Employee
first incurs a Termination of Service.
Notwithstanding the foregoing, for purposes of determining a
Period of Service, an Employee who:
(A) was an Employee of the Employer on June 30,
1991;
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717 10 THE DIME SAVINGS BANK OF WILLIAMSBURGH
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ARTICLE I -
DEFINITIONS
--------------------------------------------------------------------------------
(B) terminates employment with the Employer
during his Computation Period which includes
July 1, 1991; and
(C) is credited with at least one thousand
(1,000) Hours of Service during his
Computation Period which includes July 1,
1991
shall be deemed to incur a Termination of Service as of the
first day immediately following the last day of such
Computation Period.
(b) if an Employee's Employment Commencement Date occurs on or
after July 1, 1991, the period commencing with the Employee's
Employment Commencement Date and ending on the date such
Employee first incurs a Termination of Service.
(c) For purposes of determining eligibility to participate and
vesting of contributions under the Plan, the Period of Service
of any individual who was employed by an Acquired Company on
the date of the transaction by which such company became an
Acquired Company, shall include service recognized for
purposes of vesting and eligibility to participate under the
Merged Plan of such Acquired Company. For purposes of
determining vesting of contributions under the Plan, Period of
Service with Financial Federal, of any individual who was
employed by Financial Federal, shall be recognized for vesting
purposes.
Notwithstanding the foregoing, the period between the first and second
anniversary of the first date of a maternity or paternity absence
described under Section 1.44 shall not be included in determining a
Period of Service.
A period after July 1, 1991 during which an individual was not employed
by the Employer shall nevertheless be deemed to be a Period of Service
if such individual incurred a Termination of Service and:
(i) such Termination of Service was the result of
resignation, discharge or retirement and such
individual is reemployed by the Employer within one
(1) year after such Termination of Service; or
(ii) such Termination of Service occurred when the
individual was otherwise absent for less than one (1)
year and he was reemployed by the Employer within one
(1) year after the date such absence began.
All Periods of Service not disregarded under Sections 2.5 and 4.3 shall
be aggregated.
Wherever used in the Plan, a Period of Service means the quotient
obtained by dividing the days in all Periods of Service not disregarded
hereunder by three hundred sixty five (365) and disregarding any
fractional remainder.
1.50 PIONEER PLAN means Pioneer Savings Bank, FSB Tax Deferral Savings Plan
in RSI Retirement Trust as in effect on and prior to February 28, 1997.
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717 11 THE DIME SAVINGS BANK OF WILLIAMSBURGH
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ARTICLE I -
DEFINITIONS
--------------------------------------------------------------------------------
1.51 PIONEER PRIOR MATCHING CONTRIBUTION ACCOUNT means that separate,
individual account established on behalf of a Participant who was
employed by the Acquired Company and who was a participant under the
former Pioneer Plan, to which such Pioneer Prior Matching Contributions
were credited, together with all earnings and appreciation thereon, and
against which are charged any withdrawals, loans and other
distributions made from such account and any losses, depreciation or
expenses allocable to amounts credited to such account.
1.52 PIONEER PRIOR MATCHING CONTRIBUTION means contributions made on behalf
of a Participant who was employed by the Acquired Company and who was a
participant under the Pioneer Plan.
1.53 PLAN means The Dime Savings Bank of Williamsburgh 401(k) Savings Plan
in RSI Retirement Trust, as herein restated and as it may be amended
from time to time. The Plan shall be a Plan of Partial Participation AS
defined in the Agreement.
1.54 PLAN ADMINISTRATOR means the person or persons who have been designated
as such by the Employer in accordance with the provisions of Section
9.4.
1.55 PLAN FUNDS means the assets of the Plan held in the Trust Fund and the
Separate Assets.
1.56 PLAN YEAR means the calendar year.
1.57 POSTPONED RETIREMENT DATE means the first day of the month coincident
with or next following a Participant's date of actual retirement which
occurs after his Normal Retirement Date.
1.58 PRIOR PLAN means The Dime Savings Bank of Williamsburgh 401(k) Savings
Plan in RSI Retirement Trust as in effect on the date immediately
preceding the Restatement Date.
1.59 QUALIFIED NONELECTIVE CONTRIBUTIONS means contributions, other than
Bank Contributions, made by the Employer, which (a) Participants may
not elect to receive in cash in lieu of their being contributed to the
Plan; (b) are one hundred percent (100%) nonforfeitable when made; and
(c) are not distributable under the terms of the Plan to Participants
or their Beneficiaries until the earliest of:
(i) the Participant's death, Disability or separation
from service for other reasons;
(ii) the Participant's attainment of age fifty-nine and
one-half (59-1/2); or
(iii) termination of the Plan.
Special Contributions defined under Section 1.69 are Qualified
Nonelective Contributions.
1.60 RESTATEMENT DATE means January 1, 1997.
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717 12 THE DIME SAVINGS BANK OF WILLIAMSBURGH
<PAGE>
ARTICLE I -
DEFINITIONS
--------------------------------------------------------------------------------
1.61 RETIREMENT DATE means the Participant's Normal Retirement Date, Early
Retirement Date or Postponed Retirement Date, whichever is applicable.
1.62 ROLLOVER CONTRIBUTION means (a) a contribution to the Plan of money
received by an Employee from a qualified plan or (b) a contribution to
the Plan of money transferred directly from another qualified plan on
behalf of the Employee, which the Code permits to be rolled over into
the Plan.
1.63 ROLLOVER CONTRIBUTION ACCOUNT means the separate, individual account
established on behalf of an Employee to which his Rollover
Contributions are credited together with all earnings and appreciation
thereon, and against which are charged any withdrawals, loans and other
distributions made from such account and any losses, depreciation or
expenses allocable to amounts credited to such account. Effective March
1, 1997, Rollover Contribution Account shall also mean rollover
contribution accounts maintained on behalf of Employees of the Acquired
Company under the former Pioneer Plan as in effect on and prior to
February 28, 1997. Effective April 15, 1999, Rollover Contribution
Account shall also mean rollover contribution accounts maintained on
behalf of Employees of Financial Federal under the former Financial
Federal Plan as in effect on and prior to April 14, 1999.
1.64 SEPARATE AGENCY means any trustee or insurance carrier holding Plan
Funds under a Separate Agreement.
1.65 SEPARATE AGREEMENT means the trust agreement or insurance contract
governing the investment and administration of any Separate Assets.
1.66 SEPARATE ASSETS means assets of the Plan as described in Section 5.2(b)
which are held under an insurance contract issued to the Employer or in
a trust other than the Trust.
1.67 SHARE INVESTMENT ACCOUNT means the Investment Account comprised
primarily of Shares and fractional Shares. The Separate Assets shall
consist of the Share Investment Account, effective as of February 8,
1996. The Share Investment Account shall be governed by the provisions
of this Plan and the provisions of the Separate Agreement entered into
in connection with such Account between the Employer and the Separate
Agency selected as trustee for the Share Investment Account.
1.68 SHARES means shares and any fraction thereof of common stock of Dime
Community Bancorp, Inc. Effective August 13, 1998, Dime Community
Bancorp, Inc. changed its name to Dime Community Bancshares, Inc.
1.69 SPECIAL CONTRIBUTIONS means the contributions made by the Employer
pursuant to Section 3.5. Special Contributions are Qualified
Nonelective Contributions as defined under Section 1.59.
1.70 SPONSORING EMPLOYER means The Dime Savings Bank of Williamsburgh or any
successor organization which shall continue to maintain the Plan set
forth herein.
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717 13 THE DIME SAVINGS BANK OF WILLIAMSBURGH
<PAGE>
ARTICLE I -
DEFINITIONS
--------------------------------------------------------------------------------
1.71 SPOUSE means a person to whom the Employee was legally married and
which marriage had not been dissolved by formal divorce proceedings
that had been completed prior to the date on which payments to the
Employee are scheduled to commence.
1.72 TERMINATION OF SERVICE means the earlier of (a) the date on which an
Employee's service is terminated by reason of his resignation,
retirement, discharge, death or Disability or (b) the first anniversary
of the date on which such Employee's service is terminated for any
other reason.
Service in the Armed Forces of the United States shall not constitute a
Termination of Service but shall be considered to be a period of
employment by the Employer provided that (i) such military service is
caused by war or other emergency or the Employee is required to serve
under the laws of conscription in time of peace, (ii) the Employee
returns to employment with the Employer within six (6) months following
discharge from such military service and (iii) such Employee is
reemployed by the Employer at a time when the Employee had a right to
reemployment at his former position or substantially similar position
upon separation from such military duty in accordance with seniority
rights as protected under the laws of the United States of America.
Notwithstanding any provision of the Plan to the contrary, effective
December 12, 1994, contributions, benefits and calculation of Periods
of Service with respect to qualified military service will be provided
in accordance with Section 414(u) of the Code.
A leave of absence granted to an Employee by the Employer shall not
constitute a Termination of Service provided that the Participant
returns to the active service of the Employer at the expiration of any
such period for which leave has been granted.
Notwithstanding the foregoing, an Employee who is absent from service
with the Employer beyond the first anniversary of the first date of his
absence for maternity or paternity reasons set forth in Section 1.44
shall incur a Termination of Service for purposes of the Plan on the
second anniversary of the date of such absence.
1.73 TRUST means the trust established or maintained under the Agreement
with respect to the Plan.
1.74 TRUST FUND means the assets held in accordance with the Agreement.
1.75 TRUSTEES means the Trustees of the RSI Retirement Trust.
1.76 UNITS means the units of measure of an Employee's proportionate
undivided beneficial interest in one or more of the Investment
Accounts, valued as of the close of business.
1.77 VALUATION DATE means each business day.
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717 14 THE DIME SAVINGS BANK OF WILLIAMSBURGH
<PAGE>
ARTICLE II -
ELIGIBILITY AND PARTICIPATION
--------------------------------------------------------------------------------
ARTICLE II -
ELIGIBILITY AND PARTICIPATION
2.1 ELIGIBILITY PRIOR TO JANUARY 1, 1997
(a) Every Employee who was a Participant in the Prior Plan
immediately prior to the Restatement Date shall continue to be
a Participant on the Restatement Date.
(b) Every other Employee who is not excluded under the provisions
of Section 2.2 shall become an Eligible Employee upon
satisfying each of the following conditions:
(i) completion of a Period of Service of one (1) year; and
(ii) classification as a salaried Employee.
(c) For purposes of determining (i) if an Employee completed a
Period of Service of one (1) year and (ii) Periods of Service
pursuant to Section 2.5, employment with an Affiliated
Employer shall be deemed employment with the Employer.
(d) An Employee who otherwise satisfies the requirements of this
Section 2.1 and who is no longer excluded under the provisions
of Section 2.2 shall immediately become an Eligible Employee.
(e) Effective as of January 1, 1997, there will be no new
enrollments in the Plan.
2.2 INELIGIBLE EMPLOYEES
The following classes of Employees were ineligible to participate in
the Plan:
(a) Employees compensated on an hourly or commission basis;
(b) Leased Employees;
(c) Employees in a unit of Employees covered by a collective
bargaining agreement with the Employer pursuant to which
employee benefits were the subject of good faith bargaining
and which agreement does not expressly provide that Employees
of such unit be covered under the Plan; and
(d) Owner-Employees. For purposes of this Section 2.2(d),
Owner-Employee means an individual who is a sole proprietor or
who is a partner owning more than ten percent (10%) of either
the capital or profits interest of a partnership which adopted
the Plan.
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717 15 THE DIME SAVINGS BANK OF WILLIAMSBURGH
<PAGE>
ARTICLE II -
ELIGIBILITY AND PARTICIPATION
--------------------------------------------------------------------------------
2.3 PARTICIPATION PRIOR TO JANUARY 1, 1997
An Eligible Employee may elect to participate as of the first day of
any payroll period of any calendar month following satisfaction of the
eligibility requirements set forth in Section 2.1, and either: (a) an
election for Before-Tax Contributions in accordance with Section 3.1 or
(b) eligibility for Special Contributions in accordance with Section
3.5. An election for Before-Tax Contributions shall be evidenced by
completing and filing the form prescribed by the Committee not less
than ten (10) days prior to the date participation is to commence. Such
form shall include, but not be limited to, a Compensation Reduction
Agreement, a designation of Beneficiary, and an investment direction as
described in Section 6.1. By completing and filing such form, the
Eligible Employee authorizes the Employer to make the applicable
payroll deductions from Compensation, commencing on the first
applicable payday coincident with or next following the effective date
of the Eligible Employee's election to participate. In the case of
Special Contributions, a Participant shall complete a form prescribed
by the Committee, designating a Beneficiary and an investment direction
as described in Section 6.1. Employees of an Acquired Company who are
eligible to participate on the date of the transaction by which such
company became an Acquired Company, may also elect to participate as of
the first day of the payroll period in which such transaction occurs.
Effective as of January 1, 1997, there will be no new enrollments in
the Plan.
2.4 TERMINATION OF PARTICIPATION
Participation in the Plan shall terminate on the earlier of the date a
Participant dies or the entire vested interest in the Net Value of such
Participant's Accounts has been distributed.
2.5 ELIGIBILITY UPON REEMPLOYMENT
If an Employee incurs a One Year Period of Severance prior to
satisfying the eligibility requirements of Section 2.1, service prior
to such One Year Period of Severance shall be disregarded and such
Employee must satisfy the eligibility requirements of Section 2.1 as a
new Employee.
If an Employee incurs a One Year Period of Severance after satisfying
the eligibility requirements of Section 2.1 and:
(a) if such Employee is not vested in any Bank Contributions,
incurs a One Year Period of Severance and again performs an
Hour of Service, the Employee shall receive credit for
Periods of Service prior to a One Year Period of Severance
only if the number of consecutive One Year Periods of
Severance is less than the greater of: (i) five (5) years or
(ii) the aggregate number of such Employee's Periods of
Service credited before his One Year Period of Severance. If
such former Employee's Periods of Service prior to his One
Year Period of Severance are recredited under this Section
2.5, such former Employee shall be eligible to participate
immediately upon reemployment, provided such Employee is not
excluded from participating under the provisions of Section
2.2. If such former
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717 16 THE DIME SAVINGS BANK OF WILLIAMSBURGH
<PAGE>
ARTICLE II -
ELIGIBILITY AND PARTICIPATION
--------------------------------------------------------------------------------
Employee's Periods of Service prior to his One Year Period
of Severance are not recredited under this Section 2.5, such
Employee must satisfy the eligibility requirements of
Section 2.1 as a new Employee;
(b) if such Employee is vested in any Bank Contributions, incurs a
One Year Period of Severance and again performs an Hour of
Service, the Employee shall receive credit for Periods of
Service prior to his One Year Period of Severance and shall be
eligible to participate in the Plan immediately upon
reemployment, provided such Employee is not excluded from
participating under the provisions of Section 2.2.
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717 17 THE DIME SAVINGS BANK OF WILLIAMSBURGH
<PAGE>
ARTICLE III -
CONTRIBUTIONS AND LIMITATIONS ON CONTRIBUTIONS
--------------------------------------------------------------------------------
ARTICLE III -
CONTRIBUTIONS AND LIMITATIONS ON CONTRIBUTIONS
3.1 BEFORE-TAX CONTRIBUTIONS PRIOR TO JANUARY 1, 1997
The Employer shall make Before-Tax Contributions for each payroll
period in an amount equal to the amount by which a Participant's
Compensation has been reduced with respect to such period under his
Compensation Reduction Agreement. Subject to the limitations set forth
in Sections 3.2 and 3.11, the amount of reduction authorized by the
Eligible Employee shall be limited to whole percentages of Compensation
and shall not be less than one percent (1%) nor greater than nine
percent (9%). The Before-Tax Contributions made on behalf of a
Participant shall be credited to such Participant's Before-Tax
Contribution Account and shall be invested in accordance with Article
VI of the Plan.
Effective as of January 1, 1997, no future Before-Tax Contributions
shall be made under the Plan.
3.2 LIMITATION ON BEFORE-TAX CONTRIBUTIONS
(a) The percentage of Before-Tax Contributions made on behalf of a
Participant who is a Highly Compensated Employee shall be
limited so that the Average Actual Deferral Percentage for the
group of such Highly Compensated Employees for the Plan Year
does not exceed the greater of:
(i) the Average Actual Deferral Percentage for the group
of Eligible Employees who are Non-Highly Compensated
Employees for the preceding Plan Year multiplied by
1.25; or
(ii) the Average Actual Deferral Percentage for the group
of Eligible Employees who are Non-Highly Compensated
Employees for the preceding Plan Year, multiplied by
two (2);
provided, in the case of subsection (ii) above, that the
difference in the Average Actual Deferral Percentage for
eligible Highly Compensated Employees and eligible Non-Highly
Compensated Employees does not exceed two percent (2%). Use of
this alternative limitation shall be subject to the provisions
of Income Tax Regulations issued under Code Section 401(m)(9)
regarding the multiple use of the alternative limitation set
forth in Sections 401(k) and 401(m) of the Code. The preceding
Plan Year testing method can only be modified if the Plan
meets the requirements for changing to current Plan Year
testing as set forth in Internal Revenue Service Notice 98-1,
or any successor future guidance issued by the Internal
Revenue Service.
The above subsections (i) and (ii) shall be subject to the
distribution provisions of the last paragraph of Section
3.11(f).
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717 18 THE DIME SAVINGS BANK OF WILLIAMSBURGH
<PAGE>
ARTICLE III -
CONTRIBUTIONS AND LIMITATIONS ON CONTRIBUTIONS
--------------------------------------------------------------------------------
If the Average Actual Deferral Percentage for the group of
eligible Highly Compensated Employees exceeds the limitations
set forth in the preceding paragraph, the amount of excess
Before-Tax Contributions for a Highly Compensated Employee
shall be determined by "leveling"(as hereafter defined), the
highest Before-Tax Contributions made by Highly Compensated
Employees until the Average Actual Deferral Percentage test
for the group of eligible Highly Compensated Employees
complies with such limitations. For purposes of this
paragraph, "leveling" means reducing the Before-Tax
Contribution of the Highly Compensated Employee with the
highest Before-Tax Contribution amount to the extent required
to:
(A) enable the Average Actual Deferral Percentage
limitations to be met, or
(B) cause such Highly Compensated Employee's Before-Tax
Contribution amount to equal the dollar amount of the
Before-Tax Contribution of the Highly Compensated
Employee with the next highest Before-Tax
Contribution amount by distribution of such excess
Before-Tax Contributions, as described below, to the
Highly Compensated Employee whose Before-Tax
Contributions equal the highest dollar amount,
and repeating such process until the Average Actual Deferral
Percentage for the group of eligible Highly Compensated
Employees complies with the Average Actual Deferral Percentage
limitations.
If Before-Tax Contributions made on behalf of a Participant
during any Plan Year exceed the maximum amount applicable to a
Participant as set forth above, any such contributions,
including any earnings thereon as determined under Section
3.8, shall be characterized as Compensation payable to the
Participant and shall be paid to the Participant from his
Before-Tax Contribution Account no later than two and one-half
(2-1/2) months after the close of such Plan Year.
If Before-Tax Contributions during any Plan Year exceed the
maximum amount applicable to a Participant as set forth above,
Bank Contributions, if any, including any earnings thereon as
determined under Section 3.8, that are attributable to
Before-Tax Contributions which are returned to the Participant
as provided hereunder, shall be treated as Forfeitures under
Section 4.2.
In the event that the Plan satisfies the requirements of
Section 401(k), 401(a)(4) or 410(b) of the Code only if
aggregated with one or more other plans, or if one or more
other plans satisfy the requirements of Section 401(k),
401(a)(4) or 410(b) of the Code only if aggregated with the
Plan, then this Section 3.2 shall be applied by determining
the Actual Deferral Percentages of Eligible Employees as if
all such plans were a single plan.
If any Highly Compensated Employee is a Participant in two (2)
or more cash or deferred arrangements of the Employer, for
purposes of determining the Actual
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717 19 THE DIME SAVINGS BANK OF WILLIAMSBURGH
<PAGE>
ARTICLE III -
CONTRIBUTIONS AND LIMITATIONS ON CONTRIBUTIONS
--------------------------------------------------------------------------------
Deferral Percentage with respect to such Highly Compensated
Employee, all cash or deferred arrangements shall be treated
as one (1) cash or deferred arrangement.
(b) Before-Tax Contributions and elective deferrals (as defined
under Section 402(g) of the Code) under all other plans,
contracts or arrangements of the Employer made on behalf of
any Participant during the 1997 Plan Year shall not exceed
nine thousand five hundred dollars ($9,500). During the 1998
Plan Year, such amount shall be increased to ten thousand
dollars ($10,000) and remains at ten thousand dollars
($10,000) for 1999. For Plan Years commencing after December
31, 1999, Before-Tax Contributions and any elective
deferrals (as defined under Section 402(g) of the Code)
under all other plans, contracts or arrangements of the
Employer shall be further adjusted as prescribed by the
Secretary of the Treasury under Section 415(d) of the Code.
This Section 3.2(b) shall be subject to the distribution
provisions of the last paragraph of Section 3.11(f).
(c) If Before-Tax Contributions made on behalf of a Participant
during any Plan Year exceed the dollar limitation set forth in
subsection (b), such contributions, including any earnings
thereon as determined under Section 3.8, shall be
characterized as Compensation payable to the Participant and
shall be paid to the Participant from his Before-Tax
Contribution Account no later than April 15th of the calendar
year following the close of such Plan Year.
If Before-Tax Contributions during any Plan Year exceed the
maximum dollar amount applicable to a Participant as set forth
in subsection (b), Bank Contributions, if any, including any
earnings thereon as determined under Section 3.8, that are
attributable to Before-Tax Contributions which are returned to
the Participant as provided hereunder, shall be treated as
Forfeitures under Section 4.2
(d) Subject to the requirements of Sections 401(a) and 401(k) of
the Code, the maximum amounts under subsections (a) and (b)
may differ in amount or percentage as between individual
Participants or classes of Participants, and any Compensation
Reduction Agreement may be terminated, amended, or suspended
without the consent of any such Participant or Participants in
order to comply with the provisions of such subsections (a)
and (b).
3.3 CHANGES IN BEFORE-TAX CONTRIBUTIONS
This Section 3.3 is subject to the provisions of Section 3.1. Unless
(a) an election is made to the contrary, or (b) a Participant receives
a Hardship distribution pursuant to Section 7.3(c)(iii), the percentage
of Before-Tax Contributions made under Section 3.1 shall continue in
effect so long as the Participant has a Compensation Reduction
Agreement in force. A Participant may, by completing the applicable
form, prospectively increase or decrease the rate of Before-Tax
Contributions made on his behalf to any of the percentages authorized
under Section 3.1 or suspend Before-Tax Contributions without
withdrawing from participation in the Plan. Such form must be filed at
least ten (10) days prior to the first day of the payroll period with
respect to which such change is to become
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717 20 THE DIME SAVINGS BANK OF WILLIAMSBURGH
<PAGE>
ARTICLE III -
CONTRIBUTIONS AND LIMITATIONS ON CONTRIBUTIONS
--------------------------------------------------------------------------------
effective. A Participant who has Before-Tax Contributions made on his
behalf suspended may resume such contributions by completing and
filing the applicable form. Only four (4) times in any Plan Year may
an election be made which would prospectively increase, decrease,
suspend or resume Before-Tax Contributions made on behalf of a
Participant.
Notwithstanding the foregoing, a Participant who receives a Hardship
distribution pursuant to Section 7.3(c)(iii) shall have his
Compensation Reduction Agreement deemed null and void and all
Before-Tax Contributions made on behalf of such Participant shall be
suspended until the later to occur of: (i) twelve (12) months after
receipt of the Hardship distribution and (ii) the first payroll period
coincident with or next following the first day of any calendar month
which occurs ten (10) days following the completion and filing of a
Compensation Reduction Agreement authorizing the resumption of
Before-Tax Contributions to be made on his behalf. Before-Tax
Contributions following a Hardship distribution made pursuant to
Section 7.3(c)(iii) shall be subject to the following limitations:
(A) Before-Tax Contributions for the Participant's taxable year
immediately following the taxable year of the Hardship
distribution shall not exceed the applicable limit under
Section 402(g) of the Code for such next taxable year less the
amount of such Participant's Before-Tax Contributions for the
taxable year of the Hardship distribution, and
(B) the percentage of Before-Tax Contributions for the twelve (12)
month period following the mandatory twelve (12) month
suspension period shall not exceed the percentage of
Before-Tax Contributions made on behalf of the Participant as
set forth in the last Compensation Reduction Agreement in
effect prior to the Hardship distribution.
Before-Tax Contributions based on Compensation for the period during
which such contributions had been suspended or decreased may not be
made up at a later date.
3.4 BANK CONTRIBUTIONS
Effective as of May 31, 1996, the Employer discontinued contributions
to the Plan which matched Participant's Before-Tax Contributions.
3.5 SPECIAL CONTRIBUTIONS
In addition to other contributions, if any, the Employer may, in its
discretion, make Special Contributions for a Plan Year, to the
Before-Tax Contribution Account of any Eligible Employees. Such Special
Contributions may be limited to the amount necessary to insure that the
Plan complies with the requirements of Section 401(k) of the Code. The
Special Contributions made on behalf of a Participant shall be invested
in accordance with Article VI of the Plan.
The Employer may provide that Special Contributions be made only on
behalf of each Eligible Employee who is a Non-Highly Compensated
Employee on the last day of the
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717 21 THE DIME SAVINGS BANK OF WILLIAMSBURGH
<PAGE>
ARTICLE III -
CONTRIBUTIONS AND LIMITATIONS ON CONTRIBUTIONS
--------------------------------------------------------------------------------
Plan Year. Such Special Contributions shall be allocated in proportion
to each such Eligible Employee's Compensation for the Plan Year.
Any other provision of the Plan to the contrary notwithstanding, no
Bank Contributions shall be made with respect to any Special
Contributions.
3.6 LIMITATION ON BANK CONTRIBUTIONS
The Actual Contribution Percentage made on behalf of a Participant who
is a Highly Compensated Employee shall be limited so that the Average
Actual Contribution Percentage for the group of such Highly Compensated
Employees for the Plan Year shall not exceed the greater of:
(a) the Average Actual Contribution Percentage for the group of
Eligible Employees who are Non-Highly Compensated Employees
for the preceding Plan Year multiplied by 1.25; or
(b) the Average Actual Contribution Percentage for the group of
Eligible Employees who are Non-Highly Compensated Employees
for the preceding Plan Year, multiplied by two (2);
provided, in the case of subsection (b) above, that the difference in
the Average Actual Contribution Percentage for Highly Compensated
Employees and Non-Highly Compensated Employees does not exceed two
percent (2%). Use of this alternative limitation shall be subject to
the provisions of Income Tax Regulations issued under Code Section
401(m)(9) regarding the multiple use of the alternative limitation set
forth in Sections 401(k) and 401(m) of the Code. The preceding Plan
Year testing method can only be modified if the Plan meets the
requirements for changing to current Plan Year testing as set forth in
Internal Revenue Service Notice 98-1, or any successor future guidance
issued by the Internal Revenue Service.
The above subsections (a) and (b) shall be subject to the distribution
provisions of the last paragraph of Section 3.11(f).
If the Average Actual Contribution Percentage for the group of eligible
Highly Compensated Employees exceeds the limitations set forth in the
preceding paragraph, the amount of excess Bank Contributions for a
Highly Compensated Employee shall be determined by "leveling" (as
hereafter defined,) the highest Bank Contributions until the Average
Actual Contribution Percentage test for the group of eligible Highly
Compensated Employees complies with such limitations. For purposes of
this paragraph, "leveling" means reducing the Bank Contributions made
on behalf of the Highly Compensated Employee with the highest Bank
Contribution amount to the extent required to:
(i) enable the Average Actual Contribution Percentage
limitations to be met, or
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(ii) cause such Highly Compensated Employee's Bank
Contribution amount to equal the dollar amount of the
Bank Contribution made on behalf of the Highly
Compensated Employee with the next highest Bank
Contribution amount
and repeating such process until the Average Actual Contribution
Percentage for the group of eligible Highly Compensated Employees
complies with the Average Actual Contribution Percentage limitations.
If Bank Contributions, if any, during any Plan Year exceed the maximum
amount applicable to a Participant as set forth above, any such
contributions, including any earnings thereon as determined under
Section 3.8, shall, whether or not vested, be treated as Forfeitures
under Section 4.2.
In the event that the Plan satisfies the requirements of Section
401(m), 401(a)(4) or 410(b) of the Code only if aggregated with one or
more other plans, or if one or more other plans satisfy the
requirements of Section 401(m), 401(a)(4) or 410(b) of the Code only if
aggregated with the Plan, then this Section 3.6 shall be applied by
determining the Actual Contribution Percentages of Eligible Employees
as if all such plans were a single plan.
If any Highly Compensated Employee is a Participant in two (2) or more
plans of the Employer, for purposes of determining the Actual
Contribution Percentage with respect to such Highly Compensated
Employee, all such plans shall be treated as one (1) plan.
3.7 AGGREGATE LIMIT; MULTIPLE USE OF ALTERNATIVE LIMITATION
Multiple use of the alternative limitation in determining the Average
Actual Deferral Percentage and Average Actual Contribution Percentage
shall not be permitted.
Multiple use of the alternative limitation occurs if, for the group of
Eligible Employees who are Highly Compensated Employees, the sum of the
Average Actual Deferral Percentage and the Average Actual Contribution
Percentage exceeds the Aggregate Limit.
For purposes of this Section 3.7, Aggregate Limit shall mean the
greater of (a) or (b), where (a) and (b) are as follows:
(a) the sum of:
(i) one hundred twenty-five percent (125%) of the greater
of:
(A) the Average Actual Deferral Percentage for
the group of Eligible Employees who are
Non-Highly Compensated Employees for the
Plan Year; or
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ARTICLE III -
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(B) the Average Actual Contribution Percentage
for the group of Eligible Employees who are
Non-Highly Compensated Employees for the
Plan Year; and
(ii) two (2) plus the lesser of subsection (a)(i)(A) or
(a)(i)(B), above. In no event shall this amount
exceed two hundred percent (200%) of the lesser of
subsection (a)(i)(A) or (a)(i)(B), above.
(b) the sum of:
(i) one hundred twenty-five percent (125%) of the lesser
of:
(A) the Average Actual Deferral Percentage for
the group of Eligible Employees who are
Non-Highly Compensated Employees for the
Plan Year; or
(B) the Average Actual Contribution Percentage
for the group of Eligible Employees who are
Non-Highly Compensated Employees for the
Plan Year; and
(ii) two (2) plus the greater of subsection (b)(i)(A) or
(b)(i)(B), above. In no event shall this amount
exceed two hundred percent (200%) of the greater of
subsection (b)(i)(A) or (b)(i)(B), above.
If multiple use of the alternative limitation occurs, the excess
Before-Tax Contributions for all Highly Compensated Employees under the
Plan shall be reduced in accordance Section 3.2(a).
3.8 INTEREST ON EXCESS CONTRIBUTIONS
In the event Before-Tax Contributions and/or Bank Contributions made on
behalf of a Participant during a Plan Year exceed the maximum allowable
amount as described in Section 3.2(a), 3.2(b) or 3.6 ("Excess
Contributions") and such Excess Contributions and earnings thereon are
payable to the Participant under the applicable provisions of the Plan,
earnings on such Excess Contributions for the period commencing with
the first day of the Plan Year in which the Excess Contributions were
made and ending with the date of payment to the Participant
("Allocation Period") shall be determined in accordance with the
provisions of this Section 3.8.
The earnings allocable to excess Before-Tax Contributions for an
Allocation Period shall be equal to the sum of (a) plus (b) where (a)
and (b) are determined as follows:
(a) The amount of earnings attributable to the Participant's
Before-Tax Contribution Account for the Plan Year multiplied
by a fraction, the numerator of which is the excess Before-Tax
Contributions and Special Contributions for the Plan Year, and
the denominator of which is the sum of (i) the Net Value of
the Participant's Before-Tax Contribution Account as of the
last day of the immediately preceding Plan Year and (ii) the
contributions (including the Excess Contributions) made to the
Before-Tax Contribution Account on the Participant's behalf
during such Plan Year.
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ARTICLE III -
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(b) The amount of earnings attributable to the Participant's
Before-Tax Contribution Account for the period commencing with
the first day of the Plan Year in which payment is made to the
Participant and ending with the date of payment to the
Participant multiplied by a fraction, the numerator of which
is the excess Before-Tax Contributions and Special
Contributions made to the Before-Tax Contribution Account on
the Participant's behalf during the Plan Year immediately
preceding the Plan Year in which the payment is made to the
Participant, and the denominator of which is the Net Value of
the Participant's Before-Tax Contribution Account on the first
day of the Plan Year in which the payment is made to the
Participant.
The earnings allocable to excess Bank Contributions for an Allocation
Period shall be equal to the sum of (A) and (B) where (A) and (B) are
determined as follows:
(A) The amount of earnings attributable to the Participant's Bank
Contribution Account for the Plan Year multiplied by a
fraction, the numerator of which is the excess Bank for the
Plan Year, and the denominator of which is the sum of (I) the
Net Value of the Participant's Bank Contribution Account as of
the last day of the immediately preceding Plan Year and (II)
the contributions (including the Excess Contributions) made to
the Bank Contribution Account on the Participant's behalf
during such Plan Year.
(B) The amount of earnings attributable to the Participant's Bank
Contribution Account for the period commencing with the first
day of the Plan Year in which payment is made to the
Participant and ending with the date of payment to the
Participant multiplied by a fraction, the numerator of which
is the excess Bank Contributions made to the Bank Contribution
Account on the Participant's behalf during the Plan Year
immediately preceding the Plan Year in which the payment is
made to the Participant, and the denominator of which is the
Net Value of the Participant's Bank Contribution Account on
the first day of the Plan Year in which the payment is made to
the Participant.
3.9 PAYMENT OF CONTRIBUTIONS
Subject to the provisions of Section 3.1, as soon as possible after
each payroll period, but in any event within the time prescribed by law
or regulation, the Employer shall deliver (a) to the Trustees (i) the
Before-Tax Contributions required to be made to the Trust during such
payroll period under the applicable Compensation Reduction Agreements
and (ii) the Bank Contributions required to be made to the Trust during
such payroll period; and (b) to the Separate Agency (i) the Before-Tax
Contributions required to be made to the Separate Agency during such
payroll period under the applicable
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Compensation Reduction Agreements and (ii) the Bank Contributions
required to be made to the Separate Agency during such payroll period.
Special Contributions to the Trust or Separate Agency, as applicable,
shall be forwarded by the Employer to the Trustees no later than the
time for filing the Employer's federal income tax return, plus any
extensions thereon, for the Plan Year to which they are attributable.
3.10 ROLLOVER CONTRIBUTIONS
Subject to such terms and conditions as may from time to time be
established by the Committee and the Trustees, an Employee, whether or
not a Participant, may contribute a Rollover Contribution to the Plan
Fund; provided, however, that such Employee shall submit a written
certification, in form and substance satisfactory to the Committee,
that the contribution qualifies as a Rollover Contribution. The
Committee shall be entitled to rely on such certification and shall
accept the contribution on behalf of the Trustees. Rollover
Contributions shall be credited to an Employee's Rollover Contribution
Account and shall be invested in accordance with Article VI of the
Plan.
3.11 SECTION 415 LIMITS ON CONTRIBUTIONS
(a) For purposes of this Section 3.11, the following terms and
phrases shall have the meanings hereafter ascribed to them:
(i) "Annual Additions" shall mean the sum of the
following amounts credited to a Participant's
Accounts for the Limitation Year: (A) Employer
contributions, including Before-Tax Contributions and
Bank Contributions; (B) any other Employee
contributions; (C) forfeitures; and (D)(1) amounts
allocated to an individual medical account as defined
in Sections 415(l)(2) of the Code, which is part of a
pension or annuity plan maintained by the Employer
and (2) amounts derived from contributions, paid or
accrued, which are attributable to post-retirement
medical benefits allocated to the separate account of
a key employee, as defined in Section 419A(d)(3) of
the Code, under a welfare benefit fund as defined in
Section 419(e) of the Code, maintained by the
Employer are treated as Annual Additions. Annual
Additions include the following contributions
credited to a Participant's Accounts for the
Limitation Year, regardless of whether such
contributions have been distributed to the
Participant:
(I) Before-Tax Contributions which exceed the
limitations set forth in Section 3.2(a);
(II) Before-Tax Contributions made on behalf of a
Highly Compensated Employee which exceed the
limitations set forth in Section 3.2(b); and
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717 26 THE DIME SAVINGS BANK OF WILLIAMSBURGH
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ARTICLE III -
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(III) Bank Contributions made on behalf of a
Highly Compensated Employee which exceed the
limitations set forth in Section 3.6.
Annual Additions also include any employer
contributions for such Limitation Year to a qualified
employee stock ownership plan maintained by the
Employer and allocated to the Participant's
individual account under such plan, plus such
Participant's allocable portion of any employer
contribution for such Limitation Year to a qualified
employee stock ownership plan maintained by the
Employer and applied to the payment of principal and
interest on a securities acquisition loan obtained by
such plan. Notwithstanding the foregoing, if, for any
Limitation Year, the aggregate amount of employer
contributions to such as employee stock ownership
plan allocable to individuals who are Highly
Compensated Employees for such Limitation Year does
not exceed one-third of the total of all employer
contributions to such plan for such Limitation Year,
then that portion, if any, of any employer
contributions that is applied to the payment of
interest on a securities acquisition loan shall not
be included as an Annual Addition. Prior to January
1, 1997, in determining whether more than one-third
of the employer contributions for a Limitation Year
would be allocable to the Highly Compensated
Employees, any amount allocable to a family member
(within the meaning of Section 414(q)(B) of the Code)
of a Highly Compensated Employee who is either a Five
Percent Owner or one of the ten Highly Compensated
Employees with the highest Total Compensation shall
be treated as an allocation to such Highly
Compensated Employee. In no event shall the value of
any securities purchased under a qualified employee
stock ownership plan with a securities acquisition
loan, any dividends or other earnings thereon, any
proceeds from the sale thereof or any portion of the
value of the foregoing be included as an Annual
Addition.
(ii) "Current Accrued Benefit" shall mean a Participant's
annual accrued benefit under a defined benefit plan,
determined in accordance with the meaning of Section
415(b)(2) of the Code, as if the Participant had
separated from service as of the close of the last
Limitation Year beginning before January 1, 1987. In
determining the amount of a Participant's Current
Accrued Benefit, the following shall be disregarded:
(A) any change in the terms and conditions of
the defined benefit plan after May 5, 1986;
and
(B) any cost-of-living adjustment occurring
after May 5, 1986.
(iii) "Defined Benefit Plan" and "Defined Contribution
Plan" shall have the meanings set forth in Section
415(k) of the Code.
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717 27 THE DIME SAVINGS BANK OF WILLIAMSBURGH
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(iv) "Defined Benefit Plan Fraction" for a Limitation Year
shall mean a fraction, (A) the numerator of which is
the aggregate projected annual benefit (determined as
of the last day of the Limitation Year) of the
Participant under all defined benefit plans (whether
or not terminated) maintained by the Employer, and
(B) the denominator of which is the lesser of: (I)
the product of 1.25 (or such adjustment as required
under Section 12.4) and the dollar limitation in
effect under Section 415(b)(l)(A) of the Code,
adjusted as prescribed by the Secretary of the
Treasury under Section 415(d) of the Code, or (II)
the product of 1.4 and the amount which may be taken
into account with respect to such Participant under
Section 415(b)(1)(B) of the Code for such Limitation
Year. Notwithstanding the above, if the Participant
was a participant in one or more defined benefit
plans of the Employer in existence on May 6, 1986,
the dollar limitation of the denominator of this
fraction will not be less than one hundred twenty
five percent (125%) of the Participant's Current
Accrued Benefit.
(v) "Defined Contribution Plan Fraction" for a Limitation
Year shall mean a fraction, (A) the numerator of
which is the sum of the Participant's Annual
Additions under all defined contribution plans
(whether or not terminated) maintained by the
Employer for the current year and all prior
Limitation Years (including annual additions
attributable to the Participant's nondeductible
employee contributions to all defined benefit plans
(whether or not terminated) maintained by the
Employer), and (B) the denominator of which is the
sum of the maximum aggregate amounts for the current
year and all prior Limitation Years with the Employer
(regardless of whether a defined contribution plan
was maintained by the Employer).
"Maximum aggregate amounts" shall mean the lesser of
(I) the product of 1.25 (or such adjustment as
required under Section 12.4) and the dollar
limitation in effect under Section 415(c)(l)(A) of
the Code, adjusted as prescribed by the Secretary of
the Treasury under Section 415(d) of the Code, or
(II) the product of 1.4 and the amount that may be
taken into account under Section 415(c)(l)(B) of the
Code; provided, however, that the Committee may
elect, on a uniform and nondiscriminatory basis, to
apply the special transition rule of Section
415(e)(7) of the Code applicable to Limitation Years
ending before January 1, 1983 in determining the
denominator of the Defined Contribution Plan
Fraction.
If the Employee was a Participant as of the end of
the first day of the first Limitation Year beginning
after December 31, 1986, in one or more defined
contribution plans maintained by the Employer which
were in existence on May 6, 1986, the numerator of
this fraction will be adjusted if the sum of this
fraction and the defined benefit fraction would
otherwise exceed 1.0 under the terms of this Plan.
Under the adjustment, an amount equal to the product
of (1) the excess of the sum of the fractions over
1.0
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ARTICLE III -
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times (2) the denominator of this fraction, will be
permanently subtracted from the numerator of this
fraction. The adjustment is calculated using the
fractions as they would be computed as of the end of
the last Limitation Year beginning before January 1,
1987, and disregarding any changes in the terms and
conditions of the Plan made after May 5, 1986, but
using the Section 415 limitation applicable to the
first Limitation Year beginning on or after January
1, 1987. The annual addition for any Limitation Year
beginning before January 1, 1987, shall not be
recomputed to treat all Employee contributions as
Annual Additions.
(vi) "Limitation Year" shall mean the calendar year.
(vii) "Section 415 Compensation" shall be a Participant's
remuneration as defined in Income Tax Regulations
Sections 1.415-2(d)(2), (3) and (6). For purposes of
this Section, effective for Plan Years commencing
after December 31, 1997, Section 415 Compensation
shall include (A) any elective deferral (as defined
in Section 402(g)(3) of the Code, and (B) any amount
which is contributed or deferred by the Employer at
the election of the Employee and which is not
includable in the gross income of the Employee by
reason of Section 125 or 457 of the Code.
(b) For purposes of applying the Section 415 limitations, the
Employer and all members of a controlled group of corporations
(as defined under Section 414(b) of the Code as modified by
Section 415(h) of the Code), all commonly controlled trades or
businesses (as defined under Section 414(c) of the Code as
modified by Section 415(h) of the Code), all affiliated
service groups (as defined under Section 414(m) of the Code)
of which the Employer is a member, any leasing organization
(as defined under Section 414(n) of the Code) that employs any
person who is considered an Employee under Section 414(n) of
the Code and any other group provided for under any and all
Income Tax Regulations promulgated by the Secretary of the
Treasury under Section 414(o) of the Code, shall be treated as
a single employer.
(c) If the Employer maintains more than one qualified Defined
Contribution Plan on behalf of its Employees, such plans shall
be treated as one Defined Contribution Plan for purposes of
applying the Section 415 limitations of the Code. In such
event, a Participant's Annual Additions to this Plan shall be
reduced for purposes of complying with the Section 415
limitations of the Code before reducing the Annual Additions
to any other Defined Contribution Plan.
(d) Notwithstanding anything contained in the Plan to the
contrary, in no event shall the Annual Additions to a
Participant's Accounts for a Limitation Year exceed the lesser
of:
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ARTICLE III -
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(i) thirty thousand dollars ($30,000) as adjusted in
multiples of five thousand dollars ($5,000) for
increases in the cost-of-living as prescribed by the
Secretary of the Treasury under Section 415(d) of the
Code; or,
(ii) twenty-five percent (25%) of the Participant' s
Section 415 Compensation for such Limitation Year.
For purposes of this subsection (d)(ii), Section 415
Compensation shall not include (A) any contribution
for medical benefits within the meaning of Section
419A(f)(2) of the Code after separation from service,
which is otherwise treated as an Annual Addition, and
(B) any amount otherwise treated as an Annual
Addition under Section 415(l)(1) of the Code.
(e) If, as a result of the allocation of forfeitures, a reasonable
error in estimating a Participant's annual Compensation, a
reasonable error in determining the amount of elective
deferrals that may be made with respect to any Participant, or
as otherwise permitted by the Internal Revenue Service, the
Annual Additions to a Participant's Accounts for a Limitation
Year exceed the limitation set forth in subsection (d) above
during the Limitation Year, any or all of the following
contributions on behalf of such Participant shall be
immediately adjusted to that amount which will result in such
Annual Additions not exceeding the limitation set forth in
subsection (d):
(i) Before-Tax Contributions;
(ii) Special Contributions; and
(iii) Bank Contributions.
(f) If the Annual Additions to a Participant's Accounts for a
Limitation Year exceed the limitations set forth in subsection
(d) above at the end of a Limitation Year, such excess amounts
shall not be treated as Annual Additions in such Limitation
Year but shall instead be treated in accordance with the
following:
(i) such excess amounts shall be used to reduce the
Before-Tax Contributions, Bank Contributions and/or
Special Contributions to be made on behalf of such
Participant in the succeeding Limitation Year,
provided that such Participant is an Eligible
Employee during such succeeding Limitation Year. If
such Participant is not an Eligible Employee or
ceases to be an Eligible Employee during such
succeeding Limitation Year, any remaining excess
amounts from the preceding Limitation Year shall be
allocated during such succeeding Limitation Year to
each Participant then actively participating in the
Plan. Such allocation shall be in proportion to the
Before-Tax Contributions made to date on his behalf
for such Limitation Year, or the prior Limitation
Year with respect to an allocation as of the
beginning of a Limitation Year, before any other
contributions are made in such succeeding Limitation
Year; or
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ARTICLE III -
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(ii) such excess amounts may be reduced by the
distribution of such Participant's Before-Tax
Contributions to such Participant.
The Employer will, at the end of the Limitation Year in which
such excess amounts were made, choose the manner in which to
treat such excess amounts on a uniform and nondiscriminatory
basis on behalf of all affected Participants. If such excess
amounts are reduced by the distribution in subsection (ii),
the amounts of such distribution shall not be taken into
account for purposes of Sections 3.2(a)(i) and (ii), 3.6 (a)
and (b), or in determining the limitation in Section 3.2(b).
In addition, Bank Contributions, if any, attributable to such
amounts shall constitute Forfeitures as described in Section
4.2.
(g) If a Participant participates in both (i) the Plan and/or any
other defined contribution plan maintained by the Employer and
(ii) any defined benefit plan or plans maintained by the
Employer, the sum of the Defined Contribution Plan Fraction
and the Defined Benefit Plan Fraction shall not exceed the sum
of 1.0. This subsection (g) shall not apply with respect to
Plan Years beginning on or after January 1, 2000.
(h) If, for any Plan Year commencing prior to January 1, 2000, the
sum determined under subsection (g) for any Participant
exceeds 1.0, the Defined Benefit Plan Fraction of such
Participant as provided in the defined benefit plan or plans
maintained by the Employer shall be reduced in order that such
sum shall not exceed 1.0.
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ARTICLE IV -
VESTING AND FORFEITURES
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ARTICLE IV -
VESTING AND FORFEITURES
4.1 VESTING
(a) An Employee shall always be fully vested in the Net Value of
his Participant Contribution Account, the Net Value of his
Before-Tax Contribution Account, the Net Value of his Pioneer
Prior Matching Contribution Account and the Net Value of his
Rollover Contribution Account.
(b) A Participant shall become fully vested in the Net Value of
his Bank Contribution Account upon the earlier of such
Participant's (i) Normal Retirement Age or (ii) termination of
employment by reason of death, Disability or reaching his
Retirement Date.
(c) A Participant who is not fully vested under subsection (b)
shall be vested in the Net Value of his Bank Contribution
Account in accordance with the following schedule:
Period of Service Vested Percentage
----------------------- -----------------
Less than 2 years 0%
2 years but less than 3 years 25%
3 years but less than 4 years 50%
4 years but less than 5 years 75%
5 or more years 100%
For purposes of determining a Participant's Period of Service
under subsection (c) and under Section 4.3, employment with an
Affiliated Employer shall be deemed employment with the
Employer.
For purposes of determining a Participant's vested percentage
of the Net Value of his Bank Contribution Account, all Periods
of Service shall be included.
(d) The vested Net Value of a Participant's Bank Contribution
Account, shall be determined as follows:
(i) the Participant's Bank Contribution Account shall
first be increased to include that portion of such
Account which had been previously withdrawn in
accordance with Sections 7.2 and 7.3 and (B) that
portion of such Account which had been borrowed in
accordance with Article VIII and is outstanding on
the date of this determination;
(ii) the applicable vested percentage determined in
accordance with subsection (c) shall then be applied
to the Account as determined in accordance with
clause (i);
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ARTICLE IV -
VESTING AND FORFEITURES
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(iii) the amount determined in accordance with clause (ii)
shall then be reduced by (A) that portion of such
Account which had been previously withdrawn in
accordance with Sections 7.2 and 7.3 and (B) that
portion of such Account which had been borrowed in
accordance with Article VIII and is outstanding on
the date of this determination.
4.2 FORFEITURES
If a Participant who is not fully vested in the Net Value of his
Accounts terminates employment, the Units representing the nonvested
portion of his Accounts shall constitute Forfeitures. Forfeitures shall
be allocated, pro rata, based on Before-Tax Contribution Accounts of
Participants who are Employees of the Employer.
With respect to a Participant's Bank Contribution Account, anything in
Section 4.1 to the contrary notwithstanding, Bank Contribution, if any,
forfeited in accordance with the fifth paragraph of Section 3.2(a), the
second paragraph of Section 3.2(c), the fourth paragraph of Section 3.6
or the second paragraph of Section 3.11(f), shall be applied to reduce
the amount of subsequent Bank Contributions, if any, otherwise required
to be made.
If a former Participant who is not fully vested in the Net Value of his
Accounts receives a distribution of his vested interest in the Net
Value of his Accounts and is subsequently reemployed by the Employer
prior to incurring five (5) consecutive One Year Periods of Severance,
he shall have the Net Value of his Accounts as of the date he
previously terminated employment reinstated provided he repays the full
amount of his distribution in cash or cash equivalents before the end
of the five (5) consecutive One Year Periods of Severance commencing
with the date of distribution. The reinstated amount shall be
unadjusted by any gains or losses occurring subsequent to the
Participant's termination of employment and prior to repayment of such
distribution. Any forfeited amounts required to be reinstated hereunder
shall be made by an additional Employer contribution for such Plan
Year. If such former Participant does not repay the full amount of his
distribution before the end of the five (5) consecutive One Year
Periods of Severance commencing with the date of distribution, the Net
Value of his Accounts as of the date he previously terminated
employment shall not be reinstated.
If a former Participant who is not fully vested in the Net Value of his
Accounts elects to defer distribution of his vested account interest or
elects to receive installment payments pursuant to Section 7.5(e) or
7.6(d), the nonvested portion of such former Participant's Account
shall be forfeited as of the date of his Termination of Service;
provided, however, that if such former Participant is reemployed before
incurring five (5) consecutive One Year Periods of Severance, the
nonvested portion of his Accounts shall be reinstated in its entirety,
unadjusted by any gains or losses occurring subsequent to the
distribution.
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ARTICLE IV -
VESTING AND FORFEITURES
--------------------------------------------------------------------------------
4.3 VESTING UPON TERMINATION OF SERVICE AND SUBSEQUENT REEMPLOYMENT
(a) For purposes of this Section 4.3, "Period of Service" means an
Employee's Period of Service determined in accordance with
Section 4.1(c).
(b) For the purpose of determining a Participant's vested interest
in the Net Value of his Bank Contribution Account:
(i) if an Employee is not vested in any Bank
Contributions, incurs a One Year Period of Severance
and again performs an Hour of Service, such Employee
shall receive credit for his Periods of Service prior
to his One Year Period of Severance only if the
number of consecutive One Year Periods of Severance
is less than the greater of: (i) five (5) years or
(ii) the aggregate number of his Periods of Service
credited before his One Year Period of Severance.
(ii) if a Participant is partially vested in any Bank
Contributions, incurs a One Year Period of Severance
and again performs an Hour of Service, such
Participant shall receive credit for his Periods of
Service prior to his One Year Period of Severance;
provided, however, that after five (5) consecutive
One Year Periods of Severance, a former Participant's
vested interest in the Net Value of the Bank
Contribution Account attributable to Periods of
Service prior to his One Year Period of Severance
shall not be increased as a result of his Periods of
Service following his reemployment date.
(iii) if a Participant is fully vested in any Bank
Contributions, incurs a One Year Period of Severance
and again performs an Hour of Service, such
Participant shall receive credit for all his Periods
of Service prior to his One Year Period of Severance.
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717 34 THE DIME SAVINGS BANK OF WILLIAMSBURGH
<PAGE>
ARTICLE V -
TRUST FUND AND INVESTMENT ACCOUNTS
--------------------------------------------------------------------------------
ARTICLE V -
TRUST FUND AND INVESTMENT ACCOUNTS
5.1 TRUST FUND
The Employer has adopted the Agreement as the funding vehicle with
respect to the Investment Accounts.
All contributions forwarded by the Employer to the Trustees pursuant to
the Agreement shall be held by them in trust and shall be used to
purchase Units on behalf of the Plan in accordance with the terms and
provisions of the Agreement. Contributions designated for investment in
any Investment Account of the Trust Fund shall be allocated
proportionately to and among the classes of Units so selected for such
Investment Account.
All assets of the Plan shall be held for the exclusive benefit of
Participants, Beneficiaries or other persons entitled to benefits. No
part of the corpus or income of the Trust Fund shall be used for, or
diverted to, purposes other than for the exclusive benefit of
Participants, Beneficiaries or other persons entitled to benefits and
for defraying reasonable administrative expenses of the Plan and Trust.
No person shall have any interest in or right to any part of the
earnings of the Trust Fund, or any rights in, to or under the Trust
Fund or any part of its assets, except to the extent expressly provided
in the Plan.
The Trustees shall invest and reinvest the Trust Fund, and the income
therefrom, without distinction between principal and income, in
accordance with the terms and provisions of the Agreement. The Trustees
may maintain such part of the Trust Fund in cash uninvested as they
shall deem necessary or desirable. The Trustees shall be the owner of
and have title to all the assets of the Trust Fund and shall have full
power to manage the same, except as otherwise specifically provided in
the Agreement.
5.2 INTERIM INVESTMENTS
The Trustees may temporarily invest any amounts designated for
investment in any of the Investment Accounts of the Trust Fund
identified herein in the Investment Account which provides for
short-term investments, and retain the value of such contributions
therein pending the allocation of such values to the Investment
Accounts designated for investment.
5.3 ACCOUNT VALUES
The Net Value of the Accounts of an Employee means the sum of the total
Net Value of each Account maintained on behalf of the Employee in the
Trust and Separate Agency as determined as of the Valuation Date
coincident with or next following the event requiring the determination
of such Net Value. The assets of any Account shall consist of the Units
credited to such Account. The applicable Units shall be valued from
time to time by the
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717 35 THE DIME SAVINGS BANK OF WILLIAMSBURGH
<PAGE>
ARTICLE V -
TRUST FUND AND INVESTMENT ACCOUNTS
--------------------------------------------------------------------------------
Trustees and Separate Agency, respectively, in accordance with the
Agreement and Separate Agreement, but not less often than monthly. On
the basis of such valuations, each Employee's Accounts shall be
adjusted to reflect the effect of income collected and accrued,
realized and unrealized profits and losses, expenses and all other
transactions during the period ending on the applicable Valuation Date.
Upon receipt by the Trustees and Separate Agency of Before-Tax
Contributions, Bank Contributions, and, if applicable, Participant
Contributions, Rollover Contributions, Pioneer Prior Matching
Contributions and Special Contributions, such contributions shall be
applied to purchase Units for such Employee's Account, using the value
of such Units as of the close of business on the date received.
Whenever a distribution or withdrawal is made to a Participant,
Beneficiary or other person entitled to benefits, the appropriate
number of Units credited to such Employee shall be reduced accordingly
and each such distribution or withdrawal shall be charged against the
Units of the Investment Accounts of such Employee pro rata according to
their respective values.
For the purposes of this Section 5.3, fractions of Units as well as
whole Units may be purchased or redeemed for the Account of an
Employee.
5.4 SEPARATE ASSETS
Subject to the terms and conditions of the Agreement and upon approval
by the Trustees, a designated portion of the assets of the Plan may be
held as Separate Assets under the Separate Agreement. The Trustees
shall have no responsibility or liability with respect to the
management and control of any Separate Assets and shall have only those
administrative duties with respect to such Separate Assets as are set
forth in the Plan and the Agreement.
--------------------------------------------------------------------------------
717 36 THE DIME SAVINGS BANK OF WILLIAMSBURGH
<PAGE>
ARTICLE VI -
INVESTMENT DIRECTIONS,
CHANGES OF INVESTMENT DIRECTIONS
AND TRANSFERS BETWEEN INVESTMENT ACCOUNTS
--------------------------------------------------------------------------------
ARTICLE VI -
INVESTMENT DIRECTIONS,
CHANGES OF INVESTMENT DIRECTIONS
AND TRANSFERS BETWEEN INVESTMENT ACCOUNTS
6.1 INVESTMENT DIRECTIONS
Upon electing to participate, each Participant shall direct that the
contributions made to his Accounts shall be applied to purchase Units
in any one or more of the Investment Accounts, including, to purchase
Shares through the Share Investment Account. Such direction, shall
indicate the percentage, in multiples of one percent (1%), in which
Participant Contributions, Before-Tax Contributions, Bank Contributions
made in cash, Special Contributions, Pioneer Prior Matching
Contributions and Rollover Contributions shall be made to the
designated Investment Accounts.
To the extent a Participant shall fail to make an investment direction,
contributions made in cash made on his behalf shall be applied to
purchase Units in the Investment Account which provides for short-term
investments.
6.2 CHANGE OF INVESTMENT DIRECTIONS
A Participant may change any investment direction not more often than
once in any calendar quarter, in the form and manner prescribed by the
Committee, either: (a) by completing and filing a notice at least ten
(10) days prior to the effective date of such direction, or, (b)
effective July 1, 1998, by telephone or other electronic medium. Any
such change shall be subject to the same conditions as if it were an
initial direction and shall be applied only to any contributions to be
invested on or after the effective date of such direction.
6.3 TRANSFERS BETWEEN INVESTMENT ACCOUNTS
A Participant or Beneficiary, or an Employee subject to Section 6.4,
may, not more often than once in any calendar quarter, redirect the
investment of his Investment Accounts such that a percentage of any one
or more Investment Accounts may be transferred to any one or more other
Investment Accounts in the form and manner prescribed by the Committee,
either: (a), by filing a notice at least ten (10) days prior to the
effective date of such change, or, (b) effective July 1, 1998, by
telephone or other electronic medium. The requisite transfers shall be
valued as of the Valuation Date on which the direction is received by
the Trustees and shall be affected within seven (7) days of the
Trustees' receipt of such direction.
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717 37 THE DIME SAVINGS BANK OF WILLIAMSBURGH
<PAGE>
ARTICLE VI -
INVESTMENT DIRECTIONS,
CHANGES OF INVESTMENT DIRECTIONS
AND TRANSFERS BETWEEN INVESTMENT ACCOUNTS
--------------------------------------------------------------------------------
6.4 EMPLOYEES OTHER THAN PARTICIPANTS
(a) Investment Direction
An Employee who is not a Participant but who has made a
Rollover Contribution in accordance with the provisions of
Section 3.10, shall direct, in the form and manner prescribed
by the Committee, that such contribution be applied to the
purchase of Units in any one or more of the Investment
Accounts, and to purchase Shares through the Share Investment
Account. Such direction shall indicate the percentage, in
multiples of one percent (1%), in which contributions shall be
made to the designated Investment Accounts. To the extent that
any Employee shall fail to make an investment direction, the
Rollover Contributions shall be applied to the purchase of
Units in the Investment Account which provides for short-term
investments.
(b) Transfers Between Investment Accounts
An Employee who is not a Participant may, subject to the
provisions of Section 6.3, not more often than once in any
calendar quarter, redirect the investment of his Investment
Accounts such that a percentage of any one or more Investment
Accounts may be transferred to any one or more other
Investment Accounts. The requisite transfers shall be valued
as of the Valuation Date on which the direction is received by
the Trustees and shall be affected within seven (7) days of
the Trustees' receipt of such direction.
6.5 INVESTMENT OF BANK CONTRIBUTIONS
Notwithstanding anything in this Plan to the contrary, (a) in the event
that all or a portion of the Bank Contribution and if applicable,
Pioneer Prior Matching Contribution, is made in the form of Shares in
accordance with the provisions of Section 3.4(d), such Shares shall be
invested in the Share Investment Account and (b) the Employer may, in
its sole and absolute discretion by resolution of the Board of
Directors, direct that the portion of the Bank Contribution made in the
form of cash be one hundred percent (100%) invested in the Share
Investment Account applied to purchase Shares.
6.6 VOTING RIGHTS
Each person with an interest in the Share Investment Account on the
applicable record date shall have the right to participate in the
decision as to how to exercise the voting rights appurtenant to the
Shares held in the Share Investment Account by completing and filing a
written direction with the Committee on a timely basis. the Committee
shall direct the Separate Agency to cast affirmative votes equal to the
product of (a) the total number of shares held in the Share Investment
Account multiplied by (b) a fraction, the numerator of which is the
aggregate value of the interests in the Share Investment Account of all
persons directing than affirmative vote be cast, and the denominator
--------------------------------------------------------------------------------
717 38 THE DIME SAVINGS BANK OF WILLIAMSBURGH
<PAGE>
ARTICLE VI -
INVESTMENT DIRECTIONS,
CHANGES OF INVESTMENT DIRECTIONS
AND TRANSFERS BETWEEN INVESTMENT ACCOUNTS
--------------------------------------------------------------------------------
of which is the aggregate value of the interests in the Share
Investment Account of all persons directing that an affirmative vote or
a negative vote be cast. Negative votes shall be cast with respect to
the remaining Shares held in the Share Investment Account.
6.7 TENDER RIGHTS
Each person with an interest in the Share Investment Account on the
applicable record date shall have the right to participate in the
decision as to how to response to a tender offer for Shares by
completing and filing a written direction with the Committee on a
timely basis. The Committee shall direct the Separate Agency to tender
a number of Shares equal to the product of (a) the total number of
shares held in the Share Investment Account multiplied by (b) fraction,
the numerator of which is the aggregate value of the interests in the
Share Investment Account of all persons directing that such Shares be
delivered in response to such tender offer, and the denominator of
which is the aggregate value of the interests ion the Share Investment
Account of all persons directing that such Shares be delivered or that
the delivery of such Shares be withheld. Delivery of the remaining
Shares held in the Share Investment Account shall be withheld.
6.8 DISSENTERS' RIGHTS
Each person with an interest in the share Investment Account on the
applicable record date shall have the right to participate in the
decision as to whether to exercise the dissenters' rights appurtenant
to Shares held in the Share Investment Account by completing and filing
a written direction with the Committee on a timely basis. The Committee
shall direct the Separate Agency to exercise dissenters' rights with
respect to the number of Shares equal to the product of (a) the total
number of Shares held in the Share Investment Account multiplied by (b)
a fraction, the numerator of which is the aggregate value of the
interests in the Share Investment Account of all persons directing that
the dissenters' rights appurtenant to which Shares be exercised, and
the denominator of which is the aggregate value of all of the interests
in the Share Investment Account. Dissenters' rights shall not be
exercised with respect to the remaining Shares held in the share
Investment Account.
6.9 DIVIDEND REINVESTMENT
Dividends paid with respect to Shares held in the Share Investment
Account shall be reinvested in the Share Investment Account.
--------------------------------------------------------------------------------
717 39 THE DIME SAVINGS BANK OF WILLIAMSBURGH
<PAGE>
ARTICLE VII -
PAYMENT OF BENEFITS
--------------------------------------------------------------------------------
ARTICLE VII -
PAYMENT OF BENEFITS
7.1 GENERAL
(a) The vested interest in the Net Value of any one or more of the
Accounts of a Participant, Beneficiary or any other person
entitled to benefits under the Plan shall be paid only at the
times, to the extent, in the manner, and to the persons
provided in this Article VII.
(b) The Net Value of any one or more of the Accounts of a
Participant shall be subject to the provisions of Section 8.7.
(c) Notwithstanding any provisions of the Plan to the contrary,
any and all withdrawals, distributions or payments made under
the provisions of this Article VII shall be made in accordance
with Section 401(a)(9) of the Code and any and all Income Tax
Regulations promulgated thereunder.
7.2 NON-HARDSHIP WITHDRAWALS
(a) Subject to the terms and conditions contained in this Section
7.2, upon ten (10) days prior written notice to the Committee
each Participant, or each Employee who solely maintains a
Rollover Contribution Account, shall be entitled to withdraw
not more than twice during any Plan Year, all or any portion
of his Accounts in the following order of priority provided
that, with respect to subsections (a)(iii) and (v) below, the
Participant must have attained age fifty-nine and one-half
(59-1/2) as of the date of the withdrawal:
(i) Participant Contributions or, if less, the Net Value
of his Participant Contribution Account attributable
to such Participant Contributions;
(ii) the Net Value of his Participant Contribution Account
not withdrawn under subsection (i) above;
(iii) the Net Value of his Before-Tax Contribution Account;
(iv) the vested interest in the Net Value of his Bank
Contribution Account, provided the Participant (A)
has attained age fifty-nine and one half (59-1/2) or
(B) has at least five (5) years of participation in
the Plan and Prior Plan;
(v) the Net Value of his Rollover Contribution Account;
(vi) the Net Value of his Pioneer Prior Matching
Contribution Account, provided the Participant has
attained age fifty-nine and one-half (59-1/2).
--------------------------------------------------------------------------------
717 40 THE DIME SAVINGS BANK OF WILLIAMSBURGH
<PAGE>
ARTICLE VII -
PAYMENT OF BENEFITS
--------------------------------------------------------------------------------
(b) Withdrawals under this Section 7.2 shall be made by the
redemption of Units from each of the Participant's Accounts on
a pro rata basis among the Investment Accounts other than the
Share Investment Account prior to the redemption of Units from
the Share Investment Account. Notwithstanding the foregoing, a
redemption of Units from the Share Investment Account, if
applicable, shall be made prior to the redemption of any Units
from the Participant's Account having the next highest order
of priority under Section 7.2(b).
(c) If any Employee who is subject to the requirements of Section
16 of the Securities Exchange Act of 1934, as amended, shall
obtain a withdrawal under this Section 7.2, such person shall
not be permitted to make any Before-Tax Contributions to the
Plan for a period of one (1) year following the date of
withdrawal.
7.3 HARDSHIP DISTRIBUTIONS
(a) For purposes of this Section 7.3, a "Hardship" distribution
shall mean a distribution that is (i) made on account of a
condition which has given rise to immediate and heavy
financial need of a Participant and (ii) necessary to satisfy
such financial need. A determination of the existence of an
immediate and heavy financial need and the amount necessary to
meet the need shall be made by the Committee in accordance
with uniform nondiscriminatory standards with respect to
similarly situated persons.
(b) Immediate and Heavy Financial Need:
A Hardship distribution shall be deemed to be made on account
of an immediate and heavy financial need if the distribution
is on account of:
(i) expenses for medical care described under Section
213(d) of the Code which were previously incurred by
the Employee, the Employee's Spouse or any of the
Employee's dependents as defined under Section 152 of
the Code or expenses which are necessary to obtain
medical care described under Section 213(d) of the
Code for the Employee, the Employee's Spouse or any
of the Employee's dependents as defined under Section
152 of the Code; or
(ii) purchase (excluding mortgage payments) of a principal
residence of the Participant; or
(iii) payment of tuition and related educational fees for
the next twelve (12) months of post-secondary
education for the Employee, the Employee's Spouse,
children or any of the Employee's dependents as
defined under Section 152 of the Code; or
(iv) the need to prevent the eviction of the Participant
from his principal residence or foreclosure on the
mortgage of the Participant's principal residence; or
--------------------------------------------------------------------------------
717 41 THE DIME SAVINGS BANK OF WILLIAMSBURGH
<PAGE>
ARTICLE VII -
PAYMENT OF BENEFITS
--------------------------------------------------------------------------------
(v) any other condition which the Commissioner of
Internal Revenue, through the publication of revenue
rulings, notices and other documents of general
applicability, deems to be an immediate and heavy
financial need.
(c) Necessary to Satisfy Such Financial Need:
(i) A distribution will be treated as necessary to
satisfy an immediate and heavy financial need of an
Employee if: (A) the amount of the distribution is
not in excess of (1) the amount required to relieve
the financial need of the Employee and (2) if elected
by the Employee, an amount necessary to pay any
federal, state or local income taxes or penalties
reasonably anticipated to result from such
distribution, and (B) such need may not be satisfied
from other resources that are reasonably available to
the Employee.
(ii) A distribution will be treated as necessary to
satisfy a financial need if the Committee reasonably
relies upon the Participant's representation that the
need cannot be relieved:
(A) through reimbursement or compensation by
insurance or otherwise,
(B) by reasonable liquidation of the
Participant's assets, to the extent such
liquidation would not itself cause an
immediate and heavy financial need,
(C) by cessation of Before-Tax Contributions or
Employee contributions, if any, under the
Plan, or
(D) by other distributions or nontaxable loans
from plans maintained by the Employer or by
any other employer, or by borrowing from
commercial sources on reasonable commercial
terms.
For purposes of this subsection (c)(ii), the
Participant's resources shall be deemed to include
those assets of his Spouse and minor children that
are reasonably available to the Participant.
(iii) Alternatively, a Hardship distribution will be deemed
to be necessary to satisfy an immediate and heavy
financial need of a Participant if (A) or (B) are
met:
(A) all of the following requirements are
satisfied:
(I) the distribution is not in excess of
the amount of the immediate and
heavy financial need of the
Participant and (2) if elected by
the Employee, an amount necessary to
pay
--------------------------------------------------------------------------------
717 42 THE DIME SAVINGS BANK OF WILLIAMSBURGH
<PAGE>
ARTICLE VII -
PAYMENT OF BENEFITS
--------------------------------------------------------------------------------
any federal, state or local income
taxes or penalties reasonably
anticipated to result from such
distribution;
(II) the Participant has obtained all
distributions, other than Hardship
distributions, and all nontaxable
loans currently available under all
plans maintained by the Employer;
(III) the Plan, and all other plans
maintained by the Employer, provide
that the Participant's elective
contributions and Employee
contributions, if any, will be
suspended for at least twelve (12)
months after receipt of the Hardship
distribution; and
(IV) the Plan, and all other plans
maintained by the Employer, provide
that the Participant may not make
elective contributions for the
Participant's taxable year
immediately following the taxable
year of
the Hardship distribution in excess
of the applicable limit under
Section 402(g) of the Code for such
next taxable year, less the amount
of such Participant's elective
contributions for the taxable year
of the Hardship distribution; or
(B) the requirements set forth in additional
methods, if any, prescribed by the
Commissioner of Internal Revenue (through
the publication of revenue rulings, notices
and other documents of general
applicability) are satisfied.
(d) A Participant who has withdrawn the maximum amounts available
to such Participant under Section 7.2 or a Participant who is
not eligible for a withdrawal thereunder, may, in case of
Hardship (as defined under this Section 7.3), apply not more
often than twice in any Plan Year to the Committee for a
Hardship distribution. Any application for a Hardship
distribution shall be made in writing to the Committee at
least ten (10) days prior to the requested date of payment.
Hardship distributions may be made by a distribution of all or
a portion of (i) a Participant's Before-Tax Contributions,
(ii) all or a portion of his vested interest in the Net Value
of his Bank Contribution Account, (iii) the Net Value of his
Rollover Contribution Account and (iv) the Net Value of his
Pioneer Prior Matching Contribution Account.
(e) Distributions under this Section 7.3 shall be made in the
following order of priority:
(i) Participant's Before-Tax Contributions; and
(ii) Participant's vested interest in the Net Value of his
Bank Contribution Account;
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717 43 THE DIME SAVINGS BANK OF WILLIAMSBURGH
<PAGE>
ARTICLE VII -
PAYMENT OF BENEFITS
--------------------------------------------------------------------------------
(iii) the Net Value of the Employee's Rollover Contribution
Account; and
(iv) the Net Value of his Pioneer Prior Matching
Contribution Account.
(f) Withdrawals under this Section 7.3 shall be made by the
redemption of Units from each of the Participant's Accounts on
a pro rata basis among the Investment Accounts other than the
Share Investment Account prior to the redemption of Units from
the Share Investment Account. Notwithstanding the foregoing, a
redemption of Units from the Share Investment Account, if
applicable, shall be made prior to the redemption of any Units
from the Participant's Account having the next highest order
of priority under Section 7.3(e).
(g) A Participant who receives a Hardship distribution under this
Section 7.3 may have his Before-Tax Contributions suspended in
accordance with Section 3.3.
(h) If any Employee who is subject to the requirements of Section
16 of the Securities Exchange Act of 1934, as amended, shall
obtain a withdrawal under this Section 7.3, such person shall
not be permitted to make any Before-Tax Contributions to the
Plan for a period of one (1) year following the date of the
withdrawal.
7.4 DISTRIBUTION OF BENEFITS FOLLOWING RETIREMENT OR TERMINATION OF SERVICE
(a) If an Employee incurs a Termination of Service for any reason
other than death, a distribution of the vested interest in the
Net Value of his Accounts shall be made to the Employee in
accordance with the provisions of Section 7.5 or 7.6 or 7.8.
The amount of such distribution shall be the vested interest
in the Net Value of his Accounts as of the Valuation Date
coincident with the date of receipt by the Trustees of the
proper documentation acceptable to the Trustees for such
purpose.
(b) An election by an Employee to receive the vested interest in
the Net Value of his Accounts in a form other than in the
normal form of benefit payment set forth in Sections 7.5(a)
and (b) and Sections 7.6(a) and (b) may not be revoked or
amended by him after he terminates his employment.
Notwithstanding the foregoing, an Employee who elected to
receive payment of benefits as of a deferred Valuation Date or
in the form of annual installments, may, by completing and
filing the form prescribed by the Committee, change to another
form of benefit payment.
(c) An Employee who incurs a Termination of Service and is
reemployed by the Employer prior to the distribution of all or
part of the entire vested interest in the Net Value of his
Accounts in accordance with the provisions of Section 7.5 or
7.6, shall not be eligible to receive or to continue to
receive such distribution during his period of reemployment
with the Employer. Upon such Employee's subsequent Termination
of Service, his prior election to receive a distribution in a
form other than the normal form of benefit payment shall be
null and void and the vested interest in the Net Value of his
Accounts shall be distributed to him in accordance with the
provisions of Section 7.5 or 7.6 or 7.8.
--------------------------------------------------------------------------------
717 44 THE DIME SAVINGS BANK OF WILLIAMSBURGH
<PAGE>
ARTICLE VII -
PAYMENT OF BENEFITS
--------------------------------------------------------------------------------
7.5 PAYMENTS UPON RETIREMENT OR DISABILITY
(a) If (i) an Employee incurs a Termination of Service as of his
Retirement Date or if an Employee incurs a Termination of
Service due to Disability, (ii) such Employee has not elected
to receive his benefit pursuant to an optional form of benefit
payment in accordance with the provisions of subsection (d),
(e), (f) or (g) and (iii) the vested interest in the Net Value
of the Employee's Accounts is equal to or less than three
thousand five hundred dollars ($3,500) (and effective January
1, 1998, five thousand dollars ($5,000)), a lump sum
distribution of the vested interest in the Net Value of his
Accounts shall be made to the Employee within seven (7) days
of the Valuation Date coincident with the date of receipt by
the Trustees of the proper documentation indicating that the
Employee incurred a Termination of Service as of such
Retirement Date or date of Disability.
(b) If an Employee incurs a Termination of Service as of his
Normal Retirement Date or his Postponed Retirement Date and
the vested interest in the Net Value of the Employee's
Accounts exceeds three thousand five hundred dollars ($3,500)
(and effective January 1, 1998, five thousand dollars
($5,000)), a lump sum distribution of the Net Value of his
Accounts shall be made to the Employee within seven (7) days
of the Valuation Date coincident with the date of receipt by
the Trustees of the proper documentation indicating that the
Employee incurred a Termination of Service as of such
Retirement Date.
(c) If an Employee incurs a Termination of Service as of his Early
Retirement Date or if an Employee incurs a Termination of
Service due to Disability, and the vested interest in the Net
Value of the Employee's Accounts exceeds three thousand five
hundred dollars ($3,500) (and effective January 1, 1998, five
thousand dollars ($5,000)), a lump sum distribution of the
vested interest in the Net Value of his Accounts shall be made
to the Employee within seven (7) days of the Valuation Date
coincident with the later of (i) the Employee attained Normal
Retirement Date or Postponed Retirement Date or would have
attained his Normal Retirement Date if he were still employed
by the Employer, or (ii) the date of receipt by the Trustees
of the proper documentation indicating such Retirement Date.
(d) In lieu of the normal form of benefit payment set forth in
subsections (a) and (c), an Employee who incurs a Termination
of Service as of his Early Retirement Date or incurs a
Termination of Service due to Disability may file an election
form to receive the vested interest in the Net Value of his
Accounts as a lump sum distribution as of some other Valuation
Date following his Termination of Service and prior to his
Normal Retirement Date. The vested interest in the Net Value
of his Accounts shall be distributed to such Employee as a
lump sum distribution within seven (7) days of the Valuation
Date coincident with the date of receipt by the Trustees of
the proper documentation indicating the Employee's
distribution date.
--------------------------------------------------------------------------------
717 45 THE DIME SAVINGS BANK OF WILLIAMSBURGH
<PAGE>
ARTICLE VII -
PAYMENT OF BENEFITS
--------------------------------------------------------------------------------
(e) In lieu of the normal form of benefit payment set forth in
subsections (a), (b) and (c), an Employee who incurs a
Termination of Service as of his Retirement Date or incurs a
Termination of Service due to Disability may, subject to the
required minimum distribution provisions of Sections 7.9(b)
and 7.9(c), file an election form to receive the vested
interest in the Net Value of his Accounts in the form of
annual installments over a period not to exceed ten (10)
years. The vested interest in the Net Value of his Accounts
shall be determined as of such Valuation Date or Valuation
Dates in each such Plan Year as may be elected by such
Employee and shall be based on the respective values of the
Employee's Units in each Investment Account as of such
Valuation Date or Valuation Dates. The amount of the
installment payment shall be distributed by the redemption of
Units from the Employee's Accounts on a pro rata basis among
such Employee's Investment Accounts. Any portion of the vested
interest in the Net Value of the Accounts of such former
Employee which shall not have been so paid shall continue to
be held for his benefit or for the benefit of his Beneficiary
in the Employee's Investment Accounts. If an Employee elects
to receive his benefit pursuant to this subsection (e), the
installment period may not extend beyond the life expectancy
of such Employee or the life expectancy of such Employee and
his Beneficiary.
(f) In lieu of the normal form of benefit payment set forth in
subsections (a), (b) and (c), an Employee who incurs a
Termination of Service as of his Retirement Date or incurs a
Termination of Service due to Disability may elect to defer
receipt of the vested interest in the Net Value of his
Accounts beyond his Normal Retirement Date or Postponed
Retirement Date. The applicable form must be filed at least
ten (10) days prior to the Employee's Retirement Date. If such
an election is made, the vested interest in the Net Value of
his Accounts shall continue to be held in the Trust Fund.
Subject to the required minimum distribution provisions of
Sections 7.9(b) and 7.9(c), the vested interest in the Net
Value of his Accounts shall be distributed to such Employee as
a lump sum distribution within seven (7) days of the Valuation
Date coincident with the date of receipt by the Trustees of
the proper documentation indicating the Employee's deferred
distribution date.
(g) In lieu of the normal form of benefit payment set forth in
subsections (a), (b) and (c), an Employee who incurs a
Termination of Service as of his Retirement Date or incurs a
Termination of Service due to Disability may, at least ten
(10) days prior to the date on which his benefit is scheduled
to be paid, file an election form that a lump sum distribution
equal to the vested interest in the Net Value of his Accounts
be paid in a Direct Rollover pursuant to Section 7.8. The
amount of such lump sum distribution shall be determined as of
the Valuation Date coincident with the date of receipt by the
Trustees of the proper documentation.
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7.6 PAYMENTS UPON TERMINATION OF SERVICE FOR REASONS OTHER THAN RETIREMENT
OR DISABILITY
(a) If an Employee incurs a Termination of Service as of a date
other than a Retirement Date or for reasons other than
Disability, has not elected to receive his benefit pursuant to
an optional form of benefit payment in accordance with the
provisions of subsection (c), (d) or (e) and the vested
interest in the Net Value of the Employee's Accounts, as
determined by the Trustees in accordance with subsection (f),
is equal to or less than three thousand five hundred dollars
($3,500) (and effective January 1, 1998, five thousand dollars
($5,000)), a lump sum distribution of the vested interest in
the Net Value of his Accounts shall be made to the Employee
within seven (7) days of the later of the Valuation Dates set
forth in subsections (f)(i) and (f)(ii).
(b) If an Employee incurs a Termination of Service as of a date
other than a Retirement Date or for reasons other than
Disability, has not elected to receive his benefit pursuant to
an optional form of benefit payment in accordance with the
provisions of subsection (c), (d) or (e) and the vested
interest in the Net Value of the Employee's Accounts, as
determined by the Trustees in accordance with subsection (f),
exceeds three thousand five hundred dollars ($3,500) (and
effective January 1, 1998, five thousand dollars ($5,000)), a
lump sum distribution of the vested interest in the Net Value
of his Accounts shall be made to the Employee within seven (7)
days of the Valuation Date coincident with the later of (i)
the date the Employee would have attained his Normal
Retirement Date if he were still employed by the Employer or
(ii) the date of receipt by the Trustees of the proper
documentation indicating the Employee's attainment of his
Normal Retirement Date.
(c) In lieu of the normal form of benefit payment set forth in
subsections (a) and (b), an Employee who incurs a Termination
of Service as of a date other than a Retirement Date or for
reasons other than Disability, may file an election form to
receive the vested interest in the Net Value of his Accounts
as a lump sum distribution as of some other Valuation Date
following his termination; provided, however, that the
Valuation Date may not be later than thirteen (13) months
following his Termination of Service. The vested interest in
the Net Value of his Accounts shall be distributed to such
Employee as a lump sum as some other Valuation Date following
the date of receipt by the Trustees of the proper
documentation indicating the Employee's distribution date.
(d) In lieu of the normal form of benefit payment set forth in
subsections (a) and (b), an Employee who incurs a Termination
of Service as of a date other than his Retirement Date or for
reasons other than Disability may file an election form to
receive the vested interest in the Net Value of his Accounts
in the form of annual installments over a period not to exceed
ten (10) years. The vested interest in the Net Value of his
Accounts shall be determined as of such Valuation Date or
Valuation Dates in each such Plan Year as may be elected by
such Employee and shall be based on the respective values of
the Employee's Units in each Investment Account as of such
Valuation Date or Valuation Dates. The amount of the
installment payment shall be distributed by the redemption of
Units from the Employee's Accounts on a pro rata basis among
such Employee's Investment Accounts. Any portion of the vested
interest in the Net Value of the Accounts of such former
Employee which shall not have been so paid shall continue to
be held for his benefit or for the benefit of his Beneficiary
in the Employee's Investment Accounts. If an Employee elects
to receive his benefit pursuant to this subsection (d), the
installment period may not extend beyond the life expectancy
of such Employee or the life expectancy of such Employee and
his Beneficiary.
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ARTICLE VII -
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(e) In lieu of the normal form of benefit payment set forth in
subsections (a) and (b), an Employee who incurs a Termination
of Service as of a date other than his Retirement Date or for
reasons other than Disability may, at least ten (10) days
prior to the date on which his benefit is scheduled to be
paid, file an election form that a lump sum distribution equal
to the vested interest in the Net Value of his Accounts be
paid in a Direct Rollover pursuant to Section 7.8. The amount
of such lump sum distribution shall be determined as of the
Valuation Date coincident with the date of receipt by the
Trustees of the proper documentation.
(f) If an Employee incurs a Termination of Service as of a date
other than a Retirement Date or for reasons other than
Disability and has not elected to receive the vested interest
in the Net Value of his Accounts pursuant to an optional form
of benefit payment in accordance with subsection (c), (d) or
(e), the Employer shall notify the Trustees of such
termination. The Trustees shall determine the vested interest
in the Net Value of the Accounts of such Employee as of the
later of: (i) the Valuation Date which occurs thirteen (13)
months following his Termination of Service or (ii) the
Valuation Date coincident with the date of receipt by the
Trustees of the proper documentation indicating that he
incurred a Termination of Service.
7.7 PAYMENTS UPON DEATH
(a) In the case of a married Participant, the Spouse shall be the
designated Beneficiary. Notwithstanding the foregoing, such
Participant may effectively elect to designate a person or
persons other than the Spouse as Beneficiary. Such an election
shall not be effective unless (i) such Participant's Spouse
irrevocably consents to such election in writing, (ii) such
election designates a Beneficiary which may not be changed
without spousal consent or the consent of the Spouse expressly
permits designation by the Participant without any requirement
of further consent by the Spouse, (iii) the Spouse's consent
acknowledges understanding of the effect of such election and
(iv) the consent is witnessed by a Plan representative or
acknowledged before a notary public. Notwithstanding this
consent requirement, if the Participant establishes to the
satisfaction of the Plan representative that such written
consent cannot be obtained because there is no Spouse or the
Spouse cannot be located, the consent hereunder shall not be
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required. Any consent necessary under this provision shall be
valid only with respect to the Spouse who signs the consent.
(b) In the case of a single Participant, Beneficiary means a
person or persons who have been designated under the Plan by
such Participant or who are otherwise entitled to a benefit
under the Plan.
(c) The designation of a Beneficiary who is other than a
Participant's Spouse and the designation of any contingent
Beneficiary shall be made in writing by the Participant in the
form and manner prescribed by the Committee and shall not be
effective unless filed prior to the death of such person. If
more than one person is designated as a Beneficiary or a
contingent Beneficiary, each designated Beneficiary in such
Beneficiary classification shall have an equal share unless
the Participant directs otherwise. For purposes of this
Section 7.7, "person" includes an individual, a trust, an
estate, or any other person or entity designated as a
Beneficiary.
(d) A married Participant who has designated a person or persons
other than the Spouse as Beneficiary may, without the consent
of such Spouse, revoke such prior election by submitting
written notification of such revocation to the Committee. Such
revocation shall result in the reinstatement of the Spouse as
the designated Beneficiary unless the Participant effectively
designates another person as Beneficiary in accordance with
the provisions of subsection (a). The number of election forms
and revocations shall not be limited.
(e) Upon the death of a Participant the remaining vested interest
in the Net Value of his Accounts shall become payable, in
accordance with the provisions of subsection (g), to his
Beneficiary or contingent Beneficiary. If there is no such
Beneficiary, the remaining vested interest in the Net Value of
his Accounts shall be payable to the executor or administrator
of his estate, or, if no such executor or administrator is
appointed and qualifies within a time which the Committee
shall, in its sole and absolute discretion, deem to be
reasonable, then to such one or more of the descendants and
blood relatives of such deceased Participant as the Committee,
in its sole and absolute discretion, may select.
(f) If a designated Beneficiary entitled to payments hereunder
shall die after the death of the Participant but before the
entire vested interest in the Net Value of Accounts of such
Participant has been distributed, then the remaining vested
interest in the Net Value of Accounts of such Participant
shall be paid, in accordance with the provisions of subsection
(g), to the surviving Beneficiary who is not a contingent
Beneficiary, or, if there are no such surviving Beneficiaries
then living, to the designated contingent Beneficiaries as
shall be living at the time such payment is to be made. If
there is no designated contingent Beneficiary then living, the
remaining interest in the Net Value of his Accounts shall be
paid to the executor or administrator of the estate of the
last to die of the Beneficiaries who are not contingent
Beneficiaries.
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ARTICLE VII -
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(g) If a Participant dies before his entire vested interest in the
Net Value of his Accounts has been distributed to him, the
remainder of such vested interest shall be paid to his
Beneficiary or, if applicable, his contingent Beneficiary, in
a lump sum distribution as soon as practicable following the
date of the Participant's death. Notwithstanding the
foregoing, if, prior to the Participant's death:
(i) the Participant had elected to receive a deferred
lump sum distribution and had not yet received such
distribution, such Beneficiary shall receive a lump
sum distribution as of the earlier of: (A) the
Valuation Date set forth in the Participant's
election or (B) the last Valuation Date which occurs
within one (1) year of the Participant's death; or
(ii) the Participant had elected to receive and had begun
receiving a distribution in the form of installments,
such Beneficiary shall receive distributions over the
remaining installment period, at the times set forth
in such election.
If the Beneficiary is the Participant's Spouse and if benefits
are payable to such Beneficiary as an immediate or deferred
lump sum distribution, such Spouse may defer the distribution
up to the date on which the Participant would have attained
age seventy and one-half (70-1/2). If such Spouse dies prior
to such distribution, the prior sentence shall be applied as
if the Spouse were the Participant.
(h) Notwithstanding anything in the Plan to the contrary, the
provisions of Sections 7.7(a) through (g) shall also apply to
a person who is not a Participant but who has made a
contribution to and maintains a Rollover Contribution Account
under the Plan.
7.8 DIRECT ROLLOVER OF ELIGIBLE ROLLOVER DISTRIBUTIONS
For purposes of this Section 7.8, the following definitions shall
apply:
(a) "Direct Rollover" means a payment by the Plan to the Eligible
Retirement Plan specified by the Distributee.
(b) "Distributee" means an Employee or former Employee. In
addition, the Employee's or former Employee's surviving Spouse
and the Employee's or former Employee's Spouse or former
spouse who is the alternate payee under a qualified domestic
relations order, as defined in Section 414(p) of the Code, are
Distributees with regard to the interest of the Spouse or
former spouse.
(c) "Eligible Retirement Plan" means an individual retirement
account described in Section 408(a) of the Code, an individual
retirement annuity described in Section 408(b) of the Code, an
annuity plan described in Section 403(a) of the Code, or a
qualified trust described in Section 401(a) of the Code, that
accepts the Distributee's Eligible Rollover Distribution.
However, in the case of an Eligible
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ARTICLE VII -
PAYMENT OF BENEFITS
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Rollover Distribution to the surviving Spouse, an Eligible
Retirement Plan is an individual retirement account or
individual retirement annuity.
(d) "Eligible Rollover Distribution" means any distribution of all
or any portion of the balance to the credit of the
Distributee, except that an Eligible Rollover Distribution
does not include: any distribution that is one of a series of
substantially equal periodic payments (not less frequently
than annually) made for the life (or life expectancy) of the
Distributee or the joint lives (or joint life expectancies) of
the Distributee and the Distributee's designated Beneficiary,
or for a specified period of ten (10) years or more; any
distribution to the extent such distribution is required under
Section 401(a)(9) of the Code; and the portion of any
distribution that is not includable in gross income
(determined without regard to the exclusion for net unrealized
appreciation with respect to employer securities); and
effective January 1, 2000, any Hardship distribution described
in Section 401(k)(2)(B)(i)(IV) of the Code.
Notwithstanding any provision of the Plan to the contrary that would
otherwise limit a Distributee's election under this Section 7.8, a
Distributee may elect, at the time and in the manner prescribed by the
Committee, to have any portion of an Eligible Rollover Distribution
paid directly to an Eligible Retirement Plan specified by the
Distributee in a Direct Rollover.
7.9 COMMENCEMENT OF BENEFITS
(a) Unless the Employee elects otherwise in accordance with the
Plan, in no event shall the payment of benefits commence later
than the sixtieth (60th) day after the close of the Plan Year
in which the latest of the following events occur: (i) the
attainment by the Employee of age sixty-five (65), (ii) the
tenth (10th) anniversary of the year in which the Participant
commenced participation in the Plan or Prior Plan, or (iii)
the termination of the Employee's employment with the
Employer; provided, however, that if the amount of the payment
required to commence on the date determined under this
sentence cannot be ascertained by such date, a payment
retroactive to such date may be made no later than sixty (60)
days after the earliest date on which the amount of such
payment can be ascertained under the Plan.
(b) Distributions to five-percent owners:
The vested interest in the Net Value of the Accounts of a
five-percent owner (as described in Section 416(i) of the Code
and determined with respect to the Plan Year ending in the
calendar year in which such individual attains age seventy and
one-half (70-1/2)) must be distributed or commence to be
distributed no later than the first day of April following the
calendar year in which
such individual attains age seventy and one-half (70-1/2). The
vested interest in the Net Value of the Accounts of an
Employee who is not a five-percent owner (as described in
Section 416(i) of the Code) for the Plan Year ending in the
calendar year in which
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ARTICLE VII -
PAYMENT OF BENEFITS
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such person attains age seventy and one-half (70-1/2) but who
becomes a five-percent owner (as described in Section 416(i)
of the Code) for a later Plan Year must be distributed or
commence to be distributed no later than the first day of
April following the last day of the calendar year that
includes the last day of the first Plan Year for which such
individual is a five-percent owner (as described in Section
416(i) of the Code).
(c) Distributions to other than five-percent owners:
The vested interest in the Net Value of the Accounts of an
Employee who is not a five-percent owner and who attained age
seventy and one-half (70-1/2) prior to January 1, 1988 must be
distributed or commence to be distributed no later than the
first day of April following the calendar year in which occurs
the later of: (i) his termination of employment or (ii) his
attainment of age seventy and one-half (70-1/2).
Except as otherwise provided in the following paragraph, the
vested interest in the Net Value of the Accounts of any
Employee who attains age seventy and one-half (70-1/2) after
December 31, 1987, must be distributed or commence to be
distributed no later than the first day of April following the
later of: (A) the 1989 calendar year or (B) the calendar year
in which such individual attains age seventy and one-half
(70-1/2).
Effective January 1, 1997, an Employee otherwise required to
receive a distribution under the preceding paragraph, may
elect to defer distribution of the Net Value of his Accounts
to the date of his termination of employment.
Notwithstanding the foregoing, the vested interest in the Net
Value of the Accounts of (I) any Employee who becomes a
Participant on or after January 1, 1997 or (II) any Employee
who attains age seventy and one-half (70-1/2) on or after
January 1, 1999, must be distributed or commence to be
distributed no later than the first day of April following the
calendar year in which occurs the later of: (1) his
termination of employment or (2) his attainment of age seventy
and one-half (70-1/2).
7.9 MANNER OF PAYMENT OF WITHDRAWALS AND DISTRIBUTIONS FROM THE SHARE
INVESTMENT ACCOUNT
Withdrawals from the Share Investment Account shall be made to
Participants in cash.
Distributions from the Share Investment Account shall be made to
Participants and Beneficiaries in cash, unless the Participant or
Beneficiary elects that such distributions may be made wholly or
partially in Shares. If the Participant or Beneficiary elects that such
distributions may be made wholly or partially in Shares, subject to
such terms and conditions as may be established from time to time, the
number of Shares to be distributed shall be equal to the maximum number
of whole Shares that may be acquired with the amount to be distributed
in Shares, based upon the fair market value of a Share
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ARTICLE VII -
PAYMENT OF BENEFITS
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determined as of the date of payment. An amount of money equal to any
remaining amount of the payment that is less than the fair market value
of a whole Share shall be distributed in cash. For purposes of this
Section 7.9. the fair market value of a Share shall be determined on a
uniform and nondiscriminatory basis in such manner as the Separate
Agency may, in its discretion, prescribe.
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717 53 THE DIME SAVINGS BANK OF WILLIAMSBURGH
<PAGE>
ARTICLE VIII -
LOANS TO PARTICIPANTS
--------------------------------------------------------------------------------
ARTICLE VIII -
LOANS TO PARTICIPANTS
8.1 DEFINITIONS AND CONDITIONS
(a) For purposes of this Article VIII, the following terms and
phrases shall have the meanings hereafter ascribed to them:
(i) "Borrower" shall mean a Participant or a "Party in
Interest" (as defined under Section 3(14) of ERISA)
who maintains an Account, provided such Participant
or Party in Interest is not receiving a benefit
payment in accordance with the provisions of Section
7.5(d) or 7.6(d) or 7.7.
(ii) "Loan Account" means the separate, individual account
established on behalf of a Borrower in accordance
with the provisions of Section 8.4(d).
(b) To the extent permitted under the provisions of this Article
VIII and subject to the terms and conditions set forth herein,
a Borrower may request a loan from his Accounts. Any loans
made in accordance with this Article VIII shall not be subject
to the provisions of Article VI.
8.2 LOAN AMOUNT
Upon a finding by the Committee that all requirements hereunder have
been met, prior to September 11, 1997, a Borrower may request a loan
from his Accounts in an amount up to the lesser of: (a) fifty percent
(50%) of the Net Value as of the close of business on the date the loan
is processed of: the Before-Tax Contribution Account, Bank Contribution
Account (if he is one hundred percent (100%) vested in such Account),
Participant Contribution Account, Pioneer Prior Matching Contribution
Account and Rollover Contribution Account, or (b) fifty thousand
dollars ($50,000), reduced by the highest outstanding loan balance
during the preceding twelve (12) months. Commencing September 11, 1997,
a Borrower may request a loan from his Accounts, in an amount up to the
lesser of: (i) fifty percent (50%) of the Net Value as of the close of
business on the date the loan is processed of his Before-Tax
Contribution Account, vested Bank Contribution Account, Participant
Contribution Account, Pioneer Prior Matching Contribution Account and
Rollover Contribution Account, or (ii) fifty thousand dollars
($50,000), reduced by the highest outstanding loan balance during the
preceding twelve (12) months. The minimum loan permitted shall be one
thousand dollars ($1,000). Commencing June 11, 1998, for purposes of
this Section 8.2, the Net Value of a Borrower's Accounts includes all
outstanding loans within the Borrower's Loan Account under Section
8.4(d).
8.3 TERM OF LOAN
All loans shall be for a fixed term of not more than five (5) years,
except that a loan which shall be used to acquire any dwelling which
within a reasonable time is to be used
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ARTICLE VIII -
LOANS TO PARTICIPANTS
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as the principal residence of the Participant, may, in the discretion
of the Committee, be made for a term of not more than ten (10) years.
Interest on a loan shall be based on a reasonable rate of interest.
Such rate shall be based on the Prime Rate, as published in The Wall
Street Journal on the date the loan is requested, increased by one
percent (1%) and rounded to the nearest quarter of one percent (1/4 of
1%). Such rate shall remain in effect until the Loan Account is closed.
8.4 OPERATIONAL PROVISIONS
(a) An application for a loan shall be filed in the form and
manner prescribed by the Committee and shall be subject to the
fees set forth in Section 9.11. If the Committee shall approve
such application, the Committee shall establish the amount of
such loan and such loan shall be effected as of such Valuation
Date next following receipt by the Trustee.
(b) Except as provided in Section 5.4, the amount of the loan
shall be distributed in cash from the Investment Accounts in
which the Borrower's Accounts are invested, and prior to
September 11, 1997, one hundred percent (100%) vested, in the
following order of priority:
(i) Participant Contribution Account;
(ii) Before-Tax Contribution Account;
(iii) Rollover Contribution Account;
(iv) Bank Contribution Account and on and after September
11, 1997, vested Bank Contribution Account; and
(v) Pioneer Prior Matching Contribution Account.
Distributions from each of the foregoing Accounts shall be
made on a pro rata basis among the Investment Accounts other
than the Share Investment Account prior to any distribution
from the Share Investment Account. Notwithstanding the
foregoing, a distribution from the Share Investment Account,
if applicable, shall be made prior to a distribution from the
Participant's Account having the next highest order of
priority determined hereunder.
(c) The proceeds of a loan shall be distributed to the Borrower as
soon as practicable after the Valuation Date as of which the
loan is processed; provided, however, that the Borrower shall
have satisfied such reasonable conditions as the Committee
shall deem necessary, including, without limitation: (i) the
delivery of an executed promissory note for the amount of the
loan, including interest, payable to the order of the
Trustees; (ii) an assignment to the Plan of such Borrower's
interest in his Accounts to the extent of such loan; and (iii)
if the Borrower is actively employed by the Employer, an
authorization to the Employer to make payroll deductions in
order to repay his loan to the Plan. The
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ARTICLE VIII -
LOANS TO PARTICIPANTS
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aforementioned promissory note shall be duly acknowledged and
executed by the Borrower and shall be held by the Trustees, or
the Committee as agent for the Trustees, as an asset of the
Borrower's Loan Account pursuant to subsection (d).
(d) A Loan Account shall be established for each Borrower with an
outstanding loan pursuant to this Article VIII. Each Loan
Account shall be comprised of a Borrower's (i) executed
promissory note and (ii) installment payments of principal and
interest made pursuant to Section 8.5(a). Upon full payment
and satisfaction of the outstanding Loan Account balance, a
Borrower's promissory note shall be marked paid in full,
returned to the Borrower, and his Loan Account thereupon
closed.
(e) As of each Valuation Date coincident with or next succeeding
each payment of principal and interest on a loan, the then
current balance of each Borrower's Loan Account shall be
debited by the amount of such payment and such amount shall be
transferred for investment in accordance with Section 8.5(c)
to the appropriate Borrower's Account. If the Committee
established a lien against the Borrower's Accounts pursuant to
Section 8.6(b), and foreclosure of such lien is deferred until
the Borrower's Termination of Service pursuant to Section
8.6(b)(i), for each month that foreclosure of the lien is
deferred, the then current balance of the Borrower's Loan
Account shall be charged with interest on the unpaid principal
and interest thereon.
(f) Only one (1) loan shall be outstanding to any Borrower under
this Article VIII at any time. Commencing June 11, 1998, no
more than a maximum of two (2) loans shall be outstanding to
any Borrower under this Article VIII at any time. The
foregoing operational provisions of this Section 8.4 shall
apply individually to each outstanding loan.
8.5 REPAYMENTS
(a) If the Borrower is on the payroll of the Employer and unless
otherwise agreed to by the Committee, repayments of loan
principal, or the unpaid balance thereof, and interest thereon
shall be made through payroll deductions. The first repayment
shall be deducted as of the first payroll date occurring no
later than three (3) weeks after the Committee submits the
loan form for processing.
If the Borrower is not on the payroll of the Employer and
unless otherwise agreed to by the Committee, repayments of
loan principal, or the unpaid balance thereof, and interest
thereon, shall be made in cash or cash equivalencies to the
Employer in equal monthly installments for payment to his Loan
Account.
(b) Any amount repaid to the Plan by a Borrower with respect to a
loan, including interest thereon, shall be invested as if such
amount were a contribution to be invested in accordance with
Section 6.1.
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ARTICLE VIII -
LOANS TO PARTICIPANTS
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(c) With respect to each Borrower's Loan Account, any repayment of
principal and interest made by a Borrower shall be credited,
as of the Valuation Date coincident with or next succeeding
such payment, to the Borrower's Accounts in the order of
priority established under Section 8.4(b). No Account having a
lesser degree of priority shall be credited until the Account
having the immediately preceding degree of priority has been
restored by an amount equal to that which had been borrowed
from such Account.
(d) A Borrower may prepay his entire loan, plus all interest
accrued and unpaid thereon, as of any Valuation Date. A
Borrower will not be permitted to make partial prepayments to
his Loan Account. Commencing June 11, 1998, the foregoing
provisions pertain to the maximum of two (2) outstanding Loan
Accounts.
(e) In the event the Plan is terminated, the entire unpaid
principal amount of the loan hereunder, together with any
accrued and unpaid interest thereon, shall become immediately
due and payable.
8.6 DEFAULT
(a) If a Borrower fails to make any payment on any loan when due
under this Article VIII, the entire unpaid principal amount of
such loan, together with any accrued and unpaid interest
thereon, shall be deemed in default and become due and payable
ninety (90) days after the initial date of payment
delinquency.
(b) If a Borrower fails to make any payment on a loan and is
deemed to be in default pursuant to subsection (a), the
Committee shall establish a lien against the Borrower's
Accounts in an amount equal to any unpaid principal and
interest. The lien shall be foreclosed by applying the value
of the Borrower's Loan Account (determined as of the next
Valuation Date immediately following foreclosure) in
satisfaction of said unpaid principal and interest as follows:
(i) if the Borrower is in the employment of the Employer,
upon the Borrower's Termination of Service; or
(ii) if the Borrower is not in the employment of the
Employer, immediately upon default.
Thereupon, the vested interest in the balance of the
Borrower's Accounts shall be distributed in accordance with
the applicable provisions of the Plan.
(c) The Committee may, in accordance with uniform rules
established by it, restrict the right of any Borrower who has
defaulted on a loan from the Plan to: (i) make withdrawals
and/or loans from his Participant Contribution Account, Bank
Contribution Account, Before-Tax Contribution Account, Pioneer
Prior Matching Contribution Account and/or Rollover
Contribution Account for a period not exceeding twelve (12)
months or (ii) if the Borrower is an Eligible Employee,
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ARTICLE VIII -
LOANS TO PARTICIPANTS
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authorize Before-Tax Contributions to be made on his behalf or
make any other contributions to the Plan for a period not
exceeding twelve (12) months.
8.7 COORDINATION OF OUTSTANDING ACCOUNT AND PAYMENT OF BENEFITS
(a) If the Borrower has an outstanding Loan Account and is either
(i) scheduled to receive or elects to receive a lump sum
distribution in accordance with the provisions of Article VII,
or (ii) scheduled to receive the last installment payment
under a previous election made in accordance with the
provisions of Article VII to receive payments in a form other
than the normal form of benefit payments, then, at the time of
the distribution or payment under clause (i) or (ii) above,
the entire unpaid principal amount of the loan together with
any accrued and unpaid interest thereon, shall become
immediately due and payable. No Plan distribution, except as
permitted under Section 7.2 or Section 7.3, shall be made to
any Borrower unless and until such Borrower's Loan Account,
including accrued interest thereunder, has been liquidated and
closed. If a Borrower fails to pay the outstanding balance of
his Loan Account hereunder, such loan shall be satisfied as if
a default had occurred pursuant to Section 8.6.
(b) Any reference in the Plan to the Net Value of Units in a
Borrower's Accounts available for distribution to any
Borrower, shall mean the value after the satisfaction of the
entire unpaid principal loan amount or amounts and any
accrued, unpaid interest thereon, as provided in this Article
VIII.
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<PAGE>
ARTICLE IX -
ADMINISTRATION
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ARTICLE IX -
ADMINISTRATION
9.1 GENERAL ADMINISTRATION OF THE PLAN
The operation and administration of the Plan shall be subject to the
management and control of the Named Fiduciaries and Plan Administrator
designated by the Sponsoring Employer. The designation of such Named
Fiduciaries and Plan Administrator, the terms of their appointment, and
their duties and responsibilities allocated among them shall be as set
forth in this Article IX. Any actions taken hereunder shall be
conclusive and binding on Participants, Retired Participants,
Employees, Beneficiaries and other persons, and shall not be overturned
unless found to be arbitrary and capricious by a court of competent
jurisdiction.
9.2 DESIGNATION OF NAMED FIDUCIARIES
The management and control of the operation and administration of the
Plan shall be allocated in the following manner:
(a) The Sponsoring Employer shall designate the Trustees as a
Named Fiduciary to perform those functions set forth in the
Plan or the Agreement which are applicable to a Plan of
Partial Participation.
(b) The Sponsoring Employer shall designate the Separate Agency to
perform those functions set forth in the Plan or the Separate
Agreement.
(c) The Sponsoring Employer shall designate one or more
individuals to serve as member(s) of an employee benefits
Committee to perform those functions set forth in the
Agreement, Separate Agreement or the Plan that are assigned to
such Committee.
(d) A Trust Participant (as defined under the Agreement) may
delegate to a person or persons the duties and
responsibilities for voting Units set forth under the
Agreement.
9.3 RESPONSIBILITIES OF FIDUCIARIES
The Named Fiduciaries and Plan Administrator shall have only those
powers, duties, responsibilities and obligations that are specifically
allocated to them under the Plan, the Agreement or the Separate
Agreement.
To the extent permitted by ERISA, each Named Fiduciary and Plan
Administrator may rely upon any direction, information or action of
another Named Fiduciary, Plan Administrator or the Sponsoring Employer
as being proper under the Plan, the Agreement or the Separate Agreement
and is not required to inquire into the propriety of any such
direction, information or action and no Named Fiduciary or Plan
Administrator shall be
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ARTICLE IX -
ADMINISTRATION
--------------------------------------------------------------------------------
responsible for any act or failure to act of another Named Fiduciary,
Plan Administrator or the Sponsoring Employer.
No Named Fiduciary, Plan Administrator or the Employer guarantees the
Trust Fund or Separate Assets in any manner against investment loss or
depreciation in asset value.
The allocation of responsibility between the Trustees and the
Sponsoring Employer or between the Separate Agency and the Sponsoring
Employer may be changed by written agreement. Such reallocation shall
be evidenced by Employer Resolutions and shall not be deemed an
amendment to the Plan. To the extent permitted by ERISA, the Trustees
shall have no liability or responsibility with respect to the
administration of any Separate Assets held outside the Trust except as
specifically set forth in the Agreement. The authority and
responsibility of the Trustees shall extend only to those Plan assets
held by the Trustees.
9.4 PLAN ADMINISTRATOR
The Sponsoring Employer shall designate the Trustees as the Trustee
Administrator to perform those functions applicable to Plans of Partial
Participation as set forth in the Agreement. The Employer shall also
designate one or more persons to act as Plan Administrator and to
perform those functions set forth in the Agreement, the Plan or the
Separate Agreement that are assigned to the Plan Administrator.
The duties and responsibilities of a plan administrator under ERISA
shall be allocated between the Plan Administrator and the Trustee
administrator as set forth herein or in the Agreement. Such allocation
may be changed only by written agreement between the parties and shall
not be deemed an amendment to the Plan.
The Plan Administrator shall be solely responsible for monitoring and
notifying the Trustees of an Employee's age for all purposes under the
Plan.
The Plan Administrator is designated as the Plan's agent for the
service of legal process.
9.5 COMMITTEE
The members of the Committee designated by the Sponsoring Employer
under Section 9.2(b) shall serve for such term(s) as the Sponsoring
Employer shall determine and until their successors are designated and
qualified. The term of any member of the Committee may be renewed from
time to time without limitation as to the number of renewals. Any
member of the Committee may (a) resign upon at least sixty (60) days'
written notice to the Sponsoring Employer or (b) be removed from office
but only for his failure or inability, in the opinion of the Sponsoring
Employer, to carry out his responsibilities in an effective manner.
Termination of employment with the Employer shall be deemed to give
rise to such failure or inability.
The powers and duties allocated to the Committee shall be vested
jointly and severally in its members. Notwithstanding specific
instructions to the contrary, any instrument or
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ARTICLE IX -
ADMINISTRATION
--------------------------------------------------------------------------------
document signed on behalf of the Committee by any member of the
Committee may be accepted and relied upon by the Trustees and the
Separate Agency as the act of the Committee. The Trustees and the
Separate Agency shall not be required to inquire into the propriety of
any such action taken by the Committee nor shall they be held liable
for any actions taken by them in reliance thereon.
The Sponsoring Employer may, pursuant to Employer Resolutions and upon
notice to the Trustees, change the number of individuals comprising the
Committee, their terms of office or other conditions of their
incumbency provided that there shall be at all times at least one
individual member of the Committee. Any such change shall not be deemed
an amendment to the Plan.
9.6 POWERS AND DUTIES OF THE COMMITTEE
The Committee shall have authority to perform all acts it may deem
necessary or appropriate in order to exercise the duties and powers
imposed or granted by ERISA, the Plan, the Agreement, the Separate
Agreement or any Employer Resolutions. Such duties and powers shall
include, but not be limited to, the following:
(a) POWER TO CONSTRUE - Except as otherwise provided in the
Agreement, the Committee shall have the power to construe the
provisions of the Plan and to determine any questions of fact
which may arise thereunder.
(b) POWER TO MAKE RULES AND REGULATIONS - The Committee shall have
the power to make such reasonable rules and regulations as it
may deem necessary or appropriate to perform its duties and
exercise its powers. Such rules and regulations shall include,
but not be limited to, those governing (i) the manner in which
the Committee shall act and manage its own affairs, (ii) the
procedures to be followed in order for Employees or
Beneficiaries to claim benefits, and (iii) the procedures to
be followed by Participants, Beneficiaries or other persons
entitled to benefits with respect to notifications, elections,
designations or other actions required by the Plan or ERISA.
All such rules and regulations shall be applied in a uniform
and nondiscriminatory manner.
(c) POWERS AND DUTIES WITH RESPECT TO INFORMATION - The Committee
shall have the power and responsibility:
(i) to obtain such information as shall be necessary for
the proper discharge of its duties;
(ii) to furnish to the Employer, upon request, such
reports as are reasonable and appropriate;
(iii) to receive, review and retain periodic reports of the
financial condition of the Trust Fund; and
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ARTICLE IX -
ADMINISTRATION
--------------------------------------------------------------------------------
(iv) to receive, collect and transmit to the Trustees all
information required by the Trustees in the
administration of the Accounts of the Employee as
contemplated in Section 9.7.
(d) POWER OF DELEGATION - The Committee shall have the power to
delegate fiduciary responsibilities (other than trustee
responsibilities defined under Section 405(c)(3) of ERISA) to
one or more persons who are not members of the Committee.
Unless otherwise expressly indicated by the Sponsoring
Employer, the Committee must reserve the right to terminate
such delegation upon reasonable notice.
(e) POWER OF ALLOCATION - Subject to the written approval of the
Sponsoring Employer, the Committee shall have the power to
allocate among its members specified fiduciary
responsibilities (other than trustee responsibilities defined
under Section 405(c)(3) of ERISA). Any such allocation shall
be in writing and shall specify the persons to whom such
allocation is made and the terms and conditions thereof.
(f) DUTY TO REPORT - Any member of the Committee to whom specified
fiduciary responsibilities have been allocated under
subsection (e) above shall report to the Committee at least
annually. The Committee shall report to the Sponsoring
Employer at least annually regarding the performance of its
responsibilities as well as the performance of any persons to
whom any powers and responsibilities have been further
delegated.
(g) POWER TO EMPLOY ADVISORS AND RETAIN SERVICES - The Committee
may employ such legal counsel, enrolled actuaries,
accountants, pension specialists, clerical help and other
persons as it may deem necessary or desirable in order to
fulfill its responsibilities under the Plan.
9.7 CERTIFICATION OF INFORMATION
The Committee shall certify to the Trustees on such periodic or other
basis as may be agreed upon, but in no event later than ten (10) days
before any Valuation Date as of which the Trustees must effect any
action with respect to any Accounts held under the provisions of the
Plan, relevant facts regarding the establishment of the Accounts of an
Employee, periodic contributions with respect to such Accounts,
investment elections and modifications thereof and withdrawals and
distributions therefrom. The Trustees shall be fully protected in
maintaining individual Account records and in administering the
Accounts of the Employee on the basis of such certifications and shall
have no duty of inquiry or otherwise with respect to any transactions
or communications between the Committee and Employees relating to the
information contained in such certifications.
9.8 AUTHORIZATION OF BENEFIT PAYMENTS
The Committee shall forward to the Trustees and, if applicable, any
Separate Agency, any application for payment of benefits within a
reasonable time after it has approved such application. The Trustees
and such Separate Agency may rely on any such information
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<PAGE>
ARTICLE IX -
ADMINISTRATION
--------------------------------------------------------------------------------
set forth in the approved application for the payment of benefits to
the Participant, Beneficiary or any other person entitled to benefits.
9.9 PAYMENT OF BENEFITS TO LEGAL CUSTODIAN
Whenever, in the Committee's opinion, a person entitled to receive any
benefit payment is a minor or deemed to be physically, mentally or
legally incompetent to receive such benefit, the Committee may direct
the Trustees and the Separate Agency to make payment for his benefit to
such individual or institution having legal custody of such person or
to his legal representative. Any benefit payment made in accordance
with the provisions of this Section 9.9 shall operate as a valid and
complete discharge of any liability for payment of such benefit under
the provisions of the Plan.
9.10 SERVICE IN MORE THAN ONE FIDUCIARY CAPACITY
Any person or group of persons may serve in more than one fiduciary
capacity with respect to the Plan, regardless of whether any such
person is an officer, employee, agent or other representative of a
party in interest.
9.11 PAYMENT OF EXPENSES
The Employer will pay the ordinary administrative expenses of the Plan
and compensation of the Trustees to the extent required, except that
any expenses directly related to the Trust Fund, such as transfer
taxes, brokers' commissions, registration charges, or administrative
expenses of the Trustees (including expenses of counsel retained by it
in accordance with the Agreement), shall be paid from the Trust Fund or
from such Investment Account to which such expenses directly relate.
The Employer may, if determined by the Committee, charge Employees all
or part of the reasonable expenses associated with withdrawals and
other distributions, loan origination fees and all annual maintenance
fees associated with loans or Account transfers.
Brokerage commissions incurred in connection with the Share Investment
Account shall be paid by the Employer.
9.12 ADMINISTRATION OF SEPARATE ASSETS
The Committee and the Separate Agency shall be solely responsible for
the administration of the Separate Assets, including the
administration, collection and enforcement of any Employee loans held
herein. All contributions to and withdrawals or disbursements from the
Separate Assets shall be made directly to or by the Separate Agency.
The Trustees may, as agreed upon with the Committee, provide such
combined or coordinated Plan records and reports, which include the
separate Assets. The Trustees shall be fully protected in relying upon
any information provided to them by the Committee or Separate Agency
with respect to such Separate Assets. The inclusion of
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<PAGE>
ARTICLE IX -
ADMINISTRATION
--------------------------------------------------------------------------------
any information pertaining to Separate Assets in such combined or
coordinated Plan records and reports shall not increase the
responsibility or liability of the Trustees with respect to the
Separate Assets. If Plan Funds may be transferred between the Separate
Assets and the Investment Accounts, the manner in which such transfers
may be made must be agreed to in a written instrument entered into
among the Committee, the Trustees and the Separate Agency.
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717 64 THE DIME SAVINGS BANK OF WILLIAMSBURGH
<PAGE>
ARTICLE X -
BENEFIT CLAIMS PROCEDURE
--------------------------------------------------------------------------------
ARTICLE X -
BENEFIT CLAIMS PROCEDURE
10.1 DEFINITION
For purposes of this Article X, "Claimant" shall mean any Participant,
Beneficiary or any other person entitled to benefits under the Plan or
his duly authorized representative.
10.2 CLAIMS
A Claimant may file a written claim for a Plan benefit with the Plan
Administrator on the appropriate form to be supplied by the Plan
Administrator. The Plan Administrator shall, in its sole and absolute
discretion, review the Claimant's application for benefits and
determine the disposition of such claim.
10.3 DISPOSITION OF CLAIM
The Plan Administrator shall notify the Claimant as to the disposition
of the claim for benefits under this Plan within ninety (90) days after
the appropriate form has been filed unless special circumstances
require an extension of time for processing. If such an extension of
time is required, the Plan Administrator shall furnish written notice
of the extension to the Claimant prior to the termination of the
initial ninety (90) day period. The extension notice shall indicate the
special circumstances requiring the extension of time and the date the
Plan Administrator expects to render a decision. In no event shall such
extension exceed a period of one hundred-eighty (180) days from the
receipt of the claim.
10.4 DENIAL OF CLAIM
If a claim for benefits under this Plan is denied in whole or in part
by the Plan Administrator, a notice written in a manner calculated to
be understood by the Claimant shall be provided by the Plan
Administrator to the Claimant and such notice shall include the
following:
(a) a statement that the claim for the benefits under this Plan
has been denied;
(b) the specific reasons for the denial of the claim for benefits,
citing the specific provisions of the Plan which set forth the
reason or reasons for the denial;
(c) a description of any additional material or information
necessary for the Claimant to perfect the claim for benefits
under this Plan and an explanation of why such material or
information is necessary; and
(d) appropriate information as to the steps to be taken if the
Claimant wishes to appeal such decision.
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<PAGE>
ARTICLE X -
BENEFIT CLAIMS PROCEDURE
--------------------------------------------------------------------------------
10.5 INACTION BY PLAN ADMINISTRATOR
A claim for benefits shall be deemed to be denied if the Plan
Administrator shall not take any action on such claim within ninety
(90) days after receipt of the application for benefits by the Claimant
or, if later, within the extended processing period established by the
Plan Administrator by written notice to the Claimant, in accordance
with Section 10.3.
10.6 RIGHT TO FULL AND FAIR REVIEW
A Claimant who is denied, in whole or in part, a claim for benefits
under the Plan may file an appeal of such denial. Such appeal must be
made in writing by the Claimant or his duly authorized representative
and must be filed with the Committee within sixty (60) days after
receipt of the notification under Section 10.4 or the date his claim is
deemed to be denied under Section 10.5. The Claimant or his
representative may review pertinent documents and submit issues and
comments in writing.
10.7 TIME OF REVIEW
The Committee, independent of the Plan Administrator, shall conduct a
full and fair review of the denial of claim for benefits under this
Plan to a Claimant within sixty (60) days after receipt of the written
request for review described in Section 10.6; provided, however, that
an extension, not to exceed sixty (60) days, may apply in special
circumstances. Written notice shall be furnished to the Claimant prior
to the commencement of the extension period.
10.8 FINAL DECISION
The Claimant shall be notified in writing of the final decision of such
full and fair review by such Committee. Such decision shall be written
in a manner calculated to be understood by the Claimant, shall state
the specific reasons for the decision and shall include specific
references to the pertinent Plan provisions upon which the decision is
based. In no event shall the decision be furnished to the Claimant
later than sixty (60) days after the receipt of a request for review,
unless special circumstances require an extension of time for
processing, in which case a decision shall be rendered within one
hundred-twenty (120) days after receipt of such request for review.
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717 66 THE DIME SAVINGS BANK OF WILLIAMSBURGH
<PAGE>
ARTICLE XI -
AMENDMENT, TERMINATION, AND WITHDRAWAL
--------------------------------------------------------------------------------
ARTICLE XI -
AMENDMENT, TERMINATION, AND WITHDRAWAL
11.1 AMENDMENT AND TERMINATION
The Employer expects to continue the Plan indefinitely, but
specifically reserves the right, in its sole and absolute discretion,
at any time, by appropriate action of the Board, to terminate its Plan
or to amend (subject to the approval of the Trustees), in whole or in
part, any or all of the provisions of the Plan. Subject to the
provisions of Section 13.7, no such amendment or termination shall
permit any part of the Trust Fund to be used for or diverted to
purposes other than for exclusive benefit of Participants,
Beneficiaries or other persons entitled to benefits, and no such
amendment or termination shall reduce the interest of any Participant,
Beneficiary or other person who may be entitled to benefits, without
his consent. In the event of a termination or partial termination of
the Plan, or upon complete discontinuance of contributions under the
Plan, the Accounts of each affected Participant shall become fully
vested and shall be distributable in accordance with the provisions of
Article VII.
If any amendment changes the vesting schedule, any Participant who has
a Period of Service of three (3) or more years may, by filing a written
request with the Employer, elect to have his vested percentage computed
under the vesting schedule in effect prior to the amendment.
The period during which the Participant may elect to have his vested
percentage computed under the prior vesting schedule shall commence
with the date the amendment is adopted and shall end on the latest of:
(a) sixty (60) days after the amendment is adopted;
(b) sixty (60) days after the amendment becomes effective; or
(c) sixty (60) days after the Participant is issued written notice
of the amendment from the Employer.
11.2 WITHDRAWAL FROM THE TRUST FUND
An Employer may withdraw its Plan from the Trust Fund in accordance
with and subject to the provisions of the Agreement.
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717 67 THE DIME SAVINGS BANK OF WILLIAMSBURGH
<PAGE>
ARTICLE XII -
TOP-HEAVY PLAN PROVISIONS
--------------------------------------------------------------------------------
ARTICLE XII -
TOP-HEAVY PLAN PROVISIONS
12.1 INTRODUCTION
Any other provisions of the Plan to the contrary notwithstanding, the
provisions contained in this Article XII shall be effective with
respect to any Plan Year in which this Plan is a Top- Heavy Plan, as
hereinafter defined.
12.2 DEFINITIONS
For purposes of this Article XII, the following words and phrases shall
have the meanings stated herein unless a different meaning is plainly
required by the context.
(a) "Account," for the purpose of determining the Top-Heavy Ratio,
means the sum of (i) a Participant's Accounts as of the most
recent Valuation Date and (ii) an adjustment for contributions
due as of the Determination Date.
(b) "Determination Date" means, with respect to any Plan Year, the
last day of the preceding Plan Year. With respect to the first
Plan Year, "Determination Date" means the last day of such
Plan Year.
(c) "Five-Percent Owner" means, if the Employer is a corporation,
any Employee who owns (or is considered as owning within the
meaning of Section 318 of the Code modified by Section
416(i)(1)(B)(iii) of the Code) more than five percent (5%) of
the value of the outstanding stock of, or more than five
percent (5%) of the total combined voting power of all the
stock of, the Employer. If the Employer is not a corporation,
a Five-Percent Owner means any Employee who owns more than
five percent (5%) of the capital or profits interest in the
Employer.
(d) "Key Employee" means any Employee or former Employee (or,
where applicable, such person's Beneficiary) in the Plan who,
at any time during the Plan Year containing the Determination
Date or any of the preceding four (4) Plan Years, is: (i) an
Officer having Top-Heavy Earnings from the Employer of greater
than fifty percent (50%) of the dollar limitation in effect
under Section 415(b)(l)(A) of the Code; (ii) one of the ten
(10) Employees having Top-Heavy Earnings from the Employer of
more than the dollar limitation in effect under Section
415(c)(l)(A) of the Code and owning (or considered as owning
within the meaning of Section 318 of the Code modified by
Section 416(i)(1)(B)(iii) of the Code) both more than a
one-half of one percent (1/2%) interest in value and the
largest interests in the value of the Employer; (iii) a
Five-Percent Owner of the Employer; or (iv) a One-Percent
Owner of the Employer having Top-Heavy Earnings from the
Employer greater than one hundred fifty thousand dollars
($150,000). For purposes of
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717 68 THE DIME SAVINGS BANK OF WILLIAMSBURGH
<PAGE>
ARTICLE XII -
TOP-HEAVY PLAN PROVISIONS
--------------------------------------------------------------------------------
computing the Top-Heavy Earnings in subsections (d)(i),
(d)(ii) and (d)(iv) above, the aggregation rules of Sections
414(b), (c), (m) and (o) of the Code shall apply.
(e) "Non-Key Employee" means an Employee or former Employee (or,
where applicable, such person's Beneficiary) who is not a Key
Employee.
(f) "Officer" means an Employee who is an administrative executive
in the regular and continued service of his Employer; any
Employee who has the title but not the authority of an officer
shall not be considered an Officer for purposes of this
Article XII. Similarly, an Employee who does not have the
title of an officer but has the authority of an officer shall
be considered an Officer. For purposes of this Article XII,
the maximum number of Officers that must be taken into
consideration shall be determined as follows: (i) three (3),
if the number of Employees is less than thirty (30); (ii) ten
percent (10%) of the number of Employees, if the number of
Employees is between thirty (30) and five hundred (500); or
(iii) fifty (50), if the number of Employees is greater than
five hundred (500). In determining such limit, the term
"Employer" shall be determined in accordance with Sections
414(b), (c), (m) and (o) of the Code and "Employee" shall
include Leased Employees and exclude employees described in
Section 414(q)(5) of the Code.
(g) "One-Percent Owner" means, if the Employer is a corporation,
any Employee who owns (or is considered as owning within the
meaning of Section 318 of the Code modified by Section
416(i)(1)(B)(iii) of the Code) more than one percent (1%) of
the value of the outstanding stock of, or more than one
percent (1%) of the total combined voting power of all the
stock of, the Employer. If the Employer is not a corporation,
a One-Percent Owner means any Employee who owns more than one
percent (1%) of the capital or profits interest in the
Employer.
(h) A "Permissive Aggregation Group" consists of one or more plans
of the Employer that are part of a Required Aggregation Group,
plus one or more plans that are not part of a Required
Aggregation Group but that satisfy the requirements of
Sections 401(a)(4) and 410 of the Code when considered
together with the Required Aggregation Group. If two (2) or
more defined benefit plans are included in the aggregation
group, the same actuarial assumptions must be used with
respect to all such plans in determining the Present Value of
Accrued Benefits.
(i) "Present Value of Accrued Benefits" shall be determined in
accordance with the actuarial assumptions set forth in the
defined benefit plan and the assumed benefit commencement date
shall be determined taking into account any nonproportional
subsidy. The accrued benefit of any Employee shall be
determined under the method used for accrual purposes for all
plans of the Employer, or if no such method is described, as
if such benefit accrued not more rapidly than the slowest
accrual rate permitted under Section 411(b)(1)(C) of the Code.
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717 69 THE DIME SAVINGS BANK OF WILLIAMSBURGH
<PAGE>
ARTICLE XII -
TOP-HEAVY PLAN PROVISIONS
--------------------------------------------------------------------------------
(j) "Related Rollover Contributions" means rollover contributions
received by the Plan that are not initiated by the Employee
nor made from another plan maintained by the Employer.
(k) A "Required Aggregation Group" consists of each plan of the
Employer (whether or not terminated) in which a Key Employee
participates or participated at any time during the Plan Year
containing the Determination Date or any of the four (4)
preceding Plan Years and each other plan of the Employer
(whether or not terminated) which enables any plan in which a
Key Employee participates or participated to meet the
requirements of Section 401(a)(4) or 410 of the Code. If two
(2) or more defined benefit plans are included in the
aggregation group, the same actuarial assumptions must be used
with respect to all such plans in determining the Present
Value of Accrued Benefits.
(l) A "Super Top-Heavy Plan" means a Plan in which, for any Plan
Year:
(i) the Top-Heavy Ratio (as defined under subsection (o))
for the Plan exceeds ninety percent (90%) and the
Plan is not part of any Required Aggregation Group
(as defined under subsection (k)) or Permissive
Aggregation Group (as defined under subsection (h));
or
(ii) the Plan is a part of a Required Aggregation Group
(but is not part of a Permissive Aggregation Group)
and the Top-Heavy Ratio for the group of plans
exceeds ninety percent (90%); or
(iii) the Plan is a part of a Required Aggregation Group
and part of a Permissive Aggregation Group and the
Top-Heavy Ratio for the Permissive Aggregation Group
exceeds ninety percent (90%).
(m) "Top-Heavy Earnings" means, for any year, compensation as
defined under Section 414(q)(4) of the Code, up to a maximum
of one hundred sixty thousand dollars ($160,000),adjusted in
multiples of ten thousand dollars ($10,000) for increases in
the cost-of-living as prescribed by the Secretary of the
Treasury under Section 401(a)(17)(B) of the Code.
(n) A "Top-Heavy Plan" means a Plan in which, for any Plan Year:
(i) the Top-Heavy Ratio (as defined under subsection (o))
for the Plan exceeds sixty percent (60%) and the Plan
is not part of any Required Aggregation Group (as
defined under subsection (k)) or Permissive
Aggregation Group (as defined under subsection (h));
or
(ii) the Plan is a part of a Required Aggregation Group
but is not part of a Permissive Aggregation Group and
the Top-Heavy Ratio for the group of plans exceeds
sixty percent (60%); or
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717 70 THE DIME SAVINGS BANK OF WILLIAMSBURGH
<PAGE>
ARTICLE XII -
TOP-HEAVY PLAN PROVISIONS
--------------------------------------------------------------------------------
(iii) the Plan is a part of a Required Aggregation Group
and part of a Permissive Aggregation Group and the
Top-Heavy Ratio for the Permissive Aggregation Group
exceeds sixty percent (60%).
(o) "Top-Heavy Ratio" means:
(i) if the Employer maintains one or more qualified
defined contribution plans and the Employer has not
maintained any qualified defined benefit plans which
during the five (5) year period ending on the
Determination Date have or have had accrued benefits,
the Top-Heavy Ratio for the Plan alone or for the
Required Aggregation Group or Permissive Aggregation
Group, as appropriate, is a fraction, the numerator
of which is the sum of the Account balances under the
aggregated defined contribution plan or plans for all
Key Employees as of the Determination Date, including
any part of any Account balance distributed in the
five (5) year period ending on the Determination Date
but excluding distributions attributable to Related
Rollover Contributions, if any, and the denominator
of which is the sum of all Account balances under the
aggregated qualified defined contribution plan or
plans for all Participants as of the Determination
Date, including any part of any Account balance
distributed in the five (5) year period ending on the
Determination Date but excluding distributions
attributable to Related Rollover Contributions, if
any, determined in accordance with Section 416 of the
Code and the regulations thereunder.
(ii) if the Employer maintains one or more qualified
defined contribution plans and the Employer maintains
or has maintained one or more qualified defined
benefit plans which during the five (5) year period
ending on the Determination Date have or have had any
accrued benefits, the Top-Heavy Ratio for any
Required Aggregation Group or Permissive Aggregation
Group, as appropriate, is a fraction, the numerator
of which is the sum of the Account balances under the
aggregated qualified defined contribution plan or
plans for all Key Employees, determined in accordance
with (i) above, and the sum of the Present Value of
Accrued Benefits under the aggregated qualified
defined benefit plan or plans for all Key Employees
as of the Determination Date, and the denominator of
which is the sum of the Account balances under the
aggregated qualified defined contribution plan or
plans determined in accordance with (i) above, for
all Participants and the sum of the Present Value of
Accrued Benefits under the aggregated qualified
defined benefit plan or plans for all Participants as
of the Determination Date, all determined in
accordance with Section 416 of the Code and the
regulations thereunder. The accrued benefits under a
qualified defined benefit plan in both the numerator
and denominator of the Top-Heavy Ratio are adjusted
for any distribution of an accrued benefit made in
the five (5) year period ending on the Determination
Date.
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(iii) For purposes of (i) and (ii) above, the value of
Account balances and the Present Value of Accrued
Benefits will be determined as of the most recent
Valuation Date that falls within the twelve (12)
month period ending on the Determination Date, except
as provided in Section 416 of the Code and the
regulations thereunder for the first and second Plan
Years of a qualified defined benefit plan. The
Account balances and Present Value of Accrued
Benefits of a Participant (A) who is a Non-Key
Employee but who was a Key Employee in a prior year,
or (B) who has not been credited with at least an
Hour of Service with any employer maintaining the
Plan at any time during the five (5) year period
ending on the Determination Date will be disregarded.
The calculation of the Top-Heavy Ratio, and the
extent to which distributions, rollovers, and
transfers are taken into account will be made in
accordance with Section 416 of the Code and the
regulations thereunder. When aggregating plans, the
value of Account balances and the Present Value of
Accrued Benefits will be calculated with reference to
the Determination Date that falls within the same
calendar year.
(p) "Valuation Date", for the purpose of computing the Top-Heavy
Ratio (as defined under subsection (o)) under subsections (l)
and (n) means the last date of the Plan Year.
For purposes of subsections (h), (j) and (k), the rules of Sections
414(b), (c), (m) and (o) of the Code shall be applied in determining
the meaning of the term "Employer".
12.3 MINIMUM CONTRIBUTIONS
If the Plan becomes a Top-Heavy Plan, then any provision of Article III
to the contrary notwithstanding, the following provisions shall apply:
(a) Subject to subsection (b), the Employer shall contribute on
behalf of each Participant who is employed by the Employer
on the last day of the Plan Year and who is a Non-Key
Employee an amount with respect to each Top-Heavy year
which, when added to the amount of Bank Contributions,
Special Contributions and Forfeitures made on behalf of such
Participant, shall not be less than the lesser of: (i) three
percent (3%) of such Participant's Section 415 Compensation
(as defined under Section 3.11(a)(vii) of the Plan and
modified by Section 401(a)(17) of the Code), or (ii) if the
Employer has no defined benefit plan which is designated to
satisfy Section 416 of the Code, the largest of the total of
each Key Employee's Bank Contributions, Before-Tax
Contributions, Special Contributions and Forfeitures, as a
percentage of each such Key Employees' Top-Heavy Earnings;
provided, however, that in no event shall any contributions
be made under this Section 12.3 in an amount which will
cause the percentage of contributions made by the Employer
on behalf of any Participant who is a Non-Key Employee to
exceed the percentage at which contributions are made by the
Employer on behalf of the Key Employee for whom the
percentage of the total of
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Bank Contributions, Before-Tax Contributions, Special
Contributions and Forfeitures, is highest in such Top-Heavy
year. Any such contribution shall be allocated to the Bank
Contribution Account of each such Participant and, for
purposes of vesting and withdrawals only, shall be deemed to
be a Bank Contribution. Any such contribution shall not be
deemed to be a Bank Contribution for any other purpose.
(b) Notwithstanding the foregoing, this Section 12.3 shall not
apply to any Participant to the extent that such Participant
is covered under any other plan or plans of the Employer
(determined in accordance with Sections 414(b), (c), (m) and
(o) of the Code) and such other plan provides that the minimum
allocation or benefit requirement will be met by such other
plan should this Plan become Top-Heavy. If such other plan
does not provide for a minimum allocation or benefit
requirement, a minimum of five percent (5%) of a Participant's
Section 415 Compensation, as defined in Section 12.3(a) above,
shall be provided under this Plan.
(c) For purposes of this Article XII, the following shall be
considered as a contribution made by the Employer:
(i) Qualified Nonelective Contributions;
(ii) Bank Contributions made by the Employer on behalf of
Key Employees; and
(iii) Before-Tax Contributions made by the Employer on
behalf of Key Employees.
(d) Subject to the provisions of subsection (b), all Non-Key
Employee Participants who are employed by the Employer on the
last day of the Plan Year shall receive the defined
contribution minimum provided under subsection (a). A Non-Key
Employee may not fail to accrue a defined contribution minimum
merely because such Employee was excluded from participation
or failed to accrue a benefit because (i) his Compensation is
less than a stated amount, or (ii) he failed to make
Before-Tax Contributions.
12.4 IMPACT ON SECTION 415 MAXIMUM BENEFITS
For any Plan Year in which the Plan is a Super Top-Heavy Plan, Sections
3.11(a)(iv) and (v) shall be read by substituting the number 1.0 for
the number 1.25 wherever it appears therein. For any Plan Year in which
the Plan is a Top-Heavy Plan but not a Super Top-Heavy Plan, the Plan
shall be treated as a Super Top-Heavy Plan under this Section 12.4,
unless each Non-Key Employee who is entitled to a minimum contribution
or benefit receives an additional minimum contribution or benefit. If
the Non-Key Employee is entitled to a minimum contribution under
Section 12.3(a), the Plan shall not be treated as a Super Top-Heavy
Plan under this Section 12.4 if the minimum contribution satisfies
Section 12.3(a) when four percent (4%) is substituted for three percent
(3%) in Section
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12.3(a)(i). If the Non-Key Employee is entitled to a minimum
contribution under Section 12.3(b), the Plan shall not be treated as a
Super Top-Heavy Plan under this Section 12.4, if the minimum
contribution satisfies Section 12.3(b) when seven and one-half percent
(7-1/2%) is substituted for five percent (5%).
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ARTICLE XIII -
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ARTICLE XIII -
MISCELLANEOUS PROVISIONS
13.1 NO RIGHT TO CONTINUED EMPLOYMENT
Neither the establishment of the Plan, nor any provisions of the Plan
or of the Agreement establishing the Trust nor any action of any Named
Fiduciary, Plan Administrator or the Employer, shall be held or
construed to confer upon any Employee any right to a continuation of
his employment by the Employer. The Employer reserves the right to
dismiss any Employee or otherwise deal with any Employee to the same
extent and in the same manner that it would if the Plan had not been
adopted.
13.2 MERGER, CONSOLIDATION, OR TRANSFER
The Plan shall not be merged or consolidated with, nor transfer its
assets or liabilities to, any other plan unless each Employee,
Participant, Beneficiary and other person entitled to benefits under
the Plan, would (if such other plan then terminated) receive a benefit
immediately after the merger, consolidation or transfer which is equal
to or greater than the benefit he would have been entitled to receive
if the Plan had terminated immediately before the merger, consolidation
or transfer.
13.3 NONALIENATION OF BENEFITS
Except, effective August 5, 1997, to the extent of any offset of a
Participant's benefits as a result of any judgment, order, decree or
settlement agreement provided in Section 401(a)(13)(C) of the Code,
benefits payable under the Plan shall not be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, charge, garnishment, execution, or levy of any kind,
either voluntary or involuntary and any attempt to so anticipate,
alienate, sell, transfer, assign, pledge, encumber, charge, garnish,
execute, levy or otherwise affect any right to benefits payable
hereunder, shall be void. Notwithstanding the foregoing, the Plan shall
permit the payment of benefits in accordance with a qualified domestic
relations order as defined under Section 414(p) of the Code.
13.4 MISSING PAYEE
Any other provision in the Plan or Agreement to the contrary
notwithstanding, if the Trustees are unable to make payment to any
Employee, Participant, Beneficiary or other person to whom a payment is
due ("Payee") under the Plan because the identity or whereabouts of
such Payee cannot be ascertained after reasonable efforts have been
made to identify or locate such person (including mailing a certified
notice of the payment due to the last known address of such Payee as
shown on the records of the Employer), such payment and all subsequent
payments otherwise due to such Payee shall be forfeited twenty-four
(24) months after the date such payment first became due. However, such
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payment and any subsequent payments shall be reinstated retroactively,
without interest, no later than sixty (60) days after the date on which
the Payee is identified and located.
13.5 AFFILIATED EMPLOYERS
All employees of all Affiliated Employers shall, for purposes of the
limitations in Article XII and for measuring Hours of Service and
Periods of Service, be treated as employed by a single employer. No
employee of an Affiliated Employer shall become a Participant of this
Plan unless employed by the Employer or an Affiliated Employer which
has adopted the Plan.
13.6 SUCCESSOR EMPLOYER
In the event of the dissolution, merger, consolidation or
reorganization of the Employer, the successor organization may, upon
satisfying the provisions of the Agreement and the Plan, adopt and
continue this Plan. Upon adoption, the successor organization shall be
deemed the Employer with all its powers, duties and responsibilities
and shall assume all Plan liabilities.
13.7 RETURN OF EMPLOYER CONTRIBUTIONS
Any other provision of the Plan or Agreement to the contrary
notwithstanding, upon the Employer's request and with the consent of
the Trustees, a contribution to the Plan by the Employer which was (a)
made by mistake of fact, or (b) conditioned upon initial qualification
of the Plan with the Internal Revenue Service, or (c) conditioned upon
the deductibility by the Employer of such contributions under Section
404 of the Code, shall be returned to the Employer within one (1) year
after: (i) the payment of a contribution made by mistake of fact, or
(ii) the denial of such qualification or (iii) the disallowance of the
deduction (to the extent disallowed), as the case may be.
Any such return shall not exceed the lesser of (A) the amount of such
contributions (or, if applicable, the amount of such contribution with
respect to which a deduction is denied or disallowed) or (B) the amount
of such contributions net of a proportionate share of losses incurred
by the Plan during the period commencing on the Valuation Date as of
which such contributions are made and ending on the Valuation Date as
of which such contributions are returned. All such refunds shall be
limited in amount, circumstances and timing to the provisions of
Section 403(c) of ERISA.
13.8 ADOPTION OF PLAN BY AFFILIATED EMPLOYER
An Affiliated Employer of the Sponsoring Employer may adopt the Plan
and Agreement upon satisfying the requirements set forth in the
Agreement. Upon such adoption, such Affiliated Employer shall become a
Participating Affiliate in the Plan, which Plan shall be deemed a
"single plan" within the meaning of Income Tax Regulations Section
1.414(l)-1(b)(1).
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For purposes of Article IX, Employer shall mean only the Sponsoring
Employer and each Participating Affiliate shall be deemed to accept and
designate the Named Fiduciaries, Committee, Plan Administrator, Trustee
Administrator and voter of Units designated by the Sponsoring Employer
to act on its behalf in accordance with the provisions of the Plan and
Agreement.
The Sponsoring Employer shall solely exercise for and on behalf of such
Participating Affiliate the powers reserved to the Employer under
Articles IX and XI. However, such Participating Affiliate may at
anytime terminate its future participation in the Plan for the purposes
and in the manner set forth in the Agreement.
13.9 CONSTRUCTION OF LANGUAGE
Wherever appropriate in the Plan, words used in the singular may be
read in the plural; words used in the plural may be read in the
singular; and words importing the masculine gender shall be deemed
equally to refer to the female gender. Any reference to a section
number shall refer to a section of this Plan, unless otherwise
indicated.
13.10 HEADINGS
The headings of articles and sections are included solely for
convenience of reference, and if there be any conflict between such
headings and the text of the Plan, the text shall control.
13.11 GOVERNING LAW
The Plan shall be governed by and construed and enforced in accordance
with the laws of the State of New York, except to the extent that such
laws are preempted by the Federal laws of the United States of America.
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