<PAGE> 1
As filed with the Securities and Exchange Commission
on October 29, 1999 Registration No. ______
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
--------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
--------
DIME BANCORP, INC.
------------------
(Exact Name of Registrant as Specified in Its Charter)
<TABLE>
<S> <C>
Delaware 11-3197414
-------- ----------
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
589 Fifth Avenue, New York, New York 10017
- ------------------------------------ -----
(Address of Principal Executive Offices) (Zip Code)
</TABLE>
NORTH AMERICAN MORTGAGE COMPANY
RETIREMENT AND 401(k) SAVINGS PLAN
----------------------------------
(Full Title of the Plan)
JAMES E. KELLY, ESQ.
General Counsel
589 Fifth Avenue, New York, New York 10017
------------------------------------------
(Name and Address of Agent for Service)
(212) 326-6170
--------------
(Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------
Title of securities to be Amount to be registered Proposed maximum Proposed maximum Amount of registration
registered offering price per aggregate offering price fee
share*
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
common stock, par 250,000 $16.3125 $4,078,125 $1,133.72
value $.01 per share
- -----------------------------------------------------------------------------------------------------------------------------
</TABLE>
- ----------------------------
* In accordance with Rule 457(c) and (h), the Maximum Aggregate
Offering Price and Registration Fee have been computed as follows: (a) the
price per share of the Common Stock of Dime Bancorp, Inc. (the "Company")
has been based on the average of the high and low prices for the Common
Stock of the Company as reported on the New York Stock Exchange on October
26, 1999, and (b) using such price per share, the aggregate amount of the
Offering Price was then calculated on the basis of the aggregate amount of
shares of Common Stock of the Company issuable in connection with the North
American Mortgage Company Retirement and 401(k) Savings Plan.
<PAGE> 2
NORTH AMERICAN MORTGAGE COMPANY
RETIREMENT AND 401(k) SAVINGS PLAN
Cross-Reference Sheet
Location in Prospectus of Items on Form S-8
Pursuant to Rule 404 of the Securities Act of 1933, as Amended
Part I
Item No. Location in Prospectus
- -------- ----------------------
Item 1. (a)
(1) Cover page; The Plan
(2) Cover page; The Plan
(3) The Plan
(4) The Plan
(b)
(1) Cover page; The Plan
(2) *
(c) Cover page; The Plan
(d)
(1) The Plan
(2) The Plan
(3) The Plan
(4) *
(5) The Plan
(6) The Plan
(e) Cover page; The Plan
(f) The Plan
(g) The Plan
(h)
(1) The Plan
(2) The Plan
(3) *
(i) The Plan
(j)
(1) The Plan
(2) The Plan
(3) *
Item 2. The Plan; Incorporation of Certain Documents by Reference;
Available Information
<PAGE> 3
<TABLE>
<CAPTION>
Part II Page
Item No. No.
- -------- ----
<S> <C> <C>
Item 3. (a) Incorporation of Documents by Reference 1
(b) Incorporation of Documents by Reference 1
(c) Incorporation of Documents by Reference 1
Item 4. *
Item 5. Interests of Named Experts and Counsel 2
Item 6. Indemnification of Directors and Officers 3
Item 7. *
Item 8. Exhibits
(a) Exhibits 5
(b) *
Item 9. Undertakings 6
</TABLE>
- -----------------------------------
* Not applicable
ii
<PAGE> 4
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION
This Registration Statement relates to the registration of 250,000 shares
of common stock, par value $.01 per share (the "Common Stock"), of Dime Bancorp,
Inc. (the "Company"), to be offered or sold pursuant to the North American
Mortgage Company Retirement and 401(k) Savings Plan (the "Plan").
The documents containing the information about the Plan specified in Part
I of Form S-8 will be sent or given to eligible and/or participating employees
of the Company as specified by Rule 428(b)(1) of Regulation C under the
Securities Act of 1933, as amended (the "Securities Act"), and such documents
taken together with the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II of Form S-8 shall constitute a
prospectus that meets the requirements of Section 10(a) of the Securities Act.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The Company shall provide a written statement to participants in the Plan
advising them of the availability, without charge, upon written or oral request,
of the documents incorporated by reference in Item 3 of Part II of this
Registration Statement, the documents which are incorporated by reference into
the Section 10(a) Prospectus, and the documents required to be delivered to them
pursuant to Rule 428(b) of Regulation C under the Securities Act. The address,
title of the individual or department, and telephone number to which the request
is to be directed shall be provided to participants.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed with the Securities and Exchange
Commission (the "Commission") are incorporated by reference:
(i) The Company's Registration Statement on Form 8-A as filed with
the Commission on January 10, 1995, which includes a description of the Common
Stock;
(ii) The Company's Annual Report on Form 10-K for the year ended
December 31, 1998;
<PAGE> 5
2
(iii) The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1999 and June 30, 1999;
(iv) Current Reports on Form 8-K dated January 21, 1999, January 28,
1999, April 15, 1999, April 26, 1999, May 27, 1999, September 15, 1999,
September 20, 1999, September 24, 1999 and October 20, 1999, and Amendment No. 1
to Current Report on Form 8-K/A dated April 19, 1999; and
(v) The description of the Stockholder Protection Rights Agreement,
dated as of October 20, 1995, between Dime and First National Bank of Boston, as
rights agent, contained in Dime's Registration Statement on Form 8-A, as filed
with the SEC on November 3, 1995.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14, and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), prior to the filing of any post-effective amendment which
indicates that all stock offered has been sold or which deregisters all stock
then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of their filing.
Any statement contained in a document incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Ira T. Wender is a director of The Dime Savings Bank of New York, FSB
("Dime Savings Bank") and the Company. Mr. Wender is the sole owner of Ira T.
Wender, P.C., which, commencing January 1, 1994, became Of Counsel to Patterson,
Belknap, Webb & Tyler LLP. During that period, the firm represented Dime Savings
Bank and the Company in certain legal matters. Fees paid to the firm in
connection with such representation for the years 1996, 1997 and 1998 were
$1,164,875, $2,036,957 and
<PAGE> 6
3
$961,252, respectively. The Company has retained the firm to perform legal
services during 1999. The firm will give an opinion on the validity of the
securities being registered.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Amended and Restated Certificate of Incorporation of the Company (the
"Certificate") contains provisions expressly permitted under Delaware law that
limit certain types of causes of action that can be maintained by a corporation
(or by stockholders on behalf of the corporation) against its directors.
Accordingly, in any action by the Company or its stockholders against the
directors of the Company, the directors will not be personally liable to the
Company or its stockholders for monetary damages for breach of fiduciary duty as
directors, except for (a) any breach of the directors' duty of loyalty to the
Company or its stockholders, (b) acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (c) improper
dividends or distributions or (d) transactions involving improper personal
benefit.
The Certificate provides indemnification rights to any person who is made
or threatened to be made a party to any action (other than an action by or in
the right of the Company) by reason of the fact that such person has served as a
director or officer of the Company (or of any other entity, including Dime
Savings Bank, at the request of the Company) with respect to costs, expenses,
judgments, fines and amounts paid in settlement. Subject to applicable banking
laws and regulations, these indemnification provisions apply if such person
acted in good faith and in a manner he or she reasonably believed to be in (or
not opposed to) the best interests of the Company and, with respect to a
criminal action, if such person had no reasonable cause to believe that his or
her conduct was unlawful. The persons described in the preceding sentence are
entitled to indemnification rights in an action by or in the right of the
Company with respect to costs, expenses and amounts paid in settlement, subject
to the same standards, except where there is an adjudication of liability (in
which case indemnification is permitted only upon a court determination that
indemnification is, in view of all the circumstances, fair and reasonable). The
Certificate also provides for the Company to advance expenses of litigation
described in this paragraph on an on-going basis.
Under the Certificate, indemnification of the costs and expenses of
defending any action is required to be made to any director or officer who is
successful (on the merits or otherwise) in defending the
<PAGE> 7
4
action. Furthermore, indemnification also is required to be made with respect to
all amounts referred to in the preceding paragraph, unless a determination is
made by a majority of disinterested directors (or if the disinterested directors
so requested, or if a quorum of disinterested directors does not exist, by
independent counsel or by the stockholders) that indemnification is not proper
because the director or officer has not met the applicable standard of conduct.
The Certificate also permits (but does not require) the Company to
indemnify and advance expenses to its non-officer employees and agents in
connection with any civil, criminal, administrative or investigative actions,
suits or proceedings.
The Certificate also provides that if the Delaware General Corporation
Law is amended to expand the permitted indemnification of directors and
officers, then the Company will indemnify directors and officers to the fullest
extent permitted by such amendment.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers, employees and agents of the Company
pursuant to Delaware law, or otherwise, the Company has been advised that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the Company of expenses incurred or paid by a
director, officer, employee or agent of the Company in the successful defense of
any action, suit or proceeding) is asserted by such director, officer, employee
or agent in connection with the securities being registered, the Company will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question of whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
Pursuant to the terms of the Agreement and Plan of Merger, dated as of
July 6, 1994, by and between the Company and Anchor Bancorp, Inc. ("Anchor"), as
amended, the Company will also indemnify each present and former director and
officer of Anchor, the Company and their respective subsidiaries against certain
actions. In addition, pursuant to the terms of the Agreement and Plan of
Combination, dated as of June 22, 1997, by and among North American Mortgage
Company ("North
<PAGE> 8
5
American"), the Company, The Dime Savings Bank of New York, FSB, and 47th Street
Property Corporation, as amended and restated as of July 31, 1997, the Company
will also indemnify each present and former director and officer of North
American, the Company and their respective subsidiaries against certain actions.
Finally, pursuant to the terms of the Agreement and Plan of Merger, dated as of
December 15, 1998, between Lakeview Financial Corp. ("Lakeview") and the
Company, the Company will also indemnify each present and former director and
officer of Lakeview and its subsidiaries against certain actions.
The Company will not be permitted to prepay (which would include the
direct or indirect transfer of any funds or assets and any segregation thereof
for the purpose of making, or pursuant to any agreement to make, any payment
thereafter) any legal expenses or amounts of, or costs incurred in connection
with, any settlement of, or judgment or penalty with respect to, any claim,
proceeding or action, if made in contemplation of, or after, any insolvency of
the Company or Dime Savings Bank or with a view to, or having the result of,
preventing the proper application of the assets of Dime Savings Bank to
creditors or preferring one creditor over another. Further, the Federal Deposit
Insurance Corporation (the "FDIC") is authorized by statute to prohibit or
limit, by regulation or order, both the Company and Dime Savings Bank from
indemnifying officers, directors and employees for liability or legal expense
with regard to any administrative proceeding or civil action by the appropriate
banking agency which results in a final order pursuant to which such person is
assessed a civil money penalty, is removed or prohibited from participating in
the conduct of the affairs of the institution or is required to cease and desist
or take affirmative action ordered by the agency. The FDIC has issued
regulations that implement this statutory authority.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS
4.1 Copy of the North American Mortgage Company Retirement and 401(k)
Savings Plan, as amended through October 29, 1999
5.1 Opinion of Counsel regarding the Legality of the Common Stock
Being Registered by the Company
23.1 Consent of Counsel (included in Opinion of Counsel)
23.2 Consent of KPMG LLP
<PAGE> 9
6
ITEM 9. UNDERTAKINGS.
(a) Rule 415 Offering. The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement;
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the Registration Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the Registration
Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
Registration Statement is on Form S-8, and the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) Filings Incorporating Subsequent Exchange Act Documents by
Reference. The Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange
<PAGE> 10
7
Act), that is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Incorporated Annual and Quarterly Reports. The Registrant hereby
undertakes to deliver or cause to be delivered with the Prospectus, to each
person to whom the Prospectus is sent or given, the latest annual report to
security holders that is incorporated by reference in the Prospectus and
furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3
under the Exchange Act; and, where interim financial information required to be
presented by Article 3 of Regulation S-X is not set forth in the Prospectus, to
deliver, or cause to be delivered to each person to whom the Prospectus is sent
or given, the latest quarterly report that is specifically incorporated by
reference in the Prospectus to provide such interim financial information.
(d) Indemnification. Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
<PAGE> 11
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New York, State of New York, on this 28th day of
October, 1999.
DIME BANCORP, INC.
(Registrant)
By: /s/ Lawrence J. Toal
------------------------------------------
Lawrence J. Toal
Chief Executive Officer, President
and Chief Operating Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the following
capacities as of October 28, 1999. In addition, the undersigned hereby
constitute and appoint Lawrence J. Toal and James E. Kelly, or either of them
acting alone, each with the full power of substitution and resubstitution, as
his or her respective true and lawful attorney-in-fact and agent, for him or her
and in his or her name, place and stead, in any and all capacities, to execute a
Registration Statement on Form S-8 relating to the North American Mortgage
Company Retirement and 401(k) Savings Plan (the "Registration Statement"), and
any and all amendments to such Registration Statement and to file the same, with
all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting to such attorney-in-fact and agent
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection with such Registration
Statement, as fully to all intents and purposes as he or she might or could do
in person, and do hereby ratify and confirm all that such attorney-in-fact and
agent, or their respective substitutes or resubstitutes, may lawfully do or
cause to be done by virtue hereof.
<TABLE>
<CAPTION>
Signature Title
<S> <C>
/s/ Lawrence J. Toal Chief Executive Officer, President, Chief
- --------------------------------------------------------------- Operating Officer and Chairman of the Board
Lawrence J. Toal (Principal Executive Officer)
/s/ Derrick D. Cephas A Director
- ---------------------------------------------------------------
Derrick D. Cephas
/s/ Frederick C. Chen A Director
- ---------------------------------------------------------------
Frederick C. Chen
A Director
- ---------------------------------------------------------------
J. Barclay Collins II
/s/ Richard W. Dalrymple A Director
- ---------------------------------------------------------------
Richard W. Dalrymple
/s/ James F. Fulton A Director
- ---------------------------------------------------------------
James F. Fulton
</TABLE>
<PAGE> 12
<TABLE>
<S> <C>
/s/ FRED B. KOONS A Director
- ---------------------------------------------------------------
Fred B. Koons
/s/ VIRGINIA M. KOPP A Director
- ---------------------------------------------------------------
Virginia M. Kopp
/s/ JAMES M. LARGE, JR. A Director
- ---------------------------------------------------------------
James M. Large, Jr.
/s/ JOHN MORNING A Director
- ---------------------------------------------------------------
John Morning
/s/ MARGARET OSMER-MCQUADE A Director
- ---------------------------------------------------------------
Margaret Osmer-McQuade
/s/ SALLY HERNANDEZ-PINERO A Director
- ---------------------------------------------------------------
Sally Hernandez-Pinero
/s/ DR. PAUL A. QUALBEN A Director
- ---------------------------------------------------------------
Dr. Paul A. Qualben
/s/ EUGENE G. SCHULZ, JR. A Director
- ---------------------------------------------------------------
Eugene G. Schulz, Jr.
/s/ HOWARD SMITH A Director
- ---------------------------------------------------------------
Howard Smith
/s/ DR. NORMAN R. SMITH A Director
- ---------------------------------------------------------------
Dr. Norman R. Smith
/s/ IRA T. WENDER A Director
- ---------------------------------------------------------------
Ira T. Wender
/s/ ANTHONY R.BURRIESCI Chief Financial Officer (Principal Financial Officer)
- ---------------------------------------------------------------
Anthony R. Burriesci
/s/ JOHN F. KENNEDY Controller (Principal Accounting Officer)
- ---------------------------------------------------------------
John F. Kennedy
</TABLE>
<PAGE> 13
EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequentially
Numbered
Exhibit No. Page
- ----------- ------------
<S> <C> <C>
4.1 Copy of the North American Mortgage Company
Retirement and 401(k) Savings Plan, as amended
through October 29, 1999....................................................................... 11
5.1 Opinion of Counsel regarding the Legality of the Common
Stock Being Registered by the Company.......................................................... 83
23.1 Consent of Counsel (included in Exhibit 5.1)................................................... 83
23.2 Consent of KPMG LLP............................................................................ 85
</TABLE>
<PAGE> 1
EXHIBIT 4.1
NORTH AMERICAN MORTGAGE COMPANY
RETIREMENT AND 401(k) SAVINGS PLAN
Amended and Restated
Effective July 1, 1999,
including amendments effective
through September 1, 1999
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
ARTICLE I
<S> <C>
ESTABLISHMENT AND PURPOSE........................................................................1
</TABLE>
<TABLE>
<CAPTION>
ARTICLE II
<S> <C>
DEFINITIONS......................................................................................3
</TABLE>
<TABLE>
<S> <C> <C>
2.1 Accounts..............................................................................3
2.2 Bank..................................................................................3
2.3 Bank Stock............................................................................3
2.4 Basic Compensation....................................................................3
2.5 Beneficiary...........................................................................3
2.6 Board of Directors....................................................................3
2.7 Break in Service......................................................................4
2.8 Closing Date..........................................................................4
2.9 Code..................................................................................4
2.10 Combination Agreement.................................................................4
2.11 Committee.............................................................................4
2.12 Consolidation Date....................................................................4
2.13 Company...............................................................................4
2.14 Controlled Group......................................................................4
2.15 Dime Board............................................................................4
2.16 Disability............................................................................5
2.17 Eligible Employee.....................................................................5
2.18 Eligible Spouse.......................................................................5
2.19 Employee..............................................................................5
2.20 Employer..............................................................................5
2.21 Employment Date.......................................................................5
2.22 Entry Date............................................................................5
2.23 ERISA.................................................................................6
2.24 Five Percent Owner....................................................................6
2.25 Former T&N Employee...................................................................6
2.26 Grandfathered Bank Employee...........................................................6
2.27 Hour of Service.......................................................................6
2.28 Insider...............................................................................7
2.29 Investment Fund.......................................................................7
2.30 Investment Manager....................................................................7
2.31 Matching Contribution.................................................................7
2.32 Money Purchase Contribution...........................................................7
2.33 Mortgage Bank Employee................................................................7
2.34 Normal Retirement Age.................................................................7
2.35 Participant...........................................................................8
2.36 Plan..................................................................................8
2.37 Plan Administrator....................................................................8
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C>
2.38 Plan Year.............................................................................8
2.39 Profit-Sharing Contribution...........................................................8
2.40 Qualified Domestic Relations Order....................................................8
2.41 Reemployment Date.....................................................................8
2.42 Restatement Effective Date............................................................8
2.43 Rollover Contribution.................................................................8
2.44 Salary................................................................................8
2.45 Salary Deferral Contribution..........................................................8
2.46 SEC...................................................................................8
2.47 Section 16 Rules......................................................................8
2.48 Severance from Service................................................................9
2.49 Share.................................................................................9
2.50 Supplemental Contribution.............................................................9
2.51 Three Months of Participation Service.................................................9
2.52 T&N...................................................................................9
2.53 T&N Plan..............................................................................9
2.54 Trust Agreement.......................................................................9
2.55 Trust Fund............................................................................9
2.56 Trustee...............................................................................9
2.57 Valuation Date........................................................................9
2.58 Valuation Period......................................................................9
2.59 Vesting Percentage....................................................................9
2.60 Vesting Service.......................................................................9
2.61 Year of Participation Service........................................................10
</TABLE>
<TABLE>
<CAPTION>
ARTICLE III
<S> <C>
ELIGIBILITY AND PARTICIPATION...................................................................11
</TABLE>
<TABLE>
<S> <C> <C>
3.1 Eligibility and Participation........................................................11
3.2 Participation in the Savings Portion of the Plan.....................................11
3.3 Participation in the Profit-Sharing Portion of the Plan..............................12
3.4 Recognition of Prior Service.........................................................13
3.5 Employment Status for Participation Purposes.........................................14
3.6 Military Service.....................................................................14
</TABLE>
<TABLE>
<CAPTION>
ARTICLE IV
<S> <C>
CONTRIBUTIONS TO THE PLAN.......................................................................15
</TABLE>
<TABLE>
<S> <C> <C>
4.1 Savings Portion of the Plan..........................................................15
4.2 Profit-Sharing Portion of the Plan...................................................16
4.3 Rollover Contributions...............................................................16
4.4 Date of Contributions................................................................16
</TABLE>
ii
<PAGE> 4
<TABLE>
<CAPTION>
ARTICLE V
<S> <C>
LIMITATION ON CONTRIBUTIONS.....................................................................18
</TABLE>
<TABLE>
<S> <C> <C>
5.1 Definitions for Nondiscrimination Tests..............................................18
5.2 Nondiscrimination Test...............................................................19
5.3 Correction of Excess Contributions...................................................21
5.4 Limit on Deferrals...................................................................23
5.5 Limit on Annual Additions............................................................24
</TABLE>
<TABLE>
<CAPTION>
ARTICLE VI
<S> <C>
ACCOUNT ADMINISTRATION..........................................................................26
</TABLE>
<TABLE>
<S> <C> <C>
6.1 Plan Accounts and Allocation of Contributions........................................26
6.2 Allocations of Investment Earnings and Losses........................................27
</TABLE>
<TABLE>
<CAPTION>
ARTICLE VII
<S> <C>
INVESTMENT OF TRUST FUND........................................................................28
</TABLE>
<TABLE>
<S> <C> <C>
7.1 Investment Funds.....................................................................28
7.2 Investment Elections.................................................................28
7.3 Changes in Investment Elections......................................................29
7.4 Transfers Between Investment Funds...................................................29
7.5 Committee Directions to Trustee......................................................29
7.6 Committee May Amend Rules............................................................29
7.7 Bank Stock...........................................................................29
7.8 Valuation of Bank Stock..............................................................30
7.9 Voting of Shares of Bank Stock.......................................................31
7.10 Response to Tender Offer for Bank Stock..............................................31
</TABLE>
<TABLE>
<CAPTION>
ARTICLE VII
<S> <C> <C>
IVESTING........................................................................................32
8.1 Salary Deferral, Supplemental and Rollover Accounts..................................32
8.2 Matching Contributions...............................................................32
8.3 Profit-Sharing Contributions and Money Purchase Contributions........................32
8.4 Forfeitures..........................................................................33
</TABLE>
<TABLE>
<CAPTION>
ARTICLE IX
<S> <C>
WITHDRAWALS DURING EMPLOYMENT...................................................................35
</TABLE>
<TABLE>
<S> <C> <C>
9.1 Hardship Withdrawals from Salary Deferral Accounts...................................35
9.2 Withdrawals from Rollover and Matching Accounts......................................36
9.3 Withdrawal Limitations Applicable to Supplemental Accounts and
Profit-Sharing Accounts................................... ..........................37
9.4 Withdrawal After Attaining Age 59 1/2................................................37
9.5 Valuing Withdrawals..................................................................37
9.6 Prohibited Withdrawals...............................................................37
9.7 Manner of Payment....................................................................38
</TABLE>
iii
<PAGE> 5
<TABLE>
<CAPTION>
ARTICLE X
<S> <C>
PAYMENT OF BENEFITS...............................................................................39
</TABLE>
<TABLE>
<S> <C> <C>
10.1 Distribution...........................................................................39
10.2 Beneficiary Designation................................................................40
10.3 Benefits to Minors and Legal Incompetents..............................................41
10.4 Lost Participants......................................................................41
10.5 General Conditions.....................................................................42
10.6 Qualified Domestic Relations Order.....................................................42
</TABLE>
<TABLE>
<CAPTION>
ARTICLE XI
<S> <C>
PAYMENT OF GRANDFATHERED PROFIT-SHARING BENEFITS..................................................43
</TABLE>
<TABLE>
<S> <C> <C>
11.1 Distribution of Grandfathered Profit-Sharing Account...................................43
11.2 Automatic Forms of Retirement Benefit..................................................43
11.3 Optional Forms of Retirement Benefits..................................................43
11.4 Election Requirements for Married Participants.........................................44
11.5 Election Requirements for Unmarried Participants.......................................45
11.6 Notice Requirements....................................................................45
11.7 Annuity Payments.......................................................................46
11.8 Pre-Retirement Death Benefits..........................................................46
11.9 Post-Retirement Death Benefits.........................................................46
11.10 Annuity Starting Date..................................................................46
</TABLE>
<TABLE>
<CAPTION>
ARTICLE XII
<S> <C>
AMENDMENT, TERMINATION, AND MERGER................................................................47
</TABLE>
<TABLE>
<S> <C> <C>
12.1 Amendment and Termination..............................................................47
12.2 Conformity to Internal Revenue Code....................................................47
12.3 Notice of Amendments...................................................................47
12.4 Merger.................................................................................48
12.5 Change in Vesting Schedule.............................................................48
</TABLE>
<TABLE>
<CAPTION>
ARTICLE XIII
<S> <C>
ADMINISTRATION OF PLAN............................................................................49
</TABLE>
<TABLE>
<S> <C> <C>
13.1 Named Fiduciaries......................................................................49
13.2 Plan Administrator.....................................................................49
13.3 Benefits Committee.....................................................................50
13.4 Compensation Committee.................................................................53
13.5 Delegation of Administrative Powers....................................................53
13.6 Claims Procedures......................................................................54
13.7 Indemnification........................................................................55
</TABLE>
iv
<PAGE> 6
<TABLE>
<CAPTION>
ARTICLE XIV
<S> <C>
MISCELLANEOUS PROVISIONS..........................................................................56
</TABLE>
<TABLE>
<S> <C> <C>
14.1 No Guarantee of Employment.............................................................56
14.2 No Guarantee of Value of Trust Fund Assets.............................................56
14.3 Rights to Trust Fund Assets............................................................56
14.4 Correction of Errors...................................................................56
14.5 Severability...........................................................................56
14.6 Applicable Law.........................................................................57
14.7 Plan Expenses..........................................................................57
14.8 Exclusive Benefits; Return of Contributions............................................57
14.9 General Benefit Restriction............................................................57
14.10 Approval of Internal Revenue Service...................................................57
</TABLE>
<TABLE>
<CAPTION>
ARTICLE XV
<S> <C>
TOP-HEAVY PLAN RESTRICTIONS.......................................................................58
</TABLE>
<TABLE>
<S> <C> <C>
15.1 Definitions............................................................................58
15.2 Top-Heavy Plan.........................................................................59
15.3 Restrictions...........................................................................59
15.4 Maximum Benefit Adjustments............................................................60
</TABLE>
v
<PAGE> 7
ARTICLE I
ESTABLISHMENT AND PURPOSE
The North American Mortgage Company established the North American
Mortgage Company Retirement and 401(k) Savings Plan (the "Plan"), effective
January 1, 1997, by merger of the North American Mortgage Company Retirement
Plan into and with the North American Mortgage Savings Plan. The Plan is
intended to qualify under Section 401(a) of the Internal Revenue Code of 1986,
as amended (the "Code") as a profit-sharing plan with a qualified cash or
deferred arrangement that satisfies Section 401(k) of the Code, funded by a
trust which is intended to be tax-exempt under Section 501(a) of the Code.
This Plan as set forth herein, constitutes an amendment and
restatement of the Plan through July 1, 1999. Although the restatement is
generally effective July 1, 1999, the inclusion of certain amendments required
to conform with applicable law changes, and the revision of certain provisions
regarding plan investments, necessitate different effective dates for certain
provisions. Accordingly, notwithstanding the general effective date of this
restatement, and except as specifically set forth in the applicable section, the
following Plan sections, as amended, shall be effective as indicated below:
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------
Sections Effective Date
- ----------------------------------------------------------------------------
<S> <C>
2.4, 5.1(d), 5.1(f), 5.3 (1st paragraph), January 1, 1997
5.3(a), 5.3(b)
- ----------------------------------------------------------------------------
3.4(b) October 14, 1997
- ----------------------------------------------------------------------------
5.1(c), 5.2, 5.5(b)(4), 10.1(f),* 10.1(g)*, January 1, 1998
11.8(c)*
- ----------------------------------------------------------------------------
2.51, 3.1(a), 3.2(a) January 1, 1999
- ----------------------------------------------------------------------------
</TABLE>
- ---------------------------
* These provisions are included in this chart to reflect (for
clarification purposes) the effective dates of certain amendments
previously made to conform with applicable law changes.
1
<PAGE> 8
<TABLE>
<S> <C>
- ----------------------------------------------------------------------------
2.3, 2.28, 2.46, 2.47, 2.49, 7.1 September 1, 1999
(last sentence), 7.2(c), 7.3(b),
7.4(b), 7.7, 7.8, 7.9, 7.10, 9.6,
9.7, 10.1(b) (second sentence),
11.3(e)
- ----------------------------------------------------------------------------
</TABLE>
The rights of any person who terminated employment or who retired on
or before the effective date of a particular amendment, including his
eligibility for benefits and the time and form in which benefits, if any will be
paid, shall be determined solely under the terms of the Plan in effect on the
date of his termination (except with respect to involuntary distributions of
small benefits pursuant to Section 411(a)(11) of the Code and the Treasury
Regulations thereunder or as otherwise provided under applicable law).
2
<PAGE> 9
ARTICLE II
DEFINITIONS
The terms and phrases in this Article shall have the following
meanings when used in this Plan unless a different meaning is clearly required
by the context. Masculine pronouns include the feminine, plural nouns include
the singular, and singular nouns include the plural except where the context
indicates otherwise.
2.1 Accounts means the accounts held by the Trustee for a
Participant. Each Participant's Accounts may include:
(a) Salary Deferral Account
(b) Supplemental Account
(c) Rollover Account
(d) Matching Account
(e) Profit-Sharing Account (consisting of a
Grandfathered Profit-Sharing Sub-Account and/or a Basic Profit-Sharing
Sub-Account)
2.2 Bank means, on and after the Closing Date, Dime Bancorp,
Inc., The Dime Savings Bank of New York, FSB, and any other affiliates of Dime
Bancorp, Inc., (within the meaning of Section 414(b), (c), (m) or (o) of the
Code) other than the Company.
2.3 Bank Stock means shares of voting common stock issued by
the Bank, which shares constitute "employer securities" under sections 409(1) of
the Code and 407(d) of ERISA.
2.4 Basic Compensation means a Participant's compensation which
is reportable on a Form W-2 by an Employer. "Basic Compensation" also includes
any amounts that are deferred pursuant to a salary reduction arrangement with an
Employer under Code Section 125, 401(k), 402(a)(8), 402(h), or 403(b) which
would have been Basic Compensation had the salary reduction election not been in
effect. "Basic Compensation" shall not include amounts in any Plan Year in
excess of $160,000 or such other amount in effect under Code Section 401(a)(17)
for the calendar year in which the Plan Year begins.
2.5 Beneficiary means the person(s) designated pursuant to the
Plan to receive benefits in the event of a Participant's death.
2.6 Board of Directors means the Board of Directors of the
Company.
3
<PAGE> 10
2.7 Break in Service means a Plan Year during which an
individual has not completed more than 500 Hours of Service, as determined by
the Committee in accordance with the Code and applicable regulations. Solely for
purposes of determining whether a Break in Service has occurred, an individual
shall be credited with the Hours of Service which such individual would have
completed but for a maternity or paternity absence, as determined by the
Committee in accordance with the Code and applicable regulations; provided,
however, that the total Hours of Service so credited shall not exceed 501 hours
and that the individual shall timely provide the Committee with such information
as it shall require. Hours of Service credited for a maternity or paternity
absence shall be credited entirely (i) in the Plan Year in which the absence
began if such Hours of Service are necessary to prevent a Break in Service in
such year, or (ii) in the following Plan Year. For purposes of this Section 2.7,
maternity or paternity absence shall mean an absence from work by reason of the
individual's pregnancy, the birth of the individual's child or the placement of
a child with the individual in connection with adoption of the child by such
individual, or for purposes of caring for a child for the period immediately
following such birth or placement.
2.8 Closing Date means October 14, 1997.
2.9 Code means the Internal Revenue Code of 1986, as amended
from time to time.
2.10 Combination Agreement means an Agreement and Plan of
Combination, dated June 22, 1997, and amended and restated as of July 31, 1997,
by and among North American Mortgage Company, Dime Bancorp, Inc., 47th St.
Property Corporation and The Dime Savings Bank of New York, FSB.
2.11 Committee means the Benefits Committee of Dime Bancorp,
Inc., which is authorized to exercise the duties and responsibilities delegated
to it under Article XIII.
2.12 Consolidation Date means November 1, 1997.
2.13 Company means the North American Mortgage Company.
2.14 Controlled Group means any two or more corporations, trades
or businesses which constitute a controlled group or an affiliated service group
of which the Company is a member, or are under common control with the Company
within the meaning of Code Section 414(b), (c), (m), or (o), but only for the
period during which such relationship exists. For purposes of applying the
limits of Section 5.5, members of a Controlled Group shall be determined under
Code Section 415(h).
2.15 Dime Board means the Board of Directors of Dime Bancorp,
Inc.
4
<PAGE> 11
2.16 Disability means a physical or mental condition which
entitles a Participant to benefits under the Company's Long-Term Disability Plan
or entitles a Participant to Social Security Disability Insurance benefits.
2.17 Eligible Employee means any Employee except:
(a) an Employee who is employed by an Employer in an
hourly capacity;
(b) a temporary Employee, that is, one who is
employed by an Employer to complete a specific job or project that is not a
permanent position;
(c) an Employee who belongs to a collective
bargaining unit which has entered into a collective bargaining agreement with
the Employer, where retirement benefits have been the subject of good faith
bargaining unless the agreement provides that such benefits are to be provided
by the Plan;
(d) an Employee who is a non-resident alien and who
is not receiving any U.S. source income;
(e) an Employee who is a leased employee, as defined
in Section 414(n) of the Code; and
(f) a Grandfathered Bank Employee.
2.18 Eligible Spouse means the spouse to whom a Participant is
married on the date of his death. "Eligible Spouse" also includes a former
spouse to the extent required by a Qualified Domestic Relations Order.
2.19 Employee means any individual employed by, and on the
payroll of, an Employer and whose Basic Compensation is subject to the
withholding of income tax.
2.20 Employer means the Company and any other company which is a
member of the same Controlled Group as the Company, which the Board of Directors
has authorized to adopt this Plan, and which by action of its directors has
adopted the Plan; and any successors of such entities. Solely for purposes of
determining a Participant's service for participation and vesting, "Employer"
includes any member of the Controlled Group.
2.21 Employment Date means the date on which an Employee first
completes an Hour of Service for an Employer, or, with respect to Former T&N
Employees only, the date on which the Former T&N Employee first completed an
Hour of Service for T&N.
2.22 Entry Date means the first day of each calendar quarter.
5
<PAGE> 12
2.23 ERISA means the Employee Retirement Income Security Act of
1974, as amended from time to time.
2.24 Five Percent Owner means an individual described in Code
Section 416(i)(1).
2.25 Former T&N Employee means any Employee who was an employee
of T&N immediately prior to the acquisition by the Company of T&N's assets on
February 16, 1999.
2.26 Grandfathered Bank Employee means any individual who
immediately prior to the Consolidation Date was (i) employed by Dime Mortgage,
Inc., or (ii) was a Mortgage Bank Employee, and who on the Consolidation Date
was employed by the Company, provided, however, that a Grandfathered Bank
Employee shall not include any individual who, immediately prior to the Closing
Date, was employed by the Company. Further, if a Grandfathered Bank Employee
terminates service with Dime Bancorp, Inc. or any of its subsidiaries on or
after the Consolidation Date and is subsequently reemployed as an employee of
the Company, such employee shall no longer be treated as a Grandfathered Bank
Employee.
The determination as to the status of an employee as a Mortgage Bank
Employee or as a Grandfathered Bank Employee shall be made by the Plan
Administrator or his designee in a manner consistent with the personnel
practices of the Bank and the Company, and with reference to the entity
ultimately responsible for the payment of either all, or substantially all, of
such person's salary or wages.
2.27 Hour of Service means:
(a) each hour for which an Employee is paid or
entitled to payment by the Employer for the performance of duties;
(b) each hour, to a maximum of 501 hours, for which
an Employee is paid or entitled to payment by the employer for a period of time
during which no duties are performed (irrespective of whether a termination of
employment has occurred) due to vacation, holiday, illness, incapacity
(including Disability), layoff, jury duty, military duty, or leave of absence;
and
(c) each hour for which back pay, irrespective of
mitigation of damages, is either awarded or agreed to by the Employer. (These
Hours of Service shall be credited to the Employee for the Plan Year or
computation period to which the award or agreement pertains; not the year in
which the award, agreement, or payment is made.)
(d) Except as provided below, an Employee who is on
an authorized unpaid leave of absence or is absent because he is on active duty
with the U.S. armed forces shall be credited with the number of Hours of Service
which would have been credited to such Employee but for such absence. If,
however, the Employee does not return to employment with an Employer (other
than because of death, Disability or attaining Normal Retirement Age) at the end
6
<PAGE> 13
of the authorized leave or within the time that reemployment rights for
servicemen are guaranteed by federal law, such hours shall not be credited
except as may be required under the otherwise applicable provisions of this
Section. Leaves of absence, if any, shall be authorized by the Employer under
uniform rules applied in a non-discriminatory manner. The crediting of Hours of
Service pursuant to this Section 2.27(d) shall be effected in accordance with
Code Section 414(u).
(e) Hours under this Section shall be calculated and
credited pursuant to Section 2530.200b of the Department of Labor regulations.
(f) Notwithstanding the foregoing, the same Hour of
Service shall not be credited under more than one paragraph and an Hour of
Service shall not be credited for payments to an Employee other than for the
performance of duties, except as provided above.
2.28 Insider means, with respect to the Bank, (i) any
Participant who is subject to the Section 16 Rules, determined in accordance
with Rule 16a-2 thereof and (ii) solely with respect to certain trading
restrictions with respect to Bank Stock imposed from time to time by the Bank,
any Participant who is subject to such trading restrictions. The Plan
Administrator shall advise the Trustee as to which Participants are considered
Insiders.
2.29 Investment Fund means each pooled investment fund,
interest-bearing deposit, fixed income contract or other investment option
designated by the Committee in which a Participant may elect to have his
Accounts invested, as provided in Article VII.
2.30 Investment Manager means a fiduciary (a) who has the power
to manage, acquire or dispose of any Plan assets pursuant to an investment
management agreement and (b) who is (1) a bank, as defined in the Investment
Advisers Act of 1940; (2) an insurance company qualified to manage, acquire or
dispose of the assets of an employee benefit plan under the laws of more than
one state; or (3) a firm registered as an investment adviser under the
Investment Advisers Act of 1940.
2.31 Matching Contribution means an Employer contribution made
pursuant to Section 4.1(b).
2.32 Money Purchase Contribution means an Employer contribution
made prior to January 1, 1997 to the North American Mortgage Retirement Plan.
2.33 Mortgage Bank Employee means an individual who immediately
prior to the Consolidation Date was employed by the Bank and whose primary job
functions involved the rendering of services with respect to the mortgage
operations of the Bank.
2.34 Normal Retirement Age means age 65.
7
<PAGE> 14
2.35 Participant means an Eligible Employee (a) who has
satisfied the requirements of Section 3.1 or (b) who has an Account. Where the
context is appropriate, "Participant" also includes a former Eligible Employee
who has an Account.
2.36 Plan means the North American Mortgage Company Retirement
and 401(k) Savings Plan.
2.37 Plan Administrator means the Committee.
2.38 Plan Year means the calendar year.
2.39 Profit-Sharing Contribution means an Employer contribution
made on or after January 1, 1997 pursuant to Section 4.2.
2.40 Qualified Domestic Relations Order means a domestic
relations order which the Plan Administrator has determined satisfies the
requirements of Code Section 414(p).
2.41 Reemployment Date means the date on which a former Employee
first performs an Hour of Service for an Employer following the Employee's
separation from service.
2.42 Restatement Effective Date means July 1, 1999.
2.43 Rollover Contribution means a contribution made pursuant to
Section 4.3.
2.44 Salary means a Participant's (i) regular base salary and up
to $66,000 of commissions for services rendered to the Employer for the
applicable period, and (ii) amounts deferred pursuant to a salary reduction
arrangement with an Employer under Code Section 125, 401(k), 402(a)(8), 402(h)
or 403(b) which would have been Salary if the salary reduction had not been in
effect.
2.45 Salary Deferral Contribution means an Employer contribution
made pursuant to Section 4.1(a).
2.46 SEC means the United States Securities and Exchange
Commission.
2.47 Section 16 Rules means those rules (as from time to time
amended) promulgated by the SEC under Section 16 of the Securities Exchange Act
of 1934, as amended. For purposes of the Plan, an action shall be deemed to be
prohibited by the Section 16 Rules, if it could, if permitted or occurring,
result in a transaction not being exempt from the provisions of Section 16(b) of
such Act. An action in violation of certain trading restrictions with respect to
Bank Stock imposed from time to time by the Bank shall be deemed to be
prohibited by the Section 16 Rules solely for purposes of this Plan.
8
<PAGE> 15
2.48 Severance from Service of an Employee means the Employee's
termination of employment with an Employer for any reason other than the
Employee's transfer from the employ of one Employer to another Employer.
2.49 Share means a share of common stock of the Bank.
2.50 Supplemental Contribution means an Employer contribution
made pursuant to Section 4.1(c).
2.51 Three Months of Participation Service means a computation
period during which an Employee is credited with 250 Hours of Service. An
Employee's initial computation period for this purpose is the three month period
commencing on the Employee's Employment Date. Subsequent computation periods
shall commence on the first day of each calendar month following the Employee's
Employment Date. For purposes of determining eligibility to participate under
Section 3.1, if the date of an Eligible Employee's Severance from Service and
his Reemployment Date both occur during the initial computation period, his
total Hours of Service during such initial computation period shall be
determined by aggregating his service before the date of his Severance from
Service and after his Reemployment Date.
2.52 T&N means T&N Mortgage, Inc.
2.53 T&N Plan means the T&N Mortgage, Inc. 401(k) Plan.
2.54 Trust Agreement means the trust agreement executed by the
Company and the Trustee, as amended from time to time.
2.55 Trust Fund or Trust means that trust fund created by and
maintained under the Trust Agreement for the purpose of holding the assets of
and funding the benefits provided by the Plan.
2.56 Trustee means the person or entity who holds the assets of
the Trust Fund and who is appointed by the Committee pursuant to Article XIII.
2.57 Valuation Date means the last business day of each calendar
month or other date specified by the Committee pursuant to Section 6.2
2.58 Valuation Period means the period of time between Valuation
Dates.
2.59 Vesting Percentage means the nonforfeitable percentage of a
Participant's Accounts determined under Article VIII.
2.60 Vesting Service is used to determine a Participant's Vested
Percentage. A year of Vesting Service is credited for each Plan Year in which
the Participant is credited with at least
9
<PAGE> 16
1,000 Hours of Service (whether or not as a Participant). Vesting Service
includes all years of Vesting Service except:
(a) those years occurring prior to five consecutive
one-year Breaks in Service, if the Employee was not vested when the Break in
Service began,
(b) those years with respect to which a distribution
has been received pursuant to Section 8.4(a), unless the requirements of Section
8.4(b) have been satisfied, or
(c) prior service (as described in Section 3.4) that
is not recognized under Section 3.4.
2.61 Year of Participation Service means a computation period
during which an Employee is credited with 1,000 Hours of Service. An Employee's
initial computation period for this purpose is the twelve-month period
commencing on the Employee's Employment Date. The second computation period
commences on the first day of the Plan Year which begins during the initial
computation period, and thereafter, the computation period is the Plan Year. For
purposes of determining eligibility to participate under Section 3.1, if the
date of an Eligible Employee's Severance from Service and his Reemployment Date
both occur during the initial computation period, his total Hours of Service
during such initial computation period shall be determined by aggregating his
service before the date of his Severance from Service and after his Reemployment
Date.
10
<PAGE> 17
ARTICLE III
ELIGIBILITY AND PARTICIPATION
3.1 Eligibility and Participation.
(a) Each Eligible Employee who commenced
participation in the Savings Portion of the Plan or the Profit-Sharing Portion
of the Plan prior to the Restatement Effective Date shall continue such
participation after that date as long as he remains an Eligible Employee until
the date of his Severance from Service, subject to later re-enrollment pursuant
to the terms of the Plan. Each other Eligible Employee shall become a
Participant on the first Entry Date following the earlier of:
(i) the date that he satisfies the
requirements under Section 3.2 for participation in the Savings
Portion of the Plan, or
(ii) the date that he satisfies the
requirements under Section 3.3 for participation in the
Profit-Sharing Portion of the Plan.
(b) An Employee who has satisfied the requirements
in paragraph (a), but who is not an Eligible Employee shall become a
Participant on the first Entry Date coinciding with or next following the date
he becomes an Eligible Employee.
(c) If an Eligible Employee terminates service after
satisfying the requirements of paragraph (a) and his Reemployment Date is prior
to the Entry Date on which he would have otherwise joined the Plan, he shall
join the Plan on that Entry Date, provided he is then an Eligible Employee.
However, if his Reemployment Date is after this Entry Date, except as provided
in paragraph (e) below, he shall become a Participant on the later of his
Reemployment Date and the first date on which he is again an Eligible Employee,
subject to the provisions of Section 3.2.
(d) A Participant who ceases to be an Eligible
Employee shall resume participation upon again becoming an Eligible Employee.
3.2 Participation in the Savings Portion of the Plan.
(a) Salary Deferral. Each Eligible Employee who has
completed Three Months of Participation Service shall be eligible to have Salary
Deferral Contributions and Matching Contributions made on his behalf, provided
he files a Salary Deferral Election with the Committee. The Salary Deferral
Election shall provide that the Participant's Basic Compensation in each payroll
period shall be reduced by any whole number percentage from 1% to 15%; provided,
however, that the amount of the reduction does not exceed the limits set forth
in
11
<PAGE> 18
Section 5.4. An Eligible Employee who does not file a Salary Deferral Election
when first eligible to do so may commence making Salary Deferral Contributions
with respect to the payroll period beginning on or after any subsequent Entry
Date by filing the Election in accordance with this Section 3.2, provided he is
then an Eligible Employee.
(b) Rules Governing Salary Deferral Elections
(1) A Salary Deferral Election shall be effective
with respect to payroll periods beginning on or after the Entry Date
following the timely filing of an Election.
(2) An initial Salary Deferral Election shall
be in writing on the form provided by the Committee.
(3) The Committee shall establish procedures and
deadlines for filing Salary Deferral Elections which shall be
communicated to Eligible Employees.
(4) A Salary Deferral Election may be amended by
following the procedures and deadlines as established by the
Committee. Amendments will be effective with respect to the payroll
period beginning on or after the Entry Date following the timely
amendment of a Salary Deferral Election.
(5) A Salary Deferral Election may be revoked at
any time by written instruction by the Participant, the
voice-automated response system or by any other method established by
the Committee. The revocation shall be effective as of the next
payroll period following the revocation or as soon thereafter as
administratively practicable. A Participant who has revoked his
Salary Deferral Election can subsequently resume participation as of
the first day of the next calendar quarter provided the Participant
complies with the procedures and deadlines established by the
Committee.
(6) Employee shall also specify the Investment
Fund(s) in which his Accounts will be invested. A Salary Deferral
Election shall not be considered effective unless an investment
direction is on file with the Committee.
(7) The Salary Deferral Election of a Participant
who ceases to be an Eligible Employee shall be deemed revoked as of
the date of such change in status.
3.3 Participation in the Profit-Sharing Portion of the Plan.
Each Eligible Employee who has completed a Year of Participation Service shall
automatically become a Participant for purposes of receiving Profit-Sharing
Contributions.
12
<PAGE> 19
3.4 Recognition of Prior Service.
(a) Effective prior to January 1, 1999, except as
provided below, when an entity becomes a member of the Company's Controlled
Group or when all or a substantial portion of the assets of any entity are
acquired by the Company or by any member of the Company's Controlled Group, the
President of the Company shall have the authority and discretion to determine
whether or not service with such entity will be recognized for vesting and
eligibility purposes under the Plan, to the extent such service would have been
considered for vesting and eligibility purposes if it had been performed for the
Company. The recognition of such service must comply with Code Section 414(a),
the nondiscriminatory requirements of Code Section 401(a)(4) and the regulations
promulgated thereunder, to the extent applicable. Service credit so granted
shall continue to be effective on and after January 1, 1999.
(b) The determination of Years of Participation
Service, Three Months of Participation Service and Vesting Service of any
Employee who was an employee of Dime Bancorp, Inc. or any of its subsidiaries
immediately prior to the acquisition by Dime Bancorp, Inc. of the Company
pursuant to the Combination Agreement and who on or after the Closing Date
becomes an employee of the Company shall, solely for purposes of determining
eligibility to participate and vesting under the Plan and only with respect to
such Employees, include credit for all service with Dime Bancorp, Inc. or any of
its subsidiaries that would have been credited under the terms of this Plan if
such service had been service for the Company, provided, however, with respect
to the determination of the Years of Participation Service for any such Employee
as of the Employment Date, such Employee's service shall be equal to the number
of one-year "Periods of Service" credited to the Employee as of such date under
the terms of the Retirement 401(k) Investment Plan of Dime Bancorp, Inc. (the
"Dime 401(k) Plan") as then in effect. With respect to the service completed
during the computation period which includes the Employment Date, each Employee
described in the preceding sentence will receive credit equal to the number of
Hours of Service that would be credited to the Participant pursuant to the
otherwise applicable provisions of this Plan for the portion of the Plan Year
ending on the Employment Date (assuming such provisions were in effect during
such portion of the Plan Year and considering service with any entities for
which service credit was granted under the Dime 401(k) Plan as service with the
Company) and with the service so considered converted to Hours of Service based
on an equivalency of 190 Hours of Service for each month for which the Employee
is credited with at least one Hour of Service.
(c) Effective July 1, 1999, the determination of
Years of Participation Service, Three Months of Participation Service and
Vesting Service of a Former T&N Employee shall, solely for purposes of
determining eligibility to participate and vesting under the Plan and only with
respect to such Employees, include all service with T&N that would have been
credited under the terms of this Plan if such service had been service for the
Company. Notwithstanding the foregoing, service credited under the previous
sentence with respect to any Former T&N Employee as of July 1, 1999 shall not be
less than the total number of "Years of Service" (as
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defined under the T&N Plan) credited to such Employee under the T&N Plan as of
such date, if any.
3.5 Employment Status for Participation Purposes.
Notwithstanding anything in this Plan to the contrary, for purposes of
determining eligibility to participate under the Plan, an individual shall be
deemed to be solely an employee of, and employed by, the employer that is
ultimately responsible for the payment of either all, or substantially all, of
such person's salary, commissions or wages.
3.6 Military Service. Notwithstanding any provision of this
Plan to the contrary, contributions, benefits and service credit with respect to
qualified military service will be provided in accordance with Section 414(u) of
the Code.
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ARTICLE IV
CONTRIBUTIONS TO THE PLAN
4.1 Savings Portion of the Plan.
(a) Salary Deferral Contributions. In lieu of
paying a Participant his full Basic Compensation in a payroll period, the
Employer shall make a Salary Deferral Contribution to the Trust Fund on the
Participant's behalf in an amount equal to the amount of Basic Compensation that
the Participant has elected to defer under Section 3.2(a). In no event, however,
shall the Salary Deferral Contributions made on behalf of a Participant exceed
the limitations of Article V. The Committee may prospectively revoke, amend, or
temporarily suspend a Participant's Salary Deferral Election to the extent it
deems necessary to satisfy those limits in any Plan year.
(b) Matching Contributions. The Employer shall make
a Matching Contribution to the Trust Fund each Plan Year on behalf of each
Participant who has completed a Year of Participation Service (effective on the
first day of the month coincident with or following the completion of a Year of
Participation Service) and has had Salary Deferral Contributions made on his
behalf during the Plan Year. The Matching Contributions made on a Participant's
behalf shall be equal to 50% of the first 3% of the Participant's Basic
Compensation contributed as Salary Deferral Contributions on and after
satisfying the eligibility requirements for these contributions, or, if less,
the maximum amount permissible under Article V.
(c) Supplemental Contributions. The Employer may,
in its discretion, make a Supplemental Contribution to the Trust Fund for any
Plan Year for the purpose of passing the applicable test described in Section
5.2 under Section 401(k) or 401(m) of the Code. Supplemental Contributions are
intended to be qualified nonelective contributions (as described in Section
401(m)(4) of the Code) and shall be made only if the applicable requirements of
Section 401(m) and Treasury Regulation Sections 1.401(k)-1(g)(13) and
1.401(m)-1(b)(5) are satisfied. Employees who are not highly compensated
employees (as defined in Section 414(q)) and who are (a) Eligible Employees who
have satisfied the requirements of Section 3.1(a), or (b) Participants on whose
behalf Salary Deferral Contributions were made during the Plan Year shall be
eligible to have Supplemental Contributions made on their behalf; provided that
Supplemental Contributions intended to enable the Plan to meet the tests related
to Matching Contributions shall only be made on behalf of such Eligible
Employees or other Participants who have also satisfied the requirements under
Section 4.1(b) for such Matching Contributions. Supplemental Contributions shall
be allocated first to the Supplemental Account of the individual described above
whose Basic Compensation for the year to which the Supplemental Contribution
relates is lowest (up to the maximum amount permitted by law), then to the
individual described above whose Basic Compensation for the year to which the
Supplemental Contribution relates is next lowest (up to the maximum amount
permitted by law), with further allocations then made in the same manner to the
series of individuals whose Basic Compensation for such year was the
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<PAGE> 22
next lowest (up to the maximum amount permitted by law), until the entire amount
of Supplemental Contributions have been so allocated. Supplemental Contributions
may be treated as Salary Deferral Contributions, provided the conditions in
Treasury Regulation Section 1.401(k)-1(b)(5) are satisfied.
4.2 Profit-Sharing Portion of the Plan. For each Plan Year, the
Employer shall make a Profit-Sharing Contribution to the Trust Fund on behalf of
each Participant who has completed a Year of Participation Service and is an
Eligible Employee on the last day of such Plan Year. The Profit-Sharing
Contribution shall equal 4% of the Participant's Salary paid while a Participant
and an Eligible Employee during the Plan Year.
4.3 Rollover Contributions. An Eligible Employee may make a
Rollover Contribution if permitted by the Committee. The Committee shall not
discriminate in favor of highly compensated employees (as defined in Code
Section 414(q)) in approving Rollover Contributions. A Rollover Contribution
shall be credited to the Eligible Employee's Rollover Account. A Rollover
Contribution shall be permitted only if the amount to be contributed is an
eligible rollover distribution (as defined by Section 402(c)(4) of the Code) or
a direct rollover from the trustee of a qualified plan (as described in Code
Section 401(a)(31) and the regulations promulgated thereunder), the requirements
of Code Sections 402(c) and 408(d)(3) are satisfied, and the Participant
complies with the procedures established by the Committee. The Plan will not
accept a loan offset as part of a Rollover Contribution. Before the direct
rollover is accepted, the Committee may request whatever information it deems
necessary to approve and complete the transfer. If the Committee subsequently
discovers that the Contribution does not satisfy these requirements, the
Employee's Rollover Account including any investment earnings (or less
investment losses) shall be immediately distributed to the Employee.
4.4 Date of Contributions.
(a) The Employer shall deposit the Salary Deferral
Contributions with the Trustee as soon after each payroll period as the amounts
can reasonably be segregated, but in no event later than the 15th business day
of the month following the month during which the amounts would have otherwise
been paid as Basic Compensation.
(b) All Matching Contributions and Supplemental
Contributions shall be deposited with the Trustee no later than the due date,
including extensions, for the Employer's income tax return for the Employer's
tax year for which the Contribution is made.
(c) All Profit-Sharing Contributions shall be
allocated as of the last day of the Plan Year and shall be deposited with the
Trustee no later than the due date, including extensions, for the Employer's
income tax return for the Employer's tax year for which the Contribution is
made.
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(d) Rollover Contributions shall be deposited with
the Trustee upon receipt by the Employer.
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<PAGE> 24
ARTICLE V
LIMITATION ON CONTRIBUTIONS
5.1 Definitions for Nondiscrimination Tests. The following terms have
the following meanings for purposes of Sections 5.2 and 5.3:
(a) Actual Deferral Percentage means, for a Plan
Year, a Participant's Salary Deferral Contributions expressed as a percentage of
Compensation. If an Eligible Employee who has met the applicable requirements of
Sections 3.1 and 3.2 elects to make no Salary Deferral Contributions, his Actual
Deferral Percentage shall be zero. Salary Deferral Contributions shall be taken
into account for a Plan Year only if the Basic Compensation to which the
Contribution relates would have been paid (but for the deferral) during the Plan
Year. Solely to the extent provided by law, Salary Deferral Contributions which
are distributed under Section 5.5(d) as excess Annual Additions are disregarded.
The Actual Deferral Percentage of a Non-Highly Compensated Employee shall be
determined without regard to any Salary Deferral Contributions made in excess of
the 402(g) Limit (described in Section 5.4). The Actual Deferral Percentage of a
Highly Compensated Employee who is eligible to participate in two or more plans
maintained by an Employer which are described in Section 401(a) of the Code and
which include a cash or deferred arrangement described in Section 401(k) of the
Code, shall be determined as if all such plans were a single plan or
arrangement.
(b) Average ADP means the average (expressed as a
percentage) of the applicable Actual Deferral Percentages.
(c) Compensation means an Employee's Total
Compensation (as defined in Section 5.5(b)(4)), or any other definition of
compensation permitted under Code Section 414(s) or the regulations issued
thereunder, provided such definition is applied uniformly in any Plan Year.
"Compensation" in any Plan Year shall not include any amounts in excess of
$160,000 or such other amount in effect under Code Section 401(a)(17) for the
calendar year in which the Plan Year begins. Solely for the purposes of
determining an Employee's Actual Deferral Percentage, "Compensation" shall
include only amounts earned while the Employee was eligible under Section 3.1 to
participate (unless the Committee requires the Plan Year to be used).
(d) Highly Compensated Employee means an Eligible
Employee who is eligible to participate under the applicable requirements of
Sections 3.1, 3.2 and 3.3 (whether or not the Employee has elected to defer
Basic Compensation) and who (i) was a Five Percent Owner at any time during the
determination year or the calendar year preceding the determination year, or
(ii) during the calendar year preceding the determination year received
Compensation from the Employer in excess of $80,000 (as adjusted by the
Secretary of the Treasury under Code Section 415(d)) and was in the top-paid
group of employees (as defined in Code Section 414(q)(3)) for such preceding
year. The determination year shall be the Plan Year.
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"Highly Compensated Employee" shall also include any
Eligible Employee who separated from service and was subsequently rehired if the
Employee was a Highly Compensated Employee when he previously separated from
service (as defined in Treasury Regulation Section 1.414(q)- IT, Q-5) or at any
time after attaining age 55 and prior to his separation from service.
(e) Non-Highly Compensated Employee means an Eligible
Employee who is not a Highly Compensated Employee and who is eligible to
participate under Section 3.1 whether or not the Employee has elected to defer
Basic Compensation.
(f) Actual Contribution Percentage means, for a Plan
Year, the Matching Contributions of an Eligible Employee who has met the
applicable requirements of Sections 3.1 and 3.2, and is otherwise eligible for
Matching Contributions pursuant to Section 4.1(b), expressed as a percentage of
Compensation. The Actual Contribution Percentage of a Highly Compensated
Employee who is eligible to participate in two or more plans maintained by an
Employer which are described in Code Section 401(a) and under which matching or
employee contributions are made, shall be determined as if all such plans were a
single plan or arrangement.
(g) Average ACP means the average (expressed as a
percentage) of the applicable Actual Contribution Percentages.
5.2 Nondiscrimination Test. Notwithstanding any provision of
the Plan to the contrary, the nondiscrimination tests of paragraphs (a) and (b)
(as modified by (c)) shall be passed each Plan Year. If the tests are not
passed, the Committee shall take action pursuant to Section 5.3 to ensure that
the tests are passed. For purposes of these tests, all plans which are treated
as one plan for purposes of Code Section 401(a)(4) or 410(b) (except for
employee stock ownership plans described in Code Section 4975(c)(7)) shall be
treated as one plan, provided that such plans have the same plan year.
(a) The Average ADP for the Plan Year of the group
of Highly Compensated Employees eligible for Salary Reduction Contributions
pursuant to Section 4.1(a) shall not exceed the greater of the following
(adjusted as required by paragraph (c) below):
(1) 1.25 times the Average ADP of the group of
eligible Non-Highly Compensated Employees for the prior Plan Year, or
(2) 2.0 times the Average ADP of the group of
eligible Non-Highly Compensated Employees for the prior Plan Year but
not more than two percentage points higher than the Average ADP of
the group of eligible Non-Highly Compensated Employees for the prior
Plan Year.
(b) The Average ACP for the Plan Year of the group
of Highly Compensated Employees eligible for Matching Contributions pursuant to
Section 4.1(b) shall not exceed the greater of the following (adjusted as
required by paragraph (c) below):
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<PAGE> 26
(1) 1.25 times the Average ACP of the group of
eligible Non-Highly Compensated Employees for the prior Plan Year, or
(2) 2.0 times the Average ACP of the group of
eligible Non-Highly Compensated Employees for the prior Plan Year but
not more than two percentage points higher than the Average ACP of
the group of eligible Non-Highly Compensated Employees for the prior
Plan Year.
This test need not be performed if there are no
Matching Contributions in a Plan Year.
(c) The limits set forth in paragraphs (a) and (b)
for Highly Compensated Employees shall be reduced as necessary to prevent
multiple use of the limitations of subparagraphs (a)(2) and (b)(2). Multiple use
occurs if the sum of the Average ADP and the Average ACP for the Plan Year of
the group of eligible Highly Compensated Employees exceeds the greater of (1)
and (2) below:
(1) The sum of:
(A) 1.25 times the greater of:
(i) the Average ADP of the
eligible Non-Highly
Compensated Employees for the
prior Plan Year, or
(ii) the Average ACP of the
Non-Highly Compensated
Employees who are eligible to
have Matching Contributions
made on their behalf for the
prior Plan Year; and
(B) two plus the lesser of (A)(i) or
(A)(ii), provided that this number
does not exceed two times the lesser
of (A)(i) or (A)(ii).
(2) The sum of:
(A) 1.25 times the lesser of:
(i) the Average ADP of the
eligible Non-Highly
Compensated Employees for the
prior Plan Year, or
(ii) The Average ACP of the
Non-Highly Compensated
Employees who are eligible to
have Matching
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<PAGE> 27
Contributions made on their behalf for the
prior Plan Year; and
(B) two plus the greater of (A)(i) or (A)(ii),
provided that this number does not exceed two
times the greater of (A)(i) or (A)(ii).
5.3 Correction of Excess Contributions. If the Average ADP or
the Average ACP (or both) of the group of Highly Compensated Employees exceeds
the limits of Section 5.2 for any Plan Year, the Plan Administrator shall take
one or more of the actions described in this Section as it deems appropriate in
order to meet the limits of Section 5.2 for such Plan Year.
(a) The Plan Administrator may refund excess
contributions (and earnings and losses allocable thereto) for the Plan Year. For
purposes of this Section 5.3(a), "excess contributions" means with respect to
any Plan Year, the excess amount of Salary Deferral Contributions (and any
earnings and losses allocable thereto) made to the Salary Deferral Accounts of
Highly Compensated Employees for such Plan Year, over the maximum amount of such
contributions that could be made to the Salary Deferral Accounts of such
Employees without violating the requirements of Section 5.2, determined in
accordance with the Code and Treasury Regulations. Excess contributions shall be
refunded by reducing the Salary Deferral Contributions of the Highly Compensated
Employee with the highest Salary Deferral Contribution for the Plan Year to
equal the Salary Deferral Contribution of the individual with the next highest
Salary Deferral Contribution for the Plan Year and the Salary Deferral
Contribution of that individual shall then be reduced to equal that of the next
highest individual until the entire required amount has been refunded. The
determination of the amount of Salary Deferral Contributions which must be
reduced shall be made after determining the deferrals in excess of the 402(g)
Limit (as described in Section 5.4). The reduced Salary Deferral Contributions
(and earnings thereon) shall be distributed in accordance with paragraph (d).
(b) The Plan Administrator may refund excess
contributions (and earnings and losses allocable thereto) for the Plan Year. For
purposes of this Section 5.3(b), "excess contributions" means with respect to
any Plan Year, the excess amount of Matching Contributions (and any earnings and
losses allocable thereto) made to the Matching Contribution Accounts of Highly
Compensated Employees for such Plan Year, over the maximum amount of such
contributions that could be made to the Matching Accounts of such Employees
without violating the requirements of Section 5.2, determined in accordance with
the Code and Treasury Regulations. Excess contributions shall be refunded by
reducing the Matching Contributions of the Highly Compensated Employee with the
highest Matching Contribution for the Plan Year to equal the Matching
Contribution of the individual with the next highest Matching Contribution for
the Plan Year and the Matching Contribution of that individual shall then be
reduced to equal that of the next highest individual until the reductions total
the entire required amount. The determination of the amount of Matching
Contributions which must be reduced shall be determined after determining the
deferrals in excess of the 402(g) Limit (as described in Section
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5.4) and the excess Salary Deferral Contributions under paragraph (a). Subject
to forfeiture for unvested amounts, as described in (d) below, the reduced
Matching Contributions (and earning thereon) shall be distributed in accordance
with paragraph (d).
(c) The Plan Administrator may, in its discretion,
elect to treat Salary Deferral Contributions in any Plan Year as Matching
Contributions. Salary Deferral Contributions which are so used shall not be
tested under Section 5.2(a), but shall otherwise continue to be treated as
Salary Deferral Contributions for all other purposes under the Plan. This
paragraph shall apply only if the requirements of Treasury Regulation Section
1.401(m)-1(b)(5) are satisfied.
(d) If the Plan Administrator reduces Salary Deferral
Contributions or Matching Contributions pursuant to paragraphs (a) and (b), the
excess contributions (and any earnings and losses allocable thereon) shall be
distributed to the affected Participants no later than the last day of the Plan
Year following the Plan Year for which the contributions were made; provided,
however, that unvested excess contributions (and earnings allocable thereto)
shall be forfeited or used to reduce the next Employer contributions to the
Plan.
(1) Earnings and any allocable losses shall be
calculated in a manner permitted under Treasury Regulation Section
1.40(k)-1(f)(4)(ii)(C) or 1.401(m)-1(e)(3)(ii)(C). The period between
the end of the Plan Year and the date of distribution (the "gap
period") shall not be considered.
(2) The distribution shall be made without
consent or notice and shall be disregarded for purposes of the
minimum distribution requirements of Code Section 401(a)(9).
(3) If a Matching Contribution was made on
account of Salary Deferral Contributions which are then distributed
to a Participant pursuant to this paragraph, the Matching
Contribution (and any earnings allocable thereto) shall be forfeited
and used to reduce future Employer contributions.
(e) If an Employer makes a Supplemental Contribution
with respect to a Plan Year, the Committee shall include the Supplemental
Contributions for purposes of the tests in Section 5.2(a) and/or 5.2(b) to the
extent necessary to pass the applicable test, provided that no portion of the
contribution is taken into account more than once. Supplemental Contributions
shall satisfy the requirements applicable to "qualified nonelective employer
contributions" or "qualified matching contribution" under Treasury Regulation
Sections 1.401(k)-1 and 1.401(m)-1.
(f) The amount of excess Salary Deferral
Contributions to be distributed will be reduced by excess deferrals (as
described in Section 5.4) previously distributed for the taxable year ending
with or within the Plan Year. The amount of excess deferrals to be distributed
will be reduced by excess contributions previously distributed for the Plan Year
beginning with or within the Employee's taxable year.
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5.4 Limit on Deferrals.
(a) Notwithstanding any other provision of the Plan
to the contrary, a Participant shall not be permitted to defer under Section
3.2(a) an amount in any taxable year of the Participant in excess of the $10,000
limitation of Code Section 402(g) as adjusted by the Secretary of the Treasury
under Code Section 415(d) (the "402(g) Limit"). All arrangements under which a
Participant makes elective deferrals (as defined in Code Section 402(g)(3))
shall be aggregated and treated as a single arrangement. Salary Deferral
Contributions which are distributed as excess Annual Additions under Section 415
of the Code are disregarded for purposes of the 402(g) Limit. Salary Deferral
Contributions which are distributed under Section 5.3 are taken into account for
the 402(g) Limit. Salary Deferral Contributions to a Participant's Account shall
automatically cease when the 402(g) Limit is reached in any taxable year.
(b) If, through administrative error or otherwise,
the Salary Deferral Contributions to a Participant's Account exceed the 402(g)
Limit (without regard to elective deferrals under any other plan), any excess
Salary Deferral Contributions (plus any income and minus any loss allocable
thereto) shall be distributed to the Participant no later than the first April
15 following the year of the deferral, but may be distributed in the year of
deferral if the following requirements are satisfied:
(1) the Participant designates in writing
that the distribution is an excess deferral,
(2) the distribution is made after the
Plan receives the excess deferral,
(3) the Plan Administrator designates the
distribution as a distribution of an excess deferral.
(c) If the Participant's deferrals under this Plan
exceed the 402(g) Limit when aggregated with the Participant's other elective
deferrals (as defined in Section 402(g)(3) of the Code), the excess Salary
Deferral Contributions (and any earnings thereon) shall be distributed to the
Participant no later than the first April 15 following the year of deferral,
provided that the Participant submits a written claim to the Plan Administrator
no later than April 1 following the year of deferral. The claim shall be in such
form as specified by the Plan Administrator and shall state the amount of the
excess Salary Deferral Contributions for the preceding year and shall include
the Participant's written statement that if such amounts are not distributed,
they will, when added to amounts deferred under other plans or arrangements,
exceed the 402(g) Limit for the year of the deferral.
(d) The amount of excess Salary Deferral
Contributions that may be distributed pursuant to this Section shall be
determined after the application of Section 5.3(a).
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<PAGE> 30
(e) Earnings on distributed excess Salary Deferral
Contributions shall be calculated in a manner permitted under Treasury
Regulation Section 1.402(g)-1(e)(5)(iii).
5.5 Limit on Annual Additions
(a) Basic Limitation. Notwithstanding any other
provision of this Plan to the contrary, the Annual Additions with respect to a
Participant in any Limitation Year shall not exceed the lesser of:
(1) $30,000 (as from time to time adjusted
pursuant to Section 415(d) of the Code), or
(2) 25% of the Participant's Total
Compensation for such Limitation Year.
(b) Definitions. For purposes of this Section 5.5,
the following terms when capitalized have the following meanings:
(1) Annual Additions means in a Limitation
Year the sum of:
(A) Employer contributions
(including Salary Deferral Contributions, Matching
Contributions, Supplemental Contributions and
Profit-Sharing Contributions) allocated to the
Participant's accounts in any Defined Contribution Plan
(unless distributed pursuant to Section 5.4);
(B) forfeitures allocated to the
Participant's accounts in any Defined Contribution
Plan; and
(C) the Participant's
contributions to any Defined Contribution Plan.
Salary Deferral Contributions which
are distributed because they are in excess of the
402(g) Limit will be considered an annual addition under
Section 415 of the Code unless the distribution is made no
later than April 15 following the year of deferral.
(2) Defined Contribution Plan means any
plan described in Section 414(i) of the Code which is maintained by
any member of the Controlled Group.
(3) Limitation Year means the calendar
year.
(4) Total Compensation means a
Participant's taxable compensation as described in Treasury
Regulation Section 1.415-2(d)(11)(i), as modified by Code Section
24
<PAGE> 31
415(c)(3)(D). Alternatively, the Plan Administrator may use any other
definition of compensation permissible under Treasury Regulation
Section 1.415-2(d), as modified by Code Section 415(c)(3)(D), as
"Total Compensation" provided it applies the definition uniformly to
all Participants in any given Limitation Year.
(c) Combined Plan Limitation. Effective for
Limitation Years commencing prior to January 1, 2000, if a Participant also
participates (or has participated) in a defined benefit plan (as defined in Code
Section 414(j)) maintained by any member of the Controlled Group, the
Participant's Annual Additions and projected annual benefit (within the meaning
of Section 415(e)(2) of the Code) under the defined benefit plan(s) shall not
exceed the limits imposed by Section 415(e). Except as otherwise provided in the
defined benefit plan(s), the Participant's annual benefit under such plan(s)
shall be reduced as necessary to comply with Section 415(e) before the Annual
Additions to this Plan are reduced.
(d) Correction of Excess Annual Additions. If the
Annual Additions to a Participant's Accounts would exceed the limitation set
forth in paragraph (a) because of a reasonable error in determining the
Participant's Total Compensation, a reasonable error in determining the amount
of elective deferrals (within the meaning of Code Section 402(g)(3)) that may be
made with respect to any individual under the limits of Code Section 415, or
under other limited facts and circumstances that the Plan Administrator
determines the Commissioner would find justifies the availability of the rules
set forth below, the Annual Additions shall be reduced in the following manner
to the extent necessary to comply with the limitations of paragraph (a):
(1) The Participant's Salary Reduction
Contributions shall be refunded to the extent necessary to reduce the
Participant's Annual Additions to the amount set forth in paragraph
(a). Any Matching Contributions attributable to the refunded Salary
Reduction Contributions shall be forfeited and used to reduce future
Employer contributions.
(2) If additional reductions are necessary,
the contributions made by the Participant to any other Defined
Contribution Plan maintained by a member of the Controlled Group and
any earnings attributable to such contributions shall be refunded to
the Participant to the extent necessary to reduce the Participant's
Annual Additions to the amount set forth in paragraph (a).
(3) If additional reductions are necessary,
the remaining excess Annual Additions shall be held in a suspense
account and used to reduce the Employer's contributions. If no
Account can receive a further allocation without exceeding the
limitations, the unallocated amount shall continue to be held in a
suspense account and allocated in the next year before any other
Employer or Employee Contribution is made. The Plan Administrator
shall determine which contributions are excess Annual Additions for
purposes of this suspense procedure on a consistent,
nondiscriminatory basis.
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<PAGE> 32
ARTICLE VI
ACCOUNT ADMINISTRATION
6.1 Plan Accounts and Allocation of Contributions
(a) The Committee shall establish one or more of the
following Accounts as necessary for each Participant (or Eligible Employee, as
the case may be):
(1) Salary Deferral Account
(2) Supplemental Account
(3) Rollover Account
(4) Matching Account
(5) Profit-Sharing Account (consisting of
a Grandfathered Profit-Sharing Sub-Account and/or a Basic
Profit-Sharing Sub-Account)
(b) The Committee shall allocate contributions among
a Participant's Accounts as follows:
(1) Salary Deferral Contributions (and all
earnings and losses thereon) shall be allocated to the Participant's
Salary Deferral Account.
(2) Supplemental Contributions (and all
earnings and losses thereon) shall be allocated to the Participant's
Supplemental Account.
(3) Rollover Contributions (and all
earnings and losses thereon) shall be allocated to the Participant's
Rollover Account.
(4) Matching Contributions (and all
earnings and losses thereon) shall be allocated to the Participant's
Matching Account.
(5) Profit-Sharing Contributions (and all
earnings and losses thereon) and Money Purchase Contributions (and
all earnings and losses thereon) shall be allocated to the
Participant's Profit-Sharing Account.
(A) Profit Sharing Contributions
made on or after July 1, 1999 (and all earnings and losses
thereon) shall be allocated to the Basic Profit-Sharing
Sub-Account.
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(B) Profit Sharing Contributions
made prior to July 1, 1999 (and all earnings and losses
thereon) and all Money Purchase Contributions (and all
earnings and losses thereon) shall be allocated to the
Grandfathered Profit-Sharing Sub-Account.
6.2 Allocations of Investment Earnings and Losses
(a) As of each Valuation Date, the Trustee shall
determine the fair market value of each Investment Fund in the Trust Fund, and
the difference in the value of the Investment Fund since the preceding Valuation
Date shall be allocated to each Account (and Sub-Account) in proportion to the
value of the Account (and Sub-Account) in the Investment Fund.
(b) The Committee shall establish accounting
procedures for the purpose of allocating Trust Fund earnings and losses among
Accounts (and Sub-Accounts) and the treatment of contributions and distributions
since the preceding Valuation Date. The Committee may modify its procedures as
necessary to achieve an equitable and nondiscriminatory allocation of earnings
and losses among Accounts (and Sub-Accounts).
(c) The Committee may change the Valuation Date if it
determines that the allocation of earnings and losses would otherwise result in
inequitable treatment of some Participants, provided, however, the assets shall
be valued on at least one day in each Plan Year.
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<PAGE> 34
ARTICLE VII
INVESTMENT OF TRUST FUND
7.1 Investment Funds. The Committee shall, from time to time,
select a diversified group of Investment Funds for investment of the Trust Fund.
The Committee shall furnish descriptions of the Investment Funds to Participants
which describe the features of the Fund. Effective September 1, 1999, one of the
available Investment Funds may provide specifically for investment in Bank
Stock.
7.2 Investment Elections
(a) Each Participant's Accounts shall be invested in
one or more of the Investment Funds as selected by the Participant in accordance
with this Article. The selection among the available Investment Funds is the
sole responsibility of each Participant. No Employer, representative of the
Employer, the Committee, or any Investment Manager is authorized to make any
recommendation to any Participant with respect to Investment Fund selection.
This Plan is intended to constitute a plan described in Section 404(c) of ERISA
to provide an opportunity for a Participant or Beneficiary to exercise control
over assets in his Accounts and to choose from a broad range of investment
alternatives the manner in which some or all of the assets in his Account are
invested.
(b) A Participant shall, upon his initial
participation in the Plan, elect to have the contributions to his Accounts
invested in one or more of the available Investment Funds. The election shall be
made in writing on a form provided by the Committee. Investment elections and
changes thereto, with respect to each Investment Fund, must be made in
increments of 5%. If, at any time, a Participant does not have a valid election
on file with the Committee, the Participant shall be deemed to have elected that
all of his Accounts be invested in an available investment under the Plan that
best protects the principal from market fluctuations. An investment election
made in accordance with this Article shall remain in effect with respect to all
future contributions allocated to the Participant's Accounts unless or until
changed in accordance with the provisions of Section 7.3.
(c) If at any time an Insider is prohibited by the
Section 16 Rules from directing that his Account (or any portion thereof) be
invested in Bank Stock, any such direction shall be disregarded and such
Insider, with respect to the portion of his Account (or any portion thereof)
that he has directed to be invested in Bank Stock, shall be deemed to have
failed to make an investment direction.
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<PAGE> 35
7.3 Changes in Investment Elections.
(a) A Participant may elect to change how future
contributions to his Accounts are invested. Such a change shall be made in
writing on a form prescribed by the Committee or by using an interactive
telephone system and shall specify the percentage of his future contributions to
be invested in each Investment Fund in 5% increments. The change will become
effective on the first day of the calendar month following timely receipt by the
Committee of the request for a change, or as soon thereafter as administratively
practicable, provided the Participant complies with the procedures and deadlines
as established by the Committee.
(b) If at any time an Insider is prohibited by the
Section 16 Rules from directing that his Account (or any portion thereof) be
invested in Bank Stock, any such direction shall be disregarded and such
Insider, with respect to the portion of his Account (or any portion thereof),
that he has directed to be invested in Bank Stock, shall be deemed to have
failed to make an investment direction.
7.4 Transfers Between Investment Funds.
(a) A Participant may elect to transfer amounts
invested in his Accounts among the Investment Funds. The election to transfer
must be made in writing on a form provided by the Committee or by using an
interactive telephone system. With respect to each Participant's Account, the
transfer shall result in Investment Fund balances equal to a percentage, in 5%
increments, as elected by the Participant. The change will become effective on
the first day of the calendar month following timely receipt by the Committee of
an election to transfer or as soon thereafter as administratively practicable,
provided the Participant complies with the procedures as established by the
Committee.
(b) If at any time an Insider is prohibited by the
Section 16 Rules from directing that his Account balance (or any portion
thereof) be transferred to an investment in Bank Stock, or from directing that
any of the Bank Stock in which his Account is invested be sold or liquidated,
for whatever reason, any such direction shall be disregarded and not given
effect.
7.5 Committee Directions to Trustee. The Committee will
transmit appropriate and timely directions and instructions to the Trustee with
respect to the acquisition of, or the withdrawal of, appropriate amounts in each
of the Investment Funds in order to give effect to the investment, change or
transfer elections made by each Participant.
7.6 Committee May Amend Rules. The Committee may adopt uniform
rules providing for additional or different dates for the changes of or
transfers between Investment Funds and may impose uniform limitations on changes
or transfers as it deems appropriate.
7.7 Bank Stock. Effective September 1, 1999, to the extent
Participants direct investment in an Investment Fund designed to invest in Bank
Stock, Trust assets may be used to
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<PAGE> 36
purchase shares of Bank Stock from the Bank, from shareholders in a privately
negotiated transaction, or on the open market. Investments of Trust assets made
by the Trustee shall be subject to the direction of the Committee, and all
purchases of Bank Stock by the Trustee shall be made at prices which do not
exceed the fair market value of such Shares.
7.8 Valuation of Bank Stock.
(a) If the Bank Stock is readily tradable on an
established securities market, the fair market value of the Shares shall be the
closing sale price of the Shares on a national securities exchange or in the
NASDAQ National Market System, whichever is applicable, on (i) for purposes of
determining the price to be paid for Shares purchased by the Plan other than on
the open market, the day next preceding the day on which a sale occurred or (ii)
for all other purposes, the day as of which the value is being determined.
Notwithstanding the foregoing, in the event that it shall be necessary for the
Trustee to sell or purchase Bank Stock on the open market in order to permit the
making of a distribution in cash or in Shares, respectively, the fair market
value of the Shares so sold or purchased shall be the price per share at which
such Shares were actually sold or purchased.
(b) If the Bank Stock is not readily tradable on an
established securities market, all valuations of such Bank Stock with respect to
activities carried on by the Plan shall be made by an independent appraiser
meeting requirements similar to those contained in treasury regulations under
Section 170(a)(1) of the Code.
7.9 Voting of Shares of Bank Stock. Effective September 1,
1999, each Participant who has directed investment in an Investment Fund that
invests in Bank Stock shall be entitled to direct the Trustee as to the manner
in which Bank Stock which is allocated to his Account is to be voted. The Bank
shall adopt reasonable measures to notify the Participants of the date and
purposes of each meeting of stockholders of the Bank at which holders of shares
of Bank Stock shall be entitled to vote, and to request instructions from each
Participant to the Trustee as to the voting at such meeting of the shares of
Bank Stock in which his Account is invested (whether or not vested). The
Trustee, itself or by proxy, shall vote the shares of Bank Stock in which
Participants' Accounts are invested in accordance with the instructions of the
Participants. If instructions are not received from any Participant with respect
to the voting of any shares of Bank Stock allocated to his Account ("nonvoted
shares") and to the extent of any Bank Stock has not yet been allocated to any
Participant's Account ("unallocated shares"), the Committee, to the extent not
inconsistent with applicable law or as required pursuant to the next sentence,
shall direct the Trustee to vote such Bank Stock in the manner that most closely
reflects the voting instructions received by the Trustee from Participants with
respect to Bank Stock for which instructions have been received. Notwithstanding
any provision hereunder to the contrary, however, nonvoted and unallocated
shares of Bank Stock shall not be voted in the manner described in the preceding
sentence, but shall otherwise be voted in a manner determined by the Committee
(or, if such authority is delegated by the Committee, to the extent permitted by
applicable law, by an independent fiduciary who by acceptance of such delegation
shall become a
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<PAGE> 37
named fiduciary hereunder for purposes of ERISA) to be for the exclusive benefit
of Participants and Beneficiaries and otherwise consistent with ERISA, in the
event that the Committee (or such independent fiduciary) determines that the
application of the provisions set forth in the preceding sentence would
otherwise be in violation of the requirements of ERISA.
7.10 Response to Tender Offer for Bank Stock. Each Participant
shall have the right, to the extent of the number of shares of Bank Stock which
are allocated to his Account, to direct the Trustee in writing as to the manner
in which to respond to a tender or exchange offer with respect to such Bank
Stock. The Bank shall utilize its best efforts to timely distribute or cause to
be distributed to each Participant such information as will be distributed to
shareholders of the Bank in connection with any such tender or exchange offer.
If instructions are not received from any Participant with respect to the
tender or exchange of any shares of Bank Stock allocated to his Account, and to
the extent any Bank Stock has not been allocated to any Participant's Account,
the Committee, to the extent not inconsistent with applicable law or as
required pursuant to the next sentence, shall direct the tender or exchange of
such Bank Stock in the manner that most closely reflects the tender or exchange
instructions received by the Trustee from Participants with respect to Bank
Stock for which instructions have been received. Notwithstanding any provision
hereunder to the contrary, however, shares of Bank Stock which are allocated to
any Participant's Account but for which tender or exchange instructions have
not been received, and any shares of Bank Stock that has not yet been allocated
to any Participant's Account, shall not be tendered or exchanged in the manner
described in the preceding sentence, but shall otherwise be tendered or
exchanged in a manner determined by the Committee (or, if such authority is
delegated by the Committee, to the extent permitted by applicable law, by an
independent fiduciary who by acceptance of such delegation shall become a named
fiduciary hereunder for purposes of ERISA) to be for the exclusive benefit of
Participants and Beneficiaries and otherwise consistent with ERISA, in the
event that the Committee (or such independent fiduciary) determines that the
application of the provisions set forth in the preceding sentence would
otherwise be in violation of the requirements of ERISA.
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ARTICLE VIII
VESTING
8.1 Salary Deferral, Supplemental and Rollover Accounts. All
amounts credited to a Participant's Salary Deferral, Supplemental and Rollover
Accounts shall be fully vested and nonforfeitable at all times.
8.2 Matching Contributions.
(a) The amounts credited to a Participant's Matching
Account shall be fully vested and nonforfeitable upon his death, Disability or
attaining Normal Retirement Age while an Employee.
(b) Except as provided in paragraph (a), a
Participant's Matching Account shall become vested and nonforfeitable in
accordance with the following schedule:
<TABLE>
<CAPTION>
Years of Vesting Service Vested Percentage
- ------------------------ -----------------
<S> <C>
Less than 1 year................................................................0%
1 year but less than 2 years...................................................25%
2 years but less than 3 years..................................................50%
3 years but less than 4 years..................................................75%
4 years or more...............................................................100%
</TABLE>
8.3 Profit-Sharing Contributions and Money Purchase
Contributions.
(a) The amounts credited to a Participant's
Profit-Sharing Account shall be fully vested and nonforfeitable upon his death,
Disability or attaining Normal Retirement Age, while an Employee.
(b) Except as provided in paragraph (a), a
Participant's Profit-Sharing Account shall become vested and nonforfeitable in
accordance with the following schedule:
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<PAGE> 39
<TABLE>
<CAPTION>
Years of Vesting Service Vested Percentage
- ------------------------ -----------------
<S> <C>
Less than 3 years..............................................................0%
3 year but less than 4 years..................................................30%
4 years but less than 5 years.................................................40%
5 years but less than 6 years.................................................60%
6 years but less than 7 years.................................................80%
7 years or more..............................................................100%
</TABLE>
8.4 Forfeitures.
(a) If a Participant terminates employment when the
Participant's Vested Percentage in his Matching Account and/or Profit-Sharing
Account is less than 100%,
(1) the vested portion of his Matching
Account and/or Profit-Sharing Account shall be distributed as
provided in Articles X and XI, and
(2) the unvested portion of his Matching
Account and/or Profit-Sharing Account shall be forfeited as of the
date of such distribution.
If the Participant's Vested Percentage in his
Matching Account and/or Profit-Sharing Account is zero, there shall
be a deemed distribution of the vested balance of such Account upon
termination of employment and the unvested balance shall be
forfeited.
(b) If a Participant who ceases to be an Employee is
subsequently reemployed as an Employee before incurring a five year Period of
Severance, any amount forfeited pursuant to paragraph (a) shall be restored to
the Participant's Matching Account and/or Profit-Sharing Account; provided,
however, that if the Participant received a distribution of the vested portion
of his Matching Account and/or Profit-Sharing Account, the forfeited amounts
shall be reinstated only if the Participant repays the amount of his Matching
Account and/or Profit-Sharing Account previously distributed before the fifth
anniversary of the Reemployment Date (or, if earlier, before the date on which
the Participant incurs a Period of Severance of five or more years). If a deemed
distribution of zero dollars was made on the Participant's previous termination
of employment, he shall be deemed to have repaid the distribution upon
reemployment as an Employee.
(c) If no distribution is made pursuant to paragraph
(a), the unvested portion of the Matching Account and/or Profit-Sharing Account
shall be forfeited when the Participant incurs a five year Break in Service, but
if the Participant becomes an Employee before incurring a five year Break in
Service, the unvested portion of the Matching Account and/or Profit-Sharing
Account shall not be so forfeited.
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<PAGE> 40
(d) If a Participant is reemployed as an Employee
after incurring a five year Break in Service, any amounts forfeited under this
Section shall not be restored, a separate Matching Account and/or Profit-Sharing
Account will be established for all post-Break Matching Contributions and/or
post-Break Profit-Sharing Contributions, and the Participant's post-Break
service shall not increase the Vested Percentage in his pre-Break Matching
Account and/or pre-Break Profit-Sharing Account. If the Participant is
reemployed as an Employee before incurring a five year Break in Service, his
Vested Percentage in both his pre-Break and post-Break Matching Accounts and/or
Profit-Sharing Accounts will be determined using both his pre-Break and
post-Break service and he will continue to vest, starting at the point in the
vesting schedule where he left employment, in both his pre-Break and post-Break
Matching Account and/or Profit-Sharing Account balances.
(e) Forfeitures will be restored from amounts
forfeited in the Plan Year in which the Participant repays the amount previously
distributed or is reemployed and, to the extent such forfeitures are not
sufficient, by a special Employer contribution. The amount restored shall be
equal to the amount forfeited, unadjusted by any subsequent gains or losses.
Forfeitures not used to restore Participant Matching Accounts and/or
Profit-Sharing Accounts shall be used to reduce future Employer contributions
or, as determined by the Committee, to pay expenses of Plan administration.
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<PAGE> 41
ARTICLE IX
WITHDRAWALS DURING EMPLOYMENT
9.1 Hardship Withdrawals from Salary Deferral Accounts. A
Participant may request a withdrawal from his Salary Deferral Account on account
of hardship, subject to the rules set forth in this Section after he has
withdrawn all of his other Accounts which are available for withdrawal.
(a) The maximum amount of the withdrawal shall not
exceed the lesser of
(1) the Participant's Salary Deferral
Contributions (without adjustment for earnings) and
(2) the amount necessary to meet the
hardship need and any amounts necessary to pay any federal, state or
local income taxes or penalties reasonably anticipated to result from
the distribution.
(b) The minimum amount of withdrawal permitted shall
be the lesser of $1,000 or the balance of the Participant's Salary Deferral
Contributions (without adjustment for earnings).
(c) The Participant's request shall be in writing on
such forms and in accordance with procedures established by the Committee. The
Committee shall review all hardship requests on the basis of criteria which do
not discriminate in favor of highly compensated employees (as defined in Code
Section 414(q)).
(d) A hardship withdrawal will be granted only on
account of an immediate and heavy financial need. The need may have been
reasonably foreseeable or voluntarily incurred by the Participant. An immediate
and heavy financial need shall exist if it is on account of:
(1) unreimbursed expenses incurred (or to
be incurred) by the Participant, his spouse, or his dependents (as
described in Code Section 152) for medical care described in Code
Section 213(d);
(2) the purchase (excluding mortgage
payments) of the principal residence of the Participant;
(3) tuition and related educational fees
for the next year of post-secondary education for the Participant,
his spouse or his dependents;
(4) the need to prevent the eviction from
or the foreclosure on the Participant's principal residence; or
35
<PAGE> 42
(5) such other reason as the Commissioner
of the Internal Revenue from time to time publishes in official
documents of general applicability.
(e) A hardship withdrawal will be granted only to the
extent that the amount requested does not exceed the amount required to satisfy
the need, and the need cannot be satisfied from any other resources reasonably
available to the Participant. A need cannot be satisfied from other sources if
either (1) or (2) is satisfied and if the Participant has withdrawn or borrowed
the entire balance of his Accounts to the extent available under this Article.
(1) Without actual knowledge to the
contrary, the Committee may rely on the Participant's written
statement that the need cannot be satisfied
(A) by reimbursement or
compensation by insurance or otherwise, or
(B) by the reasonable
liquidation of the Participant's assets to the extent that
the liquidation would not itself cause a hardship, or
(C) by the cessation of all
Salary Deferral Contributions under the Plan, or
(D) by obtaining (without
incurring further hardship) all other distributions or
nontaxable loans from plans maintained by the Employer or
any other employer in which the Participant has an
interest, or
(E) by borrowing from
commercial sources on reasonable terms.
(2) Alternatively, the Committee shall
determine that the need cannot be satisfied from other sources if the
Participant agrees that:
(A) Salary Deferral
Contributions on his behalf to this Plan (and all other
plans of the Employer) shall be suspended for twelve months
after receipt of the hardship distribution, and
(B) the maximum Salary Deferral
Contribution that can be made on his behalf for the taxable
year next following the taxable year of the hardship
distribution shall be an amount equal to the excess of the
402(g) Limit (as defined in Section 5.4) for such next year
over the amount of Salary Deferral Contributions made on
his behalf in the taxable year of the hardship
distribution.
9.2 Withdrawals from Rollover and Matching Accounts. A
Participant may request a withdrawal of the balance of his Rollover Account and
his Matching Account, provided his
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<PAGE> 43
Vested Percentage is 100%, on account of hardship as defined in Section 9.2(c),
subject to the rules set forth in this Section:
(a) The Participant's request shall be in writing on
such forms and in accordance with such procedures as the Committee specifies.
(b) The minimum amount of withdrawal permitted shall
be the lesser of $1,000 or the balance of such Account, but not more than the
amount necessary to meet the need.
(c) The withdrawal must satisfy the provisions of
Section 9.1(d).
9.3 Withdrawal Limitations Applicable to Supplemental Accounts
and Profit-Sharing Accounts. Except as provided in Sections 9.4 and 10.1(h),
prior to terminating employment with an Employer, a Participant may not withdraw
any portion of the balance of (a) his Supplemental Account or (b) his Profit-
Sharing Account.
9.4 Withdrawal After Attaining Age 591/2. A Participant who has
attained age 591/2 may withdraw all or any portion of his Accounts (except his
Profit-Sharing Account), provided his Vested Percentage is 100%, subject to the
following rules:
(a) The Participant's request shall be in writing on
such forms and in accordance with such procedures as the Committee specifies.
(b) The minimum amount of withdrawal permitted shall
be the lesser of $1,000 or the balance of his Accounts.
(c) A withdrawal pursuant to this Section shall not
affect the Participant's continued participation in the Plan.
9.5 Valuing Withdrawals.
(a) The amount of any withdrawal shall be based on
the balance of the Participant's Accounts on the Valuation Date immediately
preceding the date of the request for a withdrawal.
(b) The Participant shall select the Investment
Fund(s) to be the source of any withdrawal, or, in the absence of any election,
the withdrawal shall be made pro-rata from each Investment Fund in which the
Participant is invested.
9.6 Prohibited Withdrawals. Notwithstanding anything to the
contrary contained herein, if an Insider shall request a withdrawal under this
Article IX, such withdrawal may only be taken from the portion of his Account
then invested in Bank Stock to the extent that such withdrawal is not prohibited
by the then applicable Section 16 Rules. If withdrawals of Bank
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<PAGE> 44
Stock by such Insider shall not then be permitted, his requested withdrawal
shall be taken proportionately from the other Investment Funds in which his
Account is invested.
9.7 Manner of Payment. Subject to such terms and conditions as
may be established from time to time by the Plan Administrator, the portion of
any withdrawal that is attributable to Bank Stock owned by the Participant, may,
if the Participant, Former Participant or Beneficiary so requests, be paid
wholly or partially in full Shares. Except as otherwise provided in this
Section 9.7, a withdrawal from the Investment Funds shall be paid in cash.
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<PAGE> 45
ARTICLE X
PAYMENT OF BENEFITS
10.1 Distribution.
(a) Except as provided in Article XI, a Participant
shall be entitled to receive the Vested Percentage of his Accounts upon
termination of employment whether the Employee has retired, has quit, has been
discharged, or has left on account of Disability. The Committee shall value the
Vested Percentage of the Participant's Accounts on the Valuation Date coinciding
with or immediately following the date of the Participant's termination of
employment (or request for benefits if later), plus contributions made since the
Valuation Date.
(b) Except as provided in Article XI, distribution
shall be made in a single sum payment. Subject to such terms and conditions as
may be established from time to time by the Plan Administrator, the portion of
any distribution that is attributable to Bank Stock owned by the Participant,
may, if the Participant, Former Participant or Beneficiary so requests, be paid
wholly or partially in full Shares. Except as otherwise provided in this Section
10.1(b), all distributions shall be paid in cash.
(c) If the distribution is an eligible rollover
distribution (as defined in Section 402(c)(4) of the Code), a Participant can
direct the Plan Administrator to have all or a portion (expressed as a whole
percentage) of the distribution directly rolled over to an eligible retirement
plan (as defined in Section 402(c)(8)(B) of the Code) and the balance, if any,
paid to him. A request for a direct rollover shall be in writing on such form
provided by the Plan Administrator according to procedures and deadlines as
established by the Plan Administrator. The Participant must provide all
information required by the Plan Administrator to effect the direct rollover. A
Participant cannot direct a distribution to be rolled over to two or more
eligible retirement plans.
(d) Subject to subsection (e) below, distribution
shall be made as soon as administratively practicable following the event
described in paragraph (a). Notwithstanding the foregoing, unless the
Participant elects otherwise, a Participant's benefits shall be paid no later
than the 60th day after the close of the Plan Year in which the latest of the
following events occurs: (1) the Participant attains Normal Retirement Age; (2)
the 10th anniversary of the Participant's entry into the Plan; or (3) the
Participant ceases to be an Employee. The Participant's failure to elect
distribution shall be deemed to be a consent to delay payment of benefits.
(e) If the value of a Participant's Accounts exceeds
(or at the time of any prior distribution exceeded) $5,000, distribution shall
not be made to the Participant before the earlier of:
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<PAGE> 46
(1) the date the Participant consents in
writing to the distribution, or
(2) the Participant attains Normal
Retirement Age.
The Committee shall inform the Participant of his right to
defer commencement under this paragraph. A Participant's failure to consent
shall be treated as an election to defer to the earlier of (1) and (2).
(f) Except as provided in Article XI, if the
Participant dies before distribution commences, the Vested Percentage of his
Accounts shall be valued on the Valuation Date coinciding with or immediately
following the date of death, and then distributed in a single sum payment to the
Participant's Beneficiary as soon as administratively practicable after the date
of death, but in no event later than the fifth anniversary of the Participant's
death. However, if the Beneficiary is the Participant's Eligible Spouse and the
vested balance of the Participant's Accounts exceeds $5,000, the Spouse may
elect to defer distribution to any future date but not beyond the date the
Participant would have attained age 70 1/2. The Spouse's election to defer
distribution is not valid if made more than 90 days before the annuity starting
date (as defined in Section 417(f)(2) of the Code). If distribution is deferred,
the Accounts shall be valued on the Valuation Date coinciding with or
immediately following the Plan Administrator's receipt of a request for
distribution. The Spouse may choose to use the direct rollover option described
in paragraph (c), but only to an individual retirement account or annuity. If
the Spouse dies before distribution is made, the Accounts shall be paid to the
Beneficiary designated by the Eligible Spouse, or if none, pursuant to Section
10.2(c), as though the Spouse were the Participant.
(g) Notwithstanding any other provision of the Plan,
(1) distribution shall commence no later than April 1 of the year following the
later of: (a) the year in which the Participant attains age 70 1/2, and (b) the
year in which the Participant retires, and (2) all distributions under this Plan
shall comply with the provisions of Code Section 401(a)(9) and the minimum
distribution incidental benefit rule of Code Section 401(a)(9)(G) and the
regulations issued thereunder, including Treasury Regulation Section
1.401(a)(9)-2. Participants who have attained age 70 1/2 shall, at their own
election, be entitled to commence distributions prior to termination of service.
Distributions required to be made by this paragraph shall be made in accordance
with this Article. Distributions made to satisfy Code Section 401(a)(9) are not
eligible for the direct rollover option described in paragraph (c).
10.2 Beneficiary Designation
(a) Subject to the provisions of paragraph (b), each
Participant shall designate a Beneficiary or Beneficiaries to receive any
benefits payable under Sections 10.1(f) or Article XI if the Participant dies
before receiving all amounts credited to his Accounts. Each Beneficiary
designation shall be in writing, signed by the Participant, on a form furnished
by the Committee. The Participant may from time to time change his Beneficiary
designation. Each subsequent
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<PAGE> 47
change in Beneficiary designation filed with the Committee will cancel all
previous Beneficiary designations.
(b) No designation of a Beneficiary other than the
Participant's Eligible Spouse shall be effective unless the Eligible Spouse
consents in writing to such designation, the Eligible Spouse's consent
acknowledges the effect of such designation, and the Eligible Spouse's signature
is witnessed by a notary public. The revocation of a Beneficiary designation and
designation of a new Beneficiary (other than the Eligible Spouse) shall not be
effective unless the spousal consent requirements of the preceding sentence are
satisfied. Any consent by an Eligible Spouse shall be effective only with
respect to such spouse. Notwithstanding the foregoing, spousal consent shall not
be required if it is established to the satisfaction of the Committee that
spousal consent cannot be obtained because there is no Eligible Spouse or
because the Eligible Spouse cannot be located. If the Eligible Spouse is legally
incompetent to give consent, the legal guardian of the Eligible Spouse (even if
it is the Participant) may give consent. If the Participant and the Eligible
Spouse are legally separated (or the Participant has been abandoned under local
law) and the Participant has a court order to such effect, spousal consent is
not required unless a Qualified Domestic Relations Order provides otherwise.
(c) If a Participant fails to designate a Beneficiary
in the manner provided above, if the Participant's Eligible Spouse fails to
consent as provided above, or if the designated Beneficiary predeceases the
Participant, the Participant's benefits shall be paid in accordance with the
following order of priority: the Participant's (1) surviving spouse, (2)
surviving issue (by right of representation), (3) surviving parents, and (4)
estate.
10.3 Benefits to Minors and Legal Incompetents.
(a) If any Participant or Beneficiary is a minor or
is physically or mentally incapable of giving a valid receipt for any payment
due him and no legal representative has been appointed, the Committee may, in
its discretion, direct the Trustee to make such payment to any person or
institution maintaining the Participant or Beneficiary. If such individual has a
legal representative, payment shall be made to the legal representative.
(b) In the event of a dispute as to whom distribution
is to be made under this Section, payment may be made to a court of proper
jurisdiction, with final distribution to be determined by such court.
(c) Any payment made in accordance with the
provisions of this Section shall completely discharge any liability for the
making of such payment under the provisions of the Plan.
10.4 Lost Participants. If after making diligent efforts to do
so, the Plan Administrator cannot locate a person whose benefits must be
distributed, such person will thereupon forfeit any
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<PAGE> 48
and all benefits under the Plan. If the person is subsequently located the
Employer will reinstate payments due under the Plan, without gains or losses.
10.5 General Conditions.
(a) Any payment made in accordance with the
provisions of the Plan to a Participant or Beneficiary, or to their legal
representative, shall constitute full satisfaction of claims hereunder against
the Trustee, the Committee and the Plan Administrator.
(b) All benefits under the Plan shall be distributed
from the Trust Fund. The Employer of the Company shall not be liable or
responsible therefor.
(c) The Committee may require the Participant to
submit a written request for payment of benefits to the Committee containing
such forms as the Committee reasonably requires to make distribution.
10.6 Qualified Domestic Relations Order.
(a) The Committee will comply with provisions of an
order it determines to be a Qualified Domestic Relations Order. An alternate
payee (as defined in Section 414(p)(8) of the Code) may also use the direct
rollover option described in Section 10.1(c). Distribution shall not be made
prior to the earliest retirement age on which the Participant could receive his
Accounts. For purposes of this Section, "earliest retirement age" means the
earlier of:
(1) the date on which the Participant is
entitled to a distribution under the Plan, or
(2) the later of: (i) the date the
Participant attains age 50, or (ii) the earliest date on which the
Participant could begin receiving benefits under the Plan if the
Participant separated from service.
(b) Notwithstanding any provision of the Plan to the
contrary, payments to an alternate payee under a Qualified Domestic Relations
Order received and approved by the Plan Administrator on or after July 1, 1999
may begin as soon as practicable after the Plan Administrator determines whether
such order constitutes a Qualified Domestic Relations Order, provided that such
earlier commencement of payments is consistent with the terms of the Qualified
Domestic Relations Order.
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ARTICLE XI
PAYMENT OF GRANDFATHERED PROFIT-SHARING BENEFITS
11.1 Distribution of Grandfathered Profit-Sharing Account.
Distribution of the Vested Percentage of a Participant's Grandfathered
Profit-Sharing Account shall be made in accordance with this Article XI. Such
amount shall be referred to herein as the Participant's "Grandfathered
Profit-Sharing Benefit."
11.2 Automatic Forms of Retirement Benefit.
(a) A Participant who is married on the Annuity
Starting Date (which for purposes of this Article XI is defined in Section
11.10) will automatically receive his Grandfathered Profit-Sharing Benefit
through the purchase of a 50% joint and survivor annuity with the Participant's
spouse as the Beneficiary unless the Participant elects an optional form of
benefit in accordance with the procedures set forth in Section 11.4. A 50% joint
and survivor annuity provides for a reduced monthly benefit for the life of the
Participant, to continue after the Participant's death at 50% of the
Participant's monthly benefit to the Beneficiary for life if the Beneficiary
survives the Participant. If the Beneficiary predeceases the Participant (after
benefits to the Participant have commenced) no survivor benefits will be payable
on the death of the Participant and no adjustment to the amount of the
Participant's benefits shall be made.
(b) A Participant who is not married on the Annuity
Starting Date will automatically receive his benefit through the purchase of a
single life annuity unless the Participant elects an optional form of benefit in
accordance with the procedures set forth in Section 11.5. A single life annuity
is a monthly benefit payable for the life of the Participant. There are no death
benefits following the death of the Participant.
11.3 Optional Forms of Retirement Benefits. A Participant may
choose (subject to Section 11.5 or 11.6 as applicable) to have his Grandfathered
Profit-Sharing Benefit paid in one of the following optional forms.
(a) Lump Sum Option. The balance of the
Participant's Grandfathered Profit-Sharing Account paid in a single lump sum
payment.
(b) Installment Payments. Substantially equal
periodic payments (monthly, semi-annual, annual) paid to the Participant (and
his Beneficiary) for a fixed period of years not to exceed five years. The
Beneficiary must be irrevocably designated in accordance with Section 10.2
before benefits commence. If both the Beneficiary and the Participant die before
receiving all payments, the remaining payments will be paid to a successor
Beneficiary. The Participant (or the Beneficiary if the Participant is deceased)
may elect to receive the balance of his Grandfathered Profit-Sharing Account in
a single lump sum at any time after installment payments commence.
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(c) Combination of Lump Sum Option and Installment
Payments. The Participant can elect to receive his vested Grandfathered
Profit-Sharing Benefit partially as a single lump sum payment and as a series of
substantially equal periodic payments in accordance with paragraphs (a) and (b)
above, to the extent permitted by the Committee.
(d) Direct Rollovers. If the distribution is an
eligible rollover distribution (as defined in Section 402(c)(4) of the Code), a
Participant can direct the Plan Administrator to have all or a portion
(expressed as a whole percentage) of the distribution directly rolled over to an
eligible retirement plan (as defined in Section 402(c)(8)(B) of the Code and the
balance, if any, paid to him. A request for a direct rollover shall be in
writing on such form provided by the Plan Administrator according to procedures
and deadlines as established by the Plan Administrator and communicated to
Participant. The Participant must provide all information required by the Plan
Administrator to effect the direct rollover. A Participant cannot divide an
eligible rollover distribution into separate distributions to be direct
rollovers to two or more eligible retirement plans.
(e) Subject to such terms and conditions as may be
established by the Plan Administrator, the portion of any lump sum distribution
payable under this Section 11.3 or Section 11.8 that is attributable to Bank
Stock owned by the Participant may, if the Participant, Former Participant or
Beneficiary so requests, be paid wholly or partially in full shares. Except as
otherwise provided in this Section 11.3(e), all distributions payable under this
Article XI shall be paid in cash.
11.4 Election Requirements for Married Participants.
(a) A distribution of the Grandfathered
Profit-Sharing Benefit will not be made in a form other than through the
purchase of a 50% joint and survivor annuity to a Participant described in
Section 11.2(a) (a "married Participant") unless (1) the Participant has
received the notices described in Section 11.6, (2) the Participant elects not
to receive the 50% joint and survivor annuity, and (3) the Participant's spouse
has consented to such election in accordance with the provisions of this
Section.
(b) A married Participant may elect (or revoke a
previous election) to receive Grandfathered Profit-Sharing Benefits in a form
other than 50% joint and survivor annuity. Such an election may be made only if
(i) such joint and survivor annuity is immediately payable, and (ii) the
election is made no more than 90 days before the Annuity Starting Date.
(c) An election not to receive Grandfathered
Profit-Sharing Benefits in the form of a 50% joint and survivor annuity (or the
revocation of such an election) shall be effective on the date the election (or
revocation) is received by the Plan Administrator, provided, however, that an
election to receive Grandfathered Profit-Sharing Benefits in a form other than a
joint and survivor annuity shall not be effective unless (1) the election is
consented to by the Participant's spouse, (2) the election designates a specific
Beneficiary or class of Beneficiaries (if applicable)
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and a form of benefit which may not be changed without spousal consent (or the
consent expressly permits designations by the Participant without any
requirement of further consent by the spouse), (3) the spouse's consent
acknowledges the effect of the consent and election, and (4) the consent is
witnessed by a notary public. No consent is required if it is established to the
satisfaction of the Plan Administrator that consent cannot be obtained because
there is no spouse or because the spouse cannot be located. If the spouse is
legally incompetent to give consent, the legal guardian (even if it is the
Participant) may give consent. If the Participant and the spouse are legally
separated (or the Participant has been abandoned under local law) and the
Participant has a court order to such effect, spousal consent is not required
unless a Qualified Domestic Relations Order provides otherwise. The consent of a
spouse is only binding on such spouse.
11.5 Election Requirements for Unmarried Participants.
(a) A distribution of Grandfathered Profit-Sharing
Benefits will not be made in a form other than a single life annuity to a
participant described in Section 11.2(b) (an "unmarried Participant") unless the
Participant has received the notices described in Section 11.6 and elects in
writing not to receive the automatic form.
(b) An unmarried Participant may elect in writing to
receive Grandfathered Profit-Sharing Benefit in a form other than the single
life annuity, provided such election is made no more than 90 days before the
Annuity Starting Date.
11.6 Notice Requirements.
(a) General Notice. The Plan Administrator shall
provide each Participant with a written general description of the eligibility
conditions and other material features of the optional forms of benefit and
sufficient additional information to explain the relative values of the optional
forms of benefit to the automatic forms of benefit. If the Participant has not
yet attained Normal Retirement Age, the notice shall also inform the Participant
of his right to defer payment of Grandfathered Profit-Sharing Benefits until the
earlier of (1) the date he consents to payment or (2) the date he attains Normal
Retirement Age. This general notice shall be provided no more than 90 days and
no less than 30 days before the Participant's Annuity Starting Date, or at such
other times permitted by law or regulation.
(b) Joint and Survivor Annuity Notice. The Plan
Administrator will also provide to each married Participant who is eligible to
receive Grandfathered Profit-Sharing Benefits under the Plan a written
explanation in non-technical language of the terms and conditions of the 50%
joint and survivor annuity, the Participant's right to make and the effect of an
election not to receive Grandfathered Profit-Sharing Benefits in such form, the
rights of the Participant's spouse with respect to receiving benefits as a 50%
joint and survivor annuity, and the right to revoke and the effect of a
revocation of an election not to receive benefits in the form of a joint and
survivor annuity. The written explanation shall also include a general
explanation of the relative financial effect on the Participant's benefit of
electing the 50% joint and survivor annuity.
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The Plan Administrator shall provide this explanation no more than 90 days and
no less than 30 days prior to the Participant's Annuity Starting Date, or at
such other times permitted by law or regulation.
11.7 Annuity Payments. If a Participant elects to receive
Grandfathered Profit-Sharing Benefits in the form of an annuity, the Vested
Percentage of his Grandfathered Profit-Sharing Benefit (valued in accordance
with Section 10.1(a)) shall be used to purchase a single premium
non-transferable guaranteed annuity contract from a life insurance company
selected by the Committee. The contract shall include applicable Plan features.
Once purchased, the annuity contract shall provide all the Grandfathered
Profit-Sharing Benefits owing the Participant (and his Beneficiary) under the
Plan and the Plan shall have no further obligation for such benefits.
11.8 Pre-Retirement Death Benefits.
(a) If a Participant dies prior to his Annuity
Starting Date (whether or not while an employee) with a Grandfathered
Profit-Sharing Benefit, the Participant's surviving Eligible Spouse shall be
entitled to receive a Qualified Preretirement Survivor Annuity. The Qualified
Preretirement Survivor Annuity shall be a monthly annuity for the Eligible
Spouse's life purchased with 100% of the value of the Vested Percentage of the
Participant's Grandfathered Profit-Sharing Account determined as of the
Valuation Date coincident with or immediately following the date of death. The
surviving Eligible Spouse can elect instead to receive the Qualified
Preretirement Survivor Annuity in any optional form of payment as described in
Section 11.3.
(b) If a Participant dies prior to his Annuity
Starting Date and has no Eligible Spouse on his date of death, the Vested
Percentage of his Grandfathered Profit-Sharing Account shall be paid as an
immediate single lump sum payment to the Beneficiary designated by the
Participant.
(c) Notwithstanding the foregoing, if the Vested
Percentage of the Grandfathered Profit-Sharing Account is greater than $5,000,
payment to the Eligible Spouse shall not commence without the Spouse's written
consent prior to the December 31 of the calendar year in which the Participant
would have attained age 70 1/2.
11.9 Post-Retirement Death Benefits. Death benefits attributed
to the Grandfathered Profit-Sharing Account which are paid after a Participant's
Annuity Starting Date, if any, will be payable according to the provisions of
the form of benefit which has been elected and must be paid at least as rapidly
as under the method in effect as of the date of death.
11.10 Annuity Starting Date. For purposes of this Article XI,
"Annuity Starting Date" means (a) the first day of the first period with respect
to which an amount is received as an annuity, or (b) in the case of a benefit
not paid in the form of an annuity, the first day on which all events have
occurred which entitle the Participant to such benefit.
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ARTICLE XII
AMENDMENT, TERMINATION, AND MERGER
12.1 Amendment and Termination. The Company expects to
continue the Plan indefinitely, but specifically reserves the right, at any
time, by appropriate action of, and in the sole and uncontrolled discretion of,
the Dime Board or the Compensation Committee of the Dime Board, to amend, in
whole or in part, any or all of the provisions of the Plan and to terminate the
Plan at any time. The Committee may amend, in whole or in part, the provisions
of the Plan as it deems necessary or appropriate to facilitate the
administration, management or interpretation of the Plan, provided that any such
amendment does not materially increase the cost to the Company of maintaining
the Plan. Subject to the provisions of Section 12.2, no such amendment or
termination shall permit any part of the Trust Fund to be used for or diverted
to purposes other than for the 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 not
previously forfeited shall forthwith become nonforfeitable, and such Accounts
shall be distributable in accordance with the provisions of Article X and XI.
12.2 Conformity to Internal Revenue Code. The Company
maintains the Plan with the intent that the Plan and Trust will at all times be
qualified under Section 401(a) of the Code, and be exempt under Section 501(a)
of the Code, and with the intent that contributions under the Plan will be
allowed by the Code as deductions in computing net income of the Bank for
federal income tax purposes, and the provisions of the Plan and Trust Agreement
shall be construed to effectuate such intentions. Accordingly, notwithstanding
anything to the contrary herein provided, the Plan and the Trust Agreement may
be amended at any time by the Dime Board or by the Compensation Committee of the
Dime Board, or, provided such amendment does not materially increase the cost to
the Company of maintaining the Plan, by the Committee, without prior notice to
Participants, Beneficiaries or any other persons, if such amendment is deemed by
the amending entity to be necessary or appropriate to effectuate such intent.
The Plan is intended to be a profit-sharing plan.
12.3 Notice of Amendments. Notice of any amendment or
termination of the Plan shall be given by the Dime Board, the Compensation
Committee (as provided in Section 13.4) or the Committee, whichever adopts the
amendment, to each other and to the Trustee.
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12.4 Merger.
(a) Neither the merger of any Employer with any other
organization nor the merger of this Plan with any other qualified retirement
plan shall in and of itself result in the termination of this Plan or be deemed
a termination of employment with respect to any Employee.
(b) In the event of a merger or consolidation of this
Plan with any other Plan, or a transfer of assets or liabilities from this Plan
to another Plan, each Participant's Account balances immediately after the
merger, consolidation, or transfer shall not be less than they were immediately
prior to the merger, consolidation or transfer. For purposes of this Section,
each Participant's Account balance shall be determined as if the Plan had
terminated as of the date of merger, consolidation, or transfer.
(c) The Committee shall not direct the Trustee to
accept a transfer from any plan that would subject the Plan to the joint and
survivor annuity requirements of Code Sections 401(a)(11) and 417.
12.5 Change in Vesting Schedule.
(a) If the Plan's vesting schedule is amended (by
application of Article XV or otherwise), each Participant who has completed
three years of service (whether or not consecutive) with an Employer and whose
vested percentage will be determined on any date after the effective date of the
amendment, may elect to have his vested percentage determined under the prior
vesting schedule. A Participant's vested percentage means the nonforfeitable
percentage of a Participant's Accounts. An election need not be provided to any
Eligible Employee whose vested percentage after amendment would at all times be
greater than what his vested percentage would have been under the prior vesting
schedule. Once made, the election is irrevocable.
(b) The election period will begin no later than the
date the amendment is adopted and end no earlier than the 60th day after the
latest of the following dates:
(1) The date the amendment is adopted; or
(2) The date the amendment becomes
effective; or
(3) The date the Eligible Employee is
issued written notice of the amendment by the Plan Administrator.
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ARTICLE XIII
ADMINISTRATION OF PLAN
13.1 Named Fiduciaries.
(a) The term "Named Fiduciary" shall mean (but only
to the extent of the responsibilities of each of them) the Plan Administrator,
the Committee, the Compensation Committee (as provided in Section 13.4), and the
Trustee of the Plan. This Article is intended to allocate to each Named
Fiduciary the responsibility for the prudent execution of the functions assigned
to him, her or it. Whenever one Named Fiduciary is required by the Plan or Trust
Agreement to follow the directions of another Named Fiduciary, the two Named
Fiduciaries shall not be deemed to have been assigned a shared responsibility,
but the responsibility of the Named Fiduciary giving the directions shall be
deemed his or her sole responsibility, and the responsibility of the Named
Fiduciary receiving those directions shall be to follow them insofar as such
instructions are on their face proper under applicable law.
(b) The Dime Savings Bank of New York, FSB shall be
the "plan administrator" for purposes of Section 414(g) of the Code and the
"administrator" for purposes of Section 3(16) of ERISA. As such, The Dime Saving
Bank of New York, FSB shall have responsibility to prepare and file, distribute,
or furnish all reports, plan descriptions, and other information concerning the
Plan, including, without limitation, filings with the Secretary of Labor and
communications with Participants and other persons, as shall be required of the
plan administrator under the Code and the administrator under ERISA.
13.2 Plan Administrator. There shall be a Plan Administrator,
who shall be the Chief Human Resources Officer of The Dime Savings Bank of New
York, FSB. In the event that the Chief Human Resources Officer of The Dime
Savings Bank of New York, FSB shall be unable to perform the duties and
functions of the Plan Administrator, or if the Committee in its sole discretion
shall so direct, the Plan Administrator shall be the Benefits Director of The
Dime Savings Bank of New York, FSB or such other Employee or officer of The Dime
Savings Bank of New York, FSB (or any subsidiary thereof) as may be designated
by the Committee, as hereinafter provided, and who shall, subject to the powers
and responsibilities allocated to the Committee, the Compensation Committee (as
provided in Section 13.4) and the Dime Board, have the responsibility for the
day-to-day control, management, operation and administration of the Plan (except
trust duties). The Plan Administrator shall have the following powers and
responsibilities:
(a) To maintain records necessary or appropriate for
the administration of the Plan;
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(b) To give such instructions, notices, information,
materials, reports and certifications to the Trustee as may be necessary or
appropriate in the administration of the Plan;
(c) To prescribe forms and make rules and regulations
consistent with the terms of the Plan and with the interpretations and other
actions of the Committee and the Compensation Committee;
(d) To require such proof as may be necessary or
appropriate in the administration of the Plan, including, without limitation,
proof of age, relationship, or health of a Participant or his or her spouse,
children or Beneficiary, and to make such determinations of fact as may be
necessary for purposes of the Plan, and all such determinations shall be final,
conclusive and binding;
(e) To determine any question arising in connection
with the Plan, and the Plan Administrator's decision or action in respect
thereof shall be final and conclusive and binding upon the Company, the Trustee,
Participants and any other person having an interest under the Plan; provided,
however, that any question relating to inconsistency or omission in the Plan, or
interpretation of the provisions of the Plan, shall be referred to the Committee
by the Plan Administrator and the decision of the Committee in respect thereof
shall be final;
(f) Subject to the provisions of Section 13.6, to
review and dispose of claims under the Plan filed pursuant to Section 13.6;
(g) If the Plan Administrator shall determine that by
reason of illness, senility, insanity, or for any other reason, it is
undesirable to make any payment to a Participant, Beneficiary or any other
person entitled thereto, to direct the application of any amount so payable to
the use or benefit of such person in any manner that he or she may deem
advisable, or to direct the withholding of any payment under the Plan due to any
person under legal disability until a representative competent to receive such
payment in his or her behalf shall be appointed pursuant to law;
(h) To provide such information and reports to the
Committee as may be requested by the Committee from time to time;
(i) To discharge such other responsibilities or
follow such directions as may be assigned or given by the Committee, the
Compensation Committee or the Dime Board; and
(j) To perform any duty or take any action which is
allocated to the Plan Administrator under the Plan.
The Plan Administrator shall have the power and authority
necessary or appropriate to carry out his or her responsibilities. The Plan
Administrator shall have full discretion in interpreting the Plan and deciding
all questions of fact arising within the scope of his
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or her authority. The Plan Administrator may resign only by giving at least 30
days prior written notice of resignation to the Committee, and such resignation
shall be effective on the date specified in such notice.
13.3 Benefits Committee.
(a) The Benefits Committee shall consist of such
individuals as shall be designated from time to time by the Chief Executive
Officer of Dime Bancorp, Inc. Such members shall hold office until resignation,
death or removal by the Chief Executive Officer of Dime Bancorp, Inc. The
members of the Committee shall serve as the Plan's agents for service of legal
process.
Any member of the Committee may resign at any time by
giving written notice to the Chief Executive Officer of Dime Bancorp, Inc. Any
member of the Committee who is an employee of the Bank (as defined in Article
XVI) and who leaves the employ of the Bank shall be deemed to have resigned as a
member of the Committee on the date of termination of his or her employment. Any
member of the Committee may be removed by the Chief Executive Officer of Dime
Bancorp, Inc. at any time. If there is a vacancy on the Committee, the Chief
Executive Officer of Dime Bancorp, Inc. may fill the vacancy. Notices of
appointment of a successor member of the Committee shall be given by the Plan
Administrator in writing to the Trustee. Until receipt by the Trustee of such
written notice of any change in membership of the Committee, the Trustee shall
not be charged with knowledge or notice of such change.
The Committee shall have the following powers and
responsibilities:
(i) To review the performance of the Plan
Administrator, the Trustee, and any investment managers;
(ii) To hear and decide appeals, pursuant to
the claims review procedure contained in Section 13.6 of the Plan,
taken from the decisions of the Plan Administrator;
(iii) To hear and decide questions, including
interpretation of the Plan, as may be referred to the Committee by
the Plan Administrator;
(iv) To establish, if applicable, investment
guidelines and objectives for the Trustee and any investment
managers, including designating or changing the Investment Funds
offered under the Plan;
(v) To report to and make recommendations
to the Compensation Committee (as provided in Section 13.4) regarding
changes in the Plan, including changes in the operation and
management of the Plan;
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(vi) To appoint, remove or replace the
Trustee;
(vii) To adopt amendments to the Plan in
accordance with the limitations of Article XI;
(viii) To designate an Alternate Plan
Administrator to serve in the event that the Plan Administrator is
absent or otherwise unable to discharge his or her responsibilities;
(ix) To remove and replace the Plan
Administrator and/or Alternate and to fill a vacancy in either
office;
(x) Subject to the provisions of the Trust
Agreement, to appoint and remove an investment manager or managers,
as defined in Section 3(38) of ERISA, to manage (including the power
to acquire and dispose of) any assets of the Plan;
(xi) To discharge such other
responsibilities or follow such directions as may be assigned or
given by the Dime Board;
(xii) To perform any duty or take any action
which is allocated to the Committee under the Plan;
(xiii) To review regulatory and statutory
developments, plan administration and fiduciary issues with respect
to the Plan and, as appropriate, make recommendations to the Dime
Board or to the Compensation Committee of the Dime Board regarding
such matters; and
(xiv) To provide such other information and
recommendations to the Dime Board or to the Compensation Committee as
may be requested from time to time.
The Committee shall have no power to take any action other
than as set forth above and shall have no liability
for any failure by the Compensation Committee to follow its recommendations.
(b) The Committee shall hold meetings at least
annually, and shall report to the Compensation Committee (as provided in Section
13.4) from time to time as requested by the Compensation Committee, but no less
frequently than annually. Action by the Committee shall be by vote at a meeting
or by written consent of a majority of its members. The Committee shall record
minutes of its meetings.
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13.4 Compensation Committee.
(a) There shall be a Compensation Committee, which
shall be the Compensation Committee of the Dime Board or such other person or
persons as the Dime Board so determines. Except as may otherwise be provided by
the Dime Board, each appointed member shall serve for a period of one year and
until his or her successor shall be appointed. The Compensation Committee shall
elect a Chairman and may appoint a Secretary who need not be a member of the
Compensation Committee. Any filing which is required or permitted to be made
with the Compensation Committee shall be deemed to be satisfactorily made upon
mailing or delivering such filing to the Secretary of the Compensation
Committee, or if a Secretary is not appointed, to the Chairman of the
Compensation Committee. A member of the Compensation Committee may resign only
by giving at least 30 days prior written notice of resignation to the Chairman
of the Dime Board, and such resignation shall be effective on the date specified
in such notice.
(b) The Compensation Committee shall hold meetings at
least twice annually, and may make such administrative rules as it may deem
proper. Any action of the Compensation Committee with respect to the Plan shall
be taken pursuant to a majority vote taken at a meeting, or pursuant to the
written consent of a majority of its members without a meeting, and such action
shall constitute the action of the Compensation Committee and shall be binding
in the same manner as if all members of the Compensation Committee had joined
therein. A majority of the members of the Compensation Committee shall
constitute a quorum. The Compensation Committee shall record minutes of any
actions taken at its meetings or of any other official action of the
Compensation Committee and shall report to the Dime Board at least once each
year on its activities.
(c) The Plan Administrator, Trustee and any other
person dealing with the Compensation Committee shall be fully protected in
relying upon any written notice, instruction, direction or other communication
signed by the Secretary of the Compensation Committee or by two of the members
of the Compensation Committee or by a representative of the Compensation
Committee authorized by the Compensation Committee to sign the same in its
behalf.
13.5 Delegation of Administrative Powers. The Committee may
allocate any of its duties and powers to one or more of its members and may
delegate any such duties and powers to one or more persons, by an action in
writing. The Committee may revoke any such allocation or delegation at any time
by advising the affected party in writing that delegation of any or all
responsibility will be terminated. Revocation shall become effective on or after
receipt of written notice by the affected party. Any party who has accepted the
delegation of any or all of the responsibilities designated under this Section
above may at any time advise the Committee in writing that it wishes to
terminate such acceptance. Termination shall become effective on or after
receipt of written notice by the Committee.
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13.6 Claims Procedures.
(a) Notice of Denial. In the event a Participant's
or Beneficiary's claim for benefits under the Plan is wholly or partially denied
by the Plan Administrator, the Plan Administrator shall notify the claimant in
writing within 90 days of such denial, including in such notification the
following information:
(1) The specific reason or reasons for
such denial;
(2) Specific references to pertinent Plan
provisions upon which the denial is based;
(3) A description of any additional
material or information which may be needed to clarify the request,
including an explanation of why such information is required; and
(4) An explanation of this Plan's claim
review procedures.
(b) Extension of Time. However, if an extension of
time is required by special circumstances, written notice may be furnished to
the claimant within the 90-day period referred to above which states the special
circumstances requiring the extension and the date by which a decision can be
expected, which shall be no more that 180 days from the date the claim was
filed. If no notice is received within 90 days of the date the claim is
submitted, the claimant may assume his claim has been denied and may submit an
appeal for review of the claim.
(c) Review Procedure. Any claimant whose claim for
benefits has been denied by the Plan Administrator may appeal to the Committee
for a review of the denial by making a written request therefor within 60 days
of receipt of a notification of denial. The claimant may upon request to the
Committee examine any pertinent documents. The claimant may, if he chooses,
submit to the Committee written issues, comments or other information upon which
the claimant relies in support of his claim, or may request an attorney or other
representative to make such written submissions on his behalf.
(1) Within 60 days after receipt of a
request for review, the Committee shall notify the claimant in
writing of its decision, and if the Committee confirms the denial in
whole or in part, the notice shall set forth the reasons for the
decision and specific reference to those Plan provisions upon which
the decision is based.
(2) Notwithstanding the foregoing, if the
Committee determines that special circumstances require additional
time for processing, the Committee may extend such 60-day period, but
not by more than an additional 60 days, and shall notify the claimant
of such extension.
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13.7 Indemnification. To the extent permitted by law, the
Company shall, and hereby does, indemnify and hold harmless members of the Dime
Board, the Board of Directors, the Plan Administrator, the members of the
Committee, the members of the Compensation Committee, and any other Employees or
employees of the Bank (as defined in Article XVI) who may be deemed to be
fiduciaries of the Plan, from and against any and all losses, claims, damages or
liabilities (including attorney's fees and amounts paid, with the approval of
the Company, in settlement of any claim) arising out of or resulting from the
implementation of a duty, act or decision with respect to the Plan, so long as
such duty, act or decision does not involve gross negligence or willful
misconduct on the part of any such individual. Any individual person so
indemnified shall, within 60 days after receipt of notice of any action, suit or
proceeding, notify the Company and offer in writing to the Company the
opportunity at its own expense, to handle and defend such action, suit or
proceeding, and the Company shall have the right, but not the obligation, to
conduct the defense in any such action, suit or proceeding. Failure to give the
Company such notice shall relieve the Company of any liability under this
Section. The Company may satisfy its obligations under this provision (in whole
or part) by the purchase of a policy or policies of insurance.
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ARTICLE XIV
MISCELLANEOUS PROVISIONS
14.1 No Guarantee of Employment. Nothing contained in this
Plan or in the form issued pursuant to this Plan shall be construed as a
contract of employment between the Employer and any Employee, or as a right of
any Employee to be continued in the Employment of the Employer or to be rehired
by the Employer, or as a limitation of the right of the Employer to discharge
any of its Employees, with or without cause.
14.2 No Guarantee of Value of Trust Fund Assets. Neither the
Trustee, the Company, the Committee, the Plan Administrator nor any Employer in
any way guarantees the Trust Fund from loss or depreciation.
14.3 Rights to Trust Fund Assets. No Participant shall have
any right to, or interest in, any assets of the Trust Fund upon termination of
employment or otherwise, except as provided from time to time under this Plan,
and then only to the extent of the benefits payable under the Plan to such
Participant out of the assets of the Trust Fund. Except to the extent required
by a Qualified Domestic Relations Order, no benefit, payment or distribution
under this Plan shall be subject either to the claim of any creditor of a
Participant, spouse, or Beneficiary, or to attachment, garnishment, levy (other
than a federal tax levy under Code Section 6331), execution or other legal or
equitable process, by any creditor of such person, and no such person shall have
any right to alienate, commute, anticipate or assign (either at law or equity)
all or any portion of any benefit, payment or distribution under this Plan. The
Trust Fund shall not in any manner be liable for or subject to the debts,
contracts, liabilities, engagements or torts of any person entitled to benefits
hereunder.
14.4 Correction of Errors. If an error in any Account or
record (including the amount of a distribution) is discovered which would result
in any Participant's Account being more or less than it would have been had the
error not been discovered or had the record been correct, the Plan Administrator
and the Trustee shall correct the error by adjusting, to the extent reasonable
and practical, the Accounts or records, as the case may be, including adjusting
the amount of a distribution. Any such correction shall be conclusive and
binding on all Participants.
14.5 Severability. In the event any Article, paragraph,
subparagraph or specific provision is found to be illegal or invalid for any
reason, such illegality or invalidity shall not affect the remaining provisions
of the Plan and Trust Agreement, and the Plan and Trust Agreement shall be
construed and enforced as if such illegal and invalid provision had never been
set forth in the Plan or Trust Agreement.
56
<PAGE> 63
14.6 Applicable Law. The provisions of the Plan shall be
construed, administered and enforced in accordance with ERISA and other
applicable federal law, and to the extent not preempted, the laws of the State
of New York.
14.7 Plan Expenses. All expenses of administering the Plan
shall be paid by the Plan unless paid by the Employer.
14.8 Exclusive Benefits; Return of Contributions. Contributions
made by the Employer to the Plan shall be made irrevocably and it shall be
impossible for the assets of the Plan to inure to the benefit of the Employer or
to be used in any manner other than for the exclusive purpose of providing
benefits to Participants and Beneficiaries, and for defraying reasonable
expenses of administering the Plan; provided, however, that nothing herein shall
be construed to prohibit the return to the Employer of all or part of an
Employer contribution
(a) which is made by the Employer by a mistake of
fact, provided the return of such contribution is made one year after the
payment thereof; or
(b) to the event a deduction thereof under Code
Section 404 is disallowed, as long as the return is made within one year after
the disallowance. All contributions shall be deemed to be so conditioned unless
the Employer expressly provides otherwise.
14.9 General Benefit Restriction. No benefits shall be
distributed except in accordance with the provisions of the Plan.
14.10 Approval of Internal Revenue Service. This Plan is adopted
subject to the approval by the Internal Revenue Service as meeting the
requirements of the Code and regulations thereunder with respect to the
deductibility of contributions to the Trust Fund and expenses thereof, and with
respect to the tax exemption of such Trust Fund. If such approval is not secured
for the Plan as adopted or as it may be amended for purposes of securing initial
qualification under the Code, any and all contributions made by an Employer to
the Trustee subsequent to the Effective Date and prior to the determination of
nonqualification may be recovered by the Employer within one year of such
determination. In such event, the Plan shall terminate and Participants
contributions shall be refunded to them.
57
<PAGE> 64
ARTICLE XV
TOP-HEAVY PLAN RESTRICTIONS
This Article sets forth certain definitions, provisions and rules
which automatically become effective if the Plan becomes Top-Heavy under Section
416 of the Code.
15.1 Definitions. The following defined terms apply to this
Article:
(a) "Aggregation Group" means the Required, or if
applicable, Permissive Aggregation Group.
(b) "Annual Compensation" means an Employee's Total
Compensation (as defined in Section 5.5(b)(4)). Annual Compensation shall not
include, however, compensation in any Plan Year in excess of $160,000 or such
other amount in effect under Code Section 401(a)(17) for the calendar year in
which the Plan Year begins.
(c) "Determination Date" means the date for
determining Key Employee status and for performing Top Heavy tests. The
Determination Date is the last day of the preceding Plan Year or the last day of
the first Plan Year. For an Aggregation Group, the determination of Top Heavy
status is made by aggregating the results of Determination Dates which fall
within the same calendar year.
(d) "Employee" means any individual currently or
formerly included on the payroll of the Company as a common-law Employee.
(e) "Key Employee" is an Employee who, at any time
during the current Plan Year or any of the four preceding Plan years, is or was:
(1) an officer of the Employer having
Annual Compensation greater than 50 percent of the amount in effect
under Code Section 415(b)(1)(A) for such Plan Year,
(2) one of the ten Employees having Annual
Compensation from the Employer greater than the amount in effect
under Code Section 415 (c)(1)(A) and owning (or considered as owning
under Code Section 318) the largest interests in the Employer,
(3) a Five Percent Owner of the Employer,
or
(4) a one percent owner of the Employer
having Annual Compensation from the Employer of more than $150,000.
58
<PAGE> 65
For purposes of determining Five Percent Owner and other
owners, neither the aggregation rules nor the rules of
Code Section 414(b), (c) and (m) apply. Beneficiaries of an Employee acquire the
character of the Employee who performed service for the Employer. Inherited
benefits retain the character of the benefits of the Employee who performed
services for the Employer.
(f) "Non-Key Employee" means any Employee who is not
a Key Employee and includes the Beneficiary of a Non-Key Employee.
(g) "Permissive Aggregation Group" means all plans in
the Required Aggregation Group and any other qualified plans maintained by the
Employer or by any member of the Controlled Group, but only if such group of
plans would satisfy, in the aggregate, the requirements of Code Section
401(a)(4) and 410(b). The Committee shall determine which plan or plans shall be
taken into account in determining the Permissive Aggregation Group.
(h) "Required Aggregation Group" means each qualified
plan of the Employer or any member of the Controlled Group in which at least one
Key Employee participates (in the Plan Year containing the Determination Date or
any of the four preceding Plan Years), and any other qualified plan of the
Employer or any member of the Controlled Group which enables a plan in which a
Key Employee participates to meet the requirements of Code Section 401(a)(4) or
410(b).
15.2 Top-Heavy Plan
(a) The Plan or Aggregation Group is Top-Heavy with
respect to any Plan Year if, on the Determination Date applicable to such Plan
Year, the aggregate value of Key Employees' Accounts exceeds 60% of the
aggregate value of Accounts for all Employees. This test is subject to all the
provisions of Code Section 416(g) including subsections (3)(B) and (4)(A), (B),
and (E) and Regulations Section 1.416-1. Former Key Employees shall be excluded
from the calculation to determine whether a Plan or Aggregation Group is Top
Heavy.
(b) The Plan shall not be Top-Heavy if the
Administrator elects to treat the Plan as part of a Permissive Aggregation
Group, and the Permissive Aggregation Group is determined not to be Top-Heavy
using the criteria of the "60% Test" in paragraph (a).
15.3 Restrictions
(a) Minimum Contributions. With respect to any Plan
Year during which the Plan is a Top-Heavy Plan, the aggregate Employer
contributions and forfeitures allocated to the Account of a Participant who is
in covered service on the last day of such Plan Year who is a Non-Key Employee
shall be not less than 3% of such Employee's Annual Compensation. Each Non-Key
Employee will receive such a minimum contribution if the Participant has not
separated from service at the end of the Plan Year regardless of the Non-Key
Employee's level of Annual
59
<PAGE> 66
Compensation or whether that Non-Key Employee has completed 1,000 Hours of
Service (or the equivalent) during the Plan Year. If, however, (1) the sum of
all Employer contributions (including Salary Deferral Contributions) and
forfeitures allocated to each Key Employees Account divided by (2) the Key
Employee's Annual Compensation for the year, is less than 3%, the Employer
contribution for Non-Key Employees need not exceed the highest percentage
determined for a Key Employee. Salary Deferral Contributions are not treated as
Employer Contributions for purposes of determining whether Employer
Contributions and forfeitures allocated on behalf of Non-Key Employees satisfy
this paragraph.
(b) Two or More Plans. If the Employer maintains
more than one plan which is Top Heavy, the minimum contributions requirement may
be satisfied as follows:
(1) Non-Key Employees covered under only
this Plan must receive the minimum contribution described in
paragraph (b), above,
(2) Non-Key Employees covered under only a
defined benefit plan must receive the defined benefit minimum
described in Section 416(c)(1) of the Code; and
(3) Non-Key Employees covered under both a
defined benefit and this Plan shall receive the minimum contribution
described in paragraph (b), but substituting 5% for 3%.
15.4 Maximum Benefit Adjustments.
(a) Effective for Plan Years commencing prior to
January 1, 2000, if this Plan becomes Top-Heavy and if the Employer also
maintains another qualified pan and the joint limitation provisions of Code
Section 415(e) are applicable, the provisions of subsections (2)(B) and (3)(B)
of such Code Section 415(e) shall be applied by substituting "1.0" for "1.25"
unless:
(1) the Top Heavy ratio in Section 15.2(a)
does not exceed 90%, and
(2) the minimum contribution under Section
15.3(b) is increased by one percentage point.
(b) Paragraph (a) shall not apply to any Participant
if, with respect to the particular Plan Year, (1) the Participant accrues no
benefits under a defined benefit plan maintained by an Employer, and (2) no
Employer contributions or forfeitures are allocated to the Participant's
Accounts under any defined contribution plan maintained by an Employer.
60
<PAGE> 67
AMENDMENT TO THE
NORTH AMERICAN MORTGAGE COMPANY
RETIREMENT AND 401(k) SAVINGS PLAN
The North American Mortgage Company Retirement and 401(k) Savings
Plan (the "Plan") is amended as follows:
1. Effective as of November 1, 1999, the following sentence is
added immediately after the first sentence of the second paragraph of Article I
of the Plan:
"This Plan also reflects the merger of the T&N Mortgage,
Inc. 401(k) Plan into this Plan as of November 1, 1999."
2. Effective July 1, 1999, the Effective Date Chart in Article
I of the Plan is amended to delete the second row of the chart (which indicates
the sections of the Plan with an October 14, 1997 effective date), and to
replace it with the following:
<TABLE>
<S> <C>
- --------------------------------------------------------------------------------
3.4(b) October 15, 1997
- --------------------------------------------------------------------------------
</TABLE>
3. Effective as of September 1, 1999, the Effective Date Chart
in Article I of the Plan is amended to delete the last row of the chart (which
indicates the sections of the Plan with a September 1, 1999 effective date), and
to replace it with the following:
<TABLE>
<S> <C>
- --------------------------------------------------------------------------------
2.3, 2.28, 2.46, 2.47, 2.49, November 1, 1999
2.53, 2.54, 6.1(b)(6),
6.1(b)(7), 7.1 (last sentence),
7.2(c), 7.3(b), 7.4(b), 7.7, 7.8,
7.9, 7.10, 7.11, 9.6, 9.7,
10.1(b) (second sentence) and 11.3(e)
- --------------------------------------------------------------------------------
</TABLE>
In addition, the reference to September 1, 1999 on the cover page of
the Plan is amended to instead reference November 1, 1999.
4. Effective July 1, 1999, Section 2.8 of the Plan is amended
to provide as follows:
"2.8 Closing Date means October 15, 1997."
5. Effective as of November 1, 1999, the following new
Sections 2.53 and 2.54 are added to the Plan, and the old Sections 2.53 through
2.61 are renumbered as Sections 2.55 through 2.63:
<PAGE> 68
"2.53 T&N Elective Deferral Contributions means all
elective deferral contributions made to the T&N
Plan prior to July 1, 1999 (with earnings and
losses to November 1, 1999) and credited to a
Participant's Account.
2.54 T&N Rollover Contributions means all rollover
contributions made to the T&N Plan prior to July
1, 1999 (with earnings and losses to November 1,
1999) and credited to a Participant's Account."
6. Effective as of November 1, 1999, Section 6.1(b) of the
Plan is amended to add the following new subsections:
"(6) T&N Elective Deferral Contributions (and all
earnings and losses thereon) shall be allocated to
the Participant's Salary Deferral Account.
(7) T&N Rollover Contributions (and all earnings and
losses thereon) shall be allocated to the
Participant's Rollover Account."
7. Effective as of July 1, 1999, the first sentence of Section
7.1 of the Plan is amended to provide as follows:
"The Committee shall, from time to time, select a
diversified group of Investment Funds for investment of the
Trust Fund, including a default investment fund to apply in
the event that a Participant fails to make a valid election
in accordance with Section 7.2(b)."
8. Effective as of September 1, 1999, the third sentence of
Section 7.1 of the Plan is amended to provide as follows:
"Effective November 1, 1999, one of the available Investment
Funds may provide specifically for investment in Bank
Stock."
9. Effective as of July 1, 1999, the third sentence of Section
7.2(b) of the Plan is amended to provide as follows:
"If, at any time, a Participant does not have a valid
election on file with the Committee, the Participant shall
be deemed to have elected that all of his Accounts be
invested in the Plan's default investment fund."
2
<PAGE> 69
10. Effective as of September 1, 1999, the first sentence of
Section 7.7 of the Plan is amended to provide as follows:
"Effective November 1, 1999, to the extent Participants
direct investment in an Investment Fund designed to invest
in Bank Stock, Trust assets may be used to purchase shares
of Bank Stock from the Bank, from shareholders in a
privately negotiated transaction, or on the open market."
11. Effective as of September 1, 1999, the first sentence of
Section 7.9 of the Plan is amended to provide as follows:
"Effective November 1, 1999, each Participant who has
directed investment in an Investment Fund that invests in
Bank Stock shall be entitled to direct the Trustee as to
the manner in which Bank Stock which is allocated to his
Account is to be voted."
12. Effective as of November 1, 1999, the following new
Section 7.11 is added to the Plan:
"7.11 T&N Plan Loans
(a) All outstanding loans under the T&N Plan
as of July 1, 1999 shall become loans under this Plan
effective as of November 1, 1999 ("T&N Plan Loans") with
the same terms and conditions as such loans were originally
permitted under the T&N Plan, subject to applicable law. A
Participant with a T&N Plan Loan shall be required to repay
his T&N Plan Loan with payments of principal and interest
sufficient to amortize the loan in substantially equal
installments over its term. All payments shall be by means
of biweekly payroll deductions (or payroll deductions
otherwise corresponding to the frequency of payroll
payments), which deductions shall be authorized by the
Participant as a condition to the Plan's assumption of the
T&N Plan Loan. If such authorization is not given, the loan
shall be deemed in default and subject to the default
provisions of subsection (b) below. The Participant's
promissory note shall constitute an investment of the
Participant's Account. Any payments made by a Participant
with respect to a T&N Plan Loan shall be invested for the
Account of such Participant in the other Investment Funds
as of the day such payment is received in accordance with
the Participant's investment directions as in effect at the
time such payments are made.
3
<PAGE> 70
(b) A T&N Plan Loan shall be deemed in
default if a loan payment is not made within 30 days of
its due date or as otherwise provided in the promissory
note. Except as may otherwise be provided in the
promissory note for the loan, if at any time prior to the
full repayment of a T&N Plan Loan (i) the Participant
should cease to be a Participant by reason of his
retirement, termination of service, or otherwise, (ii) the
Participant should die or become bankrupt, (iii) the
Participant defaults on his T&N Plan Loan, (iv) the Plan
should terminate, or (v) the Committee determines that (A)
the interest rate on the loan violates any otherwise
applicable state usury laws or regulations issued by the
Labor Department, (B) this Section 7.11 is discriminatory
or otherwise improper under applicable law, (C) it is
unable to obtain approvals from the IRS with respect to
this Section 7.11 or (D) any previously obtained IRS
approval would be jeopardized by the T&N Plan Loan, then
the unpaid balance owed by the Participant on the T&N Plan
Loan shall become due and payable immediately, or within
30 days in the event of an occurrence described in (i)
through (iv) above. Except as otherwise may be prohibited
by law, in accordance with procedures and policies adopted
by the Committee, the amount of a Plan distribution
otherwise to be paid to the Participant (or, in the case
of his death, his designated Beneficiary or Surviving
Spouse) shall be reduced by the amount owed on the T&N
Plan Loan at the time of such distribution. Such reduction
shall constitute a deemed distribution and a complete
discharge of all liability to the Plan for the T&N Plan
Loan.
(c) A Participant may prepay his T&N Plan
Loan without penalty at any time. Such prepayment shall
be either (i) in the full amount of the loan then
outstanding (plus all interest accrued and unpaid
thereon), or (ii) in an amount of at least $200. Any
partial prepayment shall be applied first to all accrued
and unpaid interest on the outstanding balance of the
loan, and then to the outstanding principal balance on the
loan. A partial prepayment shall not be deemed to reduce
the amount of interest due on the remaining outstanding
loan balance.
(d) Notwithstanding anything to the
contrary herein, if an Insider directs that a T&N Plan
Loan repayment be invested in Bank Stock, any such
direction shall be given effect solely to the extent that
such withdrawal or investment is not prohibited by the
then applicable Section 16 Rules, as such prohibition is
described in Section 2.47. If withdrawals or sales of Bank
Stock by such Insider shall not then be permitted, his
requested loan shall be taken
4
<PAGE> 71
proportionately from the other Investment Funds in which
his Account is invested."
13. Effective July 1, 1999, Section 9.5(b) of the Plan is
amended to provide as follows:
"(b) The withdrawal shall be made pro-rata from
each Investment Fund in which the Participant
is invested."
14. Effective as of July 1, 1999, the following sentence is
added to the end of Section 10.2(e):
"If the vested portion of the Member's Account is not
more than $5,000, such vested portion shall be paid in a
single lump sum as soon as practicable after termination
of employment."
15. Effective as of July 1, 1999, the first sentence of
Section 11.2(a) of the Plan is amended to provide as follows:
"Subject to the provisions of Section 11.2(c), a
Participant who is married on the Annuity Starting Date
(which for purposes of this Article XI is defined in
Section 11.10) will automatically receive his
Grandfathered Profit-Sharing Benefit through the purchase
of a 50% joint and survivor annuity with the
Participant's spouse as the Beneficiary unless the
Participant elects an optional form of benefit in
accordance with the procedures set forth in Section
11.4."
16. Effective as of July 1, 1999, a new Section 11.2(c) is
added to the Plan as follows:
"Notwithstanding anything to the contrary contained
herein, if the vested portion of the Member's
Grandfathered Profit- Sharing Account is not more than
$5,000, such vested portion shall be paid in a single lump
sum."
17. Effective as of July 1, 1999, the first sentence of
Section 11.3 of the Plan is amended to provide as follows:
"Subject to the provisions of Section 11.2(c), a
Participant may choose (subject to Section 11.5 or 11.6 as
applicable) to have his Grandfathered Profit-Sharing
Benefit paid in one of the following optional forms."
5
<PAGE> 72
18. Effective as of July 1, 1999, Section 11.4(a) of the Plan
is amended to provide as follows:
"(a) Except as otherwise provided in Section
11.2(c), a distribution of the
Grandfathered Profit-Sharing Benefit
will not be made in a form other than
through the purchase of a 50% joint and
survivor annuity to a Participant
described in Section 11.2(a) (a "married
Participant") unless (1) the Participant
has received the notices described in
Section 11.6, (2) the Participant elects
not to receive the 50% joint and
survivor annuity, and (3) the
Participant's spouse has consent to such
election in accordance with the
provisions of this Section."
19. Effective as of July 1, 1999, the first sentence of Section
11.4(b) is amended to provide as follows:
"Except as otherwise provided in Section 11.2(c), a married
Participant may elect (or revoke a previous election) to
receive Grandfathered Profit-Sharing Benefits in a form
other than 50% joint and survivor annuity."
20. Effective as of July 1, 1999, Section 11.5 of the Plan is
amended to provide as follows:
"11.5 Election Requirements for Unmarried Participants
(a) Except as otherwise provided in Section
11.2(c), a distribution of Grandfathered
Profit-Sharing Benefits will not be made
in a form other than a single life
annuity to a participant described in
Section 11.2(b) (an "unmarried
Participant") unless the Participant has
received the notices described in
Section 11.6 and elects in writing not
to receive the automatic form.
(b) Except as otherwise provided
in Section 11.2(c), an
unmarried Participant may
elect in writing to receive
Grandfathered Profit-Sharing
Benefit in a form other than
the single life annuity,
provided such election is
made no more than 90 days
before the Annuity Starting
Date."
21. Effective as of July 1, 1999, the first sentence of Section
11.6(a) of the Plan is amended to provide as follows:
6
<PAGE> 73
"The Plan Administrator shall provide each Participant with
a written general description of the eligibility conditions
and other material features of the available optional forms
of benefit and sufficient additional information to explain
the relative values of the optional forms of benefit to the
automatic forms of benefit."
22. Effective as of July 1, 1999, the first sentence of Section
11.6(b) of the Plan is amended to provide as follows:
"The Plan Administrator will also provide to each married
Participant who is eligible to receive Grandfathered
Profit-Sharing Benefits under the Plan in the form of a 50%
joint and survivor annuity, a written explanation in
non-technical language of the terms and conditions of the
50% joint and survivor annuity, the Participant's right to
make and the effect of an election not to receive
Grandfathered Profit-Sharing Benefits in such form, the
rights of the Participant's spouse with respect to
receiving benefits a 50% joint and survivor annuity, and
the right to revoke and the effect of a revocation of an
election not to receive benefits in the form of a joint and
survivor annuity."
23. Effective as of July 1, 1999, the following sentence is
added to the end of Section 11.8(a) of the Plan:
"Notwithstanding the foregoing, if the Vested Percentage of
the Grandfathered Profit Sharing Benefit is not more than
$5,000, it shall automatically be payable in the form of a
single lump sum."
24. Effective as of January 1, 1997, a new Section 15.4(c) is
added to the Plan as follows, and a reference to 15.4(c) is added to the list in
Article I of the sections that are effective January 1, 1997:
"Beginning with the Plan Year in which the Plan is a Top
Heavy Plan, Profit-Sharing Contributions shall be vested in
a percentage not less than that determined pursuant to the
vesting schedule set
forth below:
<TABLE>
<CAPTION>
Period of Service Vested Percentage
- ----------------- -----------------
<S> <C>
2 years 20%
3 years 40%
4 years 60%
5 years 100%"
</TABLE>
7
<PAGE> 1
EXHIBIT 5.1
[PATTERSON, BELKNAP, WEBB & TYLER LLP
LETTERHEAD]
October_____, 1999
Dime Bancorp, Inc.
589 Fifth Avenue
New York, New York 10017
Dear Sirs:
We have acted as counsel to Dime Bancorp, Inc., a Delaware
corporation (the "Company"), in connection with the proposed registration by the
Company under the Securities Act of 1933, as amended (the "Act"), of 250,000
shares (the "Shares") of the Company's Common Stock, par value $.01 per share
(the "Common Stock"), pursuant to the Company's registration statement on Form
S-8 (the "Registration Statement") filed with the Securities and Exchange
Commission (the "Commission") on the date hereof.
In rendering this opinion we have examined the Company's Certificate
of Incorporation and Bylaws, each as amended to date, and the minutes of the
corporate proceedings taken by the Company in connection with the authorization
of the Shares. We have also examined the originals, or copies certified or
otherwise identified to us, of the corporate records of the Company,
certificates of public officials and representatives of the Company, and such
other documents and records, and have made such investigations of law, as we
have deemed necessary for purposes of this opinion. We have assumed the
genuineness of all signatures, the conformity to the original of all copies and
the factual accuracy of all certificates submitted to us.
On the basis of the foregoing, we are of the opinion that the Shares
have been duly authorized by all necessary corporate action on the part of the
Company and when sold and delivered as contemplated by the Registration
Statement will constitute duly authorized, validly issued, fully paid and
nonassessable shares of Common Stock.
We express no opinion as to laws other than the corporate laws of the
State of Delaware and the laws of the United States of America.
We hereby consent to the filing of this opinion with the Commission
as an exhibit to the Registration Statement. In furnishing this opinion and
giving this consent,
<PAGE> 2
2
we do not admit that we are in the category of persons whose consent is
required under Section 7 of the Act, or the rules and regulations of the
Commission thereunder.
PATTERSON, BELKNAP, WEBB & TYLER LLP
By: /s/ JEFFREY E. LAGUEUX
-----------------------------
A Member of the Firm
<PAGE> 1
EXHIBIT 23.2
[LETTERHEAD OF KPMG LLP]
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Dime Bancorp, Inc.:
We consent to the use of our report dated January 21, 1999, incorporated by
reference in the Registration Statement on Form S-8 of Dime Bancorp, Inc.,
relating to our audit of the consolidated statements of financial condition of
Dime Bancorp, Inc. and subsidiaries as of December 31, 1998 and 1997, and the
related consolidated statements of income, changes in stockholders' equity, cash
flows and comprehensive income for each of the years in the three-year period
ended December 31, 1998 which report appears in the Dime Bancorp, Inc. Annual
Report on Form 10-K for the year ended December 31, 1998.
/s/ KPMG LLP
New York, New York
October 29, 1999
