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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-9
(RULE 14d-101)
SOLICITATION/RECOMMENDATION STATEMENT UNDER
SECTION 14(d)(4) OF THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 11)
DIME BANCORP, INC.
(Name of Subject Company)
DIME BANCORP, INC.
(Name of Person(s) Filing Statement)
COMMON STOCK, PAR VALUE $0.01 PER SHARE
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
(Title of Class of Securities)
25429Q
(CUSIP Number of Class of Securities)
JAMES E. KELLY, ESQ.
GENERAL COUNSEL
DIME BANCORP, INC.
589 FIFTH AVENUE
3RD FLOOR
NEW YORK, NEW YORK 10017
(212) 326-6170
(Name, address and telephone number of person authorized to receive notice
and communications on behalf of the person(s) filing statement)
Copy to:
MITCHELL S. EITEL, ESQ.
SULLIVAN & CROMWELL
125 BROAD STREET
NEW YORK, NEW YORK 10004
(212) 558-4000
[ ] Check the box if the filing relates solely to preliminary
communications made before the commencement of a tender offer.
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This Amendment No. 11 amends and supplements the
solicitation/recommendation statement on Schedule 14D-9 filed with the
Securities and Exchange Commission (the "SEC") on March 21, 2000, as
subsequently amended on March 21, 2000, March 22, 2000, March 24, 2000, March
30, 2000, April 6, 2000, April 7, 2000, April 12, 2000, April 14, 2000, May 1,
2000 and May 2, 2000 (as so amended, the "Schedule 14D-9"), by Dime Bancorp,
Inc., a Delaware corporation ("Dime"), in relation to the exchange offer
disclosed in the Schedule TO, dated March 15, 2000 (as amended from time to
time, the "Schedule TO"), of North Fork Bancorporation, Inc., a Delaware
corporation ("North Fork"), and Fleet Boston Corporation, a Rhode Island
corporation ("FleetBoston"), to exchange each issued and outstanding share of
Dime common stock, par value $0.01 per share, for 0.9302 of a share of North
Fork common stock, par value $0.01 per share, and $2.00 in cash, upon the terms
and subject to the conditions described in the Schedule TO, the Registration
Statement filed on Form S-4 by North Fork on March 15, 2000 and the Prospectus
relating to North Fork's common stock dated March 14, 2000 and contained therein
(each of which may be amended from time to time and each of which is an Exhibit
and incorporated by reference into North Fork's Schedule TO).
ITEM 3. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS.
Item 3 is hereby supplemented and amended by adding the following:
Exhibits (e)(3) through (e)(21) are incorporated into this Item 3 by
reference.
On April 28, 2000, Dime announced that its Board of Directors and
management would begin a comprehensive exploration of all strategic options.
These options could include a strategic transaction, such as a tender offer,
merger, reorganization, strategic alliance, asset sale or transfer or other
similar transaction. During this time of uncertainty, Dime believes it is
important to prevent significant staff losses that could adversely affect its
operations going forward and its ability effectively to explore its strategic
options. In order to promote the exploration process and ensure adequate
staffing levels, Dime's Board of Directors determined to take certain steps to
strengthen its ability to retain critical employees. These measures are
summarized below.
UMBRELLA TRUSTS
Beginning in 1988, Dime has over time established four umbrella trusts,
the purpose of which has been and continues to be to assure the payment of
benefits when due to directors and employees under Dime's existing benefit plans
and arrangements (including employment agreements for executive officers),
notwithstanding a future change in control of Dime. Two of these trusts, one
covering certain benefits for current senior officers as well as continuing
obligations to former senior officers that succeeded trusts originally
established in 1988, and another covering certain benefits for current and past
directors, were established in 1995. The third trust, covering employee
severance and other broad-based benefits, was established in May 2000. Each of
these three trusts provides that, on or prior to a change in control or an
irrevocable
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election (each as described below), Dime is to provide the trust with sufficient
funds to cover 110% of the present value of the projected cost of cash-based
benefits covered by that trust, plus additional amounts to cover trust
administration costs and other trust-related expenses. Each of these trusts is
administered by an independent Trustee and provides that benefit payments under
the plans and arrangements covered by that trust that are not paid by Dime when
due will be paid by the Trustee out of trust assets. In addition, a separate
benefit protection trust, established in May 2000, is intended to provide legal
support to affected employees if, following a change in control or an
irrevocable election, benefits are not paid when due under Dime plans and
arrangements that are not covered under another umbrella trust. Any assets of
the trusts in excess of those required to cover benefit payments or other
expenses are to be returned to Dime, and all assets of the trusts are available
to satisfy claims of creditors of Dime. Assets of the trusts remain included on
the balance sheet of Dime until used for trust purposes.
Under the trusts, a "change in control" is generally defined to include
(1) the acquisition of more than 35% of the voting power of Dime by any person,
entity or group; (2) if the individuals who were members of the Board of
Directors on July 24, 1997, and others whose appointment or nomination was
recommended by a vote of 2/3 of the directors in office on July 24, 1997 (or by
other directors who themselves previously satisfied this requirement), cease to
constitute a majority of the Board; (3) a merger or consolidation of Dime or any
direct or indirect subsidiary of Dime unless Dime voting securities outstanding
before the event continue to represent (in combination with securities held
under an employee benefit plan of Dime or any subsidiary) at least 65% of the
outstanding voting securities of the surviving entity after the merger or
consolidation, or unless the merger or consolidation was effected solely to
implement a recapitalization of Dime or Dime Savings where no person, entity or
group becomes the owner of 35% or more of the voting securities of Dime or Dime
Savings; and (4) certain sales of substantially all of Dime's consolidated
assets, as well as certain other circumstances specified in the trust
agreements. In addition, the terms of these trusts provide that a directors'
committee, which currently consists (and following a change in control or
irrevocable election will continue to consist) of the present members of Dime's
Compensation Committee, and (under those trusts which relate to employee benefit
plans and arrangements) a management committee, which currently consists (and
following a change in control or irrevocable election will continue to consist)
of Lawrence J. Toal (Dime's Chief Executive Officer), Anthony R. Burriesci
(Dime's Chief Financial Officer), James E. Kelly (Dime's General Counsel), D.
James Daras (Dime's Treasurer) and Arthur C. Bennett (Dime's Chief Human
Resources Officer), may make an "irrevocable election," the effect of which is
generally the same under the trusts as if a change in control had occurred.
Following an irrevocable election or a change in control, decisions as to the
amount, form and timing of payments to be made by the trusts under the covered
benefits may be made by the directors' committee (in the case of plans for the
benefit of directors) or the trust committee (in the case of plans and
arrangements for the benefit of employees), and the plans and arrangements of
Dime covered by the trusts have been amended as necessary to confirm the
authority of the appropriate committee to make such determinations. Members of
these committees will not receive any compensation for serving as such, except
that following termination of their
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service as directors or officers of Dime, committee members will receive $1,500
for each meeting attended in person and $1,000 for each meeting attended by
telephone conference. Only one fee will be paid for concurrent or consecutive
meetings.
PLAN AMENDMENTS
Effective May 18, 2000, Dime's Board of Directors approved amendments
to certain of its plans and arrangements for the benefit of directors,
executive officers and employees, including the amendments described above, and
approved certain additional severance benefits for Dime's executive officers
and employees. Some of these amendments will have the effect of limiting the
ability of an acquiring institution to amend such plans, including Dime's
Supplemental Executive Retirement Plan, Key Executive Life Insurance/Death
Benefit Plan, Officer Incentive Plan and voluntary deferred compensation plans
for officers, as well as Dime's deferred compensation and retainer continuation
plans for directors, or to use discretionary authority previously provided
therein, to adversely affect the rights of employees or directors to existing
benefits and payment rights following a change in control of Dime.
SEVERANCE-RELATED PLANS AND PROGRAMS
Dime's severance pay programs for employees (which do not cover
executive officers, or other officers whose severance benefits are provided for
in individual agreements, but which cover nearly all other Dime employees) have
been amended to eliminate Dime's discretion to reduce individual severance
awards and to prohibit any amendments that would reduce program benefits from
taking effect on or prior to December 31, 2001. In addition to current severance
benefits under these programs (which generally provide for benefits, upon
certain involuntary terminations, that are based on position and length of
service), the Board of Directors has approved amendments to these programs under
which covered employees whose employment is involuntarily terminated after a
change in control and on or before December 31, 2001, will receive an additional
lump sum payment equal to 25% of the current program benefits, and has granted
authority to the Chief Executive Officer to enter into agreements with
additional employees providing for further enhancement of their severance
benefits. If all of Dime's covered employees were to be involuntarily terminated
by an acquiror, an event that Dime considers virtually inconceivable, the
increase in severance payments as a result of these enhancements would be
approximately $21 million on a pre-tax basis.
Executive officers and other senior officers receive severance benefits
under their employment agreements if their employment is involuntarily
terminated during the current term of these agreements (which generally ends
March 1, 2003, subject to renewal). For retention purposes, these employment
agreements (other than Mr. Toal's) will be amended to provide enhanced severance
benefits where no change in control (as defined in the agreements) has taken
place. These severance benefits will consist of a lump sum payment equal to the
salary and bonus (based on their individual bonus opportunity) such individuals
would have received if they had
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remained employed through the end of the term of their agreement as in effect at
the time of termination of employment (generally between two and three years,
assuming the agreements have been renewed annually prior to a termination of
employment), as well as continued welfare benefits through that period. If all
executive officers receiving these enhanced severance benefits were to be
involuntarily terminated in the absence of a change in control, which Dime
considers highly unlikely, the increase in severance payments, as a result of
these enhancements, over the existing severance provided for under their current
employment agreements (assuming for purposes of calculation a July 1, 2000
termination date) would be approximately $8 million on a pre-tax basis. These
benefits would not apply where a change of control has occurred, in which case
the severance provisions described in Dime's Schedule 14D-9 filed on March 21,
2000 would govern.
Dime is also a party to 62 change in control agreements with
non-executive officers. Certain of these agreements will be amended to provide a
higher multiple of compensation upon involuntary termination following a change
in control (as defined in the agreement), as well as enhanced severance benefits
similar to those described above with respect to executive officers if no change
in control takes place (but in no event greater than two and one-half years'
salary and bonus). In addition, certain of these change in control agreements
will be amended to provide that, following a change in control, the affected
officers will have the same rights to treat their employment as constructively
terminated and receive benefits following a material diminution in duties as are
now provided with respect to a termination following a reduction in salary. If
all affected non-executive officers holding employment or change in control
agreements and receiving enhanced severance benefits were to be involuntarily
terminated, which Dime considers highly unlikely in the absence of a change in
control, the additional cost of these severance enhancements over the existing
severance provided for under their current agreements (assuming for purposes of
calculation a July 1, 2000 termination date) would be approximately $14 million
on a pre-tax basis in the absence of a change in control and approximately $0.2
million on a pre-tax basis in the event of a change in control.
Certain employment and change in control agreements with active
officers of North American Mortgage Company (Dime Savings' mortgage banking
subsidiary), covering ten individuals, including Richard A. Mirro, its Chief
Executive Officer, will be modified to provide that these individuals will be
entitled to change in control severance payments and continuation of welfare
benefits under their agreements if a change in control of North American
precedes a change in control of Dime, and if their employment is then terminated
by North American or its successor (currently, these benefits are available only
following a change in control of Dime).
STOCK INCENTIVE PLANS
Under each of Dime's stock-based employee and director benefit plans,
an event requiring the vesting of unvested stock options and the lapse of
restrictions on restricted stock has occurred in connection with North Fork's
hostile offer. As a result, approximately 3.8 million options to purchase shares
of Dime stock held by officers and employees, and 7,500 options held by
directors, that were the subject of options that had not previously been
exercisable became exercisable, and
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restrictions with respect to approximately 1.1 million shares of restricted
stock held by officers, and approximately 59,000 shares of restricted stock held
by directors, lapsed.
ITEM 8. ADDITIONAL INFORMATION.
Item 8 is hereby supplemented and amended by adding the following:
The discussion below, in substance, was included in the Form 10-Q
quarterly report of Dime filed with the SEC on May 15, 2000. The discussion
updates the status of various litigation between Dime, North Fork, FleetBoston
and others.
On March 6, 2000, North Fork filed a lawsuit in the Delaware Court of
Chancery against Dime, members of the Dime Board of Directors and Hudson
United Bancorp ("Hudson"), challenging a number of the provisions in
the Agreement and Plan of Merger, dated as of September 15, 1999, between Hudson
and Dime, as amended and restated on December 27, 1999 (the "Merger Agreement")
and alleging, among other things, breaches of fiduciary duties by the Dime Board
(the "Delaware Action"). The complaint sought, among other things, an order
invalidating certain provisions of the Merger Agreement. On March 9, 2000, North
Fork amended its complaint in the Delaware Action to include allegations of
breach of fiduciary duties by the Dime Board for compelling a premature
stockholder vote on the Merger Agreement and of false and misleading statements
in the Dime's proxy statement/prospectus supplement dated March 7, 2000. After
Dime postponed its special meeting on the Merger Agreement from March 15, 2000
to March 24, 2000, North Fork withdrew its additional motion for a temporary
restraining order to enjoin the March 15th meeting but reserved its right to
proceed in the future. On March 17, 2000, North Fork moved for an expedited
hearing and partial summary judgment with respect to its challenges to the
provisions of the Merger Agreement. As a result of the termination of the Merger
Agreement on April 28, 2000, these motions have been withdrawn.
Dime is the subject of at least 14 putative class action lawsuits filed
on or after March 6, 2000 by various Dime stockholders: Brecher v. Toal, et.
al., Miller v. Toal, et. al., Weiss v. Toal, et. al., Susser v. Toal, et. al.,
Lifshitz v. Toal, et. al., Pill v. Toal, et. al., Milite v. Toal, et. al.,
Steiner v. Toal, et. al., Shiry v. Toal, et. al., Lewis v. Toal, et. al., and
Coleman v. Toal, et. al., each filed in the Delaware Court of Chancery on March
6, 2000; Great Neck Capital Appreciation Partnership v. Dime Bancorp, Inc.,
filed in the Delaware Court of Chancery on March 7, 2000; Silverberg v. Dime
Bancorp, Inc., filed in the Supreme Court of the State of New York, County of
Queens on March 9, 2000; and Graifman v. Koons, et. al., filed in the Supreme
Court of the State of New York, County of New York, on March 15, 2000
(collectively, the "Stockholder Actions"). Each of the Stockholder Actions
alleges, among other things, breaches of fiduciary duties by the Dime Board and
challenges the stock option, purported benefits to the Dime's directors and
officers that were to have resulted from the merger of Dime with Hudson, and the
rejection by the Dime
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Board of the North Fork's hostile tender offer. On March 10, 2000, the Dime
stockholder plaintiffs in some of the Stockholder Actions filed a motion for
partial summary judgment seeking a determination invalidating the same
provisions of the Merger Agreement that were the subject of North Fork's
complaint. The motions have become moot as a result of the termination of the
Merger Agreement.
On March 10, 2000, Dime filed suit in the Supreme Court of the State of
New York, County of New York, against North Fork and FleetBoston (the "New York
Action"). The complaint alleges violations of New York's antitrust laws,
including a conspiracy between North Fork and FleetBoston to: (i) diminish
competition in a variety of banking markets; (ii) diminish competition for the
purchase of banks and thrifts in some markets; and (iii) eliminate a stronger
competitor (i.e., the combined institution resulting from the Merger). In
addition, the complaint alleges that FleetBoston's divestiture of branches from
the Fleet Financial-BankBoston Corporation merger to Sovereign Bancorp, Inc.
("Sovereign") is part of the conspiracy, as Sovereign is not capable of
competing effectively in markets with FleetBoston and FleetBoston may use
monopoly profits gained in those markets to fund North Fork's hostile tender
offer. Among other things, the suit asks the court to: (i) enjoin North Fork and
FleetBoston from acting in concert to acquire Dime; (ii) enjoin the proposed
branch divestiture from FleetBoston to Sovereign and require divestiture to a
banking organization with a reasonable opportunity to improve competition in the
markets served; and (iii) declare violations of the New York antitrust laws. On
March 31, 2000, North Fork and FleetBoston moved to dismiss the New York Action,
arguing that it is preempted by federal law. Dime has filed its response to this
motion, and the New York Attorney General has submitted an amicus curiae brief
challenging the preemption issues raised by North Fork and FleetBoston. North
Fork has submitted a response to the New York Attorney General's amicus curiae
brief.
On March 21, 2000, Dime filed suit in the United States District Court
for the Eastern District of New York against North Fork and members of North
Fork's board of directors seeking preliminary and permanent injunctive relief in
connection with alleged misrepresentations contained in North Fork's proxy
statement, dated March 13, 2000, soliciting proxies against the merger of Dime
with Hudson, in violation of the Securities Exchange Act of 1934. On March 30,
2000, North Fork moved to dismiss this action. On April 13, 2000, Dime filed an
amended complaint in this action, focusing on the disclosures by North Fork
regarding the cost savings that could be achieved if North Fork acquired Dime
and North Fork's relationship with FleetBoston. On April 20, 2000, the court
issued a decision recommending that North Fork's motion to dismiss be denied and
ordering the parties to conduct expedited discovery. On April 24, 2000, North
Fork filed an answer and counterclaims against Dime and sought expedited
discovery on those counterclaims. The counterclaims allege that Dime and its
Chairman, Mr. Lawrence J. Toal, have made materially false and misleading
statements in Dime's proxy materials in connection with the merger of Dime with
Hudson, its press releases and its other filings with the SEC with respect to
North Fork's hostile tender offer and seek injunctive and other relief. On April
28, 2000, the court denied North Fork's request for expedited discovery. Dime's
request for a preliminary injunction was withdrawn
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in light of the termination of the Merger Agreement. On May 15, 2000, Dime
moved to dismiss North Fork's counterclaims and to strike certain of its
affirmative defenses. On May 17, 2000, Dime sought leave to file a second
amended complaint which adds FleetBoston as a party, and asserts claims against
North Fork, members of North Fork's board of directors and FleetBoston for
making false and misleading statements in connection with the tender offer.
On March 29, 2000, Dime filed suit in the Supreme Court of the State of
New York, County of New York, against Salomon Smith Barney, Inc. ("Salomon"),
which had been acting as a financial advisor to North Fork in connection with
North Fork's hostile tender offer. The complaint alleges violations of a
provision of a confidentiality agreement, dated May 12, 1997, between Dime and
Salomon, which the complaint states prohibits Salomon, for a three year period,
from providing financial advisory services to any entity interested in acquiring
or otherwise entering into a business combination transaction with Dime without
obtaining Dime's prior written consent to either the transaction or the
provision of such advice (the "Confidentiality Agreement"). The suit asks the
state court to enjoin Salomon from providing financial or advisory services to
North Fork in connection with North Fork's hostile tender offer. On April 5,
2000, the state court granted Dime's motion to preliminarily enjoin Salomon from
acting as a financial advisor to North Fork until May 12, 2000, the date the
relevant provision of the Confidentiality Agreement expires by its terms (the
"Preliminary Injunction"). On April 6, 2000, Salomon filed a notice of appeal in
the Appellate Division of the State of New York, First Department, alleging that
the state court erred when it granted the Preliminary Injunction, and also filed
a motion in the appellate court seeking to vacate the state court's order
imposing the Preliminary Injunction. The appellate court denied Salomon's motion
to vacate on May 3, 2000. On May 10, 2000, the court declined to extend the
Preliminary Injunction beyond May 12, 2000. On May 17, 2000, Dime amended its
complaint to include a claim for monetary damages from Salomon and a claim
against North Fork.
On May 15, 2000, Dime was served with a Civil Investigative Demand (the
"CID") by the Antitrust Division of the U.S. Department of Justice in connection
with North Fork's proposed hostile acquisition of Dime and FleetBoston's
proposed financing of North Fork's acquisition. Dime intends to diligently
comply with and respond to the CID.
Dime believes that its various claims against North Fork, FleetBoston
and Salomon are meritorious and that the various claims made against Dime and
the Dime Board are without merit. However, it is not possible to predict the
outcome of these claims at this time.
ITEM 9. EXHIBITS.
Item 9 is hereby supplemented and amended by adding the following:
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<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
(e)(3) Amended and Restated Umbrella Trust Agreement, dated as of May 18, 2000,
by and among Dime, Dime Savings and HSBC Bank USA, as trustee
("HSBC"), with respect to covered arrangements for executive officers of Dime
Savings and related entities
(e)(4) Amended and Restated Umbrella Trust Agreement, dated as of May 18, 2000,
by and among Dime, Dime Savings and HSBC, with respect to covered
arrangements for outside Directors of Dime Savings and related entities
(e)(5) Umbrella Trust Agreement, dated as of May 18, 2000, by and among Dime,
Dime Savings and HSBC, with respect to designated arrangements for
employees of Dime Savings and related entities
(e)(6) Benefit Protection Trust Agreement, dated as of May 18, 2000, by and among
Dime Savings, Dime and HSBC
(e)(7) Severance Pay Program for Employees of Dime and Participating Subsidiaries,
amended and restated effective as of May 18, 2000
(e)(8) Senior Executive Severance Pay Plan of North American, effective as of
October 13, 1994, as amended effective as of May 18, 2000
(e)(9) Severance Pay Plan of North American, effective as of October 13, 1994, as
amended effective as of May 18, 2000
(e)(10) Employment Agreement dated as of January 30, 1998 between Dime Savings
and James E. Kelly
(e)(11) Employment Agreement dated as of January 30, 1998 between Dime Savings
and Gene C. Brooks
(e)(12) Amendment to the Dime Bancorp, Inc. Voluntary Deferred Compensation Plan,
effective May 18, 2000
(e)(13) Amendment to the Dime Bancorp, Inc. Voluntary Deferred Compensation Plan
for Directors, effective May 18, 2000
(e)(14) Amendment to the Dime Bancorp, Inc. Supplemental Executive Retirement Plan,
effective May 18, 2000
(e)(15) Amendment to the Deferred Compensation Plan for Board Members of The
Dime Savings Bank of New York, FSB, effective May 18, 2000
(e)(16) Amendment to the Retainer Continuation Plan for Independent Directors of The
Dime Savings Bank of New York, FSB, effective May 18, 2000
</TABLE>
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<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
(e)(17) Amendment to the Benefit Restoration Plan of The Dime Savings Bank of New
York, FSB, effective May 18, 2000
(e)(18) Amendment to The Dime Savings Bank of New York, FSB Deferred
Compensation Plan, effective May 18, 2000
(e)(19) Amendment to the Key Executive Life Insurance/Death Benefit Plan of The
Dime Savings Bank of New York, FSB, effective May 18, 2000
(e)(20) Amendments to the Dime Bancorp, Inc. Officer Incentive Plan, effective May 18, 2000
(e)(21) Amendment to the Dime Bancorp, Inc. Senior Officer Incentive Plan, effective
May 18, 2000
</TABLE>
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
DIME BANCORP, INC.
By: /s/ James E. Kelly
------------------------
Name: James E. Kelly
Title: General Counsel
Dated: May 19, 2000
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
(e)(3) Amended and Restated Umbrella Trust Agreement, dated as of May 18, 2000,
by and among Dime, Dime Savings and HSBC Bank USA, as trustee
("HSBC"), with respect to covered arrangements for executive officers of Dime
Savings and related entities
(e)(4) Amended and Restated Umbrella Trust Agreement, dated as of May 18, 2000,
by and among Dime, Dime Savings and HSBC, with respect to covered
arrangements for outside Directors of Dime Savings and related entities
(e)(5) Umbrella Trust Agreement, dated as of May 18, 2000, by and among Dime,
Dime Savings and HSBC, with respect to designated arrangements for
employees of Dime Savings and related entities
(e)(6) Benefit Protection Trust Agreement, dated as of May 18, 2000, by and among Dime
Savings, Dime and HSBC
(e)(7) Severance Pay Program for Employees of Dime and Participating Subsidiaries,
amended and restated effective as of May 18, 2000
(e)(8) Senior Executive Severance Pay Plan of North American, effective as of
October 13, 1994, as amended effective as of May 18, 2000
(e)(9) Severance Pay Plan of North American, effective as of October 13, 1994, as
amended effective as of May 18, 2000
(e)(10) Employment Agreement dated as of January 30, 1998 between Dime Savings
and James E. Kelly
(e)(11) Employment Agreement dated as of January 30, 1998 between Dime Savings
and Gene C. Brooks
(e)(12) Amendment to the Dime Bancorp, Inc. Voluntary Deferred Compensation Plan,
effective May 18, 2000
(e)(13) Amendment to the Dime Bancorp, Inc. Voluntary Deferred Compensation Plan
for Directors, effective May 18, 2000
(e)(14) Amendment to the Dime Bancorp, Inc. Supplemental Executive Retirement
Plan, effective May 18, 2000
(e)(15) Amendment to the Deferred Compensation Plan for Board Members of The
Dime Savings Bank of New York, FSB, effective May 18, 2000
</TABLE>
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<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
(e)(16) Amendment to the Retainer Continuation Plan for Independent Directors of The
Dime Savings Bank of New York, FSB, effective May 18, 2000
(e)(17) Amendment to the Benefit Restoration Plan of The Dime Savings Bank of New
York, FSB, effective May 18, 2000
(e)(18) Amendment to The Dime Savings Bank of New York, FSB Deferred Compensation Plan,
effective May 18, 2000
(e)(19) Amendment to the Key Executive Life Insurance/Death Benefit Plan of The
Dime Savings Bank of New York, FSB, effective May 18, 2000
(e)(20) Amendments to the Dime Bancorp, Inc. Officer Incentive Plan, effective May 18, 2000
(e)(21) Amendment to the Dime Bancorp, Inc. Senior Officer Incentive Plan, effective
May 18, 2000
</TABLE>
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AMENDED AND RESTATED
UMBRELLA TRUST AGREEMENT
among
DIME BANCORP, INC.,
THE DIME SAVINGS BANK OF NEW YORK, FSB
and
HSBC Bank USA, as Trustee
with respect to
the Covered Arrangements of
The Dime Savings Bank of New York, FSB
and Related Entities.
<PAGE> 2
AMENDED AND RESTATED UMBRELLA TRUST AGREEMENT
AMENDED AND RESTATED UMBRELLA TRUST AGREEMENT, dated as of May 18, 2000,
by and among DIME BANCORP, INC., a Delaware corporation with its executive
offices at 589 Fifth Avenue, New York, NY 10017 (the "Company"), THE DIME
SAVINGS BANK OF NEW YORK, FSB, a federal savings bank with its executive offices
at 589 Fifth Avenue, New York, New York 10017 (the "Bank") and HSBC Bank USA, a
banking association with an office at 140 Broadway, New York, New York 10005
(the "Trustee").
WHEREAS, the Bank is at the date hereof a wholly-owned subsidiary of the
Company (the Bank and the Company being collectively referred to herein as the
"Dime"); and
WHEREAS, each of the Company and the Bank has established the various
plans and agreements referred to in Appendix I to this Trust Agreement and
further defined in Section 1.5 for the benefit of Participants and their
Beneficiaries (as defined in Section 1.5(b)) under such plans and agreements,
with such plans and agreements, being herein referred to collectively as the
"Covered Arrangements;" and
WHEREAS, the Covered Arrangements provide for the payment of certain
cash-based or life insurance related benefits (the "Benefits") to Participants
and Beneficiaries (as defined in Section 1.5); and
WHEREAS, the Company, the Bank and Marine Midland Bank, the predecessor
to the Trustee, entered into an Umbrella Trust Agreement as of December 19,
1995, and established a trust (the "Trust") pursuant to the Umbrella Trust
<PAGE> 3
Agreement, to which contributions have and will be made (and in the case of the
Bank, amounts transferred from a prior trust maintained by the Bank), for the
purpose of providing the Company and the Bank with a source of funds to aid them
in meeting their respective liabilities under the Covered Arrangements; and
WHEREAS, the cash and property to be contributed to the Trust by the Bank
has and shall continue to be subject to the claims of the Bank's creditors in
the event the Bank becomes Insolvent, as herein defined, until paid to
Participants and their Beneficiaries under a Covered Arrangement; and
WHEREAS, the cash and property to be contributed to the Trust by the
Company has and shall continue to be subject to the claims of the Company's
creditors in the event the Company becomes Insolvent, as herein defined, until
paid to Participants and their Beneficiaries under a Covered Arrangement; and
WHEREAS, it was and is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of any
Covered Arrangement as an unfunded plan or agreement maintained, where
appropriate, for the purpose of providing deferred compensation for a select
group of management or highly compensated employees for purposes of Title I of
the Employee Retirement Income Security Act of 1974, as amended; and
WHEREAS, the Trust was and is intended to be a "grantor trust" with the
corpus and income of the Trust treated as assets and income of the Company or
the Bank for federal income tax purposes pursuant to Sections 671 through 679 of
the
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<PAGE> 4
Internal Revenue Code of 1986, as amended (the "Code") and shall be construed
accordingly; and
WHEREAS, the Umbrella Trust Agreement was amended by the Company, the
Bank and Marine Midland Bank, effective as of November 1, 1996; and
WHEREAS, the Umbrella Trust Agreement was again amended by the Company,
the Bank and Marine Midland Bank, effective as of June 27, 1997; and
WHEREAS, the parties desire to restate the Umbrella Trust Agreement to
reflect the succession of HSBC Bank USA as Trustee, the amendments described
above and further amendments included herein;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the Company, the Bank and the Trustee agree as follows:
3
<PAGE> 5
ARTICLE I
Establishment of Trust
1.1 Trust Fund. The Company and the Bank hereby establish the Trust
with the Trustee, consisting of such sums of money, policies of life insurance,
and other property acceptable to the Trustee as from time to time shall be paid
or delivered to the Trustee (the "Contributions"). All such Contributions, all
investments made therewith or proceeds thereof and all earnings and profits
thereon, less all payments and charges as authorized herein, shall constitute
the "Trust Fund." The Trust Fund shall be held by the Trustee in trust separate
and apart from other funds of the Company and the Bank and shall be applied in
accordance with the provisions of this Trust Agreement. The Trust Fund shall at
all times be subject to the claims of general creditors of the Company or the
Bank, as their interests may appear, as provided in Article XII. Participants
and their Beneficiaries shall have no preferred claim on, or any beneficial
ownership interest in, any assets of the Trust. Any rights created under the
Covered Arrangements and this Trust Agreement shall be mere unsecured
contractual rights of the Participants and their Beneficiaries against one or
both of the Company and the Bank.
1.2 Irrevocability. The Trust shall be irrevocable, and except as
provided in Section 5.3 and Article XII, the assets of the Trust shall be held
for the exclusive purpose of providing Benefits to Participants and their
Beneficiaries (through direct payment, the provision of life insurance or
otherwise) and defraying expenses of the Trust in accordance with the provisions
of this Trust Agreement. Except as
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<PAGE> 6
expressly provided in this Trust Agreement, no part of the income or corpus of
the Trust Fund shall be recoverable by or applied for the benefit of the
Company, the Bank or their creditors.
1.3 Inalienability of Interests. Benefits payable to Participants and
their Beneficiaries under this Trust Agreement may not be sold, anticipated,
transferred, assigned (either at law or in equity), alienated, pledged,
encumbered, or subjected to attachment, garnishment, levy, execution or other
legal or equitable process.
1.4 Acceptance by the Trustee. The Trustee accepts the Trust
established under this Trust Agreement on the terms and subject to the
provisions set forth herein, and it agrees to discharge and perform fully and
faithfully all of the duties and obligations imposed upon it under this Trust
Agreement.
1.5 Designation of Covered Arrangements; Participants and
Beneficiaries.
(a) The Trust shall serve to aid the Company and the Bank in
accumulating the assets and maintaining life insurance policies necessary to
satisfy their respective contractual liabilities to pay or provide cash-based or
life insurance- based Benefits to Participants and Beneficiaries under the terms
of the Covered Arrangements listed (or otherwise described) in Appendix I to
this Trust Agreement, as such Appendix I may from time to time be amended. Prior
to an Irrevocable Election (as defined in Section 13.5) or Change in Control (as
defined in Section 13.4), Appendix I may be amended to remove or add all or a
portion of such plans and
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<PAGE> 7
agreements as may be designated from time to time by action of two Authorized
Officers of either the Company or the Bank (as appropriate) or their designees.
An "Authorized Officer" of the Company or the Bank shall for this purpose be any
of the individuals listed in Appendix IV to this Trust Agreement, whose specimen
signatures shall be provided by the Dime to the Trustee. Notwithstanding the
foregoing, following an Irrevocable Election, Change in Control or Potential
Change in Control (as defined in Section 11.3(d)(i)), Appendix I may be amended,
additional Covered Arrangements or portions thereof may be designated and
Covered Arrangements or portions thereof may be eliminated, only with the
written approval of the Committee (as defined in Section 13.6).
(b) The term "Participant" shall mean any person who at the
time an Irrevocable Election or Change in Control first occurs following May 1,
2000, or at any time prior thereto, is or was an officer or employee of the
Company or the Bank, and at the time of such Irrevocable Election or Change in
Control, is or could become entitled to any benefit pursuant to, or otherwise
could be deemed to be a participant in, any Covered Arrangement (but shall not
include any person serving as a non-employee director of the Company or the Bank
with respect to any Benefits accrued solely in such capacity). No individual
shall be deemed a Participant with respect to a Covered Arrangement after the
first to occur following May 1, 2000 of an Irrevocable Election or Change in
Control if that individual was not already a Participant with respect to such
Covered Arrangement at the time of such Irrevocable Election or Change in
Control, as the case may be, except with written approval of the Committee.
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<PAGE> 8
(c) The term "Beneficiary" shall mean any person who is or may
become entitled to Benefits under any of the Covered Arrangements in the event
of a Participant's death.
1.6 Respective Interests of the Company and the Bank. (a) The
Trustee shall separately account for all Contributions made by the Company and
the Bank, and for all investments made therewith, proceeds thereof, and earnings
and profits thereon, and all payments and charges with respect thereto
(respectively, the "Company Trust Assets" and the "Bank Trust Assets");
provided, that such Contributions may be commingled for purposes of investment
hereunder and that any allocations of such commingled investments shall be made
in proportion to the respective amounts of the investment represented by
Contributions of the Company and the Bank; and further provided, that, except as
may otherwise specifically be directed by the Company or the Bank pursuant to
the provisions of this Trust Agreement, any determination by the Trustee
respecting allocation of any investments, proceeds, earnings, profits, payments
and charges in respect of the Trust Fund as between the Company Trust Assets and
the Bank Trust Assets shall be final and binding on the parties hereto.
(b) The Company and the Bank have identified, with respect to
each Covered Arrangement listed on Appendix I, and shall set forth in Appendix
I, with respect to each Covered Arrangement hereafter added thereto, whether
Benefits under such Covered Arrangement constitute (i) primary obligations
hereunder of the Company ("Company Benefits"), (ii) secondary obligations
hereunder of the Company,
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<PAGE> 9
(iii) primary obligations hereunder of the Bank ("Bank Benefits"), or (iv)
secondary obligations hereunder of the Bank. Obligations for which the Company
is primarily liable and the Bank is secondarily liable, and obligations for
which the Bank is primarily liable and the Company is secondarily liable are
also referred to herein as "Joint Benefits."
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<PAGE> 10
ARTICLE II
General Powers of Trustee
2.1 Investment of the Trust.
(a) Prior to an Irrevocable Election or Change in Control, the
Company Trust Assets and Bank Trust Assets shall be invested by the Trustee in
the manner directed by the Company or the Bank, respectively, or, to the extent
no such specific direction has been given by the Company or the Bank, in
accordance with the written investment guidelines provided from time to time by
the Company or the Bank.
(b) Subsequent to an Irrevocable Election or Change in Control,
the Trustee shall invest the assets of the Trust Fund, without distinction
between principal and income, in accordance with such written investment
guidelines as may be provided from time to time by the Committee, in (i) life
insurance policies and guaranteed annuity contracts issued by insurers which, at
the time of investment, are rated A+ or better by Standard & Poor's or the
equivalent rating by any nationally recognized rating service (including the
payment of premiums thereon), (ii) bonds rated at least A by Standard & Poor's
or the equivalent rating by any nationally recognized rating service, (iii)
certificates of deposit, money market funds or other high quality cash
equivalents, or (iv) mutual funds designed to invest in those items described in
clauses (i) through (iii) above that otherwise comply with the Bank's or, as
applicable, the Company's investment policies as they apply from time to time
(the relevant portions of which shall be provided to the Trustee by the Bank or
the Company upon its request).
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<PAGE> 11
(c) Subsequent to an Irrevocable Election or a Change in
Control and notwithstanding the foregoing provisions of this Section 2.1, at any
time that the assets of the Trust Fund together with the assets of any other
trust fund established by the Company or the Bank with which the assets of the
Trust Fund are commingled for investment purposes (excluding in each case any
life insurance policies and guaranteed annuity contracts then in effect) do not
exceed $500,000, such assets shall be held in one or more interest-bearing
accounts at a commercial bank or savings bank (which may include the Trustee),
with maturities in the Trustee's discretion based on the anticipated need for
funds, but not in excess of one year.
(d) Prior to an Irrevocable Election or a Change in Control,
each of the Company and the Bank shall have the right at any time, and from time
to time in its sole discretion, to substitute assets of equal fair market value
for any asset held by the Trust. This right is exercisable by each of the
Company and the Bank in a non- fiduciary capacity without the approval or
consent of any person in a fiduciary capacity. After an Irrevocable Election or
a Change in Control, such right shall continue, but any asset so substituted by
the Company or the Bank shall be of equivalent or greater liquidity as compared
to the asset for which it is substituted, and such right may only be exercised
with the consent of the Committee.
2.2 Investment Powers of Trustee. Subject to the provisions of this
Trust Agreement and the directions or investment guidelines provided pursuant to
Section 2.1, the Trustee shall have, with respect to the Trust Fund, the
following investment powers in its discretion:
10
<PAGE> 12
(a) To invest and reinvest in any property, real, personal or
mixed, wherever situated, foreign or domestic, including, common and preferred
stocks, bonds, notes and debentures (including convertible stocks and securities
but not including any stock or securities or debt instruments of the Company or
the Bank or their Affiliates unless otherwise expressly directed by the Company
or the Bank pursuant to Section 2.1(a)); leaseholds; mortgages (including,
without limitation, any collective or part interest in any bond and mortgage or
note and mortgage); certificates of deposit and money market funds (including
certificates of deposit and money market funds of the Bank); and life insurance
and guaranteed annuity contracts. Such investments may be made regardless of
diversification and without being limited to investments authorized by law for
the investment of trust funds.
(b) To use Trust Fund assets to purchase, and pay all premiums
and other charges upon, individual or group annuity or life insurance contracts.
(c) To retain any property at any time received by it.
(d) To sell, exchange, convey, transfer or dispose of, and to
grant options for the purchase or exchange with respect to, any property at any
time held by it, by public or private sale, for cash or on credit or partly for
cash and partly on credit.
(e) To participate in any plan of reorganization,
consolidation, merger, combination, liquidation or other similar plan and to
consent to or oppose any such plan or any action thereunder, or any contract,
lease, mortgage, purchase, sale or
11
<PAGE> 13
other action by any person or corporation or other entity any of the securities
of which may at any time be held in the Trust Fund, and to do any act with
reference thereto.
(f) To deposit any property with any protective, reorganization
or similar committee, to delegate discretionary power to any such committee and
to pay and agree to pay part of the expenses and compensation of any such
committee and any assessments levied with respect to any property so deposited.
(g) To exercise all conversion and subscription rights
pertaining to any property, and to do any act with reference thereto, including
the exercise of options, the making of agreements or subscriptions and the
payment of expenses, assessments or subscriptions, which may be deemed necessary
or advisable in connection therewith, and to hold and retain any securities or
other property which it may so acquire.
(h) To extend the time of payment of any obligation held in the
Trust Fund.
(i) To enter into standby agreements for future investment,
either with or without a standby fee.
(j) To invest and reinvest all or any specified portion of the
Trust Fund through the medium of any common, collective or commingled trust fund
which has been or may hereafter be established and maintained by the Trustee,
provided that prior to investing any portion of the Trust Fund for the first
time in any such common, collective or commingled trust fund, the Trustee shall
advise the Committee of its intent to make such an investment and furnish to the
Committee any
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<PAGE> 14
information it may reasonably request with respect to such common, collective or
commingled trust fund.
(k) To the extent permitted by law, to commingle assets of the
Trust Fund, for investment purposes only, with assets of other trust funds
established by the Company or the Bank, provided that the Trustee shall maintain
separate records with respect to each such other trust or plan, and further
provided that the assets of the Trust Fund shall not be commingled in any fund
intended to hold only assets of qualified retirement plans within the meaning of
Section 401(a) of the Code.
(l) To acquire, renew or extend or participate in the renewal
or extension of any mortgage, and to agree to a reduction in the rate of
interest on any indebtedness or mortgage or to any other modification or change
in the terms of any indebtedness or mortgage or of any guarantee pertaining
thereto, in any manner and to any extent that may be deemed advisable for the
protection of the Trust or the preservation of any covenant or condition of any
indebtedness or mortgage or in the performance of any guarantee, or to enforce
any default in such manner and to such extent as may be deemed advisable; and to
exercise and enforce any and all rights of foreclosure, to bid on any property
in foreclosure, to take a deed in lieu of foreclosure with or without paying a
consideration therefor and in connection therewith to release the obligation on
the bond secured by such mortgage, and to exercise and enforce in any action,
suit or proceeding at law or in equity any rights or remedies in respect of any
such indebtedness or mortgage or guarantee.
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<PAGE> 15
(m) To make, execute and deliver, as Trustee, any and all
deeds, leases, notes, bonds, guarantees, mortgages, conveyances, contracts,
waivers, releases or other instruments in writing necessary or proper for the
accomplishment of any of the foregoing powers.
2.3 Administrative Powers of Trustee. Subject to the provisions of
this Trust Agreement, the Trustee shall have the following administrative powers
in its discretion:
(a) To exercise all voting rights with respect to the shares of
stock, if any, held in the Trust Fund and to grant proxies, discretionary or
otherwise.
(b) To cause any shares of stock to be registered and held in
the name of one or more of its nominees, or one or more nominees of any system
for the central handling of securities, without increase or decrease of
liability.
(c) To collect and receive any and all money and other property
due to the Trust Fund and to give full discharge therefor, including the
collection and receipt of premiums due on Key Life Insurance Policies (as
defined in Section 4.4) from or with respect to Participants.
(d) To settle, compromise or submit to arbitration any claims,
debts or damages due or owing to or from the Trust; to commence or defend suits
or legal proceedings to protect any interest of the Trust; and to represent the
Trust in all suits or legal proceedings in any court or before any other body or
tribunal.
(e) To organize under the laws of any state a corporation,
partnership or trust for the purpose of acquiring and holding title to any
property which
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<PAGE> 16
it is authorized to acquire under this Trust Agreement and to exercise with
respect thereto any or all of the powers set forth in this Trust Agreement.
(f) To determine how all receipts and disbursements shall be
credited, charged or apportioned as between income and principal, and the
decision of the Trustee shall be final and not subject to question by the
Company or the Bank or any Participant or Beneficiary.
(g) After an Irrevocable Election or Change in Control, to the
extent so directed by the Committee, to interpret the provisions of the Covered
Arrangements that govern the determination of eligibility for, amount, form and
timing of payments under the Covered Arrangements, including, without
limitation, the crediting of earnings and determination of offsets thereunder,
and where appropriate, with respect to the Covered Arrangements, the calculation
of "excess parachute payments," the underlying elements and valuations used in
their determination under Code Section 280G and the determination of gross-ups
and cut-backs with respect to Code Section 280G and related excise taxes under
the Covered Arrangements, notwithstanding any authority otherwise provided to
another individual, group of individuals, committee or entity under any such
Covered Arrangement.
(h) After consultation with the Committee, to engage such
independent third parties as the Trustee may deem necessary to assist in making
determinations with respect to Benefits payable under the Covered Arrangements
or otherwise under the Trust.
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<PAGE> 17
(i) After consultation with the Committee, to engage any legal
counsel, including counsel to the Company or the Bank, or any other suitable
agents (including outside investment managers), to consult with such counsel or
agents with respect to the implementation and construction of this Trust
Agreement, the duties of the Trustee hereunder, the transactions contemplated by
this Trust Agreement, or any act which the Trustee proposes to take or omit, to
rely upon the advice of such counsel or agents, and to pay their reasonable
fees, expenses and compensation.
(j) To purchase individual or group annuity contracts for
purposes of making annuity-type Benefit payments under the Covered Arrangements.
(k) To do all other acts, subject to the approval of the
Committee, which the Trustee may deem necessary or desirable for the protection
of the Trust Fund and payment of Benefits hereunder.
2.4 Limitation on Trustee Powers. Notwithstanding any powers granted
to Trustee pursuant to this Trust Agreement or to applicable law, the Trustee
shall not have any power that could give this Trust the objective of carrying on
a business and dividing the gains therefrom, within the meaning of Section
301.7701-2 of the Procedure and Administrative Regulations promulgated pursuant
to the Code.
2.5 Dealings with Trustee. Persons dealing with the Trustee shall be
under no obligation to see to the proper application of any money paid or
property delivered to the Trustee or to inquire into the Trustee's authority as
to any transaction.
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ARTICLE III
Documents, Participant Information and Records
3.1 Copy of Covered Arrangements. The Dime shall provide the Trustee
with a copy of each of the Covered Arrangements and shall provide the Trustee
with a copy of any amendment to any of the Covered Arrangements as soon as
practicable following its adoption. The Trustee shall be entitled to rely on the
terms of any Covered Arrangement as in effect prior to its amendment until the
Trustee receives a copy of such amendment. The Trustee may inquire of the
Committee regarding the effect of any such amendment on Benefits payable under a
Covered Arrangement. Copies of Covered Arrangements and amendments thereto may
also be provided to the Trustee by the Committee or by any Participant or
Beneficiary.
3.2 Participant Information. The Dime shall prepare and deliver to the
Trustee such information (the "Participant Information") as is reasonably
determined by the Trustee to be necessary to enable the Trustee to determine the
amount and time of payment of each Benefit payable to each Participant or
Beneficiary. Without limiting the generality of the foregoing, the Participant
Information may include (i) the name of each Participant entitled to receive
Benefits under each of the Covered Arrangements, (ii) the current address of
each Participant, (iii) the Beneficiaries, if any, designated by each
Participant, (iv) the Participant's date of birth, (v) each Participant's number
of years of service with the Company, the Bank or, as appropriate, their
Affiliates, (vi) each Participant's current and prior compensation, (vii) any
elections made by a Participant regarding the payment of Benefits or interim
deemed investments under any
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Covered Arrangements where such elections are permitted or required, (viii) if
Benefits are in pay status, the date payments began and the amount and timing of
Benefit payments, (ix) any Supplemental Executive Retirement Plans' "Pension
Goals," (x) the name and date of birth of the Participant's spouse, as
necessary, and (xi) other information requested by the Trustee. The Trustee
shall be entitled to rely on such Participant Information (as modified by notice
pursuant to Section 3.3(a) and (b)) provided by the Dime unless the Trustee has
reason to believe such Participant Information may be incorrect.
3.3 Updating the Participant Information.
(a) Prior to an Irrevocable Election or Change in Control, the
Dime may from time to time notify the Trustee of any changes to the Participant
Information (including any changes in the list of Participants). Each such
notice shall be signed and dated by an Authorized Officer, shall set forth the
name of each Participant with respect to whom the Participant Information is
being changed (or who is being added to or deleted from the list of
Participants), and all additions to or changes from the information previously
supplied with respect to such Participant.
(b) Upon an Irrevocable Election or Change in Control, the Dime
shall either (i) notify the Trustee that there have been no changes in the
Participant Information from the Participant Information most recently provided
or (ii) if there have been changes in the Participant Information, provide the
Trustee with Participant Information updated to the date of the Irrevocable
Election or Change in Control.
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<PAGE> 20
(c) Subsequent to an Irrevocable Election or Change in Control,
the Trustee shall update the Participant Information, at such time as is
necessary to pay Benefits, from information furnished to it by the Dime or
Participants, as provided in Section 3.4. The Trustee shall request information
from the Dime and Participants as necessary to update the Participant
Information.
3.4 Dime Records.
(a) The Dime shall keep full, accurate and detailed books and
records with respect to the Participants under the Covered Arrangements and the
Benefits payable to them. The Dime shall provide such information and access to
such books and records to the Trustee and any independent third party retained
by the Trustee to assist it, at such time or times as the Trustee shall
reasonably request.
(b) If at any time subsequent to an Irrevocable Election or
Change in Control the Dime fails or refuses to give the Trustee what the Trustee
reasonably believes to be accurate and sufficient Participant Information or
access to such books and records, the Trustee shall be entitled to rely on
Participant Information furnished to the Trustee by the Committee or by the
respective Participants (including Participant Information furnished at the time
or after a claim for Benefits has been made) for the purpose of calculating
Benefits, unless the Trustee has reason to believe such Participant Information
may be incorrect.
(c) The Trustee shall be under no obligation to commence any
action seeking judicial or administrative relief in the event that the Dime does
not comply with its obligations under Section 3.4(a) or the respective
Participants do not
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<PAGE> 21
furnish Participant Information under Section 3.4(b); provided, however, to the
extent permitted by law and following an Irrevocable Election or Change in
Control, any Participant may commence legal action to enforce the obligations
and duties of the Company, the Bank or the Trustee under any Plan.
3.5 Committee's Right to Information. The Participant Information,
records and all other information and documentation (including updates thereto)
to be delivered or otherwise made available to the Trustee by the Dime pursuant
to the foregoing provisions of this Article shall also be delivered or otherwise
made available by the Dime to the Committee or its agent upon request. In
addition, the Trustee shall deliver or make available such information and
documentation to the Committee or its agent upon request. The Committee shall be
entitled to rely on any such information or documentation delivered or made
available to it by the Dime or the Trustee to the same extent that the Trustee
is entitled to rely on such information or documentation pursuant to the
foregoing provisions of this Article.
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ARTICLE IV
Establishment of Accounts and Contributions
4.1 Accounts.
A separate Expense Account shall be established and maintained in
accordance with Section 7.3. Separate accounts also shall be established and
maintained to segregate Company Assets and Bank Assets. No separate Trust
accounts shall be maintained with respect to Participants in any Covered
Arrangement (except for bookkeeping accounts to the extent required to determine
the amount of Benefits under a Covered Arrangement).
4.2 Contributions. Contributions shall be delivered to the Trustee as
follows:
(a) Prior to an Irrevocable Election or Change in Control, the
Company and the Bank shall deliver such cash, insurance policies, or other
property to the Trustee as each of them shall from time to time deem appropriate
for the funding of Benefits and payment of expenses under the Trust.
(b) (i) Upon an Irrevocable Election or Change in Control, each of
the Company and the Bank shall deliver to the Trustee additional Contributions
as shall be necessary so that the Trust holds (x) assets, valued in accordance
with Section 4.3 (but excluding any amounts allocated to the Expense Account),
equal in value to at least 110% of the present value of projected Benefits
payable to or with respect to all Participants and Beneficiaries (such present
value, as determined by the Trustee in the manner and based upon the assumptions
described in Section 5.3, is herein referred to
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as the "Benefit Valuation Amount"), plus (y) amounts required to be contributed
to and held in the Expense Account pursuant to Section 7.3, all determined as of
the date of such Irrevocable Election or Change in Control. The obligation of
each of the Company and the Bank hereunder shall be dependent on the Benefits
under the Covered Arrangements with respect to which each such entity may be
liable (with the entity identified as primarily obligated hereunder with respect
to any Joint Benefit deemed responsible for the full amount of any related asset
and contribution requirements) and the identification of the assets in the
determination above as Company Trust Assets or Bank Trust Assets, as
appropriate. In addition, subsequent to an Irrevocable Election or Change in
Control, the Trustee shall annually, as of the start of the month commencing
coincident with or immediately following each yearly anniversary of the date of
the Irrevocable Election or Change in Control, review its calculation of the
Benefit Valuation Amount in order to determine if the assets then held under the
Trust, valued in accordance with Section 4.3 (but excluding any amounts
allocated to the Expense Account), are equal in value to at least 110% of the
Benefit Valuation Amount as of the date of such determination. If the Trustee
determines that the Trust does not, at the date as of such date, have assets,
valued in accordance with Section 4.3 (but excluding for these purposes any
amounts allocated to the Expense Account) equal in value to at least 110% of the
Benefit Valuation Amount (calculated separately with respect to the respective
obligations of the Company and the Bank in the manner described above), then the
Trustee shall notify the Company and the Bank, and the Company and/or the Bank
shall deliver to the Trustee within 30 days, such
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additional cash Contributions as shall be necessary to provide the Trustee with
such additional cash or other readily marketable assets to satisfy such
obligation. The amount of these cash Contributions shall be determined by the
Trustee, after consultation with and approval by the Committee, based upon the
respective obligations of the Company and the Bank, and the identification of
the assets in the determination above as Company Trust Assets or Bank Trust
Assets, as appropriate.
(ii) In each instance described above in clause (i), in the
event that the Bank has not fulfilled its funding obligations, the Company shall
be required to make additional cash contributions to the Trustee in an amount
equal to the lesser of 110% of the value (determined in accordance with Section
4.3) of the Joint Benefits and the amount of the Bank's funding shortfall. In
the event that the Company has not fulfilled its funding obligations, the Bank
shall be required to make additional cash contributions to the Trustee in an
amount equal to the lesser of 110% of the value (determined in accordance with
Section 4.3) of the Joint Benefits and the amount of the Company's funding
shortfall. Each such Contribution shall be made to the Trustee within 30 days of
the Committee's approval of a request for such Contribution from the Trustee or
as soon as practicable thereafter.
(c) If any of the Contributions required by Section 4.2(b) or
deposits required by Section 7.3 are not made when required, the Trustee shall
notify each Participant, each Beneficiary of a then-deceased Participant and the
Committee of such event.
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(d) All Contributions received directly or indirectly from the
Company shall be considered Company Trust Assets, and all Contributions received
directly or indirectly from the Bank shall be considered Bank Trust Assets,
unless the party making the Contributions shall otherwise notify the Trustee.
(e) Notwithstanding the foregoing, neither the Trustee nor the
Committee shall be liable for any failure by either the Company or the Bank to
make the Contributions required by Section 4.2(b). Neither the Trustee nor the
Committee shall have any duty to see that the Trust Fund is ultimately adequate
to meet liabilities under the Covered Arrangements. The Committee and the
Trustee are, however, authorized hereunder to seek payment from the Company or
the Bank of any Contributions required by Section 4.2(b) or deposits required by
Section 7.3 that are not made when required, including, without limitation, by
bringing suit therefor against the Company, the Bank or both of them in a court
of competent jurisdiction as provided in Section 13.1 hereof.
4.3 Valuation of Trust Fund
The Trustee may hold, invest and reinvest the assets of the Trust
Fund as a consolidated single fund. Earnings and losses shall be allocated
between Company Trust Assets and Bank Trust Assets, as applicable. As of the
last business day of each calendar month, the Trustee shall value the Trust Fund
at current market values, and shall report such valuation, and the allocation
thereto as between Company Trust Assets and Bank Trust Assets, to the Company
and the Bank and, following an Irrevocable Election or Change in Control, to the
Committee. The report of
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any such valuation shall not constitute a representation by the Trustee that the
amounts reported as fair market values would actually be realized upon the
liquidation of the Trust Fund. Such valuation shall reflect Contributions,
income of the Trust Fund, gains or losses (including gains or losses not yet
realized), distributions and expenses incurred during the month. For purposes of
valuing the Trust Fund to determine if the funding obligations described in
Section 4.2 have been met or to determine in accordance with Section 5.3(a) if
there are Excess Assets, the Trustee shall disregard the cash surrender value
of, and any future dividends payable with respect to, the Key Life Insurance
Policies (as defined in Section 4.4), which policies shall furthermore not be
deemed to be allocated to the Expense Account; provided, however, that to the
extent that a Key Life Insurance Policy at any time provides coverage in an
amount in excess of the coverage required under Section 4.4, such excess
coverage shall be included (valued at the cash surrender value of such excess
coverage) in determining the assets of the Trust Fund; and provided further that
if the Trust shall hold at any valuation date any life insurance policies other
than Key Life Insurance Policies, such policies shall be valued at the cash
surrender value thereof in determining the assets of the Trust Fund.
4.4 Insurance Maintenance
Notwithstanding anything to the contrary contained herein, on and
after an Irrevocable Election or a Change in Control, the Trust Fund shall at
all times maintain life insurance policies in the Trust Fund in an amount
sufficient to fund 110% of the projected life insurance and death benefits
payable under the Key Executive Life
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Insurance/Death Benefit Plan of The Dime Savings Bank of New York, FSB (the "Key
Life Plan" and "Key Life Insurance Policies"), using the assumptions set forth
in Section 5.3(b)(vi). The Trust Fund also may maintain additional amounts of
life insurance policy coverage for the purpose of funding other Benefits, but
such life insurance policies shall not be deemed to be Key Life Insurance
Policies hereunder.
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ARTICLE V
Distributions From Trust Fund
5.1 Distributions.
(a) Subject to the provisions of Article XII, prior to an
Irrevocable Election or Change in Control, Benefits shall be paid from the Trust
Fund to Participants and Beneficiaries, and insurance premiums shall be paid
from the Trust Fund, only as directed by the Committee. In no event shall
payment to a Participant or his Beneficiary be made in excess of the Benefits
due the Participant or Beneficiary under the applicable Covered Arrangement.
(b) Subject to the provisions of Article XII, the following
provisions shall apply subsequent to an Irrevocable Election or Change in
Control:
(i) The Dime shall, and the Committee may, be
responsible for notifying the Trustee when it believes a Participant or
Beneficiary is entitled to payment of a Benefit or a premium on a life insurance
policy is due. The Committee may also notify the Trustee when it believes a
Participant or Beneficiary is entitled to payment of a Benefit or a premium on a
life insurance policy is due, and the Trustee may receive information from other
sources deemed reliable by it (including, but not limited to, insurance
companies), for purposes of determining when payment of a Benefit or a premium
on a life insurance policy is due. In addition, a Participant or Beneficiary who
believes that he is entitled to payment of a Benefit under a Covered Arrangement
may apply in writing directly to the Trustee for payment of such Benefit. Such
application shall advise the Trustee of the circumstances which entitle such
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Participant or Beneficiary to payment of such Benefit. Subsequent to receiving
any such aforesaid notice, information or application, and subject to the
provisions of this Section 5.1 (including the right of the Committee to make
final determinations regarding Benefit payments pursuant to Section 5.1(c)) or
otherwise based on the Trustee's determination that a Benefit is payable under a
Covered Arrangement (or a premium on a life insurance policy is due),
distributions from the Trust Fund shall be made by the Trustee to the
Participants and Beneficiaries, or to pay insurance premiums, at the times and
in the amounts as the Trustee shall determine based on the terms of the
applicable Covered Arrangement(s) and the Participant Information, and the
Trustee shall further determine the amount of each payment that shall be charged
against the Company Trust Assets and Bank Trust Assets, respectively.
(ii) The Trustee shall pay from the Trust Fund any
Benefit when due, as determined pursuant to Section 5.1(b)(i), and any premium
on life insurance held by the Trust, unless the Trustee has received evidence,
satisfactory to the Trustee, that such Benefit or premium has been paid by the
Company or the Bank or another entity (or, in the case of a premium on a life
insurance policy, has been paid out of dividends on such policy). Prior to
making a Benefit payment, the Trustee shall notify the Company, the Bank, the
Committee and the Participant or Beneficiary. If, within five business days of
such notification, the Company, the Bank, the Committee or the Participant or
Beneficiary has not objected to the Trustee's determination to pay such
Benefits, then the Trustee's determination shall be final, and, if such payment
is the first in a series of payments, the Trustee's determination shall be final
for all
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payments of such series. If, however, an objection is made by the Company, the
Bank, the Committee or the Participant or Beneficiary within five business days
of the notification, then the procedures set forth in Section 5.1(c) shall
apply. Payment of Benefits and premiums shall be made as follows: (A) payment
shall first be made of Company Benefits that are not Joint Benefits and premiums
related to Company Benefits that are not Joint Benefits to the extent of Company
Trust Assets not allocated to the Expense Account and of Bank Benefits that are
not Joint Benefits and premiums related to Bank Benefits that are not Joint
Benefits to the extent of Bank Trust Assets not allocated to the Expense
Account; and (B) payment shall next be made of any Joint Benefits and premiums
related to Joint Benefits out of remaining Company Trust Assets and Bank Trust
Assets, as applicable, based upon the respective obligations of the Company and
the Bank (with payment to first be made out of the assets of the entity (e.g.
Bank Trust Assets or Company Trust Assets) that is listed on Appendix I as the
primary obligor hereunder with respect to the Covered Arrangement, and then, if
necessary, out of the assets of the entity (e.g. Bank Trust Assets or Company
Trust Assets) that is listed on Appendix I as the secondary obligor hereunder
with respect to the Covered Arrangement) until either the Company Trust Assets
or Bank Trust Assets not allocated to the Expense Account shall be exhausted;
and (C) thereafter, payment of any remaining Joint Benefits and premiums related
to Joint Benefits shall be made out of any remaining Trust Assets not allocated
to the Expense Account.
(iii) If the amount of Company Trust Assets and Bank Trust
Assets not allocated to the Expense Account is insufficient to pay in full all
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Company Benefits, Bank Benefits and related premiums due, then payment shall
nonetheless be made in accordance with and to the extent permitted by the
preceding clause (ii); provided, that (A) if either Company Trust Assets not
allocated to the Expense Account are insufficient to pay the Company Benefits
and related premiums in full or Bank Trust Assets not allocated to the Expense
Account are insufficient to pay the Bank Benefits and related premiums in full,
and/or if the Company Trust Assets and Bank Trust Assets not allocated to the
Expense Account are insufficient to pay the Joint Benefits and related premiums
in full, then the Trustee shall so notify the Company or the Bank, as the case
may be, and such entity shall either pay such Benefits and premiums directly to
the Participant or Beneficiary or insurance company to whom they are due (and
provide evidence of such payment to the Trustee) or contribute to the Trust
within thirty days of such notice an amount sufficient to pay all such remaining
Benefits and premiums, which the Trustee shall then pay to the Participant or
Beneficiary or insurance company to whom they are due; and (B) if any portion of
the Joint Benefits and premiums is paid in accordance with clause (ii)(C) rather
than clause (ii)(B) above, then the entity whose Trust Assets were insufficient
to pay its appropriate (because of its status as a primary obligor hereunder or
otherwise) share of the Joint Benefits and premiums shall, upon notification of
such shortfall by the Trustee, contribute to the Trust within thirty days an
amount equal to such shortfall, which shall thereupon be credited as a
contribution to the Trust Assets of the other entity, from whose Trust Assets
all or any portion of such shortfall was paid, in an amount equal to the Benefit
or premium so paid, with the remainder, if any, of such shortfall being paid
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to the Participant or Beneficiary or insurance company to whom such Benefit or
premium remains due; provided, that neither the Trustee nor any Participant or
insurance company shall be liable to the Company, the Bank, or any creditor
thereof for amounts paid as Joint Benefits under clause (ii)(C) in excess of the
Company's or the Bank's appropriate share thereof.
(c) The following additional provisions shall apply subsequent
to an Irrevocable Election or Change in Control:
(i) Whenever the Trustee determines that an
interpretation of the provisions of a Covered Arrangement is necessary or
advisable to a determination of whether, in what form, or in what amount
Benefits may be payable to a Participant or Beneficiary under such Covered
Arrangement pursuant to Section 5.1(b)(i), the Trustee shall make inquiry of the
Committee concerning such interpretation. The Committee shall have the authority
to interpret the applicable Covered Arrangement and to determine, based on such
interpretation, the applicable Participant Information and such other
information supplied by the Participant or Beneficiary and the Company or the
Bank as it shall deem relevant, whether, and if so in what form and amount,
Benefits are payable thereunder to such Participant or Beneficiary. The
Committee shall report its determination to the Trustee, and the Trustee shall
notify the affected Participant or Beneficiary and the Company and the Bank of
the Committee's determination and the Trustee's intent to commence benefit
payments in accordance therewith. Unless either the Participant or Beneficiary,
or the Company or the Bank, shall within five business days of such notification
notify the
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Trustee that it objects to the determination of the Committee, then such
determination shall become final and the Trustee shall, pursuant to Section
5.1(b)(i) hereof, make such distributions from the Trust Fund to the Participant
and Beneficiary as is called for in such determination; provided, that no
Participant or Beneficiary shall be deprived by such determination (or other
determination pursuant to this Section 5.1(c)) of any right such person may have
under applicable law or regulation to claim that such determination (or other
determination pursuant to this Section 5.1(c)) was erroneous under the terms of
the applicable Covered Arrangement. If any party shall within such five business
day period object to the determination made by the Committee, then the Trustee
shall review such determination. Such review shall be limited to whether the
Committee's determination was reasonable. If the Trustee finds that such
determination appears reasonable, then such determination shall become final and
the Trustee shall, pursuant to Section 5.1(b)(i), make such distributions from
the Trust Fund to the Participant or Beneficiary as is called for by such
determination. If the Trustee shall conclude that such determination should be
further reviewed by the Committee, in light of the objection thereto, it shall
request that the Committee further consider such matter, in light of such
objection and such other factors as the Trustee may bring to its attention or
request it to review or reconsider. The Committee shall reconsider such matter,
based on such facts as it shall deem relevant, and shall report its
determination to the Trustee. Upon receipt by the Trustee of such report, the
determination of the Committee shall become final, and the Trustee shall make
such distribution from the Trust Fund to the Participant and Beneficiary as is
called for by
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such determination. Once a determination of the Committee has become final in
accordance with this Section 5.1(c), the Company and the Bank, for themselves,
their subsidiaries, and their successors and assigns, agree to be bound by such
determination and hereby waive any and all rights to recoup any Benefits paid in
accordance therewith, either from the recipient thereof, the Trust, the Trustee
or the Committee, or to hold any of such parties liable with respect to the
payment thereof. The Committee's powers of determination under this Section
5.1(c) shall include, without limitation, the authority to interpret the
provisions of the Covered Arrangements that govern the determination of
eligibility for, amount, form and timing of payments under the Covered
Arrangements, including, without limitation, the crediting of earnings and
determination of offsets thereunder, and where appropriate, with respect to the
Covered Arrangements, the calculation of "excess parachute payments," the
underlying elements and valuations used in their determination under Code
Section 280G and the determination of gross-ups and cut-backs with respect to
Code Section 280G and related excise taxes under the Covered Arrangements and
such determinations shall be final as aforesaid, notwithstanding any authority
otherwise provided to another individual, group of individuals, committee or
entity under any such Covered Arrangement. Notwithstanding the foregoing, to the
extent required under the Employee Retirement Income Security Act of 1974, as
amended, the Committee may establish alternative claims review procedures for
Participants and Beneficiaries.
(ii) The Company, the Bank or the Committee shall notify
the Trustee if any "change in control" or "transfer of control" has occurred
under any of
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the Covered Arrangements. If no such notice has been provided, but a Covered
Arrangement requires a determination of whether a change in control-related
event has occurred, the Trustee shall request of the Committee that the
Committee make a determination whether such "change in control" or "transfer of
control" has occurred under such Covered Arrangement. The Committee shall
thereupon either (A) make such determination, in which case the Trustee shall
rely on the determination of the Committee, or (B) (1) communicate the materials
and information necessary to the making of such determination to the Trustee and
(2) direct the Trustee to make such determination. In the event the Committee
fails to respond to the Trustee's request within 30 days of the date of such
inquiry, the Trustee shall make its own determination as to whether such a
change in control-related event has occurred.
(iii) Subject to the provisions of this Section 5.1, if
the Committee so desires, it may, in its sole discretion, or, if so directed by
the Committee, the Trustee may, in its sole discretion, make such additional
inquiries and/or take such additional measures as it deems necessary in order to
enable it to determine whether Benefits are due and payable, including, but not
limited to, interviewing or requesting affidavits from appropriate persons.
5.2 Payment Upon Constructive Receipt. Notwithstanding any other
provision of this Trust Agreement, if any amounts held in the Trust Fund are
found in a "determination" (within the meaning of Section 1313(a) of the Code)
to have been includible in the taxable income of a Participant or Beneficiary
prior to, or without, payment of corresponding amounts under the Covered
Arrangements, and the Participant or Beneficiary provides the Trustee with such
determination, the Trustee promptly shall forward the
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determination to the Committee. The Trustee then, unless directed otherwise by
the Committee, shall make a finding as to the extent to which such determination
applies to (i) Company Benefits, Bank Benefits or Joint Benefits and (ii)
amounts otherwise arising out of the Participant's or Beneficiary's interest in,
or relationship to, the Trust. Then, subject to the provisions of Section 5.1(b)
and (c) hereof (without regard to whether there has been an Irrevocable Election
or Change in Control), the Trustee shall pay to such Participant or Beneficiary,
as soon as practicable, an amount equal to the sum of (A) the amount described
in (i) above, reduced by Benefits already paid (whether by the Trust or
otherwise) which were included in such determination (so as to avoid any double
payment of the same Benefits), plus (B) solely with respect to the amount
described in (ii) above, an amount (as determined by the Trustee) sufficient to
pay all taxes, interest and penalties, if any, imposed on the Participant or
Beneficiary with respect to the amount described in (ii) above, plus sufficient
additional amounts to pay all taxes imposed on payments made pursuant to this
clause (B). Amounts paid pursuant to clause (A) above shall be deemed to be
advance payment of the applicable portion of Benefits payable under the
applicable Covered Arrangement, as determined by the Committee. Notwithstanding
the foregoing, in the event a Participant or Beneficiary provides the Trustee a
Notice (as defined below), the Trustee promptly shall forward the Notice to the
Committee. In such case, the Trustee, at the direction of the Committee, or the
Committee, may contest the Notice in whole or in part (and be reimbursed by the
Trust for all reasonable costs of such contest), in which case the Participant
or Beneficiary must fully cooperate and assist the Trustee (or, as appropriate,
the Committee) in connection with such contest and the payment described above
will not be made pending the outcome of such contest. At the
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resolution of such contest (as determined by the Committee, whether following a
litigation, settlement or otherwise), the Trustee promptly shall pay (C) all
amounts (if any) payable to the Participant or Beneficiary calculated as set
forth in clauses (A) and (B) above (adjusted for the results of the contest)
plus (D) in the case of payments related to the amount described in (i) above,
all interest and penalties, if any, imposed on the Participant or Beneficiary,
plus sufficient additional amounts to pay all taxes imposed on payments made
pursuant to this clause D. For purposes of this Section 5.2, the term "Notice"
shall mean a revenue agent's report or notice of proposed adjustment or notice
of deficiency (or any amendments to the foregoing) or set-off of refund claim
issued by a taxing authority to the Participant or Beneficiary with respect to
the inclusion in the Participant's or Beneficiary's taxable income of any
amounts held in the Trust Fund prior to, or without, payment of corresponding
amounts under the Covered Arrangements.
5.3 Excess Amounts and Excess Assets.
(a) Prior to the termination of the Trust and upon the request
of the Dime (no more frequently than once every 12 months), the Trustee shall
determine whether the Trust Fund then holds Excess Assets (as described below).
The Trust shall be deemed to hold Excess Assets if at the time of such
determination the value of the assets of the Trust Fund that are Company Trust
Assets or Bank Trust Assets, determined in accordance with Section 4.3
(excluding for these purposes any amounts allocated to the Expense Account),
exceeds, respectively, 110% of the Benefit Valuation Amount that reflects either
(i) the present value of Company Benefits, or (ii) the present value of Bank
Benefits; provided, however, that (x) if the value of Bank Trust Assets,
determined in accordance with Section 4.3 (excluding any amounts
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allocated to the Expense Account) is less than 110% of the portion of the
Benefit Valuation Amount that so reflects Bank Benefits, Company Trust Assets
shall be considered Excess Assets only to the extent that the value of Company
Trust Assets, determined in accordance with Section 4.3 (excluding any amounts
allocated to the Expense Account) exceeds 110% of the Benefit Valuation Amount
that would be deemed to reflect Company Benefits if the Company were primarily
obligated hereunder with respect to all Joint Benefits, and (y) if the value of
Company Trust Assets, determined in accordance with Section 4.3 (excluding any
amounts allocated to the Expense Account) is less than 110% of the portion of
the Benefit Valuation Amount that so reflects Company Benefits, Bank Trust
Assets shall be considered Excess Assets only to the extent that the value of
Bank Trust Assets, determined in accordance with Section 4.3 (excluding any
amounts allocated to the Expense Account) exceeds 110% of the Benefit Valuation
Amount that would be deemed to reflect Bank Benefits if the Bank were primarily
obligated hereunder with respect to all Joint Benefits. If the Trustee
determines that the Trust Fund holds Excess Assets with respect to either the
Company or the Bank, the Trustee shall notify the Company or the Bank of the
amount of such Excess Assets, and, if the Company or the Bank so request, shall
deliver such Excess Assets (or any portion thereof) to the Company or the Bank
as its respective interests may appear; provided, however, that following an
Irrevocable Election or Change in Control, no such Excess Assets may be
delivered to the Company or the Bank without the consent of the Committee (which
consent shall not be unreasonably withheld).
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(b) For purposes of determining the present value of the
projected total Benefits payable to all Participants and Beneficiaries and
whether there are Excess Assets, the Trustee shall use the following
assumptions:
(i) With respect to any severance and other severance-
related Benefits payable upon termination of employment under the employment
agreements and change in control agreements listed in Appendix I, it shall be
assumed that Benefits thereunder will be payable following a Change in Control
(which, in connection with agreements providing for a gross-up, in certain
circumstances, of tax amounts payable in connection with "excess parachute
payments" under Code Section 280G, is assumed to constitute a change in
ownership or effective control for purposes of Code Section 280G) and that the
present value of projected Benefits payable to a Participant actively employed
(or on a paid or unpaid leave) by the Company, the Bank or an Affiliate at the
date of determination (an "Active Participant") shall equal the Benefits that
would be payable if employment were involuntarily terminated at the end of the
term of such employment or change in control agreement as in effect at the date
of determination, with annual salary and target incentive bonus from the date of
determination to the end of such term assumed to increase annually by a rate not
less than the rate of increase in the Consumer Price Index (as defined in
subsection (ix) below) for the preceding 12 month period plus 2 percentage
points (the "CPI + 2 Rate"). For a Participant whose employment by the Company,
the Bank or an Affiliate has terminated prior to the date of determination (an
"Inactive Participant"), the
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present value of Benefits payable under an employment agreement or change in
control agreement listed in Appendix I will equal the then unpaid Benefits under
the portion of the employment or change in control agreement that constitutes a
Covered Arrangement, without discount.
(ii) With respect to the Dime Bancorp, Inc. Supplemental
Executive Retirement Plan (the "SERP), it will be assumed that SERP Benefits
will be paid to Active Participants in the amount resulting from an involuntary
termination of employment following a Change in Control at the later of the date
of determination or the attainment of age 65, and it shall be assumed that such
Benefits are fully vested. The present value of such Benefits shall be
determined (A) based on an interest rate assumption of the lesser of 5% or the
"applicable interest rate" described in Section 417(e) of the Code and
regulations promulgated by the Internal Revenue Service from time to time as of
the start of the month prior to the month in which occurs the date of
determination (the "Applicable Interest Rate"), and (B) in accordance with the
1994 Group Annuity Mortality tables (50% Male, 50% Female) (the "1994 GAM") or
the mortality assumptions under the "applicable mortality table" described in
Section 417(e) of the Code and regulations promulgated by the Internal Revenue
Service from time to time (the "Applicable Mortality Rates"), whichever results
in a greater present value. It shall also be assumed that (A) an Active
Participant's salary and target incentive bonus for each year of assumed
continued employment shall be increased by the CPI + 2 Rate, and (B) an Active
Participant shall be paid bonuses equaling 150% of the target incentive bonus
for each period of then current and future projected service. For
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an Inactive Participant, the present value of Benefits payable under the SERP
shall be based on the actual Benefit to which the Inactive Participant is
entitled as of the date of determination, utilizing the interest rate and
mortality assumptions described above.
(iii) With respect to the Deferred Compensation Plans, the
present value of the deferred compensation Benefit of an Active Participant
shall equal (A) the current fair market value of the Participant's account(s)
under the Deferred Compensation Plans as of the date of determination, plus (B)
with respect to any determination date which results from the first to occur of
a Change in Control or Irrevocable Election, any previously elected deferrals
not yet accounted for under such plan with respect to compensation attributable
to the calendar year in which such Change in Control or Irrevocable Election
occurs, assuming that the Participant will be paid (but for any deferral
election or deemed election) an incentive bonus for such year equaling 150% of
the target incentive bonus established for such Participant for such year. The
present value of the deferred compensation Benefit of an Inactive Participant
shall be the amount allocated to the Participant's account(s) under the Deferred
Compensation Plans as of the date of determination.
(iv) With respect to the Benefit Restoration Plan of The
Dime Savings Bank of New York, FSB (the "BRP"), (A) the present value of the
Benefit payable under the defined benefit portion of the BRP shall be determined
by utilizing the same assumptions that are applied hereunder to the SERP, except
that assumed incentive bonuses will not be taken into account, (B) the present
value of the Benefit payable under the defined contribution portion of the BRP
will be determined by
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utilizing the same assumptions that are applied hereunder to the Deferred
Compensation Plans and (C) the maximum benefit and compensation amounts with
respect to qualified plans whose benefits offset BRP Benefits shall be assumed
to increase each year at the CPI + 2 Rate.
(v) With respect to the Dime Bancorp, Inc. Officer
Incentive Plan (the "Officer Incentive Plan"), prior to the occurrence of a
Change in Control, the present value of the Benefits payable to an Active
Participant under the Officer Incentive Plan shall be deemed to be two times the
target bonus amount established under such plan for the Participant for the
calendar year in which the date of determination occurs. Following a Change in
Control, the present value of the Benefits payable to an Active Participant
under the Officer Incentive Plan shall be the target bonus amount established
under such plan for such Participant for the calendar year in which the date of
determination occurs, calculated assuming employment continues for the entire
calendar year, plus any guaranteed minimum target bonus amounts from previous
years that have not yet been paid. For an inactive Participant, the present
value of Benefits payable shall be the then as yet unpaid guaranteed minimum
target bonus payable under the Officer Incentive Plan to or with respect to the
Participant.
(vi) Key Life Plan. For these purposes, the present value
of the Benefit payable to an Active Participant or an Inactive Participant shall
be deemed to equal the total premium payments necessary to be made to maintain
Key Life Insurance Policies on the life of such Participant for the remainder of
such covered
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Participant's life expectancy. The present value of such premium obligations
shall be determined (A) based on an interest rate assumption of the lesser of 5%
or the "Applicable Interest Rate," and (B) assuming that the Participant's life
expectancy is determined in accordance with the 1994 GAM or the Applicable
Mortality Rates, whichever results in a greater present value. For these
purposes, it shall be further assumed that each Active Participant will remain
so employed until the later of the date of determination or the date the
Participant will attain age 65, with annual increases in salary and target
incentive bonus amounts assumed to be at the CPI + 2 Rate, and that the Benefit
to be payable under the Key Life Plan at the death of the Participant is the
highest then available life insurance or death benefit.
(vii) For purposes of determining the present value of
projected total Benefits payable to Participants and Beneficiaries pursuant to
this Section 5.3(b), the Committee may make such additional reasonable
assumptions that are not inconsistent with the foregoing provisions, as the
Committee deems necessary.
(viii) With respect to Joint Benefits (and except as
otherwise provided in Section 5.3(a) hereof), only the liability of the primary
obligor hereunder shall be included for purposes of determining the present
value of projected Benefits; provided, that the foregoing clause shall not
affect the liability of the secondary obligor under the relevant Covered
Arrangement or under Section 4.2(b)(ii) hereof.
(ix) "Consumer Price Index" shall mean the Consumer Price
Index for All Urban Consumers, CPI-U, published by the Bureau of Labor
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Statistics of the United States Department of Labor, New York - Northern New
Jersey - Long Island, NY-NJ-CT Area, 'All Items' (1982-84 = 100), or any
successor index thereto covering New York City, appropriately adjusted.
5.4 Transfers to Another Trust. Prior to an Irrevocable Election or
Change in Control, upon the direction of the Company and the Bank concurred in
by the Committee, the Trustee shall deliver such assets of the Trust Fund as the
Company, the Bank and the Committee may direct to another irrevocable trust
established by the Company or the Bank, respectively, for the purpose of paying
Benefits to Participants and Beneficiaries under the Covered Arrangements. The
Trustee shall deliver a copy of the Committee's certification to the trustee of
the transferee trust at the time of delivery of the Trust assets.
5.5 Withholding Tax.
(a) To the extent that amounts are to be paid under this
Article V by the Trustee directly to Participants and Beneficiaries, such
amounts shall be reduced by the Trustee by the amount of any income and
employment tax withholding required by law, as determined by the Dime and
promptly communicated to the Trustee. The Trustee also shall inform each
Participant and Beneficiary to whom payment is made, of the amounts withheld and
the purposes for such withholdings. Such withheld amounts shall then be paid by
the Trustee to the Dime, which shall remit such withheld amounts to, and shall
file the appropriate withholding reports with, the appropriate governmental
agencies.
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(b) To the extent that amounts are to be paid under this
Article V by the Trustee directly to Participants and Beneficiaries, but the
Dime fails to direct the Trustee with respect to the appropriate amounts to be
withheld by the Trustee toward the satisfaction of applicable withholding
requirements, then the Trustee shall withhold amounts in respect of taxes at the
highest applicable rate for the appropriate jurisdiction as determined in good
faith by the Trustee, shall reduce such amounts by the such amount of tax
withholding, and shall inform the Dime and each Participant and Beneficiary to
whom payment is made, of the amounts withheld and the purposes for such
withholdings. Such withheld amounts shall then be paid by the Trustee to the
Dime, which shall remit such withheld amounts to, and shall file the appropriate
withholding reports with, the appropriate governmental agencies.
(c) Unless otherwise agreed to by the Trustee, the Dime shall
be responsible for all tax information reporting with respect to payments made
to Participants and Beneficiaries hereunder.
5.6 Legal Action by Trustee. Except in the event the Company or the
Bank is Insolvent (as defined in Section 12.1), the Trustee shall not itself
commence any legal action, whether in the nature of an interpleader action,
request for declaratory judgment, or otherwise, requesting the court to (i)
determine the validity of this Trust Agreement or (ii) make any determination in
the Trustee's or the Committee's stead with respect to Benefits which this Trust
Agreement requires to be made by the Trustee or the Committee. Notwithstanding
the foregoing sentence, in defending any legal action brought by a Participant
or Beneficiary with respect to Benefits due on account
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of a Participant (and with respect to the Committee, at any time in its sole
discretion), the Trustee and the Committee shall each be entitled to ask the
court to determine the Benefits due on account of such Participant.
5.7 Dime Obligations. Notwithstanding the provisions of this Trust
Agreement, each of the Dime entities shall remain obligated to pay all Benefits
to the full extent of its respective liabilities under the Covered Arrangements.
Following an Irrevocable Election or Change in Control, to the extent the Trust
assets are not sufficient to pay any Benefit or related insurance premium in
full when due, and the amount of such shortfall is not contributed to the Trust
as provided in Section 5.1(b) hereof, then the Company and the Bank, to the
extent of their respective obligations, shall pay the amount not otherwise
payable from the Trust directly to the Participant, Beneficiary or, as
appropriate, insurance company, and shall provide the Trustee with evidence of
such payment. Nothing in this Trust Agreement shall relieve the Company or the
Bank of any respective liabilities to pay Benefits and insurance premiums except
to the extent such liabilities are satisfied from the Trust Fund.
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ARTICLE VI
Settlement of Accounts
6.1 Trustee Records. The Trustee shall keep full, accurate and
detailed accounts of all investments, receipts and disbursements and other
transactions hereunder. Its financial statements, books and records with respect
to the Trust Fund shall be open to inspection by the Company, the Bank and the
Committee, and to their respective attorneys, accountants and agents upon
reasonable notice at all reasonable times during business hours of the Trustee.
6.2 Trustee Statements.
(a) The Trustee shall render to the Company, the Bank, and the
Committee monthly statements of its receipts and disbursements as Trustee
hereunder. Within 60 days after the close of each calendar year or any
termination of the duties of the Trustee, the Trustee shall prepare, sign and
mail to each of the Company, the Bank and the Committee one or more summary
reports. These reports shall show all purchases, sales, receipts, disbursements,
and other transactions effected by the Trustee during the year or period for
which the applicable report or reports are filed, and shall contain an exact
description, the cost as shown on the Trustee's books, and the fair market value
as of the end of such period, of every item held in the Trust and the amount and
nature of every obligation owed by the Trust, and any allocations of Trust Funds
made under the terms hereof. Each of the Company and the Bank shall make a copy
of such reports (or any adjustment thereof) available for inspection by
Participants and Beneficiaries (and persons designated by them) at its principal
executive office during
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business hours for a period of 60 days (30 days in the case of an adjusted
report). If within 90 days after receipt of the report neither the Company, the
Bank nor any Participant, Beneficiary or Committee member has filed with the
Trustee notice of any objection to any act or transaction of the Trustee, the
initial report shall become final as between the Trustee, the Company, the Bank,
the Committee and the Participants and Beneficiaries. If any objection has been
filed, and if the objecting party is satisfied that it should be withdrawn, the
objecting party shall in writing filed with the Trustee signify its approval of
the report, and it shall become a final report as between the Trustee, the
Company, the Bank, the Committee and the Participants and Beneficiaries. If the
report is adjusted following an objection thereto, the Trustee shall mail to the
Company, the Bank and the Committee the adjusted report, and if within 30 days
after receipt of the adjusted report neither the Company, the Bank nor any
Participant, Beneficiary or Committee member has filed with the Trustee notice
of any objection to the transactions as so adjusted, the adjusted report shall
become a final report as between the Trustee, the Company, the Bank, the
Committee and the Participants and Beneficiaries.
(b) Unless a report is fraudulent, when it becomes a final
report it shall be finally settled, and to the extent permitted by law, the
Trustee shall be completely discharged and released, as if such report had been
settled and allowed by a judgment or decree of a court of competent jurisdiction
in an action or proceeding in which the Trustee, the Company, the Bank, and the
Participants and Beneficiaries were parties.
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6.3 Audit. The Trustee shall from time to time permit an independent
public accountant selected by the Dime or the Committee to have access during
ordinary business hours to such records as may be necessary to audit the
Trustee's accounts.
6.4 Judicial Settlement. Nothing contained in this Trust Agreement shall
be construed as depriving the Trustee, the Company, the Bank or the Committee of
the right to have a judicial settlement of the Trustee's accounts, and upon any
proceeding for a judicial settlement of the Trustee's accounts or for
instructions the only necessary parties thereto in addition to the Trustee shall
be the Company, the Bank and the Committee.
6.5 Delivery of Records to Successor. In the event of the removal or
resignation of the Trustee, the Trustee shall deliver to the successor Trustee
all records which shall be required by the successor Trustee to enable it to
carry out the provisions of this Trust Agreement.
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ARTICLE VII
Taxes, Expenses and Compensation of Trustee
7.1 Taxes.
(a) Each of the Company and the Bank agrees that, for tax
purposes, all income, deductions and credits of the Trust Fund belong to them
(and not to the Trust Fund), as their interests may appear, as owners for income
tax purposes and shall be included on their respective income tax returns and
each of the Company and the Bank agrees to pay any taxes imposed on such
amounts.
(b) The Company and the Bank, as their interests may appear,
shall from time to time pay any and all taxes (references in this Trust
Agreement to taxes shall include interest and applicable penalties) of any and
all kinds whatsoever which at any time are due lawfully levied or assessed upon
or become payable in respect of the Trust Fund, its income or any property
forming a part thereof, or any security transaction pertaining thereto.
Notwithstanding the foregoing, in the event that the Trustee is notified that
taxes are nonetheless levied or assessed upon or are payable in respect of the
Trust Fund (notwithstanding its status as a "grantor trust") and have not been
paid by the Company or the Bank, such amounts may be paid from the Trust Fund,
and, if so paid, thereafter all determinations of funding obligations and excess
assets will be based on the assumption that the future earnings of the Trust
Fund (as assumed in present value calculations) will be reduced by taxes
thereon. The Trustee shall notify the Dime of any proposed or final assessments
of taxes and may assume that any such taxes are lawfully levied or assessed
unless the Company or the
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Bank advise it in writing to the contrary within 15 days after receiving the
above notice from the Trustee. In such case, the Trustee, if requested by the
Company or the Bank in writing, shall contest the validity of such taxes in any
manner deemed appropriate by the Company or the Bank (and the Company or the
Bank shall pay all fees and disbursements related to such contest, including
costs of counsel, accountants and other professionals); or the Company or the
Bank may contest the validity of any such taxes, in which case the Company or
the Bank shall so notify the Trustee and the Trustee shall have no
responsibility to contest such taxes. If any party to this Trust Agreement
contests any such proposed levy or assessment, the other parties shall provide
such information and cooperation as the party conducting the contest shall
reasonably request. In lieu of contesting any proposed levy or assessment, the
Company or the Bank may pay all or any portion of any such taxes at any time. If
either the Company or the Bank are paying such taxes it shall notify the Trustee
of its intention to do so within 15 days after receiving the above notice from
the Trustee or within five days after a determination of any such contested levy
or assessment becomes final, either because the determination cannot be appealed
or no appeal of the determination was made.
7.2 Expenses and Compensation. The Trustee shall be paid compensation
by the Dime in accordance with the schedule of fees attached hereto as Appendix
II. The Dime and the Trustee may mutually agree to revise such schedule from
time to time. Subject to the Dime's approval prior to an Irrevocable Election or
a Change in Control, and subject to the approval of the Committee following an
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Irrevocable Election or a Change in Control, the Trustee shall be reimbursed by
the Dime for its reasonable expenses of management and administration of the
Trust, including reasonable compensation of the actuary and any counsel or other
service providers engaged by the Trustee to assist it in such management and
administration in accordance with Sections 2.3(h) and (i) hereof.
7.3 Expense Account and Service Providers
(a) The Dime may from time to time make contributions to the
Trust Fund to be held in an Expense Account, the contributions to which may be
used to pay the Trustee's and the Committee's and the Director Committee's (as
defined in Section 8.2(b)) fees and expenses in accordance with this Trust
Agreement. At the time of an Irrevocable Election or Change in Control, the
Committee shall determine the amount that is reasonably necessary to pay
anticipated Trust expenses over the remaining life of the Trust, which amount
shall not be less than $12 million, and the Company and the Bank shall each be
jointly and severally liable to pay and deliver to the Trustee an amount
determined so that when it is added to amounts previously contributed to be held
in the Expense Account, the amount held or the Expense Account equals such
amount. The allocation of amounts contributed to and held in the Expense Account
as Company Trust Assets and Bank Trust Assets shall be based on the proportion
of the amounts actually contributed by each entity, provided that the Company
and the Bank may agree to a different allocation of those amounts between and
among Company Trust Assets and Bank Trust Assets if either initially contributes
more than 50% of the total amount so contributed or otherwise, in which event
the
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Company and the Bank shall inform the Trustee and the Committee of such revised
allocation, which revised allocation shall apply; provided, however, that after
a Change in Control or an Irrevocable Election, revision of a previously
applicable allocation of Expense Account amounts between Company Trust Assets
and Bank Trust Assets shall require the consent of the Committee. On and after
an Irrevocable Election or a Change in Control, the Trustee shall allocate to
the Expense Account, on a pro-rata basis with the remainder of the Trust Fund,
the income of the Trust Fund and gains and losses (including gains and losses
not yet realized on Trust Fund assets), as of the last day of each calendar
month; provided, however, that the Committee may direct that the Expense Account
be invested separately from other assets of the Trust Fund, in which event the
Expense Account will be allocated the gains and losses of those separate
investments. To the extent there is a balance in the Expense Account, the
Trustee shall utilize such balance for payment of its fees and expenses and the
fees and expenses of the Committee and the Director Committee (as defined in
Section 8.2(b)) as provided in Section 7.2 and this Section 7.3 and for payment
of the indemnities referred to in Section 9.1 and 9.2, and in the absence of
such a balance, shall seek reimbursement from the Dime. In the event that the
Dime shall fail or refuse to make such reimbursement within 90 days of demand,
the Committee shall direct the Trustee to satisfy such obligations out of the
other assets of the Trust Fund in such manner as the Committee deems to be
reasonable in the circumstances. If the Committee directs the Trustee to pay
fees and expenses from other Trust Fund assets, the Dime shall, upon demand by
the Committee, deposit into the Trust Fund a sum equal to the amount paid from
other assets of the Trust Fund for such fees and expenses. Before an Irrevocable
Election or a Change in Control, amounts may be reallocated from the Expense
Account to be maintained as other assets of the Trust
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Fund at the direction of the Company and the Bank, acting together. After an
Irrevocable Election or a Change in Control, solely to the extent the Committee
determines appropriate, amounts may be reallocated from the Expense Account to
be maintained as other assets of the Trust Fund, at the time and in the manner
directed by the Committee.
(b) Each of the Committee and the Director Committee (as
defined in Section 8.2(b)) shall have the power and authority to engage counsel
or other service providers (including consultants and administrators) of its
choice to the extent it deems it necessary or appropriate in order to fulfill
its obligations hereunder, or otherwise to determine, defend or assert any of
the rights or interests of the Committee, the Director Committee, the Trust or
its beneficiaries provided for under this Trust Agreement (which, in the case of
the Committee, shall include the authority to engage actuaries, counsel and
other experts as it deems necessary in order to perform its duties under Section
5.1). The Committee shall, in addition, have the power and authority to direct
the Trustee to purchase liability insurance to cover any or all of (a) the
Committee, (b) each of the Committee's current and former members, (c) any
current or former director, officer or employee of the Dime who is or was
serving or agrees to serve at the request of the Dime or the Committee as an
authorized agent or delegatee of the Bank or the Committee, (d) any other agent
of the Committee or the Trust and (e) the Trustee (each, to the extent so
insured, an "Insured Party") with respect to any and all liabilities to which
such Insured Party may become subject pursuant to, arising out of, occasioned
by, or incurred in connection with or in any way
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associated with this Trust Agreement, including, without limitation, liabilities
to the Dime, subject to such limitations on coverage, deductibles, or other
terms and conditions as the Committee shall in its sole discretion deem
reasonable. To the extent the Committee or the Director Committee (or the
Trustee as directed by the Committee) incurs reasonable expenses as described
above, or incurs other reasonable expenses in performing its duties under this
Trust Agreement, such expenses shall be paid or otherwise reimbursed out of the
Expense Account as a Trust Expense, if and to the extent directed by the
Committee, and if not otherwise previously paid or reimbursed by the Dime. In
the event that there are insufficient funds in the Expense Account and the Dime
shall fail or refuse to make such reimbursement within 90 days of demand, the
Committee may direct that other Trust Fund assets be applied to satisfy such
reimbursement obligation. If such fees and expenses are paid from other Trust
Fund assets, the Dime shall, upon demand by the Committee, deposit into the
Trust Fund a sum equal to the amount paid from other assets of the Trust Fund
for such fees and expenses.
(c) Following an Irrevocable Election or Change in Control,
each member of the Committee who is not at the time of any meeting of the
Committee an employee, officer or director of the Dime shall receive a fee of
$1,500 for each meeting of the Committee which he or she attends personally and
$1,000 for each meeting of the Committee which he or she attends by telephone or
other electronic or wireless means enabling all members in attendance to
communicate with each other contemporaneously, and, following the time such
member of the Committee ceases to
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be an employee, officer or director of the Dime, shall be reimbursed for any
reasonable out-of-pocket expenses incurred in connection with performing his or
her duties under this Trust Agreement. Upon presentation of a request for such
reimbursements to the Trustee (containing such information, including receipts
for out-of-pocket expenses, as the Trustee may reasonably request), then, if not
previously reimbursed by the Dime or pursuant to another Umbrella Trust (as
defined below), the Committee shall direct the Trustee to make such
reimbursements, which shall be reimbursed out of the Trust Fund. In the event
the Committee hereunder undertakes a meeting that is combined with or occurs on
the same day as a meeting of one or more committees under the trust under the
Umbrella Trust Agreement, dated as of May 18, 2000, among the Company, the Bank
and HSBC Bank USA, as Trustee with respect to the Designated Arrangements of the
Bank and Related Entities (including any subsequent amendments or successor
agreements thereto) (the "Broad-Based Trust"), or the Benefit Protection Trust
Agreement, dated as of May 18, 2000, among the Company, the Bank and HSBC Bank
USA, as Trustee (including any subsequent amendments or successor agreements
thereto) (the "Benefit Protection Trust" and, each of the Benefit Protection
Trust and the Broad-Based Trust, an "Umbrella Trust"), any Committee member who
is a member of such other committee(s) shall be entitled to only a single fee
for such meeting or meetings, and the Trustee shall pay a pro-rated portion of
the fee for the meeting (based upon the number of trusts to which the meeting or
meetings relate) out of the assets of this Trust Fund.
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ARTICLE VIII
For Protection of Trustee and Committees
8.1 Evidence of Action by the Dime.
(a) Each of the Company and the Bank has certified to the
Trustee the name or names of any person or persons authorized to act for it on
Appendix IV hereto. Unless the Company or the Bank notifies the Trustee, in a
notice signed by its Secretary or by an Assistant Secretary, that any person
listed on Appendix IV to this Trust Agreement is no longer authorized to act for
the Company or the Bank, the Trustee may continue to rely upon the authority of
such person. The Company or the Bank may certify to the Trustee, in a notice
signed by its Secretary or by an Assistant Secretary, the names of any
additional persons authorized to act for the Company or the Bank. Appendix IV
shall be deemed to be revised to reflect any additions or deletions made in
accordance with this Section 8.1(a).
(b) The Trustee may rely upon any certificate, notice or
direction of the Company or the Bank which the Trustee reasonably believes to
have been signed by at least two duly authorized officers or agents of the
Company or the Bank.
(c) With respect to any action required or permitted to be
taken by Dime hereunder, the Trustee may rely upon the authorization, approval,
direction or consent given by either the Company or the Bank in accordance
herewith, and shall not be required to obtain any additional authorization,
approval, direction or consent of the
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other party hereto, and any action taken by either of the Company or the Bank
for such purposes shall be binding on the other.
8.2 Evidence of Action by the Committee or the Director Committee.
(a) The Trustee may rely on a signed notice of resignation by a
Committee member, and a notice of vacancy or appointment of a successor provided
in accordance with Section 13.6.
(b) The Trustee may rely upon any certificate, notice or
direction of the Committee or the "Committee" under the Umbrella Trust Agreement
(the "Director Trust Agreement") among Dime Bancorp, Inc., The Dime Savings Bank
of New York, FSB and HSBC Bank USA, as Trustee with respect to the covered
Arrangements for Outside Directors of The Dime Savings Bank of New York, FSB and
Related Entities, as amended and restated effective May 18, 2000, as may
subsequently be amended (and any successor agreement thereto) (the "Director
Committee"), which the Trustee reasonably believes to have been signed by at
least two members of the Committee or the Director Committee, as applicable, or,
if the Committee or the Director Committee than consists of only one member, by
such member. The makeup of the Director Committee shall be determined in
accordance with the terms of the Director Trust Agreement.
(c) The Committee may from time to time delegate to one or more
persons any or all of its rights, powers, duties and responsibilities hereunder.
Such delegation shall be effective when made in writing and delivered to the
Trustee, the Company and the Bank as provided in Section 13.7 hereof, for the
period and to
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the extent set forth therein. Notwithstanding the foregoing, however, the
Committee may not delegate any of its rights, powers, duties or responsibilities
under any of Sections 12.3, 12.6, 13.6(b) or 13.6(c) of this Trust, and the
Director Committee may not delegate its authority pursuant to Section 13.5 of
this Trust. The Trustee may rely upon any certificate, notice or direction of
such delegatee or delegatees which the Trustee reasonably believes to have been
signed by such delegatee or delegatees, as to matters within the authority
granted by the Committee to such person or persons. Any such delegation may be
partially or wholly revoked by the Committee at any time, in accordance with
Section 13.6(d) hereof. To the extent that at any time the Director Committee
(as defined in Section 8.2(b)) does not exist, those actions which may otherwise
be taken by the Director Committee may be taken by the Committee.
8.3 Fiduciary Responsibility.
(a) The Trustee shall discharge its duties under this Trust
Agreement in a manner consistent with the objectives of this Trust Agreement and
in accordance with applicable law. Except as otherwise provided in this Trust
Agreement, or under applicable law, the Trustee shall have no liability for (i)
loss sustained by the Trust Fund by reason of the purchase, retention, sale or
exchange of any investment made in accordance with the written directions of the
Dime or the Committee; (ii) failure of the Company or the Bank to make
contributions to the Trust Fund; or (iii) for any insufficiency of assets in the
Trust Fund to pay Benefits when due, unless such loss, failure or insufficiency
is the result of the Trustee's own negligence or willful misconduct.
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(b) The Trustee's duties and obligations shall be limited to
those expressly imposed upon it by this Trust Agreement.
(c) The Company and the Bank at any time may employ as agent
(to perform any act, keep any records or accounts, or make any computations
required of either of them by this Trust Agreement or the Covered Arrangements)
the corporation or association serving as Trustee hereunder. Nothing done by
said corporation or association as such agent shall affect its responsibilities
or liability as Trustee hereunder.
(d) In the exercise of its discretion hereunder, each of the
Committee and the Director Committee shall have due regard for the interests of
each of the Company, the Bank and the Participants (and their Beneficiaries) as
a class; provided, that inasmuch as the interests of such class or entities may
be expected to conflict in certain circumstances, and notwithstanding that
members of the Committee may themselves be Participants, any determination made
by the Committee or the Director Committee that has the effect of being more
favorable to one entity or class to which it owes a duty over another shall not
thereby be deemed invalid or a breach of the Committee's or the Director
Committee's duty to such disfavored entity or class, so long as the Committee or
the Director Committee, as applicable, acts in good faith in making its
determination.
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ARTICLE IX
Indemnity of Trustee and Committees
9.1 Indemnity of Trustee. The Company and the Bank (the "Indemnifying
Parties") hereby jointly and severally indemnify and hold the Trustee harmless
from and against any Liabilities (as defined in Section 9.2) to which the
Trustee may become subject pursuant to, arising out of, occasioned by, or
incurred in connection with or in any way associated with this Trust Agreement,
unless such Liabilities result or arise from any act or omission constituting
gross negligence or willful misconduct of the Trustee. If one or more
Liabilities shall arise and the Indemnifying Parties fail to indemnify the
Trustee as provided herein, then the Trustee may engage counsel of the Trustee's
choice at the expense of the Indemnifying Parties, provided such expenses are
reasonable; and provided further, the Trustee shall be entitled either to
conduct the defense against such Liabilities or to conduct such actions as may
be necessary to obtain the indemnity provided for herein, or to take both such
actions. The Trustee shall notify the Indemnifying Parties of the name and
address of such counsel before the Trustee has so engaged such counsel. If the
Trustee shall be entitled to indemnification by the Indemnifying Parties,
pursuant to this Section 9.1, as determined by a court of competent jurisdiction
and the Indemnifying Parties shall not provide such indemnification upon demand,
the Trustee may apply assets of the Trust Fund in full satisfaction of the
obligations for indemnity by the Indemnifying Parties, and any legal proceeding
by the Trustee against the Indemnifying Parties for such indemnification shall
be in behalf of the Trust.
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9.2 Indemnification of Committees and Agents. The Indemnifying Parties
shall indemnify, to the fullest extent permitted by their respective
Certificates of Incorporation (or equivalent) and By-Laws (collectively, the
"Governing Documents") and applicable law, (including the provisions thereof
relating to advances of costs, charges and expenses), any person who is, or
business entity, including without limitation a corporation, limited liability
company or partnership, that is owned by, a current or former director, officer
or employee of either of such Indemnifying Parties or of any of their direct or
indirect subsidiaries who is or was serving or agrees to serve either at the
request of either of such Indemnifying Parties or of such subsidiary or as a
result of being selected to serve in accordance with Section 13.6 hereof or the
corresponding provision of the Director Trust Agreement as a member of the
Committee or the Director Committee, or as an authorized agent or delegatee of
the Company, the Bank, the Committee or the Director Committee (each such
indemnified person or business entity, an "Indemnified Party") against any loss,
damage, liability, cost, charge or expense (including attorneys' fees),
judgment, fine and amount paid in settlement (herein "Liabilities") actually and
reasonably incurred by such Indemnified Party or on such Indemnified Party's
behalf in connection with any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, investigative or administrative, and
whether threatened or brought by a third party or by the Dime, relating to or in
connection with such Indemnified Party's service as a member of the Committee or
Director Committee or as such authorized agent or delegatee; provided, that the
Indemnified Party has met any applicable standard of conduct required by or
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pursuant to the Governing Documents or by applicable law or regulation in order
to qualify for indemnification thereunder, as well as any other conditions to
such indemnification imposed by the Governing Documents or by applicable law or
regulation and provided, further, that in the event that such indemnification
(including any provision relating to advances of costs, charges and expenses) is
permissible but not required by the Governing Documents, and the Indemnifying
Parties shall fail to provide such indemnification when requested by an
Indemnified Party, then subject to any conditions set forth in the Governing
Documents, the Trustee shall indemnify such Indemnified Party out of the assets
of the Trust Fund. In connection with such indemnification, the Company and the
Bank hereby acknowledge that each member of the Committee and the Director
Committee and each authorized agent or delegatee of the Company, the Bank, the
Committee or the Director Committee is or will be serving as such at the request
of each of the Company and the Bank, both before and after any Change in Control
or Irrevocable Election. Any determination as to whether the Indemnified Party
has met such applicable standard of conduct or other conditions to
indemnification shall be made in accordance with the provisions of the Governing
Documents and applicable law or regulation, as in effect at the time of an
Irrevocable Election or Change in Control. Unless otherwise required by
applicable law, this Section 9.2 may be amended only in accordance with Section
11.3 hereof; provided that, in addition, this Section 9.2 shall not be rescinded
or modified so as to materially reduce the indemnification provided hereunder
without first giving thirty (30) days advance written notice of such rescission
or modification to each individual then
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entitled to indemnification hereunder, or so as to materially reduce the
indemnification provided hereunder with respect to actions taken or omitted to
be taken prior to the effective date of such rescission or modification. An
Indemnifying Party may satisfy its obligation under this Section 9.2 in whole or
in part by purchase of a policy or policies of insurance, but no insurer shall
have any rights against an Indemnifying Party or the Trust arising out of this
Section 9.2. If an Indemnified Party shall be entitled to indemnification by an
Indemnifying Party, pursuant to this Section 9.2, as determined by a court of
competent jurisdiction and such Indemnifying Party shall not provide such
indemnification upon demand, the Trustee shall, to the extent permitted by law,
apply the Company Trust Assets or Bank Trust Assets in full satisfaction of the
obligations for indemnity by the Company or the Bank, as the case may be, and
any subsequent legal proceedings by the Indemnified Party against the Company or
the Bank for such indemnification shall be on behalf of the Trust.
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ARTICLE X
Resignation and Removal of Trustee
10.1 Resignation of Trustee. The Trustee may resign upon 90 days' prior
written notice to the Committee and the Dime, except that any such resignation
shall not be effective until the Dime has appointed in writing a successor
Trustee, which must be a bank or trust company, acceptable to the Committee. The
Dime shall make a good faith effort, following receipt of notice of resignation
from the Trustee, to appoint a successor Trustee under this Trust Agreement. In
the event the Dime has failed to appoint a successor Trustee within six months
of the Trustee's notice of resignation, the Trustee shall be entitled to seek
judicial removal.
10.2 Removal of Trustee. At any time prior to the occurrence of an
Irrevocable Election, Change in Control or Potential Change in Control, the Dime
may remove the Trustee without cause upon at least 30 days' notice in writing to
the Trustee. At any time after the occurrence of an Irrevocable Election, Change
in Control or Potential Change in Control, the Trustee may be removed by action
of the Committee. In case of a removal of the Trustee for cause (which, for
these purposes, shall include criminal conduct, gross negligence, mismanagement
of trust funds, or any other material breach of fiduciary duty hereunder), the
party having power to do so hereunder may remove the Trustee immediately,
without any prior notice. At any time after the occurrence of an Irrevocable
Election or Change in Control, the Trustee may also be removed by the Dime upon
the action of the Participants who, at the time such removal is sought, hold in
the aggregate a majority of the beneficial interests in the
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Trust Fund. Any notice sent to Participants seeking their consent to removal of
the Trustee, shall, to the extent the Dime has selected a successor Trustee,
include the name and address of the proposed successor trustee. For purposes of
this Section 10.2, and all other Sections of this Trust Agreement which refer to
this Section 10.2 for purposes of determining the Participants who hold a
majority of the beneficial interests in the Trust Fund, the beneficial interest
of each Participant shall be deemed to be the present value of the projected
total Benefits payable to the Participant, determined in accordance with Section
5.3(b). For purposes of this Trust Agreement where the exercise of rights or
powers conferred on a Participant hereunder requires "action," such action may
be taken by the vote of the Participant present in person or by proxy at a duly
held meeting of Participants or by the written consent of such Participant.
10.3 Successor Trustee. (a) If the Trustee resigns (or is removed) in
accordance with Section 10.1 or 10.2 hereof, (i) prior to an Irrevocable
Election, Change in Control or Potential Change in Control, the Dime may appoint
any third party, such as a bank trust department or other party that may be
granted corporate trustee powers under state law, as a successor to replace the
Trustee upon resignation or removal, and (ii) on or after the date of an
Irrevocable Election, Change in Control or Potential Change in Control, only the
Committee may appoint any third party, such as a bank trust department or other
party that may be granted corporate trustee powers under state law, as a
successor to replace the Trustee upon resignation or removal; provided, however,
that in the case of either the preceding clause (i) or (ii), such successor
Trustee may not be an Affiliate of the Company or the Bank or a party (or
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Affiliate of a party) to a Change in Control or then existing Potential Change
in Control. The appointment shall be effective when accepted in writing by the
new Trustee. The former Trustee shall execute any instrument(s) necessary or
reasonably requested by the Dime or the successor Trustee to evidence the
transfer.
(b) All of the provisions set forth herein with respect to the
Trustee shall relate to each successor Trustee with the same force and effect as
if such successor had been originally named as the Trustee hereunder.
10.4 Transfer of Trust Fund to Successor. Upon the resignation or
removal of the Trustee and appointment of a successor, the Trustee shall
transfer and deliver the Trust Fund and such records or copies of such records
as are reasonably requested to such successor. Following the effective date of
the appointment of the successor, the Trustee's responsibility hereunder shall
be limited to managing the assets in its possession and transferring such assets
to the successor, and settling its final account. Neither the Trustee nor the
successor shall be liable for the acts of the other.
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ARTICLE XI
Duration, Termination and Amendment of Trust
11.1 Duration and Termination. (a) Except as provided in this Trust
Agreement, the Trust is hereby declared to be irrevocable and shall continue
until whichever of the following shall first occur: (i) all payments required by
this Trust Agreement have been made or (ii) the Trust Fund contains no assets
and retains no claims to recover assets from Company or the Bank pursuant to any
provision hereof.
(b) The Company and the Bank may terminate this Trust prior to
the time all Benefit payments under the Covered Arrangements have been made,
provided, however, that the prior written consent of the Participants who, at
the time such termination is sought, hold in the aggregate a majority of the
beneficial interests in the Trust Fund, must be obtained. The determination of
each Participant's beneficial interest for this purpose shall be made in
accordance with Section 10.2. All Company Trust Assets in the Trust upon the
termination of the Trust pursuant to this Section 11.1(b) shall be returned to
the Company, and all Bank Trust Assets in the Trust upon such termination shall
be returned to the Bank.
11.2 Distribution Upon Termination. If this Trust terminates under the
provisions of Section 11.1(a), the Trustee shall liquidate the Trust Fund and,
after its final account has been settled as provided in Article VI, shall
distribute to the Company and the Bank the net balance of any Company Trust
Assets and Bank Trust Assets, respectively, and the net balance of the Expense
Account, remaining after all Benefits and expenses have been paid. Upon making
such distribution, the Trustee shall be
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relieved from all further obligations. The powers of the Trustee hereunder shall
continue so long as any assets of the Trust Fund (including claims against the
Company or the Bank) remain in its hands.
11.3 Amendment.
(a) Prior to an Irrevocable Election, Change in Control or
Potential Change in Control, this Trust Agreement may be amended from time to
time by action of the Company and the Bank, which action may be taken, and shall
be evidenced, in writing by any of the Chief Executive Officer, the Chief
Operating Officer or the Chief Human Resources Officer of each entity, certified
by the Secretary or an Assistant Secretary of such entity.
(b) Subsequent to an Irrevocable Election, Change in Control or
Potential Change in Control, this Trust Agreement may be amended only by the
Committee, provided that the Committee shall exercise its authority to amend the
Trust Agreement only to the extent that such exercise of authority does not
eliminate the rights of creditors of the Bank or the Company to Trust assets in
the event that the Bank or Company becomes Insolvent (as such term is used in
Article XII) or otherwise cause the Trust to fail to be a "grantor trust"
pursuant to Sections 671 through 679 of the Code. No amendment to this Trust
Agreement shall adversely affect any of a Participant's Benefits, or, after an
Irrevocable Election or Change in Control, the amount credited to a
Participant's Account without the consent of the affected Participant. No
amendment to this Trust Agreement that could materially increase the costs of
the Trust to the Company or the Bank shall be made without the approval of
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the affected entity, which approval may be evidenced by a writing by any of the
Chief Executive Officer, the Chief Operating Officer or the Chief Human
Resources Officer of such entity, certified by the Secretary or an Assistant
Secretary of such entity. In the event there is any dispute between the
Committee and the Dime as to whether a proposed amendment to the Trust Agreement
could materially increase the costs of the Trust to the Company or the Bank, the
Trustee shall reach its own independent determination with respect to such
dispute, which determination shall be final and binding on the parties.
(c) No amendment of this Trust Agreement shall be made that
alters the irrevocable character of the Trust established under this Trust
Agreement, and no amendment shall materially increase the duties or
responsibilities of the Trustee unless the Trustee consents thereto in writing.
(d) (i) A "Potential Change in Control" shall be deemed to
have occurred if the event set forth in any one of the following paragraphs
shall have occurred:
(A) the Company enters into an agreement, the
consummation of which would result in the occurrence of a Change in Control;
(B) the Company or any Person publicly announces
an intention to take or to consider taking actions which, if consummated, would
constitute a Change in Control;
(C) any Person becomes the Beneficial Owner,
directly or indirectly, of securities of the Company representing 15% or more of
either
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the then outstanding shares of common stock of the Company or the combined
voting power of the Company's then outstanding securities (not including in the
securities beneficially owned by such Person, any securities acquired directly
from the Company or its Affiliates); or
(D) the Board of Directors of the Company adopts
a resolution to the effect that, for purposes of this Agreement, a Potential
Change in Control has occurred.
As used in connection with the foregoing definition of
Potential Change in Control, "Affiliate," "Beneficial Owner," "Exchange Act" and
"Person" shall have the respective meanings as set forth in Section 13.4 hereof.
(ii) The Committee shall determine whether a Potential
Change in Control or an Abandonment Date has occurred. If the Committee makes
such a determination, then the Committee shall promptly notify the Company, the
Bank and the Trustee of such determination.
In particular, and without limiting the generality of the foregoing, the
parties to this Trust Agreement acknowledge that, as of the date hereof, a
Potential Change in Control has occurred in respect of the exchange offer by
North Fork Bancorporation, Inc. for common shares of the Company.
(iii) As used in this Section, the term "Abandonment Date"
shall mean the date on which (A) an agreement described in Section (d)(i)(A)
above is terminated (pursuant to its terms or otherwise) without having been
consummated, (B) all parties described in Section (d)(i)(B) above publicly
announce
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that they have unconditionally abandoned the transactions contemplated, (C) the
Board adopts a resolution rescinding its previous determination that a Potential
Change in Control has occurred or (D) a court or regulatory body having
competent jurisdiction enjoins or issues a cease and desist or stop order with
respect to or otherwise prevents the consummation of, or a regulatory body
notifies the Bank or the Company that it will not approve, a transaction
described in Section (d)(i)(A) or (B) above or the transactions contemplated
thereby and such injunction, order or notice has become final and not subject to
appeal.
(iv) Following the Abandonment Date of a Potential Change
in Control, the provisions of this Trust Agreement in effect following a
Potential Change in Control shall no longer apply, and the provisions of this
Trust Agreement in effect prior to a Potential Change in Control shall again
apply, unless and to the extent that, prior to the Abandonment Date of such
Potential Change in Control, another Potential Change in Control, or an
Irrevocable Election or Change in Control, has occurred with respect to which
those provisions, as applicable, will continue to separately apply.
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ARTICLE XII
Claims of Creditors
12.1 Insolvency of Bank. As used in this Article XII, the Bank shall be
deemed to be "Insolvent" if (i) the Bank is subject to a pending proceeding
seeking a decree or order of a court or agency or supervisory authority having
jurisdiction in the premises for the appointment of a conservator or receiver or
trustee or liquidator in any insolvency, liquidation, taking of possession,
termination of deposit insurance, readjustment of debt, marshaling of assets and
liabilities or similar proceedings of or relating to the Bank or of or relating
to all or substantially all of its property, or for the winding up or
liquidation of its affairs, under any federal or state law relating to
bankruptcy or insolvency, or (ii) the Bank is unable to pay its debts as they
become due. The Chief Executive Officer or Board of Directors of the Bank shall
promptly notify the Trustee in the event that the Bank becomes Insolvent. If at
any time the Trustee has determined that the Bank is Insolvent, the Trustee
shall discontinue payments to Participants or their Beneficiaries from the Bank
Trust Assets and shall hold the Bank Trust Assets of the Trust for the benefit
of the Bank's general creditors. Nothing in this Trust Agreement shall in any
way diminish any rights of Participants or their Beneficiaries to pursue their
rights as general creditors of the Bank with respect to Benefits due under the
Covered Arrangements or otherwise, or (except in the event the Company becomes
Insolvent) the rights of Participants or their Beneficiaries to receive payments
of Company Benefits from the Company Trust Assets.
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12.2 Trustee's Responsibilities if Bank May Be Insolvent.
(a) If at any time the Bank or a person claiming to be a
creditor of the Bank alleges in writing to the Trustee that the Bank has become
Insolvent, the Trustee shall within 30 days of such allegation, independently
determine whether the Bank is Insolvent and, pending such determination, the
Trustee shall discontinue payments from the Bank Trust Assets of Benefits under
the Covered Arrangements and this Trust Agreement.
(b) If the Bank notifies the Trustee or the Trustee determines
that the Bank is Insolvent, the Trustee shall hold the Bank Trust Assets for the
benefit of the Bank's general creditors, and shall disburse assets from the Bank
Trust Assets to creditors of the Bank only pursuant to an order from a court of
competent jurisdiction.
(c) If the Trustee discontinues payment from the Bank Trust
Assets of Benefits pursuant to this Section 12.2, the Trustee shall resume
payments from the Bank Trust Assets of Benefits under the Covered Arrangements
only after the Trustee has determined that the Bank is not Insolvent (or is no
longer Insolvent, if the Trustee initially determined the Bank to be Insolvent).
The first payment to a Participant following such discontinuance shall include
an aggregate amount equal to the difference between the payments which would
have been made to such Participant under this Trust Agreement but for this
Section 12.2 and the aggregate payments actually otherwise made to such
Participant pursuant to the Covered Arrangements during any such period of
discontinuance; provided, however, that such payment shall
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be made from the Bank Trust Assets only to the extent Bank Trust Assets are then
available for such purposes.
12.3 Trust Recovery of Payments to Creditors. In the event that an
amount is paid from the Trust Fund to creditors of the Bank (other than as
provided in Article V and Section 7.3), then as soon as practicable (or if the
Bank is then Insolvent, as soon as the Bank is no longer Insolvent) but subject
to the sole discretion of the Bank or, following an Irrevocable Election or
Change in Control, subject to the sole discretion of the Committee, and upon the
Trustee's demand, the Bank shall deposit into the Trust Fund a sum equal to the
amount paid by the Trust Fund to such creditors.
12.4 Insolvency of Company. As used in this Article XII, the Company
shall be deemed to be "Insolvent" if (i) the Company is subject to a pending
proceeding seeking a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
conservator or receiver or trustee or liquidator in any insolvency, liquidation,
taking of possession, readjustment of debt, marshaling of assets and liabilities
or similar proceedings of or relating to the Company or of or relating to all or
substantially all of its property, or for the winding up or liquidation of its
affairs, under any federal or state law relating to bankruptcy or insolvency, or
(ii) the Company is unable to pay its debts as they become due. The Chief
Executive Officer or Board of Directors of the Company shall promptly notify the
Trustee in the event that the Company becomes Insolvent. If at any time the
Trustee has determined that the Company is Insolvent, the Trustee shall
discontinue payments to Participants or their Beneficiaries from the Company
Trust Assets and shall hold the
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Company Trust Assets of the Trust for the benefit of the Company's general
creditors. Nothing in this Trust Agreement shall in any way diminish any rights
of Participants or their Beneficiaries to pursue their rights as general
creditors of the Company with respect to Benefits due under the Covered
Arrangements or otherwise, or (except in the event the Bank becomes insolvent)
the rights of Participants or their Beneficiaries to receive payments of Bank
Benefits from the Bank Trust Assets.
12.5 Trustee's Responsibilities if Company May Be Insolvent.
(a) If at any time the Company or a person claiming to be a
creditor of the Company alleges in writing to the Trustee that the Company has
become Insolvent, the Trustee shall within 30 days of such allegation,
independently determine whether the Company is Insolvent and, pending such
determination, the Trustee shall discontinue payments from the Company Trust
Assets of Benefits under the Covered Arrangements and this Trust Agreement.
(b) If the Company notifies the Trustee or the Trustee
determines that the Company is Insolvent, the Trustee shall hold the Company
Trust Assets for the benefit of the Company's general creditors, and shall
disburse assets from the Company Trust Assets to creditors of the Company only
pursuant to an order from a court of competent jurisdiction.
(c) If the Trustee discontinues payment from the Company Trust
Assets of Benefits pursuant to this Section 12.5, the Trustee shall resume
payments from the Company Trust Assets of Benefits under the Covered
Arrangements only after the Trustee has determined that the Company is not
Insolvent (or is no longer
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Insolvent, if the Trustee initially determined the Company to be Insolvent). The
first payment to a Participant following such discontinuance shall include an
aggregate amount equal to the difference between the payments which would have
been made to such Participant under this Trust Agreement but for this Section
12.5 and the aggregate payments actually otherwise made to such Participant
pursuant to the Covered Arrangements during any such period of discontinuance;
provided, however, that such payment shall be made from the Company Trust Assets
only to the extent Company Trust Assets are then available for such purposes.
12.6 Trust Recovery of Payments to Creditors. In the event that an
amount is paid from the Trust Fund to creditors of the Company (other than as
provided in Article V and Section 7.3), then as soon as practicable (or if the
Company is then Insolvent, as soon as the Company is no longer Insolvent) but
subject to the sole discretion of the Company or, following an Irrevocable
Election or Change in Control, subject to the sole discretion of the Committee,
and upon the Trustee's demand, the Company shall deposit into the Trust Fund a
sum equal to the amount paid by the Trust Fund to such creditors.
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ARTICLE XIII
Miscellaneous
13.1 Governing Law. This Trust Agreement and the Trust hereby created
shall be governed, construed and regulated by the laws of the State of New York,
without regard to the conflict of laws principles thereof. The parties to this
Agreement agree and expressly consent that any action brought pursuant to or to
enforce the terms of this Agreement may be brought in the courts of the State of
New York sitting in New York, New York, or the United States District Court for
the Southern District of New York. Each of the parties to this Agreement agrees
and expressly consents to submit to the exclusive jurisdiction of the
above-listed courts in any action alleging a breach of this Agreement or seeking
to invalidate or limit the enforceability of this Agreement or of any provision
thereof. Nothing in this provision, however, shall be construed to limit the
Trustee's or the Committee's ability to serve process or commence any action
against any of the parties hereto in any appropriate forum.
13.2 Titles and Headings Not to Control. The titles to Articles and
headings of Sections in this Trust Agreement are placed herein for convenience
of reference only and in case of any conflict, the text of this Trust Agreement,
rather than such titles or headings, shall control.
13.3 Successors and Assigns. Except as provided herein, this Trust
Agreement may not be assigned by any party without the prior written consent of
the other parties, and any purported assignment without such prior written
consent shall be null and void. This Trust Agreement shall be binding upon the
successors and
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permitted assigns of each party hereto. In the case of any consolidation of the
Company or the Bank with, or merger of the Company or the Bank with or into, any
corporation or other entity, or any sale or conveyance of all or substantially
all of the assets of the Company or the Bank, the corporation or other entity
formed by such consolidation, or with or into which the Company or the Bank is
merged, or any Person which acquires all or a majority of the assets of the
Company or the Bank, shall expressly assume in writing, in form satisfactory to
the Trustee, the duties and obligations of the Company or the Bank, as the case
may be, under this Trust Agreement and the Covered Arrangements; provided,
however, that the duties and obligations of the Company or the Bank, as the case
may be, under this Trust Agreement and the Covered Arrangements shall be binding
on any such successor notwithstanding its failure to expressly assume such
duties and obligations in writing. Neither the Company nor the Bank shall sell
or convey all or a majority of its assets to any Person unless such Person has
expressly assumed in writing, in form satisfactory to the Trustee, each of the
duties and obligations of the Company or the Bank, as the case may be, under
this Trust Agreement and the Covered Arrangements.
13.4 Change in Control. For purposes of this Trust Agreement, a "Change
in Control" shall be deemed to have occurred if the event set forth in any one
of the following paragraphs shall have occurred:
(i) any Person is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Company (not including in the
securities beneficially owned by such Person any securities acquired directly
from the Company
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or its Affiliates) representing 35% or more of the combined voting power of the
Company's then outstanding securities; or
(ii) the following individuals cease for any reason to
constitute a majority of the number of directors then serving as directors of
the Company: individuals who, on July 24, 1997, constitute the Board of
Directors of the Company and any new director (other than a director whose
initial assumption of office is in connection with the settlement of an actual
or threatened election contest, including but not limited to a consent
solicitation, relating to the election of directors of the Company) whose
appointment or election by the Board of Directors of the Company or nomination
for election by the Company's stockholders was approved or recommended by a vote
of at least two-thirds (2/3) of the directors then still in office who either
were directors on July 24, 1997 or whose appointment, election or nomination for
election was previously so approved or recommended; or
(iii) there is consummated a merger or consolidation of
the Company or any direct or indirect subsidiary of the Company with any other
corporation or entity, other than (A) a merger or consolidation which would
result in the voting securities of the Company outstanding immediately prior to
such merger or consolidation continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving entity
or any Parent thereof), in combination with the ownership of any trustee or
other fiduciary holding securities under an employee benefit plan of the Company
or any subsidiary of the Company, at least 65% of the combined voting power of
the securities of the Company, such
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surviving entity or any Parent thereof outstanding immediately after such merger
or consolidation or (B) a merger or consolidation affected solely to implement a
recapitalization of the Company or the Bank (or similar transaction) in which no
Person is or becomes the Beneficial Owner, directly or indirectly, of securities
of the Company or the Bank (not including in the securities beneficially owned
by such Person any securities acquired directly from the Company or its
Affiliates) representing 35% or more of the combined voting power of the
Company's or the Bank's then outstanding securities; or
(iv) the stockholders of the Company or the Bank approve
a plan of complete liquidation or dissolution of the Company or the Bank,
respectively, or there is consummated a sale or disposition by the Company or
any of its subsidiaries of any assets which individually or as part of a series
of related transactions constitute all or substantially all of the Company's
consolidated assets (provided that, for these purposes, a sale of all or
substantially all of the voting securities of the Bank or a Parent of the Bank
shall be deemed to constitute a sale of substantially all of the Company's
consolidated assets), other than any such sale or disposition to an entity at
least 65% of the combined voting power of the voting securities of which are
owned by stockholders of the Company in substantially the same proportions as
their ownership of the voting securities of the Company immediately prior to
such sale or disposition.
As used herein, "Affiliate" shall have the meaning set forth in Rule
12b-2 promulgated under Section 12 of the Exchange Act; "Beneficial Owner" shall
have the
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meaning set forth in Rule 13d-3 under the Exchange Act; "Exchange Act" shall
mean the Securities Exchange Act of 1934, as amended from time to time; "Parent"
shall mean any entity that becomes the Beneficial Owner of at least 80% of the
voting power of the outstanding voting securities of the Company or of an entity
that survives any merger or consolidation of the Company or any direct or
indirect subsidiary of the Company; and "Person" shall have the meaning given in
Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and
14(d) thereof, except that such term shall not include the Company or any of its
subsidiaries, a trustee or other fiduciary holding securities under an employee
benefit plan of the Company or any of its Affiliates, an underwriter temporarily
holding securities pursuant to an offering of such securities, or a corporation
or entity owned, directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the Company.
For purposes of this Trust Agreement, the Committee or the Director
Committee (as defined in Section 8.2(b)) shall determine whether a "Change in
Control" has occurred and if such a determination is made, shall promptly notify
the Company, the Bank, the Committee and the Trustee in writing of such
determination.
13.5 Irrevocable Election.
(a) Either the Committee, acting by majority or if only one
Committee member exists then by such member, or the Director Committee (as
defined in Section 8.2(b)), acting by majority or if only one Director Committee
member exists then by such member, may at any time make an Irrevocable Election
pursuant to this
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Section 13.5 by notifying the Trustee in writing in substantially the form
attached hereto as Appendix III. Without limiting the ability of the Committee
or the Director Committee to make an Irrevocable Election at any time and in
their respective sole and absolute discretion, an Irrevocable Election may (but
need not) be made by the Committee or the Director Committee at any time after a
Potential Change in Control. Such Irrevocable Election shall remain in effect
unless revoked by the action of the Participants who, at the time such
revocation is sought, hold in the aggregate, at least 75% of the beneficial
interests in the Trust Fund. The determination of each Participant's beneficial
interest for this purpose shall be made in accordance with Section 10.2.
(b) Following the revocation or cancellation of an Irrevocable
Election in accordance with Section 13.5(a), the provisions of this Trust
Agreement in effect following an Irrevocable Election shall no longer apply, and
the provisions of this Trust Agreement in effect prior to an Irrevocable Change
in Control shall again apply, unless and to the extent that, prior or subsequent
to the revocation or cancellation of such Irrevocable Election, another
Irrevocable Election, or a Change in Control or Potential Change in Control, has
occurred with respect to which those provisions, as applicable, will continue to
separately apply.
(c) The Committee (or, as applicable, the Director Committee)
shall promptly notify the Trustee of any revocation or cancellation of an
Irrevocable Election.
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13.6 The Committee.
(a) Prior to a Potential Change in Control (as defined in
Section 11.3(d)), an Irrevocable Election or a Change in Control (as defined in
Section 13.4), the Committee shall consist of those individuals holding the
following offices in the Company or in the Bank: (i) Chief Executive Officer;
(ii) Chief Operating Officer; (iii) Chief Financial Officer; (iv) Treasurer; (v)
General Counsel; and (vi) Chief Human Resources Officer, it being understood
that one individual may hold more than one such position. Any member of the
Committee may resign upon 30 days' prior written notice to the Company, the
Bank, the Trustee, and the other members of the Committee. Prior to an
Irrevocable Election, a Change in Control or a Potential Change in Control, each
member of the Committee who is an officer of the Company may be removed by the
Chief Executive Officer of the Company, and each member of the Committee who is
an officer of the Bank may be removed by the Chief Executive Officer of the
Bank, and, in the event of a vacancy on the Committee, if no individual then
holds the officer position so vacated the Chief Executive Officer of the Company
or the Bank, as the case may be, shall appoint a successor. The Dime and the
Committee shall inform the Trustee of the membership of the Committee and any
changes therein, and the Trustee shall, upon the request of any Participant,
provide the Participant with a list of Committee members.
(b) Subsequent to a Potential Change in Control, those members
of the Committee who were members of the Committee immediately preceding the
Potential Change in Control shall continue as members of the Committee
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whether or not such individuals continue to hold the officer positions described
in Section 13.6(a), and the number of members of the Committee shall, unless
otherwise reduced as provided below, be equal to the number of members of such
Committee continuing as such immediately after such Potential Change in Control;
provided, however, that except as otherwise provided below, the membership of
each such individual on the Committee shall cease if such individual is no
longer employed by either the Company or the Bank (or a successor or any parent
or subsidiary of any of such entities). In the event of a vacancy on the
Committee subsequent to a Potential Change in Control, a successor to the
vacancy on the Committee shall be appointed by action (evidenced by written
approval) of a majority of the remaining members of the Committee. No individual
shall be eligible to be named to fill a vacancy on the Committee, however,
unless such individual is, at the time of such appointment, (x) an employee of
the Company or the Bank (or a successor or any parent or subsidiary of any of
such entities) and (y) a Participant, and such individual may continue as a
member on the Committee during the period such individual is both an employee of
the Company or the Bank (or a successor or any parent or subsidiary of any of
such entities) and a Participant. If at any time after a Potential Change in
Control but prior to a Change in Control or an Irrevocable Election (in either
of which event paragraph (c) of this Section 13.6 shall control and be
immediately effective) no member of the Committee, as constituted at such time,
would remain a member of the Committee because all such members have ceased to
be employed by either the Company or the Bank (or a successor or any parent or
subsidiary of any of such entities), then during
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the 90-day period following the date the last such member ceases to be so
employed, the membership of the Committee shall be made up of the most recent
members of the Committee in number equal to the number provided for in the first
sentence of this Subsection 13.6(b). During such 90-day period, (i) those
reconstituted Committee members may, by vote or written consent of a majority
thereof, elect one or more new members of the Committee who satisfy the
requirements set forth in (x) and (y) above (in which event such new members
shall from and after their election constitute the Committee for all purposes of
this Trust Agreement, subject to the other provisions of this Subsection
13.6(b), and the reconstituted Committee members shall cease to serve as
Committee members), or (ii) if the Director Committee shall make an Irrevocable
Election prior to the election of one or more new Committee members, then the
reconstituted Committee members shall constitute the Committee and the
provisions of Section 13.6(c) shall control. If neither of the actions set forth
in the preceding sentence are taken, then, on and after the end of such 90-day
period, successor members of the Committee shall be appointed by action of the
Participants who at such time hold in the aggregate a majority of the beneficial
interests in the Trust Fund. The determination of each Participant's beneficial
interest for each of these purposes shall be made in accordance with Section
10.2. The Trustee shall promptly inform Participants of any vacancy of the
Committee that Participants have the right to fill, and of that right.
(c) Following an Irrevocable Election or a Change in Control
(and irrespective of whether a Potential Change in Control has previously taken
place),
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the Committee shall consist of those individuals who were members of the
Committee immediately prior to the Irrevocable Election or Change in Control,
and the number of Committee members shall, unless otherwise reduced as provided
below, continue at the same level as applied before such Irrevocable Election or
Change in Control, unless such number is changed by action of the Participants
who hold in the aggregate a majority of the beneficial interests in the Trust
Fund. Further, subsequent to an Irrevocable Election or a Change in Control, no
member of the Committee may be removed unless removed by the action of the
Participants who then hold in the aggregate a majority of the beneficial
interests in the Trust Fund. Following an Irrevocable Election or a Change in
Control, after the death, resignation or removal of a member of the Committee, a
successor to a vacancy on the Committee shall be appointed by a majority of the
remaining members of the Committee. However, if following an Irrevocable
Election or a Change in Control all membership positions on the Committee are
vacant, successor members of the Committee shall be appointed by action of the
Participants who at such time hold in the aggregate a majority of the beneficial
interests in the Trust Fund. The determination of each Participant's beneficial
interest for each of these purposes shall be made in accordance with Section
10.2. The Trustee shall promptly inform participants of any vacancy of the
Committee that Participants have the right to fill, and of that right.
(d) Any action by the Committee, unless and to the extent
validly delegated pursuant to Section 8.2(c) hereunder, shall require the
written approval of the majority of the members of the Committee or if the
Committee then
86
<PAGE> 88
consists of only one member, by such member. A Committee member or delegatee
shall not be liable hereunder for any act taken or omitted to be taken in good
faith, except for such person's own gross negligence or willful misconduct.
(e) All of the provisions set forth herein with respect to a
member of the Committee shall relate to each successor with the same force and
effect as if such successor had been originally named as a member of the
Committee.
(f) In the case of any ambiguity under this Trust, the Trustee
may seek the direction of, or a determination by, as applicable, the Committee.
13.7 Notices.
(a) Communications to the Trustee shall be sent in writing to
the Trustee's office at 140 Broadway, New York, New York 10005, Attention: James
Esposito, Vice President, or to such other address as the Trustee may specify.
No communication shall be binding upon the Trust Fund or the Trustee until it is
received by the Trustee and unless it is in writing and signed by an authorized
person.
(b) Communications to the Bank shall be sent in writing to the
Bank at 589 Fifth Avenue, New York, New York 10017, Attention: Chief Human
Resources Officer, or to such other address as the Bank may specify. No
communication shall be binding upon the Bank until it is received by the Bank.
(c) Communications to the Company shall be sent in writing to
the Company at 589 Fifth Avenue, New York, New York 10017, Attention: General
Counsel, or to such other address as the Company may specify. No communication
shall be binding upon the Company until it is received by the Company.
87
<PAGE> 89
(d) Communications to the Committee shall be sent in writing to
each of the Committee members as follows:
Committee Under the Umbrella Trust Agreement
Dime Bancorp, Inc./The Dime Savings Bank of New York, FSB
589 Fifth Avenue
New York, New York 10017
Attn: name of Committee member
with a copy to:
Patterson, Belknap, Webb & Tyler LLP
1133 Avenue of the Americas
New York, New York 10036
Attn: David M. Glaser, Esq.
Douglas E. Barzelay, Esq.
or to such other address as the respective Committee member may specify. No
communication shall be binding upon the Committee until it is received by at
least two of the Committee members or, if the Committee shall then consist of
only one member, by such member.
(e) Communication to the Director Committee shall be sent in
writing to each of the Committee members as follows:
Committee Under the Directors Umbrella Trust Agreement
Dime Bancorp, Inc./The Dime Savings Bank of New York, FSB
589 Fifth Avenue
New York, New York 10017
Attn: name of Director Committee member
88
<PAGE> 90
with a copy to:
Patterson, Belknap, Webb & Tyler LLP
1133 Avenue of the Americas
New York, New York 10036
Attn: David M. Glaser, Esq.
Douglas E. Barzelay, Esq.
or to such other address as the respective Director Committee member may
specify. No communication shall be binding upon the Director Committee until it
is received by at least two of the Director Committee members or, if the
Director Committee shall then consist of only one member, by such member.
(f) Where any communication is required to be given to the
Dime, such communication shall be sent to both the Company and the Bank as
provided in paragraphs (b) and (c) of this Section 13.7.
13.8 Obligations of The Dime
Wherever this Trust requires that an obligation be performed by
the Dime, then the Company and the Bank shall be jointly and severally liable
for the performance of such obligation.
89
<PAGE> 91
13.9 Invalidity of Particular Sections.
Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without invalidating the
remaining provisions hereof which shall continue in full force and effect.
13.10 Code References. Any reference to a Code section herein shall be
deemed to be a reference to its successor provisions to the extent that such
section of the Code has been replaced, renumbered or superseded.
13.11 Counterparts. This Trust Agreement may be executed in any number
of separate counterparts, each such counterpart being deemed to be an original
of this Trust Agreement, and all such counterparts together constituting the
same agreement.
IN WITNESS WHEREOF, DIME BANCORP, INC., THE DIME SAVINGS BANK OF NEW
YORK, FSB and HSBC Bank USA, as Trustee have caused this amended and restated
Trust Agreement to be executed by their duly authorized officers and their
respective seals to be hereunto affixed as of the day and year first above
written.
DIME BANCORP, INC.
By:
--------------------------------------
Name:
--------------------------------------
Title:
SEAL
Attest:
- --------------------------
90
<PAGE> 92
THE DIME SAVINGS BANK OF NEW YORK, FSB
By:
--------------------------------------
Name:
--------------------------------------
Title:
SEAL
Attest:
- --------------------------
HSBC BANK USA, as Trustee
By:
--------------------------------------
Name:
--------------------------------------
Title:
SEAL
Attest:
- --------------------------
<PAGE> 93
APPENDIX I
COVERED ARRANGEMENTS(1)
A. Bank Primary Obligations
1. Key Executive Life Insurance/Death Benefit Plan of The Dime Savings Bank
of New York, FSB
2. Benefit Restoration Plan of The Dime Savings Bank of New York, FSB
3. The Dime Savings Bank of New York, FSB Deferred Compensation Plan (but
only with respect to amounts allocated to participant accounts as of the
earlier of the date of a Change in Control or Irrevocable Election, plus
amounts later allocated pursuant to deferral elections relating to
amounts earned with respect to the year of such Change in Control or
Irrevocable Election, plus earnings thereon)
4. Dime Bancorp, Inc. Voluntary Deferred Compensation Plan (but only with
respect to (i) amounts allocated to participant accounts as of the
earlier of the date of a Change in Control or Irrevocable Election, (ii)
amounts later allocated pursuant to deferral elections relating to
amounts earned with respect to the year of such Change in Control or
Irrevocable Election, plus earnings thereon, and (iii) any deferred
guaranteed minimum target bonus payments under Dime Bancorp, Inc. Officer
Incentive Plan, plus earnings thereon)
5. Dime Bancorp, Inc. Supplemental Executive Retirement Plan
6. Dime Bancorp, Inc. Officer Incentive Plan (including all "underlying
plans" thereunder, but only with respect to guaranteed minimum target
bonus payments thereunder)
7. Employment Agreements for Certain Former Employees (with respect to cash
payments thereunder only)
Edward A. Bertellotti
Harry H. Hummer
James M. Large, Jr.
- --------
(1) Unless otherwise noted, references to particular benefit plans and
agreements include those plans and agreements as initially adopted or
entered into, and such plans and agreements as they may be amended from
time to time.
<PAGE> 94
Frank Muzio
Jack L. Wagner
8. Individual SERP Agreements
Harry W. Albright
Covington Hardee
Harry H. Hummer
James M. Large, Jr.
Richard D. Parsons
John Sapanski
Lawrence J. Toal
Gabriel Wendel
Royce West
9. Special Insurance Arrangements
Harry W. Albright
<PAGE> 95
10. Individual Employment and Change in Control Agreements and agreements
regarding initial employment terms (with respect to cash payments and
SERP Benefits thereunder only, but not including relocation-related
Benefits)
John Abruzzo Robert K. Kettenmann
Lisa D. Al-Agha Fred B. Koons
Syed A. Ally Janet D. Krasowski
Gary S. Andrasko John S. Lohmuller
J. Russell Baker Paul Marcotrigiano
John E. Benevento Murray F. Mascis
Arthur C. Bennett David K. McDowell
Gene C. Brooks Kevin J. McLaughlin
William S. Burns Daniel J. McLoone
Anthony R. Burriesci Evan J. Mellos
Melvin L. Cebrik Risa G. Millot
Koon-Ping Chan Richard A. Mirro
Glenn A. Crisafi Carlos R. Munoz
D. James Daras Mark S. O'Brien
Christopher S. Delfs Gary R. Olson
Thomas J. Ducca Abraham S. Ossip
Michael J. Eng Peyton R. Patterson
Michael E. Evans William G. Phillips
Alan R. Feigenbaum David H. Purcell
Gerald D. Filandro Michael B. Purvis
James A. Fisher Amy J. Radin
Frederick M. Forgione Harold E. Reynolds
Robert F. Fuentes Raymond G. Romano
America I. Gatria Steven A. Samowitz
Michael J. Getzler Donald P. Schwartz
Christopher P. Gillespie Roelof W. Slump
Lawrence Grech Norman J. Stafford
Craig J. Henneberger Brian Stone
Howard J. Herbert Billy W. Taylor
John H. Isemann, Jr. James K. Tireman
Kenneth T. Jablon Lawrence J. Toal
James E. Kelly Roberta S. Treacy
Amo E. Krumbiegel Brian Twomey
Stephen M. Lane Edmund T. Valenski
James R. LoGatto Keith Vallacchi
John F. Kennedy Arnold I. Waldman
Frank P. Watson
Robert P. Weaver
Franklin L. Wright
<PAGE> 96
11. Individual Employment and Change in Control Agreements and agreements
regarding initial employment terms or retirement benefits with North
American Mortgage Company, for which the Bank bears joint and several
liability (but only during the period and with respect to benefits with
regard to which such joint and several liability applies, and further
only with respect to cash payments and, as applicable, SERP Benefits
thereunder, but not including relocation-related benefits) in the event
that the North American Mortgage Company (or its successor) does not pay
Benefits thereunder
Paul R. Allen
Judson H. Croom, Jr.
John R. Elam
B. Bank Secondary Obligations
None
C. Company Primary Obligations
None
D. Company Secondary Obligations
1. Guarantee of Employment or Former-Employment Related Agreements
with:
Anthony R. Burriesci
James M. Large, Jr.
Lawrence J. Toal
2. Joint and Several Liability for Benefits under the following
Plans:
a. Dime Bancorp, Inc. Voluntary Deferred Compensation Plan
b. Dime Bancorp, Inc. Supplemental Executive Retirement Plan
c. Dime Bancorp, Inc. Officer Incentive Plan (including all
"underlying plans" thereunder, but only with respect to
guaranteed minimum target bonus payments thereunder)
<PAGE> 97
APPENDIX II
LIST OF FEES AND EXPENSES OF TRUSTEE
A. Administration and Accounting
For the administration, including custody and monthly basic accounting
services, the fee will be computed at the following annual rates applied
to the market value of each of the Bank Trust Assets and the Company
Trust Assets.
.15 of 1% on the first $10 million
.08 of 1% on the next $20 million
.05 of 1% on the balance
Minimum annual fee - $25,000 for the Bank Trust Assets
$5,000 for the Company Trust Assets (provided there
are any Company Trust Assets)
Fees for a period of less than one year shall be pro-rated.
In the event that any of the following occur: (a) a Change in Control,
(b) the filing of an Irrevocable Election, or (c) the Bank or the Company
is determined to be Insolvent, the above annual rates and minimum annual
fees will increase by 100%; provided, however, that in the event such
increase in fees is on account of the Insolvency of the Bank (but not on
account of either of the reasons set forth in (a) or (b) above), such
increase in annual rates and minimum annual fees shall only relate to the
fees regarding Bank Trust Assets, and in the event such increase in fees
is on account of the Insolvency of the Company (but not on account of
either of the reasons set forth in (a) or (b) above), such increase in
annual rates and minimum annual fees shall only relate to the fees
regarding Company Trust Assets. Notwithstanding the foregoing, in no
event (without an appropriate modification of this Appendix II) will the
above annual rates and minimum annual fees increase by more than 100%.
B. Wire Transfers and Security Processing
$20.00 per transaction
C. Disbursement Services
$1.25 per periodic check issued, plus postage
$5.00 per non-periodic check issued, including postage
$10.00 per check rush-issued (24-hours turnaround)
<PAGE> 98
$10.00 per tax form
D. Other Administrative Services
For administrative services not covered by the preceding provisions that
are relative to carrying out trustee responsibilities beyond routine
custodial and accounting duties, the Trustee shall maintain time logs
indicating the time spent by its employees and agents on the discharge of
its duties as Trustee. Each hour shall be charged at the Trustee's hourly
rates then in effect under this Agreement or subsequent amendment. The
hourly rates as of the effective date of the Umbrella Trust Agreement
are:
Department Managers $125.00
Vice Presidents $100.00
All Other Officers $ 75.00
Other Staff $ 35.00
Time spent by the Operations Department of the Trustee on the handling of
assets, generation of accounting reports and other standard operations
are not subject to an hourly charge.
E. Participant Recordkeeping Services, if requested or required
Set-Up and Conversion Per Plan
$250 (One-Time Fee)
On-Going Processing Per Plan - Participant Accounting:
Administrative Fee: $1,000 per valuation per year
Participant Fee: $ 25 per year
Out-of-Pocket Expenses
Cost of custom processing, custom statement paper, "reruns" due to
customer error to be billed at cost.
<PAGE> 99
APPENDIX III
FORM OF NOTICE OF IRREVOCABLE ELECTION
HSBC Bank USA
insert Trustee address then
in effect, per Section 13.7
Attention: ________________
Re: Amended and Restated Umbrella Trust Agreement dated
as of __________, 2000, between Dime Bancorp, Inc.,
The Dime Savings Bank of New York, FSB and HSBC Bank
USA, as Trustee, with respect to the Covered
Arrangements of The Dime Savings Bank of New York,
FSB and related entities.
Gentlemen:
You are hereby notified that the [Committee (as defined in Section
13.6 of the Trust Agreement referred to above)] [Director Committee (as defined
in Section 8.2(b))] is making an Irrevocable Election pursuant to Section 13.5
of such Trust Agreement. You are hereby directed to take all actions and
undertake such responsibilities as are provided for under the Trust Agreement in
the event of an Irrevocable Election.
Sincerely yours(2)
- ---------------
(2) To be signed by a majority of the Committee appointed pursuant to Section
13.6, or a majority of the Director Committee, or, if the relevant
Committee then consists of only one member, then by such member.
<PAGE> 100
APPENDIX IV
CERTIFICATIONS OF AUTHORIZED PERSONS
<TABLE>
<S> <C>
INDIVIDUALS HAVING AUTHORITY TO
ACT ON BEHALF OF THE BANK
Benefits Committee Members Treasury Division
- -------------------------- -----------------
Lawrence J. Toal Alberto Diaz
D. James Daras
Arthur C. Bennett
Anthony Burriesci
James E. Kelly
Human Resources Department Law Department
- -------------------------- --------------
Norman J. Stafford Paul Marcotrigiano
David K. McDowell Jacquelyn Hart
Michael J. Connolly
Janet D. Krasowski Office of the Corporate Secretary
---------------------------------
Denise Halleran Gene C. Brooks
INDIVIDUALS HAVING AUTHORITY TO
ACT ON BEHALF OF THE COMPANY
Benefits Committee Members Treasury Division
- -------------------------- -----------------
Lawrence J. Toal Alberto Diaz
D. James Daras
Arthur C. Bennett
Anthony Burriesci
James E. Kelly
Human Resources Department Law Department
- -------------------------- --------------
Norman J. Stafford Paul Marcotrigiano
David K. McDowell Jacquelyn Hart
Michael J. Connolly
Janet D. Krasowski Office of the Corporate Secretary
---------------------------------
Denise Halleran Gene C. Brooks
</TABLE>
<PAGE> 1
AMENDED AND RESTATED
UMBRELLA TRUST AGREEMENT
among
DIME BANCORP, INC.,
THE DIME SAVINGS BANK OF NEW YORK, FSB
and
HSBC Bank USA, as Trustee
with respect to
the Covered Arrangements for Outside Directors of
The Dime Savings Bank of New York, FSB
and Related Entities.
<PAGE> 2
AMENDED AND RESTATED UMBRELLA TRUST AGREEMENT
AMENDED AND RESTATED UMBRELLA TRUST AGREEMENT, dated as of May 18, 2000,
by and among DIME BANCORP, INC., a Delaware corporation with its executive
offices at 589 Fifth Avenue, New York, NY 10017 (the "Company"), THE DIME
SAVINGS BANK OF NEW YORK, FSB, a federal savings bank with its executive offices
at 589 Fifth Avenue, New York, New York 10017 (the "Bank") and HSBC Bank USA, a
banking association with an office at 140 Broadway, New York, New York 10005
(the "Trustee").
WHEREAS, the Bank is at the date hereof a wholly-owned subsidiary of the
Company (the Bank and the Company being collectively referred to herein as the
"Dime"); and
WHEREAS, each of the Company and the Bank has established the various
plans and agreements referred to in Appendix I to this Trust Agreement and
further defined in Section 1.5 for the benefit of Participants and their
Beneficiaries (as defined in Section 1.5(b)) under such plans and agreements,
with such plans and agreements, being herein referred to collectively as the
"Covered Arrangements;" and
WHEREAS, the Covered Arrangements provide for the payment of certain
cash-based benefits (the "Benefits") to Participants and Beneficiaries (as
defined in Section 1.5); and
WHEREAS, the Company, the Bank and Marine Midland Bank, the predecessor
to the Trustee, entered into an Umbrella Trust Agreement as of December 19,
1995, and established a trust (the "Trust") pursuant to the Umbrella Trust
<PAGE> 3
Agreement, to which contributions have and will be made (and in the case of the
Bank, amounts transferred from a prior trust maintained by the Bank), for the
purpose of providing the Company and the Bank with a source of funds to aid them
in meeting their respective liabilities under the Covered Arrangements; and
WHEREAS, the cash and property to be contributed to the Trust by the Bank
has and shall continue to be subject to the claims of the Bank's creditors in
the event the Bank becomes Insolvent, as herein defined, until paid to
Participants and their Beneficiaries under a Covered Arrangement; and
WHEREAS, the cash and property to be contributed to the Trust by the
Company has and shall continue to be subject to the claims of the Company's
creditors in the event the Company becomes Insolvent, as herein defined, until
paid to Participants and their Beneficiaries under a Covered Arrangement; and
WHEREAS, it was and is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of the
Covered Arrangements as unfunded plans or agreements; and
WHEREAS, the Trust was and is intended to be a "grantor trust" with the
corpus and income of the Trust treated as assets and income of the Company or
the Bank for federal income tax purposes pursuant to Sections 671 through 679 of
the Internal Revenue Code of 1986, as amended (the "Code") and shall be
construed accordingly; and
WHEREAS, the Umbrella Trust Agreement was amended by the Company, the
Bank and Marine Midland Bank, effective as of November 1, 1996; and
2
<PAGE> 4
WHEREAS, the Umbrella Trust Agreement was again amended by the Company,
the Bank and Marine Midland Bank, effective as of June 27, 1997; and
WHEREAS, the parties desire to restate the Umbrella Trust Agreement to
reflect the succession of HSBC Bank USA as Trustee, the amendments described
above and further amendments included herein;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the Company, the Bank and the Trustee agree as follows:
3
<PAGE> 5
ARTICLE I
Establishment of Trust
1.1 Trust Fund. The Company and the Bank hereby establish the Trust
with the Trustee, consisting of such sums of money, policies of life insurance,
and other property acceptable to the Trustee as from time to time shall be paid
or delivered to the Trustee (the "Contributions"). All such Contributions, all
investments made therewith or proceeds thereof and all earnings and profits
thereon, less all payments and charges as authorized herein, shall constitute
the "Trust Fund." The Trust Fund shall be held by the Trustee in trust separate
and apart from other funds of the Company and the Bank and shall be applied in
accordance with the provisions of this Trust Agreement. The Trust Fund shall at
all times be subject to the claims of general creditors of the Company or the
Bank, as their interests may appear, as provided in Article XII. Participants
and their Beneficiaries shall have no preferred claim on, or any beneficial
ownership interest in, any assets of the Trust. Any rights created under the
Covered Arrangements and this Trust Agreement shall be mere unsecured
contractual rights of the Participants and their Beneficiaries against one or
both of the Company and the Bank.
1.2 Irrevocability. The Trust shall be irrevocable, and except as
provided in Section 5.3 and Article XII, the assets of the Trust shall be held
for the exclusive purpose of providing Benefits to Participants and their
Beneficiaries and defraying expenses of the Trust in accordance with the
provisions of this Trust Agreement. Except as expressly provided in this Trust
Agreement, no part of the
4
<PAGE> 6
income or corpus of the Trust Fund shall be recoverable by or applied for the
benefit of the Company, the Bank or their creditors.
1.3 Inalienability of Interests. Benefits payable to Participants and
their Beneficiaries under this Trust Agreement may not be sold, anticipated,
transferred, assigned (either at law or in equity), alienated, pledged,
encumbered, or subjected to attachment, garnishment, levy, execution or other
legal or equitable process.
1.4 Acceptance by the Trustee. The Trustee accepts the Trust
established under this Trust Agreement on the terms and subject to the
provisions set forth herein, and it agrees to discharge and perform fully and
faithfully all of the duties and obligations imposed upon it under this Trust
Agreement.
1.5 Designation of Covered Arrangements; Participants and
Beneficiaries.
(a) The Trust shall serve to aid the Company and the Bank in
accumulating the assets necessary to satisfy their respective contractual
liabilities to pay Benefits under the terms of the Covered Arrangements listed
(or otherwise described) in Appendix I to this Trust Agreement, as such Appendix
I may from time to time be amended. Prior to an Irrevocable Election (as defined
in Section 13.5) or Change in Control (as defined in Section 13.4), Appendix I
may be amended to remove or add all or a portion of such plans and agreements as
may be designated from time to time by action of two Authorized Officers of
either the Company or the Bank (as appropriate) or their designees. An
"Authorized Officer" of the Company or the Bank
5
<PAGE> 7
shall for this purpose be any of the individuals listed in Appendix IV to this
Trust Agreement, whose specimen signatures shall be provided by the Dime to the
Trustee. Notwithstanding the foregoing, following an Irrevocable Election,
Change in Control or Potential Change in Control (as defined in Section
11.3(d)(i)), Appendix I may be amended, additional Covered Arrangements or
portions thereof may be designated and Covered Arrangements or portions thereof
may be eliminated, only with the written approval of the Committee (as defined
in Section 13.6).
(b) The term "Participant" shall mean any person who at
the time an Irrevocable Election or Change in Control first occurs following May
1, 2000, or at any time prior thereto, is or was a Director of the Company or
the Bank who at any such time of service as a Director was neither an employee
nor an officer of the Company or the Bank (such Directors, collectively,
"Outside Directors"), and at the time of such Irrevocable Election or Change in
Control, is or could become entitled to any benefit pursuant to, or otherwise
could be deemed to be a participant in, any Covered Arrangement. No individual
shall be deemed a Participant with respect to a Covered Arrangement after the
first to occur following May 1, 2000 of an Irrevocable Election or Change in
Control if that individual was not already a Participant with respect to such
Covered Arrangement at the time of such Irrevocable Election or Change in
Control, as the case may be, except with written approval of the Committee.
(c) The term "Beneficiary" shall mean any person who is or may
become entitled to Benefits under any of the Covered Arrangements in the event
of a Participant's death.
6
<PAGE> 8
1.6 Respective Interests of the Company and the Bank. (a) The Trustee
shall separately account for all Contributions made by the Company and the Bank,
and for all investments made therewith, proceeds thereof, and earnings and
profits thereon, and all payments and charges with respect thereto
(respectively, the "Company Trust Assets" and the "Bank Trust Assets");
provided, that such Contributions may be commingled for purposes of investment
hereunder and that any allocations of such commingled investments shall be made
in proportion to the respective amounts of the investment represented by
Contributions of the Company and the Bank; and further provided, that, except as
may otherwise specifically be directed by the Company or the Bank pursuant to
the provisions of this Trust Agreement, any determination by the Trustee
respecting allocation of any investments, proceeds, earnings, profits, payments
and charges in respect of the Trust Fund as between the Company Trust Assets and
the Bank Trust Assets shall be final and binding on the parties hereto.
(b) The Company and the Bank have identified, with respect to each
Covered Arrangement listed on Appendix I, and shall set forth in Appendix I,
with respect to each Covered Arrangement hereafter added thereto, whether
Benefits under such Covered Arrangement constitute (i) primary obligations
hereunder of the Company ("Company Benefits"), (ii) secondary obligations
hereunder of the Company, (iii) primary obligations hereunder of the Bank ("Bank
Benefits"), or (iv) secondary obligations hereunder of the Bank. Obligations for
which the Company is primarily liable and the Bank is secondarily liable, and
obligations for which the Bank is primarily
7
<PAGE> 9
liable and the Company is secondarily liable are also referred to herein as
"Joint Benefits."
8
<PAGE> 10
ARTICLE II
General Powers of Trustee
2.1 Investment of the Trust.
(a) Prior to an Irrevocable Election or Change in Control, the
Company Trust Assets and Bank Trust Assets shall be invested by the Trustee in
the manner directed by the Company or the Bank, respectively, or, to the extent
no such specific direction has been given by the Company or the Bank, in
accordance with the written investment guidelines provided from time to time by
the Company or the Bank.
(b) Subsequent to an Irrevocable Election or Change in Control,
the Trustee shall invest the assets of the Trust Fund, without distinction
between principal and income, in accordance with such written investment
guidelines as may be provided from time to time by the Committee, in (i) life
insurance policies and guaranteed annuity contracts issued by insurers which, at
the time of investment, are rated A+ or better by Standard & Poor's or the
equivalent rating by any nationally recognized rating service (including the
payment of premiums thereon), (ii) bonds rated at least A by Standard & Poor's
or the equivalent rating by any nationally recognized rating service, (iii)
certificates of deposit, money market funds or other high quality cash
equivalents, or (iv) mutual funds designed to invest in those items described in
clauses (i) through (iii) above that otherwise comply with the Bank's or, as
applicable, the Company's investment policies as they apply from time to time
(the relevant portions of which shall be provided to the Trustee by the Bank or
the Company upon its request).
9
<PAGE> 11
(c) Subsequent to an Irrevocable Election or a Change in
Control and notwithstanding the foregoing provisions of this Section 2.1, at any
time that the assets of the Trust Fund together with the assets of any other
trust fund established by the Company or the Bank with which the assets of the
Trust Fund are commingled for investment purposes (excluding in each case any
life insurance policies and guaranteed annuity contracts then in effect) do not
exceed $500,000, such assets shall be held in one or more interest-bearing
accounts at a commercial bank or savings bank (which may include the Trustee),
with maturities in the Trustee's discretion based on the anticipated need for
funds, but not in excess of one year.
(d) Prior to an Irrevocable Election or a Change in Control,
each of the Company and the Bank shall have the right at any time, and from time
to time in its sole discretion, to substitute assets of equal fair market value
for any asset held by the Trust. This right is exercisable by each of the
Company and the Bank in a non-fiduciary capacity without the approval or
consent of any person in a fiduciary capacity. After an Irrevocable Election or
a Change in Control, such right shall continue, but any asset so substituted by
the Company or the Bank shall be of equivalent or greater liquidity as compared
to the asset for which it is substituted, and such right may only be exercised
with the consent of the Committee.
2.2 Investment Powers of Trustee. Subject to the provisions of this
Trust Agreement and the directions or investment guidelines provided pursuant to
Section 2.1, the Trustee shall have, with respect to the Trust Fund, the
following investment powers in its discretion:
10
<PAGE> 12
(a) To invest and reinvest in any property, real, personal or
mixed, wherever situated, foreign or domestic, including, common and preferred
stocks, bonds, notes and debentures (including convertible stocks and securities
but not including any stock or securities or debt instruments of the Company or
the Bank or their Affiliates unless otherwise expressly directed by the Company
or the Bank pursuant to Section 2.1(a)); leaseholds; mortgages (including,
without limitation, any collective or part interest in any bond and mortgage or
note and mortgage); certificates of deposit and money market funds (including
certificates of deposit and money market funds of the Bank); and life insurance
and guaranteed annuity contracts. Such investments may be made regardless of
diversification and without being limited to investments authorized by law for
the investment of trust funds.
(b) To use Trust Fund assets to purchase, and pay all premiums
and other charges upon, individual or group annuity or life insurance contracts.
(c) To retain any property at any time received by it.
(d) To sell, exchange, convey, transfer or dispose of, and to
grant options for the purchase or exchange with respect to, any property at any
time held by it, by public or private sale, for cash or on credit or partly for
cash and partly on credit.
(e) To participate in any plan of reorganization,
consolidation, merger, combination, liquidation or other similar plan and to
consent to or oppose any such plan or any action thereunder, or any contract,
lease, mortgage, purchase, sale or
11
<PAGE> 13
other action by any person or corporation or other entity any of the securities
of which may at any time be held in the Trust Fund, and to do any act with
reference thereto.
(f) To deposit any property with any protective, reorganization
or similar committee, to delegate discretionary power to any such committee and
to pay and agree to pay part of the expenses and compensation of any such
committee and any assessments levied with respect to any property so deposited.
(g) To exercise all conversion and subscription rights
pertaining to any property, and to do any act with reference thereto, including
the exercise of options, the making of agreements or subscriptions and the
payment of expenses, assessments or subscriptions, which may be deemed necessary
or advisable in connection therewith, and to hold and retain any securities or
other property which it may so acquire.
(h) To extend the time of payment of any obligation held in the
Trust Fund.
(i) To enter into standby agreements for future investment,
either with or without a standby fee.
(j) To invest and reinvest all or any specified portion of the
Trust Fund through the medium of any common, collective or commingled trust fund
which has been or may hereafter be established and maintained by the Trustee,
provided that prior to investing any portion of the Trust Fund for the first
time in any such common, collective or commingled trust fund, the Trustee shall
advise the Committee of its intent to make such an investment and furnish to the
Committee any
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information it may reasonably request with respect to such common, collective or
commingled trust fund.
(k) To the extent permitted by law, to commingle assets of the
Trust Fund, for investment purposes only, with assets of other trust funds
established by the Company or the Bank, provided that the Trustee shall maintain
separate records with respect to each such other trust or plan, and further
provided that the assets of the Trust Fund shall not be commingled in any fund
intended to hold only assets of qualified retirement plans within the meaning of
Section 401(a) of the Code.
(l) To acquire, renew or extend or participate in the renewal
or extension of any mortgage, and to agree to a reduction in the rate of
interest on any indebtedness or mortgage or to any other modification or change
in the terms of any indebtedness or mortgage or of any guarantee pertaining
thereto, in any manner and to any extent that may be deemed advisable for the
protection of the Trust or the preservation of any covenant or condition of any
indebtedness or mortgage or in the performance of any guarantee, or to enforce
any default in such manner and to such extent as may be deemed advisable; and to
exercise and enforce any and all rights of foreclosure, to bid on any property
in foreclosure, to take a deed in lieu of foreclosure with or without paying a
consideration therefor and in connection therewith to release the obligation on
the bond secured by such mortgage, and to exercise and enforce in any action,
suit or proceeding at law or in equity any rights or remedies in respect of any
such indebtedness or mortgage or guarantee.
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(m) To make, execute and deliver, as Trustee, any and all
deeds, leases, notes, bonds, guarantees, mortgages, conveyances, contracts,
waivers, releases or other instruments in writing necessary or proper for the
accomplishment of any of the foregoing powers.
2.3 Administrative Powers of Trustee. Subject to the provisions of
this Trust Agreement, the Trustee shall have the following administrative powers
in its discretion:
(a) To exercise all voting rights with respect to the shares of
stock, if any, held in the Trust Fund and to grant proxies, discretionary or
otherwise.
(b) To cause any shares of stock to be registered and held in
the name of one or more of its nominees, or one or more nominees of any system
for the central handling of securities, without increase or decrease of
liability.
(c) To collect and receive any and all money and other property
due to the Trust Fund and to give full discharge therefor.
(d) To settle, compromise or submit to arbitration any claims,
debts or damages due or owing to or from the Trust; to commence or defend suits
or legal proceedings to protect any interest of the Trust; and to represent the
Trust in all suits or legal proceedings in any court or before any other body or
tribunal.
(e) To organize under the laws of any state a corporation,
partnership or trust for the purpose of acquiring and holding title to any
property which it is authorized to acquire under this Trust Agreement and to
exercise with respect thereto any or all of the powers set forth in this Trust
Agreement.
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(f) To determine how all receipts and disbursements shall be
credited, charged or apportioned as between income and principal, and the
decision of the Trustee shall be final and not subject to question by the
Company or the Bank or any Participant or Beneficiary.
(g) After an Irrevocable Election or Change in Control, to the
extent so directed by the Committee, to interpret the provisions of the Covered
Arrangements that govern the determination of eligibility for, amount, form and
timing of payments under the Covered Arrangements, including, without
limitation, the crediting of earnings and determination of offsets thereunder,
notwithstanding any authority otherwise provided to another individual, group of
individuals, committee or entity under any such Covered Arrangement.
(h) After consultation with the Committee, to engage such
independent third parties as the Trustee may deem necessary to assist in making
determinations with respect to Benefits payable under the Covered Arrangements
or otherwise under the Trust.
(i) After consultation with the Committee, to engage any legal
counsel, including counsel to the Company or the Bank, or any other suitable
agents (including outside investment managers), to consult with such counsel or
agents with respect to the implementation and construction of this Trust
Agreement, the duties of the Trustee hereunder, the transactions contemplated by
this Trust Agreement, or any act which the Trustee proposes to take or omit, to
rely upon the advice of such counsel or agents, and to pay their reasonable
fees, expenses and compensation.
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(j) To purchase individual or group annuity contracts for
purposes of making annuity-type Benefit payments under the Covered Arrangements.
(k) To do all other acts, subject to the approval of the
Committee, which the Trustee may deem necessary or desirable for the protection
of the Trust Fund and payment of Benefits hereunder.
2.4 Limitation on Trustee Powers. Notwithstanding any powers granted
to Trustee pursuant to this Trust Agreement or to applicable law, the Trustee
shall not have any power that could give this Trust the objective of carrying on
a business and dividing the gains therefrom, within the meaning of Section
301.7701-2 of the Procedure and Administrative Regulations promulgated pursuant
to the Code.
2.5 Dealings with Trustee. Persons dealing with the Trustee shall be
under no obligation to see to the proper application of any money paid or
property delivered to the Trustee or to inquire into the Trustee's authority as
to any transaction.
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ARTICLE III
Documents, Participant Information and Records
3.1 Copy of Covered Arrangements. The Dime shall provide the Trustee
with a copy of each of the Covered Arrangements and shall provide the Trustee
with a copy of any amendment to any of the Covered Arrangements as soon as
practicable following its adoption. The Trustee shall be entitled to rely on the
terms of any Covered Arrangement as in effect prior to its amendment until the
Trustee receives a copy of such amendment. The Trustee may inquire of the
Committee regarding the effect of any such amendment on Benefits payable under a
Covered Arrangement. Copies of Covered Arrangements and amendments thereto may
also be provided to the Trustee by the Committee or by any Participant or
Beneficiary.
3.2 Participant Information. The Dime shall prepare and deliver to the
Trustee such information (the "Participant Information") as is reasonably
determined by the Trustee to be necessary to enable the Trustee to determine the
amount and time of payment of each Benefit payable to each Participant or
Beneficiary. Without limiting the generality of the foregoing, the Participant
Information may include (i) the name of each Participant entitled to receive
Benefits under each of the Covered Arrangements, (ii) the current address of
each Participant, (iii) the Beneficiaries, if any, designated by each
Participant, (iv) the Participant's date of birth, (v) each Participant's number
of years of service as an Outside Director or a director of an affiliate of the
Company or the Bank, (vi) each Participant's current and prior compensation,
(vii) any elections made by a Participant regarding the payment of Benefits or
interim deemed
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investments under any Covered Arrangements where such elections are permitted or
required, (viii) if Benefits are in pay status, the date payments began and the
amount and timing of Benefit payments, (ix) the name and date of birth of the
Participant's spouse, as necessary, and (x) other information requested by the
Trustee. The Trustee shall be entitled to rely on such Participant Information
(as modified by notice pursuant to Section 3.3(a) and (b)) provided by the Dime
unless the Trustee has reason to believe such Participant Information may be
incorrect.
3.3 Updating the Participant Information.
(a) Prior to an Irrevocable Election or Change in Control, the
Dime may from time to time notify the Trustee of any changes to the Participant
Information (including any changes in the list of Participants). Each such
notice shall be signed and dated by an Authorized Officer, shall set forth the
name of each Participant with respect to whom the Participant Information is
being changed (or who is being added to or deleted from the list of
Participants), and all additions to or changes from the information previously
supplied with respect to such Participant.
(b) Upon an Irrevocable Election or Change in Control, the Dime
shall either (i) notify the Trustee that there have been no changes in the
Participant Information from the Participant Information most recently provided
or (ii) if there have been changes in the Participant Information, provide the
Trustee with Participant Information updated to the date of the Irrevocable
Election or Change in Control.
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(c) Subsequent to an Irrevocable Election or Change in Control,
the Trustee shall update the Participant Information, at such time as is
necessary to pay Benefits, from information furnished to it by the Dime or
Participants, as provided in Section 3.4. The Trustee shall request information
from the Dime and Participants as necessary to update the Participant
Information.
3.4 Dime Records.
(a) The Dime shall keep full, accurate and detailed books and
records with respect to the Participants under the Covered Arrangements and the
Benefits payable to them. The Dime shall provide such information and access to
such books and records to the Trustee and any independent third party retained
by the Trustee to assist it, at such time or times as the Trustee shall
reasonably request.
(b) If at any time subsequent to an Irrevocable Election or
Change in Control the Dime fails or refuses to give the Trustee what the Trustee
reasonably believes to be accurate and sufficient Participant Information or
access to such books and records, the Trustee shall be entitled to rely on
Participant Information furnished to the Trustee by the Committee or by the
respective Participants (including Participant Information furnished at the time
or after a claim for Benefits has been made) for the purpose of calculating
Benefits, unless the Trustee has reason to believe such Participant Information
may be incorrect.
(c) The Trustee shall be under no obligation to commence any
action seeking judicial or administrative relief in the event that the Dime does
not comply with its obligations under Section 3.4(a) or the respective
Participants do not
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furnish Participant Information under Section 3.4(b); provided, however, to the
extent permitted by law and following an Irrevocable Election or Change in
Control, any Participant may commence legal action to enforce the obligations
and duties of the Company, the Bank or the Trustee under any Plan.
3.5 Committee's Right to Information. The Participant Information,
records and all other information and documentation (including updates thereto)
to be delivered or otherwise made available to the Trustee by the Dime pursuant
to the foregoing provisions of this Article shall also be delivered or otherwise
made available by the Dime to the Committee or its agent upon request. In
addition, the Trustee shall deliver or make available such information and
documentation to the Committee or its agent upon request. The Committee shall be
entitled to rely on any such information or documentation delivered or made
available to it by the Dime or the Trustee to the same extent that the Trustee
is entitled to rely on such information or documentation pursuant to the
foregoing provisions of this Article.
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ARTICLE IV
Establishment of Accounts and Contributions
4.1 Accounts.
A separate Expense Account shall be established and maintained in
accordance with Section 7.3. Separate accounts also shall be established and
maintained to segregate Company Assets and Bank Assets. No separate Trust
accounts shall be maintained with respect to Participants in any Covered
Arrangement (except for bookkeeping accounts to the extent required to determine
the amount of Benefits under a Covered Arrangement).
4.2 Contributions. Contributions shall be delivered to the Trustee as
follows:
(a) Prior to an Irrevocable Election or Change in Control, the
Company and the Bank shall deliver such cash, insurance policies, or other
property to the Trustee as each of them shall from time to time deem appropriate
for the funding of Benefits and payment of expenses under the Trust.
(b) (i) Upon an Irrevocable Election or Change in Control,
each of the Company and the Bank shall deliver to the Trustee additional
Contributions as shall be necessary so that the Trust holds (x) assets, valued
in accordance with Section 4.3 (but excluding any amounts allocated to the
Expense Account), equal in value to at least 110% of the present value of
projected Benefits payable to or with respect to all Participants and
Beneficiaries (such present value, as determined by the Trustee in the manner
and based upon the assumptions described in Section 5.3 is
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herein referred to as the "Benefit Valuation Amount"), plus (y) amounts required
to be contributed to and held in the Expense Account pursuant to Section 7.3,
all determined as of the date of such Irrevocable Election or Change in Control.
The obligation of each of the Company and the Bank hereunder shall be dependent
on the Benefits under the Covered Arrangements with respect to which each such
entity may be liable (with the entity identified as primarily obligated
hereunder with respect to any Joint Benefit deemed responsible for the full
amount of any related asset and contribution requirements) and the
identification of the assets in the determination above as Company Trust Assets
or Bank Trust Assets, as appropriate. In addition, subsequent to an Irrevocable
Election or Change in Control, the Trustee shall annually, as of the start of
the month commencing coincident with or immediately following each yearly
anniversary of the date of the Irrevocable Election or Change in Control, review
its calculation of the Benefit Valuation Amount in order to determine if the
assets then held under the Trust, valued in accordance with Section 4.3 (but
excluding any amounts allocated to the Expense Account), are equal in value to
at least 110% of the Benefit Valuation Amount as of the date of such
determination. If the Trustee determines that the Trust does not, at the date as
of such date, have assets, valued in accordance with Section 4.3 (but excluding
for these purposes any amounts allocated to the Expense Account), equal in value
to at least 110% of the Benefit Valuation Amount (calculated separately with
respect to the respective obligations of the Company and the Bank in the manner
described above), then the Trustee shall notify the Company and the Bank, and
the Company and/or the Bank shall deliver to the Trustee within 30 days, such
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additional cash Contributions as shall be necessary to provide the Trustee with
such additional cash or other readily marketable assets to satisfy such
obligation. The amount of these cash Contributions shall be determined by the
Trustee, after consultation with and approval by the Committee, based upon the
respective obligations of the Company and the Bank, and the identification of
the assets in the determination above as Company Trust Assets or Bank Trust
Assets, as appropriate.
(ii) In each instance described above in clause (i), in the event that
the Bank has not fulfilled its funding obligations, the Company shall be
required to make additional cash contributions to the Trustee in an amount equal
to the lesser of 110% of the value (determined in accordance with Section 4.3)
of the Joint Benefits and the amount of the Bank's funding shortfall. In the
event that the Company has not fulfilled its funding obligations, the Bank shall
be required to make additional cash contributions to the Trustee in an amount
equal to the lesser of 110% of the value (determined in accordance with Section
4.3) of the Joint Benefits and the amount of the Company's funding shortfall.
Each such Contribution shall be made to the Trustee within 30 days of the
Committee's approval of a request for such Contribution from the Trustee or as
soon as practicable thereafter.
(c) If any of the Contributions required by Section 4.2(b) or
deposits required by Section 7.3 are not made when required, the Trustee shall
notify each Participant, each Beneficiary of a then-deceased Participant and the
Committee of such event.
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(d) All Contributions received directly or indirectly from the
Company shall be considered Company Trust Assets, and all Contributions received
directly or indirectly from the Bank shall be considered Bank Trust Assets,
unless the party making the Contributions shall otherwise notify the Trustee.
(e) Notwithstanding the foregoing, neither the Trustee nor the
Committee shall be liable for any failure by either the Company or the Bank to
make the Contributions required by Section 4.2(b). Neither the Trustee nor the
Committee shall have any duty to see that the Trust Fund is ultimately adequate
to meet liabilities under the Covered Arrangements. The Committee and the
Trustee are, however, authorized hereunder to seek payment from the Company or
the Bank of any Contributions required by Section 4.2(b) or deposits required by
Section 7.3 that are not made when required, including, without limitation, by
bringing suit therefor against the Company, the Bank or both of them in a court
of competent jurisdiction as provided in Section 13.1 hereof.
4.3 Valuation of Trust Fund
The Trustee may hold, invest and reinvest the assets of the Trust
Fund as a consolidated single fund. Earnings and losses shall be allocated
between Company Trust Assets and Bank Trust Assets, as applicable. As of the
last business day of each calendar month, the Trustee shall value the Trust Fund
at current market values, and shall report such valuation, and the allocation
thereto as between Company Trust Assets and Bank Trust Assets, to the Company
and the Bank and, following an Irrevocable Election or Change in Control, to the
Committee. The report of
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any such valuation shall not constitute a representation by the Trustee that the
amounts reported as fair market values would actually be realized upon the
liquidation of the Trust Fund. Such valuation shall reflect Contributions,
income of the Trust Fund, gains or losses (including gains or losses not yet
realized), distributions and expenses incurred during the month. If the Trust
shall hold at any valuation date any life insurance policies, such policies
shall be valued at the cash surrender value thereof in determining the assets of
the Trust Fund.
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ARTICLE V
Distributions From Trust Fund
5.1 Distributions.
(a) Subject to the provisions of Article XII, prior to an
Irrevocable Election or Change in Control, Benefits shall be paid from the Trust
Fund to Participants and Beneficiaries , and insurance premiums shall be paid
from the Trust Fund, only as directed by the Committee. In no event shall
payment to a Participant or his Beneficiary be made in excess of the Benefits
due the Participant or Beneficiary under the applicable Covered Arrangement.
(b) Subject to the provisions of Article XII, the following
provisions shall apply subsequent to an Irrevocable Election or Change in
Control:
(i) The Dime shall, and the Committee may, be
responsible for notifying the Trustee when it believes a Participant or
Beneficiary is entitled to payment of a Benefit or a premium on a life insurance
policy is due. The Committee may also notify the Trustee when it believes a
Participant or Beneficiary is entitled to payment of a Benefit or a premium on a
life insurance policy is due, and the Trustee may receive information from other
sources deemed reliable by it (including, but not limited to, insurance
companies), for purposes of determining when payment of a Benefit or a premium
on a life insurance policy is due. In addition, a Participant or Beneficiary who
believes that he is entitled to payment of a Benefit under a Covered Arrangement
may apply in writing directly to the Trustee for payment of such Benefit. Such
application shall advise the Trustee of the circumstances which entitle such
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Participant or Beneficiary to payment of such Benefit. Subsequent to receiving
any such aforesaid notice, information or application, and subject to the
provisions of this Section 5.1 (including the right of the Committee to make
final determinations regarding Benefit payments pursuant to Section 5.1(c)) or
otherwise based on the Trustee's determination that a Benefit is payable under a
Covered Arrangement (or a premium on a life insurance policy is due),
distributions from the Trust Fund shall be made by the Trustee to the
Participants and Beneficiaries, or to pay insurance premiums, at the times and
in the amounts as the Trustee shall determine based on the terms of the
applicable Covered Arrangement(s) and the Participant Information, and the
Trustee shall further determine the amount of each payment that shall be charged
against the Company Trust Assets and Bank Trust Assets, respectively.
(ii) The Trustee shall pay from the Trust Fund any
Benefit when due, as determined pursuant to Section 5.1(b)(i), and any premium
on life insurance held by the Trust, unless the Trustee has received evidence,
satisfactory to the Trustee, that such Benefit or premium has been paid by the
Company or the Bank or another entity (or, in the case of a premium on a life
insurance policy, has been paid out of dividends on such policy). Prior to
making a Benefit payment, the Trustee shall notify the Company, the Bank, the
Committee and the Participant or Beneficiary. If, within five business days of
such notification, the Company, the Bank, the Committee or the Participant or
Beneficiary has not objected to the Trustee's determination to pay such
Benefits, then the Trustee's determination shall be final, and, if such payment
is the first in a series of payments, the Trustee's determination shall be final
for all
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payments of such series. If, however, an objection is made by the Company, the
Bank, the Committee or the Participant or Beneficiary within five business days
of the notification, then the procedures set forth in Section 5.1(c) shall
apply. Payment of Benefits shall be made as follows: (A) payment shall first be
made of Company Benefits that are not Joint Benefits to the extent of Company
Trust Assets not allocated to the Expense Account and of Bank Benefits that are
not Joint Benefits to the extent of Bank Trust Assets not allocated to the
Expense Account; and (B) payment shall next be made of any Joint Benefits out of
remaining Company Trust Assets and Bank Trust Assets, as applicable, based upon
the respective obligations of the Company and the Bank (with payment to first be
made out of the assets of the entity (e.g. Bank Trust Assets or Company Trust
Assets) that is listed on Appendix I as the primary obligor hereunder with
respect to the Covered Arrangement, and then, if necessary, out of the assets of
the entity (e.g. Bank Trust Assets or Company Trust Assets) that is listed on
Appendix I as the secondary obligor hereunder with respect to the Covered
Arrangement) until either the Company Trust Assets or Bank Trust Assets not
allocated to the Expense Account shall be exhausted; and (C) thereafter, payment
of any remaining Joint Benefits shall be made out of any remaining Trust Assets
not allocated to the Expense Account.
(iii) If the amount of Company Trust Assets and Bank Trust
Assets not allocated to the Expense Account is insufficient to pay in full all
Company Benefits or Bank Benefits due, then payment shall nonetheless be made in
accordance with and to the extent permitted by the preceding clause (ii);
provided, that
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(A) if either Company Trust Assets not allocated to the Expense Account are
insufficient to pay the Company Benefits in full or Bank Trust Assets not
allocated to the Expense Account are insufficient to pay the Bank Benefits in
full, and/or if the Company Trust Assets and Bank Trust Assets not allocated to
the Expense Account are insufficient to pay the Joint Benefits in full, then the
Trustee shall so notify the Company or the Bank, as the case may be, and such
entity shall either pay such Benefits directly to the Participant or Beneficiary
to whom they are due (and provide evidence of such payment to the Trustee) or
contribute to the Trust within thirty days of such notice an amount sufficient
to pay all such remaining Benefits, which the Trustee shall then pay to the
Participant or Beneficiary to whom they are due; and (B) if any portion of the
Joint Benefits is paid in accordance with clause (ii)(C) rather than clause
(ii)(B) above, then the entity whose Trust Assets were insufficient to pay its
appropriate (because of its status as a primary obligor hereunder or otherwise)
share of the Joint Benefits shall, upon notification of such shortfall by the
Trustee, contribute to the Trust within thirty days an amount equal to such
shortfall, which shall thereupon be credited as a contribution to the Trust
Assets of the other entity, from whose Trust Assets all or any portion of such
shortfall was paid, in an amount equal to the Benefit so paid, with the
remainder, if any, of such shortfall being paid to the Participant or
Beneficiary to whom such Benefit or remains due; provided, that neither the
Trustee nor any Participant shall be liable to the Company, the Bank, or any
creditor thereof for amounts paid as Joint Benefits under clause (ii)(C) in
excess of the Company's or the Bank's appropriate share thereof.
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(c) The following additional provisions shall apply subsequent
to an Irrevocable Election or Change in Control:
(i) Whenever the Trustee determines that an
interpretation of the provisions of a Covered Arrangement is necessary or
advisable to a determination of whether, in what form, or in what amount
Benefits may be payable to a Participant or Beneficiary under such Covered
Arrangement pursuant to Section 5.1(b)(i), the Trustee shall make inquiry of the
Committee concerning such interpretation. The Committee shall have the authority
to interpret the applicable Covered Arrangement and to determine, based on such
interpretation, the applicable Participant Information and such other
information supplied by the Participant or Beneficiary and the Company or the
Bank as it shall deem relevant, whether, and if so in what form and amount,
Benefits are payable thereunder to such Participant or Beneficiary. The
Committee shall report its determination to the Trustee, and the Trustee shall
notify the affected Participant or Beneficiary and the Company and the Bank of
the Committee's determination and the Trustee's intent to commence benefit
payments in accordance therewith. Unless either the Participant or Beneficiary,
or the Company or the Bank, shall within five business days of such notification
notify the Trustee that it objects to the determination of the Committee, then
such determination shall become final and the Trustee shall, pursuant to Section
5.1(b)(i) hereof, make such distributions from the Trust Fund to the Participant
and Beneficiary as is called for in such determination; provided, that no
Participant or Beneficiary shall be deprived by such determination (or other
determination pursuant to this Section 5.1(c)) of any right
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such person may have under applicable law or regulation to claim that such
determination (or other determination pursuant to this Section 5.1(c)) was
erroneous under the terms of the applicable Covered Arrangement. If any party
shall within such five business day period object to the determination made by
the Committee, then the Trustee shall review such determination. Such review
shall be limited to whether the Committee's determination was reasonable. If the
Trustee finds that such determination appears reasonable, then such
determination shall become final and the Trustee shall, pursuant to Section
5.1(b)(i), make such distributions from the Trust Fund to the Participant or
Beneficiary as is called for by such determination. If the Trustee shall
conclude that such determination should be further reviewed by the Committee, in
light of the objection thereto, it shall request that the Committee further
consider such matter, in light of such objection and such other factors as the
Trustee may bring to its attention or request it to review or reconsider. The
Committee shall reconsider such matter, based on such facts as it shall deem
relevant, and shall report its determination to the Trustee. Upon receipt by the
Trustee of such report, the determination of the Committee shall become final,
and the Trustee shall make such distribution from the Trust Fund to the
Participant and Beneficiary as is called for by such determination. Once a
determination of the Committee has become final in accordance with this Section
5.1(c), the Company and the Bank, for themselves, their subsidiaries, and their
successors and assigns, agree to be bound by such determination and hereby waive
any and all rights to recoup any Benefits paid in accordance therewith, either
from the recipient thereof, the Trust, the Trustee or the
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Committee, or to hold any of such parties liable with respect to the payment
thereof. The Committee's powers of determination under this Section 5.1(c) shall
include, without limitation, the authority to interpret the provisions of the
Covered Arrangements that govern the determination of eligibility for, amount,
form and timing of payments under the Covered Arrangements, including, without
limitation, the crediting of earnings and determination of offsets thereunder,
and such determinations shall be final as aforesaid, notwithstanding any
authority otherwise provided to another individual, group of individuals,
committee or entity under any such Covered Arrangement.
(ii) The Company, the Bank or the Committee shall notify
the Trustee if any "change in control" has occurred under any of the Covered
Arrangements. If no such notice has been provided, but a Covered Arrangement
requires a determination of whether a change in control-related event has
occurred, the Trustee shall request of the Committee that the Committee make a
determination whether such "change in control" has occurred under such Covered
Arrangement. The Committee shall thereupon either (A) make such determination,
in which case the Trustee shall rely on the determination of the Committee, or
(B) (1) communicate the materials and information necessary to the making of
such determination to the Trustee and (2) direct the Trustee to make such
determination. In the event the Committee fails to respond to the Trustee's
request within 30 days of the date of such inquiry, the Trustee shall make its
own determination as to whether such a change in control-related event has
occurred.
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(iii) Subject to the provisions of this Section 5.1, if
the Committee so desires, it may, in its sole discretion, or, if so directed by
the Committee, the Trustee may, in its sole discretion, make such additional
inquiries and/or take such additional measures as it deems necessary in order to
enable it to determine whether Benefits are due and payable, including, but not
limited to, interviewing or requesting affidavits from appropriate persons.
5.2 Payment Upon Constructive Receipt. Notwithstanding any other
provision of this Trust Agreement, if any amounts held in the Trust Fund are
found in a "determination" (within the meaning of Section 1313(a) of the Code)
to have been includible in the taxable income of a Participant or Beneficiary
prior to, or without, payment of corresponding amounts under the Covered
Arrangements, and the Participant or Beneficiary provides the Trustee with such
determination, the Trustee promptly shall forward the determination to the
Committee. The Trustee then, unless directed otherwise by the Committee, shall
make a finding as to the extent to which such determination applies to (i)
Company Benefits, Bank Benefits or Joint Benefits and (ii) amounts otherwise
arising out of the Participant's or Beneficiary's interest in, or relationship
to, the Trust. Then, subject to the provisions of Section 5.1(b) and (c) hereof
(without regard to whether there has been an Irrevocable Election or Change in
Control), the Trustee shall pay to such Participant or Beneficiary, as soon as
practicable, an amount equal to the sum of (A) the amount described in (i)
above, reduced by Benefits already paid (whether by the Trust or otherwise)
which were included in such determination (so as to avoid any double payment of
the same Benefits), plus (B) solely with respect to the amount described in
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(ii) above, an amount (as determined by the Trustee) sufficient to pay all
taxes, interest and penalties, if any, imposed on the Participant or Beneficiary
with respect to the amount described in (ii) above, plus sufficient additional
amounts to pay all taxes imposed on payments made pursuant to this clause (B).
Amounts paid pursuant to clause (A) above shall be deemed to be advance payment
of the applicable portion of Benefits payable under the applicable Covered
Arrangement, as determined by the Committee. Notwithstanding the foregoing, in
the event a Participant or Beneficiary provides the Trustee a Notice (as defined
below), the Trustee promptly shall forward the Notice to the Committee. In such
case, the Trustee, at the direction of the Committee, or the Committee, may
contest the Notice in whole or in part (and be reimbursed by the Trust for all
reasonable costs of such contest), in which case the Participant or
Beneficiary must fully cooperate and assist the Trustee (or, as appropriate, the
Committee) in connection with such contest and the payment described above will
not be made pending the outcome of such contest. At the resolution of such
contest (as determined by the Committee, whether following a litigation,
settlement or otherwise), the Trustee promptly shall pay (C) all amounts (if
any) payable to the Participant or Beneficiary calculated as set forth in
clauses (A) and (B) above (adjusted for the results of the contest) plus (D) in
the case of payments related to the amount described in (i) above, all interest
and penalties, if any, imposed on the Participant or Beneficiary, plus
sufficient additional amounts to pay all taxes imposed on payments made pursuant
to this clause D. For purposes of this Section 5.2, the term "Notice" shall mean
a revenue agent's report or notice of proposed adjustment or notice of
deficiency (or any amendments to the foregoing) or set-off of refund claim
issued by a
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taxing authority to the Participant or Beneficiary with respect to the inclusion
in the Participant's or Beneficiary's taxable income of any amounts held in the
Trust Fund prior to, or without, payment of corresponding amounts under the
Covered Arrangements.
5.3 Excess Amounts and Excess Assets.
(a) Prior to the termination of the Trust and upon the request
of the Dime (no more frequently than once every 12 months), the Trustee shall
determine whether the Trust Fund then holds Excess Assets (as described below).
The Trust shall be deemed to hold Excess Assets if at the time of such
determination the value of the assets of the Trust Fund that are Company Trust
Assets or Bank Trust Assets, determined in accordance with Section 4.3
(excluding for these purposes any amounts allocated to the Expense Account),
exceeds, respectively, 110% of the Benefit Valuation Amount that reflects either
(i) the present value of Company Benefits, or (ii) the present value of Bank
Benefits; provided, however, that (x) if the value of Bank Trust Assets,
determined in accordance with Section 4.3 (excluding any amounts allocated to
the Expense Account) is less than 110% of the portion of the Benefit Valuation
Amount that so reflects Bank Benefits, Company Trust Assets shall be considered
Excess Assets only to the extent that the value of Company Trust Assets,
determined in accordance with Section 4.3 (excluding any amounts allocated to
the Expense Account) exceeds 110% of the Benefit Valuation Amount that would be
deemed to reflect Company Benefits if the Company were primarily obligated
hereunder with respect to all Joint Benefits, and (y) if the value of Company
Trust Assets, determined in accordance with Section 4.3 (excluding any amounts
allocated to
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the Expense Account) is less than 110% of the portion of the Benefit Valuation
Amount that so reflects Company Benefits, Bank Trust Assets shall be considered
Excess Assets only to the extent that the value of Bank Trust Assets, determined
in accordance with Section 4.3 (excluding any amounts allocated to the Expense
Account) exceeds 110% of the Benefit Valuation Amount that would be deemed to
reflect Bank Benefits if the Bank were primarily obligated hereunder with
respect to all Joint Benefits. If the Trustee determines that the Trust Fund
holds Excess Assets with respect to either the Company or the Bank, the Trustee
shall notify the Company or the Bank of the amount of such Excess Assets, and,
if the Company or the Bank so request, shall deliver such Excess Assets (or any
portion thereof) to the Company or the Bank as its respective interests may
appear; provided, however, that following an Irrevocable Election or Change in
Control, no such Excess Assets may be delivered to the Company or the Bank
without the consent of the Committee (which consent shall not be unreasonably
withheld).
(b) For purposes of determining the present value of the
projected total Benefits payable to all Participants and Beneficiaries and
whether there are Excess Assets, the Trustee shall use the following
assumptions:
(i) With respect to the Retainer Continuation Plan for
Independent Directors of The Dime Savings Bank of New York, FSB ("RCP"), it will
be assumed that RCP Benefits will be paid to a Participant actively serving as a
director (an "Active Participant") in the amount resulting from a termination of
service as a director at the later of the date of determination or the
attainment of age 75, and it shall
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be assumed that such Benefits are fully vested. The present value of such
Benefits shall be determined (A) based on an interest rate assumption of the
lesser of 5% or the "applicable interest rate" described in Section 417(e) of
the Code and regulations promulgated by the Internal Revenue Service from time
to time as of the start of the month prior to the month in which occurs the date
of determination (the "Applicable Interest Rate") and (B) in accordance with the
1994 Group Annuity Mortality tables (50% Male, 50% Female) (the "1994 GAM") or
the mortality assumptions under the "applicable mortality table" described in
Section 417(e) of the Code and regulations promulgated by the Internal Revenue
Service from time to time (the "Applicable Mortality Rates"), whichever results
in a greater present value. It shall also be assumed that an Active
Participant's director fees for each year of assumed continued service shall be
increased annually by a rate not less than the rate of increase in the Consumer
Price Index (as defined in subsection (iii) below) for the preceding 12 month
period plus 2 percentage points (the "CPI + 2 Rate"). For an Inactive
Participant, the present value of Benefits payable under the RCP shall be based
on the actual Benefit to which the Inactive Participant is entitled as of the
date of determination, utilizing the interest rate and mortality assumptions
described above.
(ii) With respect to the Dime Bancorp, Inc. Voluntary
Deferred Compensation Plan for Directors and the Deferred Compensation Plan for
Board Members of The Dime Savings Bank of New York, FSB (the "Deferred
Compensation Plans"), the present value of the deferred compensation Benefit of
an Active Participant shall equal (A) the current fair market value of the
Participant's
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account(s) under the Deferred Compensation Plans as of the date of
determination, plus (B) with respect to any determination date which results
from the first to occur of a Change in Control or Irrevocable Election, any
previously elected deferrals not yet accounted for under such plan with respect
to compensation attributable to the calendar year in which such Change in
Control or Irrevocable Election occurs. The present value of the deferred
compensation Benefit of an Inactive Participant shall be the amount allocated to
the Participant's account(s) under the Deferred Compensation Plans as of the
date of determination.
(iii) "Consumer Price Index" shall mean the Consumer Price
Index for All Urban Consumers, CPI-U, published by the Bureau of Labor
Statistics of the United States Department of Labor, New York - Northern New
Jersey - Long Island, NY-NJ-CT Area, "All Items" (1982-84 = 100), or any
successor index thereto covering New York City, appropriately adjusted.
5.4 Transfers to Another Trust. Prior to an Irrevocable Election or
Change in Control, upon the direction of the Company and the Bank concurred in
by the Committee, the Trustee shall deliver such assets of the Trust Fund as the
Company, the Bank and the Committee may direct to another irrevocable trust
established by the Company or the Bank, respectively, for the purpose of paying
Benefits to Participants and Beneficiaries under the Covered Arrangements. The
Trustee shall deliver a copy of the Committee's certification to the trustee of
the transferee trust at the time of delivery of the Trust assets.
5.5 Withholding Tax.
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(a) To the extent that amounts are to be paid under this
Article V by the Trustee directly to Participants and Beneficiaries, such
amounts shall be reduced by the Trustee by the amount of any income and
employment tax withholding required by law, as determined by the Dime and
promptly communicated to the Trustee. The Trustee also shall inform each
Participant and Beneficiary to whom payment is made, of the amounts withheld and
the purposes for such withholdings. Such withheld amounts shall then be paid by
the Trustee to the Dime, which shall remit such withheld amounts to, and shall
file the appropriate withholding reports with, the appropriate governmental
agencies.
(b) To the extent that amounts are to be paid under this
Article V by the Trustee directly to Participants and Beneficiaries, but the
Dime fails to direct the Trustee with respect to the appropriate amounts to be
withheld by the Trustee toward the satisfaction of applicable withholding
requirements, then the Trustee shall withhold amounts in respect of taxes at the
highest applicable rate for the appropriate jurisdiction as determined in good
faith by the Trustee, shall reduce such amounts by the such amount of tax
withholding, and shall inform the Dime and each Participant and Beneficiary to
whom payment is made, of the amounts withheld and the purposes for such
withholdings. Such withheld amounts shall then be paid by the Trustee to the
Dime, which shall remit such withheld amounts to, and shall file the appropriate
withholding reports with, the appropriate governmental agencies.
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(c) Unless otherwise agreed to by the Trustee, the Dime shall
be responsible for all tax information reporting with respect to payments made
to Participants and Beneficiaries hereunder.
5.6 Legal Action by Trustee. Except in the event the Company or the
Bank is Insolvent (as defined in Section 12.1), the Trustee shall not itself
commence any legal action, whether in the nature of an interpleader action,
request for declaratory judgment, or otherwise, requesting the court to (i)
determine the validity of this Trust Agreement or (ii) make any determination in
the Trustee's or the Committee's stead with respect to Benefits which this Trust
Agreement requires to be made by the Trustee or the Committee. Notwithstanding
the foregoing sentence, in defending any legal action brought by a Participant
or Beneficiary with respect to Benefits due on account of a Participant (and
with respect to the Committee, at any time in its sole discretion), the Trustee
and the Committee shall each be entitled to ask the court to determine the
Benefits due on account of such Participant.
5.7 Dime Obligations. Notwithstanding the provisions of this Trust
Agreement, each of the Dime entities shall remain obligated to pay all Benefits
to the full extent of its respective liabilities under the Covered Arrangements.
Following an Irrevocable Election or Change in Control, to the extent the Trust
assets are not sufficient to pay any Benefit in full when due, and the amount of
such shortfall is not contributed to the Trust as provided in Section 5.1(b)
hereof, then the Company and the Bank, to the extent of their respective
obligations, shall pay the amount not otherwise payable from the Trust directly
to the Participant or Beneficiary and shall
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provide the Trustee with evidence of such payment. Nothing in this Trust
Agreement shall relieve the Company or the Bank of any respective liabilities to
pay Benefits except to the extent such liabilities are satisfied from the Trust
Fund.
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ARTICLE VI
Settlement of Accounts
6.1 Trustee Records. The Trustee shall keep full, accurate and
detailed accounts of all investments, receipts and disbursements and other
transactions hereunder. Its financial statements, books and records with respect
to the Trust Fund shall be open to inspection by the Company, the Bank and the
Committee, and to their respective attorneys, accountants and agents upon
reasonable notice at all reasonable times during business hours of the Trustee.
6.2 Trustee Statements.
(a) The Trustee shall render to the Company, the Bank, and the
Committee monthly statements of its receipts and disbursements as Trustee
hereunder. Within 60 days after the close of each calendar year or any
termination of the duties of the Trustee, the Trustee shall prepare, sign and
mail to each of the Company, the Bank and the Committee one or more summary
reports. These reports shall show all purchases, sales, receipts, disbursements,
and other transactions effected by the Trustee during the year or period for
which the applicable report or reports are filed, and shall contain an exact
description, the cost as shown on the Trustee's books, and the fair market value
as of the end of such period, of every item held in the Trust and the amount and
nature of every obligation owed by the Trust, and any allocations of Trust Funds
made under the terms hereof. Each of the Company and the Bank shall make a copy
of such reports (or any adjustment thereof) available for inspection by
Participants and Beneficiaries (and persons designated by them) at its principal
executive office during
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business hours for a period of 60 days (30 days in the case of an adjusted
report). If within 90 days after receipt of the report neither the Company, the
Bank nor any Participant, Beneficiary or Committee member has filed with the
Trustee notice of any objection to any act or transaction of the Trustee, the
initial report shall become final as between the Trustee, the Company, the Bank,
the Committee and the Participants and Beneficiaries. If any objection has been
filed, and if the objecting party is satisfied that it should be withdrawn, the
objecting party shall in writing filed with the Trustee signify its approval of
the report, and it shall become a final report as between the Trustee, the
Company, the Bank, the Committee and the Participants and Beneficiaries. If the
report is adjusted following an objection thereto, the Trustee shall mail to the
Company, the Bank and the Committee the adjusted report, and if within 30 days
after receipt of the adjusted report neither the Company, the Bank nor any
Participant, Beneficiary or Committee member has filed with the Trustee notice
of any objection to the transactions as so adjusted, the adjusted report shall
become a final report as between the Trustee, the Company, the Bank, the
Committee and the Participants and Beneficiaries.
(b) Unless a report is fraudulent, when it becomes a final
report it shall be finally settled, and to the extent permitted by law, the
Trustee shall be completely discharged and released, as if such report had been
settled and allowed by a judgment or decree of a court of competent jurisdiction
in an action or proceeding in which the Trustee, the Company, the Bank, and the
Participants and Beneficiaries were parties.
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6.3 Audit. The Trustee shall from time to time permit an independent
public accountant selected by the Dime or the Committee to have access during
ordinary business hours to such records as may be necessary to audit the
Trustee's accounts.
6.4 Judicial Settlement. Nothing contained in this Trust Agreement
shall be construed as depriving the Trustee, the Company, the Bank or the
Committee of the right to have a judicial settlement of the Trustee's accounts,
and upon any proceeding for a judicial settlement of the Trustee's accounts or
for instructions the only necessary parties thereto in addition to the Trustee
shall be the Company, the Bank and the Committee.
6.5 Delivery of Records to Successor. In the event of the removal or
resignation of the Trustee, the Trustee shall deliver to the successor Trustee
all records which shall be required by the successor Trustee to enable it to
carry out the provisions of this Trust Agreement.
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ARTICLE VII
Taxes, Expenses and Compensation of Trustee
7.1 Taxes.
(a) Each of the Company and the Bank agrees that, for tax
purposes, all income, deductions and credits of the Trust Fund belong to them
(and not to the Trust Fund), as their interests may appear, as owners for income
tax purposes and shall be included on their respective income tax returns and
each of the Company and the Bank agrees to pay any taxes imposed on such
amounts.
(b) The Company and the Bank, as their interests may appear,
shall from time to time pay any and all taxes (references in this Trust
Agreement to taxes shall include interest and applicable penalties) of any and
all kinds whatsoever which at any time are due lawfully levied or assessed upon
or become payable in respect of the Trust Fund, its income or any property
forming a part thereof, or any security transaction pertaining thereto.
Notwithstanding the foregoing, in the event that the Trustee is notified that
taxes are nonetheless levied or assessed upon or are payable in respect of the
Trust Fund (notwithstanding its status as a "grantor trust") and have not been
paid by the Company or the Bank, such amounts may be paid from the Trust Fund,
and, if so paid, thereafter all determinations of funding obligations and excess
assets will be based on the assumption that the future earnings of the Trust
Fund (as assumed in present value calculations) will be reduced by taxes
thereon. The Trustee shall notify the Dime of any proposed or final assessments
of taxes and may assume that any such taxes are lawfully levied or assessed
unless the Company or the
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Bank advise it in writing to the contrary within 15 days after receiving the
above notice from the Trustee. In such case, the Trustee, if requested by the
Company or the Bank in writing, shall contest the validity of such taxes in any
manner deemed appropriate by the Company or the Bank (and the Company or the
Bank shall pay all fees and disbursements related to such contest, including
costs of counsel, accountants and other professionals); or the Company or the
Bank may contest the validity of any such taxes, in which case the Company or
the Bank shall so notify the Trustee and the Trustee shall have no
responsibility to contest such taxes. If any party to this Trust Agreement
contests any such proposed levy or assessment, the other parties shall provide
such information and cooperation as the party conducting the contest shall
reasonably request. In lieu of contesting any proposed levy or assessment, the
Company or the Bank may pay all or any portion of any such taxes at any time. If
either the Company or the Bank are paying such taxes it shall notify the Trustee
of its intention to do so within 15 days after receiving the above notice from
the Trustee or within five days after a determination of any such contested levy
or assessment becomes final, either because the determination cannot be appealed
or no appeal of the determination was made.
7.2 Expenses and Compensation. The Trustee shall be paid compensation
by the Dime in accordance with the schedule of fees attached hereto as Appendix
II. The Dime and the Trustee may mutually agree to revise such schedule from
time to time. Subject to the Dime's approval prior to an Irrevocable Election or
a Change in Control, and subject to the approval of the Committee following an
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Irrevocable Election or a Change in Control, the Trustee shall be reimbursed by
the Dime for its reasonable expenses of management and administration of the
Trust, including reasonable compensation of the actuary and any counsel or other
service providers engaged by the Trustee to assist it in such management and
administration in accordance with Sections 2.3(h) and (i) hereof.
7.3 Expense Account and Service Providers
(a) The Dime may from time to time make contributions to the
Trust Fund to be held in an Expense Account, the contributions to which may be
used to pay the Trustee's and the Committee's fees and expenses in accordance
with this Trust Agreement. At the time of an Irrevocable Election or Change in
Control, the Committee shall determine the amount that is reasonably necessary
to pay anticipated Trust expenses over the remaining life of the Trust, which
amount shall not be less than $3 million, and the Company and the Bank shall
each be jointly and severally liable to pay and deliver to the Trustee an amount
determined so that when it is added to amounts previously contributed to be held
in the Expense Account, the amount held or the Expense Account equals such
amount. The allocation of amounts contributed to and held in the Expense Account
as Company Trust Assets and Bank Trust Assets shall be based on the proportion
of the amounts actually contributed by each entity, provided that the Company
and the Bank may agree to a different allocation of those amounts between and
among Company Trust Assets and Bank Trust Assets if either initially contributes
more than 50% of the total amount so contributed or otherwise, in which event
the Company and the Bank shall inform the Trustee and the Committee of
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such revised allocation, which revised allocation shall apply; provided,
however, that after a Change in Control or an Irrevocable Election, revision of
a previously applicable allocation of Expense Account amounts between Company
Trust Assets and Bank Trust Assets shall require the consent of the Committee.
On and after an Irrevocable Election or a Change in Control, the Trustee shall
allocate to the Expense Account, on a pro-rata basis with the remainder of the
Trust Fund, the income of the Trust Fund and gains and losses (including gains
and losses not yet realized on Trust Fund assets), as of the last day of each
calendar month; provided, however, that the Committee may direct that the
Expense Account be invested separately from other assets of the Trust Fund, in
which event the Expense Account will be allocated the gains and losses of those
separate investments. To the extent there is a balance in the Expense Account,
the Trustee shall utilize such balance for payment of its fees and expenses and
the fees and expenses of the Committee as provided in Section 7.2 and this
Section 7.3 and for payment of the indemnities referred to in Section 9.1 and
9.2, and in the absence of such a balance, shall seek reimbursement from the
Dime. In the event that the Dime shall fail or refuse to make such reimbursement
within 90 days of demand, the Committee shall direct the Trustee to satisfy such
obligations out of the other assets of the Trust Fund in such manner as the
Committee deems to be reasonable in the circumstances. If the Committee directs
the Trustee to pay fees and expenses from other Trust Fund assets, the Dime
shall, upon demand by the Committee, deposit into the Trust Fund a sum equal to
the amount paid from other assets of the Trust Fund for such fees and expenses.
Before an Irrevocable Election or a Change in Control, amounts may be
reallocated from the Expense Account to be maintained as other assets of the
Trust Fund at the direction of the Company and the Bank, acting together. After
an Irrevocable Election or a Change in Control, solely to
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the extent the Committee determines appropriate, amounts may be reallocated from
the Expense Account to be maintained as other assets of the Trust Fund, at the
time and in the manner directed by the Committee.
(b) The Committee shall have the power and authority to engage
counsel or other service providers (including consultants and administrators) of
its choice to the extent it deems it necessary or appropriate in order to
fulfill its obligations hereunder, or otherwise to determine, defend or assert
any of the rights or interests of the Committee, the Trust or its beneficiaries
provided for under this Trust Agreement (which shall include the authority to
engage actuaries, counsel and other experts as the Committee deems necessary in
order to perform its duties under Section 5.1). The Committee shall, in
addition, have the power and authority to direct the Trustee to purchase
liability insurance to cover any or all of (a) the Committee, (b) each of the
Committee's current and former members, (c) any current or former director,
officer or employee of the Dime who is or was serving or agrees to serve at the
request of the Dime or the Committee as an authorized agent or delegatee of the
Bank or the Committee, (d) any other agent of the Committee or the Trust and (e)
the Trustee (each, to the extent so insured, an "Insured Party") with respect to
any and all liabilities to which such Insured Party may become subject pursuant
to, arising out of, occasioned by, or incurred in connection with or in any way
associated with this Trust Agreement, including, without limitation, liabilities
to the Dime, subject to such limitations on coverage, deductibles, or other
terms and conditions as the Committee shall in its sole discretion deem
reasonable. To the extent the Committee (or the
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Trustee as directed by the Committee) incurs reasonable expenses as described
above, or incurs other reasonable expenses in performing its duties under this
Trust Agreement, such expenses shall be paid or otherwise reimbursed out of the
Expense Account as a Trust Expense, if and to the extent directed by the
Committee, and if not otherwise previously paid or reimbursed by the Dime. In
the event that there are insufficient funds in the Expense Account and the Dime
shall fail or refuse to make such reimbursement within 90 days of demand, the
Committee may direct that other Trust Fund assets be applied to satisfy such
reimbursement obligation. If such fees and expenses are paid from other Trust
Fund assets, the Dime shall, upon demand by the Committee, deposit into the
Trust Fund a sum equal to the amount paid from other assets of the Trust Fund
for such fees and expenses.
(c) Following an Irrevocable Election or Change in Control,
each member of the Committee who is not at the time of any meeting of the
Committee an employee, officer or director of the Dime shall receive a fee of
$1,500 for each meeting of the Committee which he or she attends personally and
$1,000 for each meeting of the Committee which he or she attends by telephone or
other electronic or wireless means enabling all members in attendance to
communicate with each other contemporaneously, and, following the time such
member of the Committee ceases to be an employee, officer or director of the
Dime, shall be reimbursed for any reasonable out-of-pocket expenses incurred in
connection with performing his or her duties under this Trust Agreement. Upon
presentation of a request for such reimbursements to the Trustee (containing
such information, including receipts for out-of-pocket expenses, as
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the Trustee may reasonably request), then, if not previously reimbursed by the
Dime, the Committee shall direct the Trustee to make such reimbursements, which
shall be reimbursed out of the Trust Fund.
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ARTICLE VIII
For Protection of Trustee and Committee
8.1 Evidence of Action by the Dime.
(a) Each of the Company and the Bank has certified to the
Trustee the name or names of any person or persons authorized to act for it on
Appendix IV hereto. Unless the Company or the Bank notifies the Trustee, in a
notice signed by its Secretary or by an Assistant Secretary, that any person
listed on Appendix IV to this Trust Agreement is no longer authorized to act for
the Company or the Bank, the Trustee may continue to rely upon the authority of
such person. The Company or the Bank may certify to the Trustee, in a notice
signed by its Secretary or by an Assistant Secretary, the names of any
additional persons authorized to act for the Company or the Bank. Appendix IV
shall be deemed to be revised to reflect any additions or deletions made in
accordance with this Section 8.1(a).
(b) The Trustee may rely upon any certificate, notice or
direction of the Company or the Bank which the Trustee reasonably believes to
have been signed by at least two duly authorized officers or agents of the
Company or the Bank.
(c) With respect to any action required or permitted to be
taken by Dime hereunder, the Trustee may rely upon the authorization, approval,
direction or consent given by either the Company or the Bank in accordance
herewith, and shall not be required to obtain any additional authorization,
approval, direction or consent of the
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other party hereto, and any action taken by either of the Company or the Bank
for such purposes shall be binding on the other.
8.2 Evidence of Action by the Committee.
(a) The Trustee may rely on a signed notice of resignation by a
Committee member, and a notice of vacancy or appointment of a successor provided
in accordance with Section 13.6.
(b) The Trustee may rely upon any certificate, notice or
direction of the Committee which the Trustee reasonably believes to have been
signed by at least two members of the Committee or, if the Committee then
consists of only one member, by such member.
(c) The Committee may from time to time delegate to one or more
persons any or all of its rights, powers, duties and responsibilities hereunder.
Such delegation shall be effective when made in writing and delivered to the
Trustee, the Company and the Bank as provided in Section 13.7 hereof, for the
period and to the extent set forth therein. Notwithstanding the foregoing,
however, the Committee may not delegate any of its rights, powers, duties or
responsibilities under any of Sections 12.3, 12.6, 13.5, 13.6(b) or 13.6(c) of
this Trust. The Trustee may rely upon any certificate, notice or direction of
such delegatee or delegatees which the Trustee reasonably believes to have been
signed by such delegatee or delegatees, as to matters within the authority
granted by the Committee to such person or persons. Any such delegation may be
partially or wholly revoked by the Committee at any time, in accordance with
Section 13.6(d) hereof.
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8.3 Fiduciary Responsibility.
(a) The Trustee shall discharge its duties under this Trust
Agreement in a manner consistent with the objectives of this Trust Agreement and
in accordance with applicable law. Except as otherwise provided in this Trust
Agreement, or under applicable law, the Trustee shall have no liability for (i)
loss sustained by the Trust Fund by reason of the purchase, retention, sale or
exchange of any investment made in accordance with the written directions of the
Dime or the Committee; (ii) failure of the Company or the Bank to make
contributions to the Trust Fund; or (iii) for any insufficiency of assets in the
Trust Fund to pay Benefits when due, unless such loss, failure or insufficiency
is the result of the Trustee's own negligence or willful misconduct.
(b) The Trustee's duties and obligations shall be limited to
those expressly imposed upon it by this Trust Agreement.
(c) The Company and the Bank at any time may employ as agent
(to perform any act, keep any records or accounts, or make any computations
required of either of them by this Trust Agreement or the Covered Arrangements)
the corporation or association serving as Trustee hereunder. Nothing done by
said corporation or association as such agent shall affect its responsibilities
or liability as Trustee hereunder.
(d) In the exercise of its discretion hereunder, the Committee
shall have due regard for the interests of each of the Company, the Bank and the
Participants (and their Beneficiaries) as a class; provided, that inasmuch as
the
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interests of such class or entities may be expected to conflict in certain
circumstances, and notwithstanding that members of the Committee may themselves
be Participants, any determination made by the Committee that has the effect of
being more favorable to one entity or class to which it owes a duty over another
shall not thereby be deemed invalid or a breach of the Committee's duty to such
disfavored entity or class, so long as the Committee acts in good faith in
making its determination.
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ARTICLE IX
Indemnity of Trustee and Committee
9.1 Indemnity of Trustee. The Company and the Bank (the "Indemnifying
Parties") hereby jointly and severally indemnify and hold the Trustee harmless
from and against any Liabilities (as defined in Section 9.2) to which the
Trustee may become subject pursuant to, arising out of, occasioned by, or
incurred in connection with or in any way associated with this Trust Agreement,
unless such Liabilities result or arise from any act or omission constituting
gross negligence or willful misconduct of the Trustee. If one or more
Liabilities shall arise and the Indemnifying Parties fail to indemnify the
Trustee as provided herein, then the Trustee may engage counsel of the Trustee's
choice at the expense of the Indemnifying Parties, provided such expenses are
reasonable; and provided further, the Trustee shall be entitled either to
conduct the defense against such Liabilities or to conduct such actions as may
be necessary to obtain the indemnity provided for herein, or to take both such
actions. The Trustee shall notify the Indemnifying Parties of the name and
address of such counsel before the Trustee has so engaged such counsel. If the
Trustee shall be entitled to indemnification by the Indemnifying Parties,
pursuant to this Section 9.1, as determined by a court of competent jurisdiction
and the Indemnifying Parties shall not provide such indemnification upon demand,
the Trustee may apply assets of the Trust Fund in full satisfaction of the
obligations for indemnity by the Indemnifying Parties, and any legal proceeding
by the Trustee against the Indemnifying Parties for such indemnification shall
be in behalf of the Trust.
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9.2 Indemnification of Committee and Agents. The Indemnifying Parties
shall indemnify, to the fullest extent permitted by their respective
Certificates of Incorporation (or equivalent) and By-Laws (collectively, the
"Governing Documents") and applicable law, (including the provisions thereof
relating to advances of costs, charges and expenses), any person who is, or
business entity, including without limitation a corporation, limited liability
company or partnership, that is owned by, a current or former director, officer
or employee of either of such Indemnifying Parties or of any of their direct or
indirect subsidiaries who is or was serving or agrees to serve either at the
request of either of such Indemnifying Parties or of such subsidiary or as a
result of being selected to serve in accordance with Section 13.6 hereof or the
corresponding provision of the Director Trust Agreement as a member of the
Committee, or as an authorized agent or delegatee of the Company, the Bank, the
Committee (each such indemnified person or business entity, an "Indemnified
Party") against any loss, damage, liability, cost, charge or expense (including
attorneys' fees), judgment, fine and amount paid in settlement (herein
"Liabilities") actually and reasonably incurred by such Indemnified Party or on
such Indemnified Party's behalf in connection with any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, investigative or
administrative, and whether threatened or brought by a third party or by the
Dime, relating to or in connection with such Indemnified Party's service as a
member of the Committee or as such authorized agent or delegatee; provided, that
the Indemnified Party has met any applicable standard of conduct required by or
pursuant to the Governing Documents or by applicable law or
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regulation in order to qualify for indemnification thereunder, as well as any
other conditions to such indemnification imposed by the Governing Documents or
by applicable law or regulation and provided, further, that in the event that
such indemnification (including any provision relating to advances of costs,
charges and expenses) is permissible but not required by the Governing
Documents, and the Indemnifying Parties shall fail to provide such
indemnification when requested by an Indemnified Party, then subject to any
conditions set forth in the Governing Documents, the Trustee shall indemnify
such Indemnified Party out of the assets of the Trust Fund. In connection with
such indemnification, the Company and the Bank hereby acknowledge that each
member of the Committee and each authorized agent or delegatee of the Company,
the Bank, the Committee is or will be serving as such at the request of each of
the Company and the Bank, both before and after any Change in Control or
Irrevocable Election. Any determination as to whether the Indemnified Party has
met such applicable standard of conduct or other conditions to indemnification
shall be made in accordance with the provisions of the Governing Documents and
applicable law or regulation, as in effect at the time of an Irrevocable
Election or Change in Control. Unless otherwise required by applicable law, this
Section 9.2 may be amended only in accordance with Section 11.3 hereof; provided
that, in addition, this Section 9.2 shall not be rescinded or modified so as to
materially reduce the indemnification provided hereunder without first giving
thirty (30) days advance written notice of such rescission or modification to
each individual then entitled to indemnification hereunder, or so as to
materially reduce the indemnification provided
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hereunder with respect to actions taken or omitted to be taken prior to the
effective date of such rescission or modification. An Indemnifying Party may
satisfy its obligation under this Section 9.2 in whole or in part by purchase of
a policy or policies of insurance, but no insurer shall have any rights against
an Indemnifying Party or the Trust arising out of this Section 9.2. If an
Indemnified Party shall be entitled to indemnification by an Indemnifying Party,
pursuant to this Section 9.2, as determined by a court of competent jurisdiction
and such Indemnifying Party shall not provide such indemnification upon demand,
the Trustee shall, to the extent permitted by law, apply the Company Trust
Assets or Bank Trust Assets in full satisfaction of the obligations for
indemnity by the Company or the Bank, as the case may be, and any subsequent
legal proceedings by the Indemnified Party against the Company or the Bank for
such indemnification shall be on behalf of the Trust.
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ARTICLE X
Resignation and Removal of Trustee
10.1 Resignation of Trustee. The Trustee may resign upon 90 days' prior
written notice to the Committee and the Dime, except that any such resignation
shall not be effective until the Dime has appointed in writing a successor
Trustee, which must be a bank or trust company, acceptable to the Committee. The
Dime shall make a good faith effort, following receipt of notice of resignation
from the Trustee, to appoint a successor Trustee under this Trust Agreement. In
the event the Dime has failed to appoint a successor Trustee within six months
of the Trustee's notice of resignation, the Trustee shall be entitled to seek
judicial removal.
10.2 Removal of Trustee. At any time prior to the occurrence of an
Irrevocable Election, Change in Control or Potential Change in Control, the Dime
may remove the Trustee without cause upon at least 30 days' notice in writing to
the Trustee. At any time after the occurrence of an Irrevocable Election, Change
in Control or Potential Change in Control, the Trustee may be removed by action
of the Committee. In case of a removal of the Trustee for cause (which, for
these purposes, shall include criminal conduct, gross negligence, mismanagement
of trust funds, or any other material breach of fiduciary duty hereunder), the
party having power to do so hereunder may remove the Trustee immediately,
without any prior notice. At any time after the occurrence of an Irrevocable
Election or Change in Control, the Trustee may also be removed by the Dime upon
the action of the Participants who, at the time such removal is sought, hold in
the aggregate a majority of the beneficial interests in the
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Trust Fund. Any notice sent to Participants seeking their consent to removal of
the Trustee, shall, to the extent the Dime has selected a successor Trustee,
include the name and address of the proposed successor trustee. For purposes of
this Section 10.2, and all other Sections of this Trust Agreement which refer to
this Section 10.2 for purposes of determining the Participants who hold a
majority of the beneficial interests in the Trust Fund, the beneficial interest
of each Participant shall be deemed to be the present value of the projected
total Benefits payable to the Participant, determined in accordance with Section
5.3(b). For purposes of this Trust Agreement where the exercise of rights or
powers conferred on a Participant hereunder requires "action," such action may
be taken by the vote of the Participant present in person or by proxy at a duly
held meeting of Participants or by the written consent of such Participant.
10.3 Successor Trustee. (a) If the Trustee resigns (or is removed) in
accordance with Section 10.1 or 10.2 hereof, (i) prior to an Irrevocable
Election, Change in Control or Potential Change in Control, the Dime may appoint
any third party, such as a bank trust department or other party that may be
granted corporate trustee powers under state law, as a successor to replace the
Trustee upon resignation or removal, and (ii) on or after the date of an
Irrevocable Election, Change in Control or Potential Change in Control, only the
Committee may appoint any third party, such as a bank trust department or other
party that may be granted corporate trustee powers under state law, as a
successor to replace the Trustee upon resignation or removal; provided, however,
that in the case of either the preceding clause (i) or (ii), such successor
Trustee may not be an Affiliate of the Company or the Bank or a party (or
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Affiliate of a party) to a Change in Control or then existing Potential Change
in Control. The appointment shall be effective when accepted in writing by the
new Trustee. The former Trustee shall execute any instrument(s) necessary or
reasonably requested by the Dime or the successor Trustee to evidence the
transfer.
(b) All of the provisions set forth herein with respect to the
Trustee shall relate to each successor Trustee with the same force and effect as
if such successor had been originally named as the Trustee hereunder.
10.4 Transfer of Trust Fund to Successor. Upon the resignation or
removal of the Trustee and appointment of a successor, the Trustee shall
transfer and deliver the Trust Fund and such records or copies of such records
as are reasonably requested to such successor. Following the effective date of
the appointment of the successor, the Trustee's responsibility hereunder shall
be limited to managing the assets in its possession and transferring such assets
to the successor, and settling its final account. Neither the Trustee nor the
successor shall be liable for the acts of the other.
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ARTICLE XI
Duration, Termination and Amendment of Trust
11.1 Duration and Termination. (a) Except as provided in this Trust
Agreement, the Trust is hereby declared to be irrevocable and shall continue
until whichever of the following shall first occur: (i) all payments required by
this Trust Agreement have been made or (ii) the Trust Fund contains no assets
and retains no claims to recover assets from Company or the Bank pursuant to any
provision hereof.
(b) The Company and the Bank may terminate this Trust prior to
the time all Benefit payments under the Covered Arrangements have been made,
provided, however, that the prior written consent of the Participants who, at
the time such termination is sought, hold in the aggregate a majority of the
beneficial interests in the Trust Fund, must be obtained. The determination of
each Participant's beneficial interest for this purpose shall be made in
accordance with Section 10.2. All Company Trust Assets in the Trust upon the
termination of the Trust pursuant to this Section 11.1(b) shall be returned to
the Company, and all Bank Trust Assets in the Trust upon such termination shall
be returned to the Bank.
11.2 Distribution Upon Termination. If this Trust terminates under the
provisions of Section 11.1(a), the Trustee shall liquidate the Trust Fund and,
after its final account has been settled as provided in Article VI, shall
distribute to the Company and the Bank the net balance of any Company Trust
Assets and Bank Trust Assets, respectively, and the net balance of the Expense
Account, remaining after all Benefits and expenses have been paid. Upon making
such distribution, the Trustee shall be
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relieved from all further obligations. The powers of the Trustee hereunder shall
continue so long as any assets of the Trust Fund (including claims against the
Company or the Bank) remain in its hands.
11.3 Amendment.
(a) Prior to an Irrevocable Election, Change in Control or
Potential Change in Control, this Trust Agreement may be amended from time to
time by action of the Company and the Bank, which action may be taken, and shall
be evidenced, in writing by any of the Chief Executive Officer, the Chief
Operating Officer or the Chief Human Resources Officer of each entity, certified
by the Secretary or an Assistant Secretary of such entity.
(b) Subsequent to an Irrevocable Election, Change in Control or
Potential Change in Control, this Trust Agreement may be amended only by the
Committee, provided that the Committee shall exercise its authority to amend the
Trust Agreement only to the extent that such exercise of authority does not
eliminate the rights of creditors of the Bank or the Company to Trust assets in
the event that the Bank or Company becomes Insolvent (as such term is used in
Article XII) or otherwise cause the Trust to fail to be a "grantor trust"
pursuant to Sections 671 through 679 of the Code. No amendment to this Trust
Agreement shall adversely affect any of a Participant's Benefits, or, after an
Irrevocable Election or Change in Control, the amount credited to a
Participant's Account without the consent of the affected Participant. No
amendment to this Trust Agreement that could materially increase the costs of
the Trust to the Company or the Bank shall be made without the approval of
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the affected entity, which approval may be evidenced by a writing by any of the
Chief Executive Officer, the Chief Operating Officer or the Chief Human
Resources Officer of such entity, certified by the Secretary or an Assistant
Secretary of such entity. In the event there is any dispute between the
Committee and the Dime as to whether a proposed amendment to the Trust Agreement
could materially increase the costs of the Trust to the Company or the Bank, the
Trustee shall reach its own independent determination with respect to such
dispute, which determination shall be final and binding on the parties.
(c) No amendment of this Trust Agreement shall be made that
alters the irrevocable character of the Trust established under this Trust
Agreement, and no amendment shall materially increase the duties or
responsibilities of the Trustee unless the Trustee consents thereto in writing.
(d) (i) A "Potential Change in Control" shall be deemed to
have occurred if the event set forth in any one of
the following paragraphs shall have occurred:
(A) the Company enters into an agreement, the
consummation of which would result in the occurrence of a Change in Control;
(B) the Company or any Person publicly announces
an intention to take or to consider taking actions which, if consummated, would
constitute a Change in Control;
(C) any Person becomes the Beneficial Owner,
directly or indirectly, of securities of the Company representing 15% or more of
either
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the then outstanding shares of common stock of the Company or the combined
voting power of the Company's then outstanding securities (not including in the
securities beneficially owned by such Person, any securities acquired directly
from the Company or its Affiliates); or
(D) the Board of Directors of the Company adopts
a resolution to the effect that, for purposes of this Agreement, a Potential
Change in Control has occurred.
As used in connection with the foregoing definition of
Potential Change in Control, "Affiliate," "Beneficial Owner," "Exchange Act" and
"Person" shall have the respective meanings as set forth in Section 13.4 hereof.
(ii) The Committee shall determine whether a Potential
Change in Control or an Abandonment Date has occurred. If the Committee makes
such a determination, then the Committee shall promptly notify the Company, the
Bank and the Trustee of such determination.
In particular, and without limiting the generality of the foregoing, the
parties to this Trust Agreement acknowledge that, as of the date hereof, a
Potential Change in Control has occurred in respect of the exchange offer by
North Fork Bancorporation, Inc. for common shares of the Company.
(iii) As used in this Section, the term "Abandonment Date"
shall mean the date on which (A) an agreement described in Section (d)(i)(A)
above is terminated (pursuant to its terms or otherwise) without having been
consummated, (B) all parties described in Section (d)(i)(B) above publicly
announce
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that they have unconditionally abandoned the transactions contemplated, (C) the
Board adopts a resolution rescinding its previous determination that a Potential
Change in Control has occurred or (D) a court or regulatory body having
competent jurisdiction enjoins or issues a cease and desist or stop order with
respect to or otherwise prevents the consummation of, or a regulatory body
notifies the Bank or the Company that it will not approve, a transaction
described in Section (d)(i)(A) or (B) above or the transactions contemplated
thereby and such injunction, order or notice has become final and not subject to
appeal.
(iv) Following the Abandonment Date of a Potential Change
in Control, the provisions of this Trust Agreement in effect following a
Potential Change in Control shall no longer apply, and the provisions of this
Trust Agreement in effect prior to a Potential Change in Control shall again
apply, unless and to the extent that, prior to the Abandonment Date of such
Potential Change in Control, another Potential Change in Control, or an
Irrevocable Election or Change in Control, has occurred with respect to which
those provisions, as applicable, will continue to separately apply.
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ARTICLE XII
Claims of Creditors
12.1 Insolvency of Bank. As used in this Article XII, the Bank shall be
deemed to be "Insolvent" if (i) the Bank is subject to a pending proceeding
seeking a decree or order of a court or agency or supervisory authority having
jurisdiction in the premises for the appointment of a conservator or receiver or
trustee or liquidator in any insolvency, liquidation, taking of possession,
termination of deposit insurance, readjustment of debt, marshaling of assets and
liabilities or similar proceedings of or relating to the Bank or of or relating
to all or substantially all of its property, or for the winding up or
liquidation of its affairs, under any federal or state law relating to
bankruptcy or insolvency, or (ii) the Bank is unable to pay its debts as they
become due. The Chief Executive Officer or Board of Directors of the Bank shall
promptly notify the Trustee in the event that the Bank becomes Insolvent. If at
any time the Trustee has determined that the Bank is Insolvent, the Trustee
shall discontinue payments to Participants or their Beneficiaries from the Bank
Trust Assets and shall hold the Bank Trust Assets of the Trust for the benefit
of the Bank's general creditors. Nothing in this Trust Agreement shall in any
way diminish any rights of Participants or their Beneficiaries to pursue their
rights as general creditors of the Bank with respect to Benefits due under the
Covered Arrangements or otherwise, or (except in the event the Company becomes
Insolvent) the rights of Participants or their Beneficiaries to receive payments
of Company Benefits from the Company Trust Assets.
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12.2 Trustee's Responsibilities if Bank May Be Insolvent.
(a) If at any time the Bank or a person claiming to be a
creditor of the Bank alleges in writing to the Trustee that the Bank has become
Insolvent, the Trustee shall within 30 days of such allegation, independently
determine whether the Bank is Insolvent and, pending such determination, the
Trustee shall discontinue payments from the Bank Trust Assets of Benefits under
the Covered Arrangements and this Trust Agreement.
(b) If the Bank notifies the Trustee or the Trustee determines
that the Bank is Insolvent, the Trustee shall hold the Bank Trust Assets for the
benefit of the Bank's general creditors, and shall disburse assets from the Bank
Trust Assets to creditors of the Bank only pursuant to an order from a court of
competent jurisdiction.
(c) If the Trustee discontinues payment from the Bank Trust
Assets of Benefits pursuant to this Section 12.2, the Trustee shall resume
payments from the Bank Trust Assets of Benefits under the Covered Arrangements
only after the Trustee has determined that the Bank is not Insolvent (or is no
longer Insolvent, if the Trustee initially determined the Bank to be Insolvent).
The first payment to a Participant following such discontinuance shall include
an aggregate amount equal to the difference between the payments which would
have been made to such Participant under this Trust Agreement but for this
Section 12.2 and the aggregate payments actually otherwise made to such
Participant pursuant to the Covered Arrangements during any such period of
discontinuance; provided, however, that such payment shall
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be made from the Bank Trust Assets only to the extent Bank Trust Assets are then
available for such purposes.
12.3 Trust Recovery of Payments to Creditors. In the event that an
amount is paid from the Trust Fund to creditors of the Bank (other than as
provided in Article V and Section 7.3), then as soon as practicable (or if the
Bank is then Insolvent, as soon as the Bank is no longer Insolvent) but subject
to the sole discretion of the Bank or, following an Irrevocable Election or
Change in Control, subject to the sole discretion of the Committee, and upon the
Trustee's demand, the Bank shall deposit into the Trust Fund a sum equal to the
amount paid by the Trust Fund to such creditors.
12.4 Insolvency of Company. As used in this Article XII, the Company
shall be deemed to be "Insolvent" if (i) the Company is subject to a pending
proceeding seeking a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
conservator or receiver or trustee or liquidator in any insolvency, liquidation,
taking of possession, readjustment of debt, marshaling of assets and liabilities
or similar proceedings of or relating to the Company or of or relating to all or
substantially all of its property, or for the winding up or liquidation of its
affairs, under any federal or state law relating to bankruptcy or insolvency, or
(ii) the Company is unable to pay its debts as they become due. The Chief
Executive Officer or Board of Directors of the Company shall promptly notify the
Trustee in the event that the Company becomes Insolvent. If at any time the
Trustee has determined that the Company is Insolvent, the Trustee shall
discontinue payments to Participants or their Beneficiaries from the Company
Trust Assets and shall hold the
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Company Trust Assets of the Trust for the benefit of the Company's general
creditors. Nothing in this Trust Agreement shall in any way diminish any rights
of Participants or their Beneficiaries to pursue their rights as general
creditors of the Company with respect to Benefits due under the Covered
Arrangements or otherwise, or (except in the event the Bank becomes insolvent)
the rights of Participants or their Beneficiaries to receive payments of Bank
Benefits from the Bank Trust Assets.
12.5 Trustee's Responsibilities if Company May Be Insolvent.
(a) If at any time the Company or a person claiming to be a
creditor of the Company alleges in writing to the Trustee that the Company has
become Insolvent, the Trustee shall within 30 days of such allegation,
independently determine whether the Company is Insolvent and, pending such
determination, the Trustee shall discontinue payments from the Company Trust
Assets of Benefits under the Covered Arrangements and this Trust Agreement.
(b) If the Company notifies the Trustee or the Trustee
determines that the Company is Insolvent, the Trustee shall hold the Company
Trust Assets for the benefit of the Company's general creditors, and shall
disburse assets from the Company Trust Assets to creditors of the Company only
pursuant to an order from a court of competent jurisdiction.
(c) If the Trustee discontinues payment from the Company Trust
Assets of Benefits pursuant to this Section 12.5, the Trustee shall resume
payments from the Company Trust Assets of Benefits under the Covered
Arrangements only after the Trustee has determined that the Company is not
Insolvent (or is no longer
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Insolvent, if the Trustee initially determined the Company to be Insolvent). The
first payment to a Participant following such discontinuance shall include an
aggregate amount equal to the difference between the payments which would have
been made to such Participant under this Trust Agreement but for this Section
12.5 and the aggregate payments actually otherwise made to such Participant
pursuant to the Covered Arrangements during any such period of discontinuance;
provided, however, that such payment shall be made from the Company Trust Assets
only to the extent Company Trust Assets are then available for such purposes.
12.6 Trust Recovery of Payments to Creditors. In the event that an
amount is paid from the Trust Fund to creditors of the Company (other than as
provided in Article V and Section 7.3), then as soon as practicable (or if the
Company is then Insolvent, as soon as the Company is no longer Insolvent) but
subject to the sole discretion of the Company or, following an Irrevocable
Election or Change in Control, subject to the sole discretion of the Committee,
and upon the Trustee's demand, the Company shall deposit into the Trust Fund a
sum equal to the amount paid by the Trust Fund to such creditors.
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ARTICLE XIII
Miscellaneous
13.1 Governing Law. This Trust Agreement and the Trust hereby created
shall be governed, construed and regulated by the laws of the State of New York,
without regard to the conflict of laws principles thereof. The parties to this
Agreement agree and expressly consent that any action brought pursuant to or to
enforce the terms of this Agreement may be brought in the courts of the State of
New York sitting in New York, New York, or the United States District Court for
the Southern District of New York. Each of the parties to this Agreement agrees
and expressly consents to submit to the exclusive jurisdiction of the
above-listed courts in any action alleging a breach of this Agreement or seeking
to invalidate or limit the enforceability of this Agreement or of any provision
thereof. Nothing in this provision, however, shall be construed to limit the
Trustee's or the Committee's ability to serve process or commence any action
against any of the parties hereto in any appropriate forum.
13.2 Titles and Headings Not to Control. The titles to Articles and
headings of Sections in this Trust Agreement are placed herein for convenience
of reference only and in case of any conflict, the text of this Trust Agreement,
rather than such titles or headings, shall control.
13.3 Successors and Assigns. Except as provided herein, this Trust
Agreement may not be assigned by any party without the prior written consent of
the other parties, and any purported assignment without such prior written
consent shall be null and void. This Trust Agreement shall be binding upon the
successors and
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permitted assigns of each party hereto. In the case of any consolidation of the
Company or the Bank with, or merger of the Company or the Bank with or into, any
corporation or other entity, or any sale or conveyance of all or substantially
all of the assets of the Company or the Bank, the corporation or other entity
formed by such consolidation, or with or into which the Company or the Bank is
merged, or any Person which acquires all or a majority of the assets of the
Company or the Bank, shall expressly assume in writing, in form satisfactory to
the Trustee, the duties and obligations of the Company or the Bank, as the case
may be, under this Trust Agreement and the Covered Arrangements; provided,
however, that the duties and obligations of the Company or the Bank, as the case
may be, under this Trust Agreement and the Covered Arrangements shall be binding
on any such successor notwithstanding its failure to expressly assume such
duties and obligations in writing. Neither the Company nor the Bank shall sell
or convey all or a majority of its assets to any Person unless such Person has
expressly assumed in writing, in form satisfactory to the Trustee, each of the
duties and obligations of the Company or the Bank, as the case may be, under
this Trust Agreement and the Covered Arrangements.
13.4 Change in Control. For purposes of this Trust Agreement, a "Change
in Control" shall be deemed to have occurred if the event set forth in any one
of the following paragraphs shall have occurred:
(i) any Person is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Company (not including in the
securities beneficially owned by such Person any securities acquired directly
from the Company
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or its Affiliates) representing 35% or more of the combined voting power of the
Company's then outstanding securities; or
(ii) the following individuals cease for any reason to
constitute a majority of the number of directors then serving as directors of
the Company: individuals who, on July 24, 1997, constitute the Board of
Directors of the Company and any new director (other than a director whose
initial assumption of office is in connection with the settlement of an actual
or threatened election contest, including but not limited to a consent
solicitation, relating to the election of directors of the Company) whose
appointment or election by the Board of Directors of the Company or nomination
for election by the Company's stockholders was approved or recommended by a vote
of at least two-thirds (2/3) of the directors then still in office who either
were directors on July 24, 1997 or whose appointment, election or nomination for
election was previously so approved or recommended; or
(iii) there is consummated a merger or consolidation of
the Company or any direct or indirect subsidiary of the Company with any other
corporation or entity, other than (A) a merger or consolidation which would
result in the voting securities of the Company outstanding immediately prior to
such merger or consolidation continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving entity
or any Parent thereof), in combination with the ownership of any trustee or
other fiduciary holding securities under an employee benefit plan of the Company
or any subsidiary of the Company, at least 65% of the combined voting power of
the securities of the Company, such
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surviving entity or any Parent thereof outstanding immediately after such merger
or consolidation or (B) a merger or consolidation affected solely to implement a
recapitalization of the Company or the Bank (or similar transaction) in which no
Person is or becomes the Beneficial Owner, directly or indirectly, of securities
of the Company or the Bank (not including in the securities beneficially owned
by such Person any securities acquired directly from the Company or its
Affiliates) representing 35% or more of the combined voting power of the
Company's or the Bank's then outstanding securities; or
(iv) the stockholders of the Company or the Bank approve
a plan of complete liquidation or dissolution of the Company or the Bank,
respectively, or there is consummated a sale or disposition by the Company or
any of its subsidiaries of any assets which individually or as part of a series
of related transactions constitute all or substantially all of the Company's
consolidated assets (provided that, for these purposes, a sale of all or
substantially all of the voting securities of the Bank or a Parent of the Bank
shall be deemed to constitute a sale of substantially all of the Company's
consolidated assets), other than any such sale or disposition to an entity at
least 65% of the combined voting power of the voting securities of which are
owned by stockholders of the Company in substantially the same proportions as
their ownership of the voting securities of the Company immediately prior to
such sale or disposition.
As used herein, "Affiliate" shall have the meaning set forth in Rule
12b-2 promulgated under Section 12 of the Exchange Act; "Beneficial Owner" shall
have the
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meaning set forth in Rule 13d-3 under the Exchange Act; "Exchange Act" shall
mean the Securities Exchange Act of 1934, as amended from time to time; "Parent"
shall mean any entity that becomes the Beneficial Owner of at least 80% of the
voting power of the outstanding voting securities of the Company or of an entity
that survives any merger or consolidation of the Company or any direct or
indirect subsidiary of the Company; and "Person" shall have the meaning given in
Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and
14(d) thereof, except that such term shall not include the Company or any of its
subsidiaries, a trustee or other fiduciary holding securities under an employee
benefit plan of the Company or any of its Affiliates, an underwriter temporarily
holding securities pursuant to an offering of such securities, or a corporation
or entity owned, directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the Company.
For purposes of this Trust Agreement, the Committee shall determine
whether a "Change in Control" has occurred and if such a determination is made,
shall promptly notify the Company, the Bank and the Trustee in writing of such
determination.
13.5 Irrevocable Election.
(a) The Committee, acting by majority or if only one Committee
member exists then by such member, may at any time make an Irrevocable Election
pursuant to this Section 13.5 by notifying the Trustee in writing in
substantially the form attached hereto as Appendix III. Without limiting the
ability of the Committee to make
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an Irrevocable Election at any time and in its sole and absolute discretion, an
Irrevocable Election may (but need not) be made by the Committee at any time
after a Potential Change in Control. Such Irrevocable Election shall remain in
effect unless revoked by the action of the Participants who, at the time such
revocation is sought, hold in the aggregate, at least 75% of the beneficial
interests in the Trust Fund. The determination of each Participant's beneficial
interest for this purpose shall be made in accordance with Section 10.2.
(b) Following the revocation or cancellation of an Irrevocable
Election in accordance with Section 13.5(a), the provisions of this Trust
Agreement in effect following an Irrevocable Election shall no longer apply, and
the provisions of this Trust Agreement in effect prior to an Irrevocable Change
in Control shall again apply, unless and to the extent that, prior or subsequent
to the revocation or cancellation of such Irrevocable Election, another
Irrevocable Election, or a Change in Control or Potential Change in Control, has
occurred with respect to which those provisions, as applicable, will continue to
separately apply.
(c) The Committee shall promptly notify the Trustee of any
revocation or cancellation of an Irrevocable Election.
78
<PAGE> 80
13.6 The Committee.
(a) Prior to a Potential Change in Control (as defined in
Section 11.3(d)), an Irrevocable Election or a Change in Control (as defined in
Section 13.4), the Compensation Committee of the Board of Directors of the
Company and the Bank shall constitute the Committee. Any member of the Committee
may resign upon 30 days' prior written notice to the Company, the Bank, the
Trustee, and the other members of the Committee. Prior to an Irrevocable
Election, a Change in Control or a Potential Change in Control, the Dime and the
Committee shall inform the Trustee of the membership of the Committee and any
changes therein, and the Trustee shall, upon the request of any Participant,
provide the Participant with a list of Committee members.
(b) Subsequent to a Potential Change in Control, those members
of the Committee who were members of the Committee immediately preceding the
Potential Change in Control shall continue as members of the Committee whether
or not such individuals continue to be members of the Compensation Committee of
the Company or the Bank, and the number of members of the Committee shall,
unless otherwise reduced as provided below, be equal to the number of members of
such Committee continuing as such immediately after such Potential Change in
Control; provided, however, that except as otherwise provided below, the
membership of each such individual on the Committee shall cease if such
individual is no longer an Outside Director of the Company or the Bank (or a
successor or any parent or subsidiary of any of such entities). In the event of
a vacancy on the Committee
79
<PAGE> 81
subsequent to a Potential Change in Control, a successor to the vacancy on the
Committee shall be appointed by action (evidenced by written approval) of a
majority of the remaining members of the Committee. No individual shall be
eligible to be named to fill a vacancy on the Committee, however, unless such
individual is, at the time of such appointment, (x) an Outside Director of the
Company or the Bank (or a successor or any parent or subsidiary of any of such
entities) and (y) a Participant, and such individual may continue as a member on
the Committee during the period such individual is both an Outside Director of
the Company or the Bank (or a successor or any parent or subsidiary of any of
such entities) and a Participant. If at any time after a Potential Change in
Control but prior to a Change in Control or an Irrevocable Election (in either
of which event paragraph (c) of this Section 13.6 shall control and be
immediately effective) no member of the Committee, as constituted at such time,
would remain a member of the Committee because all such members have ceased to
be Outside Directors of the Company or the Bank (or a successor or any parent or
subsidiary of any of such entities), then during the 90-day period following the
date the last such member ceases to be such an Outside Director, the membership
of the Committee shall be made up of the most recent members of the Committee in
number equal to the number provided for in the first sentence of this Subsection
13.6(b). During such 90-day period, those reconstituted Committee members may,
by vote or written consent of a majority thereof, either (i) elect one or more
new members of the Committee who satisfy the requirements set forth in (x) and
(y) above (in which event such new members shall from and after their election
constitute the Committee for all
80
<PAGE> 82
purposes of this Trust Agreement, subject to the other provisions of this
Subsection 13.6(b), and the reconstituted Committee members shall cease to serve
as Committee members), or (ii) make an Irrevocable Election prior to the
election of one or more new Committee members, in which event the reconstituted
Committee members shall constitute the Committee and the provisions of Section
13.6(c) shall control. If the reconstituted Committee members shall fail to take
either of the actions set forth in clauses (i) or (ii) of the preceding
sentence, then, on and after the end of such 90-day period, successor members of
the Committee shall be appointed by action of the Participants who at such time
hold in the aggregate a majority of the beneficial interests in the Trust Fund.
The determination of each Participant's beneficial interest for each of these
purposes shall be made in accordance with Section 10.2. The Trustee shall
promptly inform Participants of any vacancy of the Committee that Participants
have the right to fill, and of that right.
(c) Following an Irrevocable Election or a Change in Control
(and irrespective of whether a Potential Change in Control has previously taken
place), the Committee shall consist of those individuals who were members of the
Committee immediately prior to the Irrevocable Election or Change in Control,
and the number of Committee members shall, unless otherwise reduced as provided
below, continue at the same level as applied before such Irrevocable Election or
Change in Control, unless such number is changed by action of the Participants
who hold in the aggregate a majority of the beneficial interests in the Trust
Fund. Further, subsequent to an Irrevocable Election or a Change in Control, no
member of the Committee may be
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<PAGE> 83
removed unless removed by the action of the Participants who then hold in the
aggregate a majority of the beneficial interests in the Trust Fund. Following an
Irrevocable Election or a Change in Control, after the death, resignation or
removal of a member of the Committee, a successor to a vacancy on the Committee
shall be appointed by a majority of the remaining members of the Committee.
However, if following an Irrevocable Election or a Change in Control all
membership positions on the Committee are vacant, successor members of the
Committee shall be appointed by action of the Participants who at such time hold
in the aggregate a majority of the beneficial interests in the Trust Fund. The
determination of each Participant's beneficial interest for each of these
purposes shall be made in accordance with Section 10.2. The Trustee shall
promptly inform participants of any vacancy of the Committee that Participants
have the right to fill, and of that right.
(d) Any action by the Committee, unless and to the extent
validly delegated pursuant to Section 8.2(c) hereunder, shall require the
written approval of the majority of the members of the Committee or if the
Committee then consists of only one member, by such member. A Committee member
or delegatee shall not be liable hereunder for any act taken or omitted to be
taken in good faith, except for such person's own gross negligence or willful
misconduct.
(e) All of the provisions set forth herein with respect to a
member of the Committee shall relate to each successor with the same force and
effect as if such successor had been originally named as a member of the
Committee.
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<PAGE> 84
(f) In the case of any ambiguity under this Trust, the Trustee
may seek the direction of, or a determination by, as applicable, the Committee.
13.7 Notices.
(a) Communications to the Trustee shall be sent in writing to
the Trustee's office at 140 Broadway, New York, New York 10005, Attention: James
Esposito, Vice President, or to such other address as the Trustee may specify.
No communication shall be binding upon the Trust Fund or the Trustee until it is
received by the Trustee and unless it is in writing and signed by an authorized
person.
(b) Communications to the Bank shall be sent in writing to the
Bank at 589 Fifth Avenue, New York, New York 10017, Attention: Chief Human
Resources Officer, or to such other address as the Bank may specify. No
communication shall be binding upon the Bank until it is received by the Bank.
(c) Communications to the Company shall be sent in writing to
the Company at 589 Fifth Avenue, New York, New York 10017, Attention: General
Counsel, or to such other address as the Company may specify. No communication
shall be binding upon the Company until it is received by the Company.
(d) Communication to the Committee shall be sent in writing to
each of the Committee members as follows:
Committee Under the Directors Umbrella Trust Agreement
Dime Bancorp, Inc./The Dime Savings Bank of New York, FSB
589 Fifth Avenue
New York, New York 10017
Attn: name of Committee member
with a copy to:
83
<PAGE> 85
Patterson, Belknap, Webb & Tyler LLP
1133 Avenue of the Americas
New York, New York 10036
Attn: David M. Glaser, Esq.
Douglas E. Barzelay, Esq.
or to such other address as the respective Committee member may specify. No
communication shall be binding upon the Committee until it is received by at
least two of the Committee members or, if the Committee shall then consist of
only one member, by such member.
(e) Where any communication is required to be given to the
Dime, such communication shall be sent to both the Company and the Bank as
provided in paragraphs (b) and (c) of this Section 13.7.
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<PAGE> 86
13.8 Obligations of The Dime
Wherever this Trust requires that an obligation be performed by
the Dime, then the Company and the Bank shall be jointly and severally liable
for the performance of such obligation.
13.9 Invalidity of Particular Sections.
Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without invalidating the
remaining provisions hereof which shall continue in full force and effect.
13.10 Code References. Any reference to a Code section herein shall be
deemed to be a reference to its successor provisions to the extent that such
section of the Code has been replaced, renumbered or superseded.
13.11 Counterparts. This Trust Agreement may be executed in any number
of separate counterparts, each such counterpart being deemed to be an original
of this Trust Agreement, and all such counterparts together constituting the
same agreement.
85
<PAGE> 87
IN WITNESS WHEREOF, DIME BANCORP, INC., THE DIME SAVINGS BANK OF NEW
YORK, FSB and HSBC Bank USA, as Trustee have caused this amended and restated
Trust Agreement to be executed by their duly authorized officers and their
respective seals to be hereunto affixed as of the day and year first above
written.
DIME BANCORP, INC.
By:
---------------------------------
Name:
---------------------------------
Title:
SEAL
Attest:
- --------------------------
86
<PAGE> 88
THE DIME SAVINGS BANK OF NEW YORK, FSB
By:
------------------------------------
Name:
------------------------------------
Title:
SEAL
Attest:
- --------------------------
HSBC BANK USA, as Trustee
By:
------------------------------------
Name:
------------------------------------
Title:
SEAL
Attest:
- --------------------------
<PAGE> 89
APPENDIX I
COVERED ARRANGEMENTS(1)
A. Bank Primary Obligations
1. Retainer Continuation Plan for Independent Directors of The Dime
Savings Bank of New York, FSB
2. Dime Bancorp, Inc. Voluntary Deferred Compensation Plan for
Directors
3. Deferred Compensation Plan for Board Members of The Dime Savings
Bank of New York, FSB
B. Bank Secondary Obligations
None
C. Company Primary Obligations
None
D. Company Secondary Obligations
1. Dime Bancorp, Inc. Voluntary Deferred Compensation Plan for
Directors
- -------------------------------
(1)Unless otherwise noted, references to particular benefit plans and
agreements include those plans and agreements as initially adopted or entered
into, and such plans and agreements as they may be amended from time to time.
<PAGE> 90
APPENDIX II
LIST OF FEES AND EXPENSES OF TRUSTEE
A. Administration and Accounting
For the administration, including custody and monthly basic accounting
services, the fee will be computed at the following annual rates applied
to the market value of each of the Bank Trust Assets and the Company
Trust Assets.
.15 of 1% on the first $10 million
.08 of 1% on the next $20 million
.05 of 1% on the balance
Minimum annual fee - $5,000 for the Bank Trust Assets
$5,000 for the Company Trust Assets (provided there
are any Company Trust Assets)
Fees for a period of less than one year shall be pro-rated.
In the event that any of the following occur: (a) a Change in Control,
(b) the filing of an Irrevocable Election, or (c) the Bank or the Company
is determined to be Insolvent, the above annual rates and minimum annual
fees will increase by 100%; provided, however, that in the event such
increase in fees is on account of the Insolvency of the Bank (but not on
account of either of the reasons set forth in (a) or (b) above), such
increase in annual rates and minimum annual fees shall only relate to the
fees regarding Bank Trust Assets, and in the event such increase in fees
is on account of the Insolvency of the Company (but not on account of
either of the reasons set forth in (a) or (b) above), such increase in
annual rates and minimum annual fees shall only relate to the fees
regarding Company Trust Assets. Notwithstanding the foregoing, in no
event (without an appropriate modification of this Appendix II) will the
above annual rates and minimum annual fees increase by more than 100%.
B. Wire Transfers and Security Processing
$20.00 per transaction
C. Disbursement Services
$1.25 per periodic check issued, plus postage
$5.00 per non-periodic check issued, including postage
$10.00 per check rush-issued (24-hours turnaround)
<PAGE> 91
$10.00 per tax form
D. Other Administrative Services
For administrative services not covered by the preceding provisions that
are relative to carrying out trustee responsibilities beyond routine
custodial and accounting duties, the Trustee shall maintain time logs
indicating the time spent by its employees and agents on the discharge of
its duties as Trustee. Each hour shall be charged at the Trustee's hourly
rates then in effect under this Agreement or subsequent amendment. The
hourly rates as of the effective date of the Umbrella Trust Agreement
are:
Department Managers $125.00
Vice Presidents $100.00
All Other Officers $ 75.00
Other Staff $ 35.00
Time spent by the Operations Department of the Trustee on the handling of
assets, generation of accounting reports and other standard operations
are not subject to an hourly charge.
E. Participant Recordkeeping Services, if requested or required
Set-Up and Conversion Per Plan
$250 (One-Time Fee)
On-Going Processing Per Plan - Participant Accounting:
Administrative Fee: $1,000 per valuation per year
Participant Fee: $ 25 per year
Out-of-Pocket Expenses
Cost of custom processing, custom statement paper, "reruns" due to
customer error to be billed at cost.
<PAGE> 92
APPENDIX III
FORM OF NOTICE OF IRREVOCABLE ELECTION
HSBC Bank USA
insert Trustee address then
in effect, per Section 13.7
Attention:
----------------
Re: Amended and Restated Umbrella Trust Agreement dated
as of __________, 2000, between Dime Bancorp, Inc.,
The Dime Savings Bank of New York, FSB and HSBC Bank
USA, as Trustee, with respect to the Covered
Arrangements for Outside Directors of The Dime
Savings Bank of New York, FSB and related entities.
Gentlemen:
You are hereby notified that the Committee (as defined in Section
13.6 of the Trust Agreement referred to above) is making an Irrevocable Election
pursuant to Section 13.5 of such Trust Agreement. You are hereby directed to
take all actions and undertake such responsibilities as are provided for under
the Trust Agreement in the event of an Irrevocable Election.
Sincerely yours(2)
- ------------------
(2) To be signed by a majority of the Committee appointed pursuant to
Section 13.6, or, if the Committee then consists of only one
member, then by such member.
<PAGE> 93
APPENDIX IV
CERTIFICATIONS OF AUTHORIZED PERSONS
INDIVIDUALS HAVING AUTHORITY TO
ACT ON BEHALF OF THE BANK
Benefits Committee Members Treasury Division
- -------------------------- -----------------
Lawrence J. Toal Alberto Diaz
D. James Daras
Arthur C. Bennett
Anthony Burriesci
James E. Kelly
Human Resources Department Law Department
- -------------------------- --------------
Norman J. Stafford Paul Marcotrigiano
David K. McDowell Jacquelyn Hart
Michael J. Connolly
Janet D. Krasowski Office of the Corporate Secretary
Denise Halleran ---------------------------------
Gene C. Brooks
INDIVIDUALS HAVING AUTHORITY TO
ACT ON BEHALF OF THE COMPANY
Benefits Committee Members Treasury Division
- -------------------------- -----------------
Lawrence J. Toal Alberto Diaz
D. James Daras
Arthur C. Bennett
Anthony Burriesci
James E. Kelly
Human Resources Department Law Department
- -------------------------- --------------
Norman J. Stafford Paul Marcotrigiano
David K. McDowell Jacquelyn Hart
Michael J. Connolly
Janet D. Krasowski Office of the Corporate Secretary
Denise Halleran ---------------------------------
Gene C. Brooks
<PAGE> 1
UMBRELLA TRUST AGREEMENT
among
DIME BANCORP, INC.,
THE DIME SAVINGS BANK OF NEW YORK, FSB
and
HSBC Bank USA, as Trustee
with respect to
the Designated Arrangements of
The Dime Savings Bank of New York, FSB
and Related Entities.
<PAGE> 2
UMBRELLA TRUST AGREEMENT
UMBRELLA TRUST AGREEMENT, dated as of May 18, 2000, by and among DIME
BANCORP, INC., a Delaware corporation with its executive offices at 589 Fifth
Avenue, New York, NY 10017 (the "Company"), THE DIME SAVINGS BANK OF NEW YORK,
FSB, a federal savings bank with its executive offices at 589 Fifth Avenue, New
York, New York 10017 (the "Bank") and HSBC Bank USA, a banking association with
an office at 140 Broadway, New York, New York 10005 (the "Trustee").
WHEREAS, the Bank is at the date hereof a wholly-owned subsidiary of the
Company (the Bank and the Company being collectively referred to herein as the
"Dime"); and
WHEREAS, each of the Company and the Bank has established the various
plans and arrangements referred to in Appendix I to this Trust Agreement and
further defined in Section 1.5 for the benefit of Participants and their
Beneficiaries (as defined in Section 1.5(b)) under such plans and arrangements,
with such plans and arrangements, being herein referred to collectively as the
"Designated Arrangements;" and
WHEREAS, the Designated Arrangements provide for the payment of certain
cash-based benefits (the "Benefits") to Participants and Beneficiaries (as
defined in Section 1.5); and
WHEREAS, the Company, the Bank and the Trustee are entering into this
Umbrella Trust Agreement, as of May 18, 2000, to establish a trust (the "Trust")
to
<PAGE> 3
which contributions will be made, for the purpose of providing the Company and
the Bank with a source of funds to aid them in meeting their respective
liabilities under the Designated Arrangements; and
WHEREAS, the cash and property to be contributed to the Trust by the Bank
shall be subject to the claims of the Bank's creditors in the event the Bank
becomes Insolvent, as herein defined, until paid to Participants and their
Beneficiaries under a Designated Arrangement; and
WHEREAS, the cash and property to be contributed to the Trust by the
Company shall be subject to the claims of the Company's creditors in the event
the Company becomes Insolvent, as herein defined, until paid to Participants and
their Beneficiaries under a Designated Arrangement; and
WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of any
Designated Arrangement as an unfunded plan or arrangement;
WHEREAS, the Trust is intended to be a "grantor trust" with the corpus
and income of the Trust treated as assets and income of the Company or the Bank
for federal income tax purposes pursuant to Sections 671 through 679 of the
Internal Revenue Code of 1986, as amended (the "Code") and shall be construed
accordingly; and
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the Company, the Bank and the Trustee agree as follows:
2
<PAGE> 4
ARTICLE I
Establishment of Trust
1.1 Trust Fund. The Company and the Bank hereby establish the Trust
with the Trustee, consisting of such sums of money, policies of life insurance,
and other property acceptable to the Trustee as from time to time shall be paid
or delivered to the Trustee (the "Contributions"). All such Contributions, all
investments made therewith or proceeds thereof and all earnings and profits
thereon, less all payments and charges as authorized herein, shall constitute
the "Trust Fund." The Trust Fund shall be held by the Trustee in trust separate
and apart from other funds of the Company and the Bank and shall be applied in
accordance with the provisions of this Trust Agreement. The Trust Fund shall at
all times be subject to the claims of general creditors of the Company or the
Bank, as their interests may appear, as provided in Article XI1. Participants
and their Beneficiaries shall have no preferred claim on, or any beneficial
ownership interest in, any assets of the Trust. Any rights created under the
Designated Arrangements and this Trust Agreement shall be mere unsecured
contractual rights of the Participants and their Beneficiaries against one or
both of the Company and the Bank.
1.2 Irrevocability. The Trust shall be irrevocable, and except as
provided in Section 5.3 and Article XII, the assets of the Trust shall be held
for the exclusive purpose of providing Benefits to Participants and their
Beneficiaries and defraying expenses of the Trust in accordance with the
provisions of this Trust Agreement. Except as expressly provided in this Trust
Agreement, no part of the
3
<PAGE> 5
income or corpus of the Trust Fund shall be recoverable by or applied for the
benefit of the Company, the Bank or their creditors.
1.3 Inalienability of Interests. Benefits payable to Participants and
their Beneficiaries under this Trust Agreement may not be sold, anticipated,
transferred, assigned (either at law or in equity), alienated, pledged,
encumbered, or subjected to attachment, garnishment, levy, execution or other
legal or equitable process.
1.4 Acceptance by the Trustee. The Trustee accepts the Trust
established under this Trust Agreement on the terms and subject to the
provisions set forth herein, and it agrees to discharge and perform fully and
faithfully all of the duties and obligations imposed upon it under this Trust
Agreement.
1.5 Designation of Designated Arrangements; Participants and
Beneficiaries.
(a) The Trust shall serve to aid the Company and the Bank in
accumulating the assets necessary to satisfy their respective contractual
liabilities to pay or provide cash-based Benefits to Participants and
Beneficiaries under the terms of the Designated Arrangements listed (or
otherwise described) in Appendix I to this Trust Agreement, as such Appendix I
may from time to time be amended. Prior to an Irrevocable Election (as defined
in Section 13.5) or Change in Control (as defined in Section 13.4), Appendix I
may be amended to remove or add all or a portion of such plans and arrangements
as may be designated from time to time by action of two Authorized Officers of
either the Company or the Bank (as appropriate) or their
4
<PAGE> 6
designees. An "Authorized Officer" of the Company or the Bank shall for this
purpose be any of the individuals listed in Appendix IV to this Trust Agreement,
whose specimen signatures shall be provided by the Dime to the Trustee.
Notwithstanding the foregoing, following an Irrevocable Election, Change in
Control or Potential Change in Control (as defined in Section 11.3(d)(i)),
Appendix I may be amended, additional Designated Arrangements or portions
thereof may be designated and Designated Arrangements or portions thereof may be
eliminated, only with the written approval of the Committee (as defined in
Section 13.6).
(b) The term "Participant" shall mean any person who at the
time an Irrevocable Election or Change in Control first occurs following May 1,
2000, or at any time prior thereto, is or was an officer or employee of the
Company, the Bank or an Affiliate thereof, and at the time of such Irrevocable
Election or Change in Control, is or could become entitled to any benefit
pursuant to, or otherwise could be deemed to be a participant in, any Designated
Arrangement (but shall not include any person serving as a non-employee director
of the Company or the Bank with respect to any Benefits accrued solely in such
capacity).
(c) The term "Beneficiary" shall mean any person who is or may
become entitled to Benefits under any of the Designated Arrangements in the
event of a Participant's death.
1.6 Respective Interests of the Company and the Bank. (a) The
Trustee shall separately account for all Contributions made by the Company and
the Bank, and for all investments made therewith, proceeds thereof, and earnings
and
5
<PAGE> 7
profits thereon, and all payments and charges with respect thereto
(respectively, the "Company Trust Assets" and the "Bank Trust Assets");
provided, that such Contributions may be commingled for purposes of investment
hereunder and that any allocations of such commingled investments shall be made
in proportion to the respective amounts of the investment represented by
Contributions of the Company and the Bank; and further provided, that, except as
may otherwise specifically be directed by the Company or the Bank pursuant to
the provisions of this Trust Agreement, any determination by the Trustee
respecting allocation of any investments, proceeds, earnings, profits, payments
and charges in respect of the Trust Fund as between the Company Trust Assets and
the Bank Trust Assets shall be final and binding on the parties hereto.
(b) The Company and the Bank have identified, with respect to
each Designated Arrangement listed on Appendix I, and shall set forth in
Appendix I, with respect to each Designated Arrangement hereafter added thereto,
whether Benefits under such Designated Arrangement constitute (i) primary
obligations hereunder of the Company ("Company Benefits"), (ii) secondary
obligations hereunder of the Company, (iii) primary obligations hereunder of the
Bank ("Bank Benefits"), or (iv) secondary obligations hereunder of the Bank.
Obligations for which the Company is primarily liable and the Bank is
secondarily liable, and obligations for which the Bank is primarily liable and
the Company is secondarily liable are also referred to herein as "Joint
Benefits."
6
<PAGE> 8
ARTICLE II
General Powers of Trustee
2.1 Investment of the Trust.
(a) Prior to an Irrevocable Election or Change in Control, the
Company Trust Assets and Bank Trust Assets shall be invested by the Trustee in
the manner directed by the Company or the Bank, respectively, or, to the extent
no such specific direction has been given by the Company or the Bank, in
accordance with the written investment guidelines provided from time to time by
the Company or the Bank.
(b) Subsequent to an Irrevocable Election or Change in Control,
the Trustee shall invest the assets of the Trust Fund, without distinction
between principal and income, in accordance with such written investment
guidelines as may be provided from time to time by the Committee, in (i) life
insurance policies and guaranteed annuity contracts issued by insurers which, at
the time of investment, are rated A+ or better by Standard & Poor's or the
equivalent rating by any nationally recognized rating service (including the
payment of premiums thereon), (ii) bonds rated at least A by Standard & Poor's
or the equivalent rating by any nationally recognized rating service, (iii)
certificates of deposit, money market funds or other high quality cash
equivalents, or (iv) mutual funds designed to invest in those items described in
clauses (i) through (iii) above that otherwise comply with the Bank's or, as
applicable, the Company's investment policies as they apply from time to time
(the relevant portions of which shall be provided to the Trustee by the Bank or
the Company upon its request).
7
<PAGE> 9
(c) Subsequent to an Irrevocable Election or a Change in
Control and notwithstanding the foregoing provisions of this Section 2.1, at any
time that the assets of the Trust Fund together with the assets of any other
trust fund established by the Company or the Bank with which the assets of the
Trust Fund are commingled for investment purposes (excluding in each case any
life insurance policies and guaranteed annuity contracts then in effect) do not
exceed $500,000, such assets shall be held in one or more interest-bearing
accounts at a commercial bank or savings bank (which may include the Trustee),
with maturities in the Trustee's discretion based on the anticipated need for
funds, but not in excess of one year.
(d) Prior to an Irrevocable Election or a Change in Control,
each of the Company and the Bank shall have the right at any time, and from time
to time in its sole discretion, to substitute assets of equal fair market value
for any asset held by the Trust. This right is exercisable by each of the
Company and the Bank in a non-fiduciary capacity without the approval or consent
of any person in a fiduciary capacity. After an Irrevocable Election or a Change
in Control, such right shall continue, but any asset so substituted by the
Company or the Bank shall be of equivalent or greater liquidity as compared to
the asset for which it is substituted, and such right may only be exercised with
the consent of the Committee.
2.2 Investment Powers of Trustee. Subject to the provisions of this
Trust Agreement and the directions or investment guidelines provided pursuant
to Section 2.1, the Trustee shall have, with respect to the Trust Fund, the
following investment powers in its discretion:
8
<PAGE> 10
(a) To invest and reinvest in any property, real, personal or
mixed, wherever situated, foreign or domestic, including, common and preferred
stocks, bonds, notes and debentures (including convertible stocks and securities
but not including any stock or securities or debt instruments of the Company or
the Bank or their Affiliates unless otherwise expressly directed by the Company
or the Bank pursuant to Section 2.1(a)); leaseholds; mortgages (including,
without limitation, any collective or part interest in any bond and mortgage or
note and mortgage); certificates of deposit and money market funds (including
certificates of deposit and money market funds of the Bank); and life insurance
and guaranteed annuity contracts. Such investments may be made regardless of
diversification and without being limited to investments authorized by law for
the investment of trust funds.
(b) To use Trust Fund assets to purchase, and pay all premiums
and other charges upon, individual or group annuity or life insurance contracts.
(c) To retain any property at any time received by it.
(d) To sell, exchange, convey, transfer or dispose of, and to
grant options for the purchase or exchange with respect to, any property at any
time held by it, by public or private sale, for cash or on credit or partly for
cash and partly on credit.
(e) To participate in any plan of reorganization,
consolidation, merger, combination, liquidation or other similar plan and to
consent to or oppose any such plan or any action thereunder, or any contract,
lease, mortgage, purchase, sale or
9
<PAGE> 11
other action by any person or corporation or other entity any of the securities
of which may at any time be held in the Trust Fund, and to do any act with
reference thereto.
(f) To deposit any property with any protective, reorganization
or similar committee, to delegate discretionary power to any such committee and
to pay and agree to pay part of the expenses and compensation of any such
committee and any assessments levied with respect to any property so deposited.
(g) To exercise all conversion and subscription rights
pertaining to any property, and to do any act with reference thereto, including
the exercise of options, the making of agreements or subscriptions and the
payment of expenses, assessments or subscriptions, which may be deemed necessary
or advisable in connection therewith, and to hold and retain any securities or
other property which it may so acquire.
(h) To extend the time of payment of any obligation held in the
Trust Fund.
(i) To enter into standby agreements for future investment,
either with or without a standby fee.
(j) To invest and reinvest all or any specified portion of the
Trust Fund through the medium of any common, collective or commingled trust fund
which has been or may hereafter be established and maintained by the Trustee,
provided that prior to investing any portion of the Trust Fund for the first
time in any such common, collective or commingled trust fund, the Trustee shall
advise the Committee of its intent to make such an investment and furnish to the
Committee any
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information it may reasonably request with respect to such common, collective or
commingled trust fund.
(k) To the extent permitted by law, to commingle assets of the
Trust Fund, for investment purposes only, with assets of other trust funds
established by the Company or the Bank, provided that the Trustee shall maintain
separate records with respect to each such other trust or plan, and further
provided that the assets of the Trust Fund shall not be commingled in any fund
intended to hold only assets of qualified retirement plans within the meaning of
Section 401(a) of the Code.
(l) To acquire, renew or extend or participate in the renewal
or extension of any mortgage, and to agree to a reduction in the rate of
interest on any indebtedness or mortgage or to any other modification or change
in the terms of any indebtedness or mortgage or of any guarantee pertaining
thereto, in any manner and to any extent that may be deemed advisable for the
protection of the Trust or the preservation of any covenant or condition of any
indebtedness or mortgage or in the performance of any guarantee, or to enforce
any default in such manner and to such extent as may be deemed advisable; and to
exercise and enforce any and all rights of foreclosure, to bid on any property
in foreclosure, to take a deed in lieu of foreclosure with or without paying a
consideration therefor and in connection therewith to release the obligation on
the bond secured by such mortgage, and to exercise and enforce in any action,
suit or proceeding at law or in equity any rights or remedies in respect of any
such indebtedness or mortgage or guarantee.
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(m) To make, execute and deliver, as Trustee, any and all
deeds, leases, notes, bonds, guarantees, mortgages, conveyances, contracts,
waivers, releases or other instruments in writing necessary or proper for the
accomplishment of any of the foregoing powers.
2.3 Administrative Powers of Trustee. Subject to the provisions of
this Trust Agreement, the Trustee shall have the following administrative powers
in its discretion:
(a) To exercise all voting rights with respect to the shares of
stock, if any, held in the Trust Fund and to grant proxies, discretionary or
otherwise.
(b) To cause any shares of stock to be registered and held in
the name of one or more of its nominees, or one or more nominees of any system
for the central handling of securities, without increase or decrease of
liability.
(c) To collect and receive any and all money and other property
due to the Trust Fund and to give full discharge therefor.
(d) To settle, compromise or submit to arbitration any claims,
debts or damages due or owing to or from the Trust; to commence or defend suits
or legal proceedings to protect any interest of the Trust; and to represent the
Trust in all suits or legal proceedings in any court or before any other body or
tribunal.
(e) To organize under the laws of any state a corporation,
partnership or trust for the purpose of acquiring and holding title to any
property which it is authorized to acquire under this Trust Agreement and to
exercise with respect thereto any or all of the powers set forth in this Trust
Agreement.
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(f) To determine how all receipts and disbursements shall be
credited, charged or apportioned as between income and principal, and the
decision of the Trustee shall be final and not subject to question by the
Company or the Bank or any Participant or Beneficiary.
(g) After an Irrevocable Election or Change in Control, to the
extent so directed by the Committee, to interpret the provisions of the
Designated Arrangements that govern the determination of eligibility for,
amount, form and timing of payments under the Designated Arrangements,
notwithstanding any authority otherwise provided to another individual, group of
individuals, committee or entity under any such Designated Arrangement.
(h) After consultation with the Committee, to engage such
independent third parties as the Trustee may deem necessary to assist in making
determinations with respect to Benefits payable under the Designated
Arrangements or otherwise under the Trust.
(i) After consultation with the Committee, to engage any legal
counsel, including counsel to the Company or the Bank, or any other suitable
agents (including outside investment managers), to consult with such counsel or
agents with respect to the implementation and construction of this Trust
Agreement, the duties of the Trustee hereunder, the transactions contemplated by
this Trust Agreement, or any act which the Trustee proposes to take or omit, to
rely upon the advice of such counsel or agents, and to pay their reasonable
fees, expenses and compensation.
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(j) To purchase individual or group annuity contracts for
purposes of making annuity-type Benefit payments under the Designated
Arrangements.
(k) To do all other acts, subject to the approval of the
Committee, which the Trustee may deem necessary or desirable for the protection
of the Trust Fund and payment of Benefits hereunder.
2.4 Limitation on Trustee Powers. Notwithstanding any powers granted
to Trustee pursuant to this Trust Agreement or to applicable law, the Trustee
shall not have any power that could give this Trust the objective of carrying on
a business and dividing the gains therefrom, within the meaning of Section
301.7701-2 of the Procedure and Administrative Regulations promulgated pursuant
to the Code.
2.5 Dealings with Trustee. Persons dealing with the Trustee shall be
under no obligation to see to the proper application of any money paid or
property delivered to the Trustee or to inquire into the Trustee's authority as
to any transaction.
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ARTICLE III
Documents, Participant Information and Records
3.1 Copy of Designated Arrangements. The Dime shall provide the
Trustee with a copy of plan documents, agreements or other descriptive materials
relating to each of the Designated Arrangements and shall provide the Trustee
with a copy of documentation evidencing any amendment to any of the Designated
Arrangements as soon as practicable following its adoption or approval. The
Trustee shall be entitled to rely on the terms of any Designated Arrangement as
in effect prior to its amendment until the Trustee receives a copy of such
amendatory documentation. The Trustee may inquire of the Committee regarding the
effect of any such amendment on Benefits payable under a Designated Arrangement.
Copies of Designated Arrangements and amendments thereto may also be provided to
the Trustee by the Committee or by any Participant or Beneficiary.
3.2 Participant Information. The Dime shall prepare and deliver to the
Trustee such information (the "Participant Information") as is reasonably
determined by the Trustee to be necessary to enable the Trustee to determine the
amount and time of payment of each Benefit payable to each Participant or
Beneficiary. Without limiting the generality of the foregoing, the Participant
Information may include (i) the name of each Participant entitled or potentially
entitled to receive Benefits under each of the Designated Arrangements, (ii) the
current address of each Participant, (iii) the Beneficiaries, if any, designated
by each Participant, (iv) the Participant's date of birth, (v) each
Participant's number of years of service with the Company, the Bank or, as
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appropriate, their Affiliates, (vi) each Participant's current and prior
compensation, (vii) any elections made by a Participant regarding the payment of
Benefits or interim deemed investments under any Designated Arrangements where
such elections are permitted or required, (viii) if Benefits are in pay status,
the date payments began and the amount and timing of Benefit payments, (ix) the
name and date of birth of the Participant's spouse, as necessary, and (x) other
information requested by the Trustee. The Trustee shall be entitled to rely on
such Participant Information (as modified by notice pursuant to Section 3.3(a)
and (b)) provided by the Dime unless the Trustee has reason to believe such
Participant Information may be incorrect.
3.3 Updating the Participant Information.
(a) Prior to an Irrevocable Election or Change in Control, the
Dime may from time to time notify the Trustee of any changes to the Participant
Information (including any changes in the list of Participants). Each such
notice shall be signed and dated by an Authorized Officer, shall set forth the
name of each Participant with respect to whom the Participant Information is
being changed (or who is being added to or deleted from the list of
Participants), and all additions to or changes from the information previously
supplied with respect to such Participant.
(b) Upon an Irrevocable Election or Change in Control, the Dime
shall either (i) notify the Trustee that there have been no changes in the
Participant Information from the Participant Information most recently provided
or (ii) if there have been changes in the Participant Information, provide the
Trustee with Participant Information updated to the date of the Irrevocable
Election or Change in Control.
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(c) Subsequent to an Irrevocable Election or Change in Control,
the Trustee shall update the Participant Information, at such time as is
necessary to pay Benefits, from information furnished to it by the Dime or
Participants, as provided in Section 3.4. The Trustee shall request information
from the Dime and Participants as necessary to update the Participant
Information.
3.4 Dime Records.
(a) The Dime shall keep full, accurate and detailed books and
records with respect to the Participants under the Designated Arrangements and
the Benefits payable to them. The Dime shall provide such information and access
to such books and records to the Trustee and any independent third party
retained by the Trustee to assist it, at such time or times as the Trustee shall
reasonably request.
(b) If at any time subsequent to an Irrevocable Election or
Change in Control the Dime fails or refuses to give the Trustee what the Trustee
reasonably believes to be accurate and sufficient Participant Information or
access to such books and records, the Trustee shall be entitled to rely on
Participant Information furnished to the Trustee by the Committee or by the
respective Participants (including Participant Information furnished at the time
or after a claim for Benefits has been made) for the purpose of calculating
Benefits, unless the Trustee has reason to believe such Participant Information
may be incorrect.
(c) The Trustee shall be under no obligation to commence any
action seeking judicial or administrative relief in the event that the Dime does
not comply with its obligations under Section 3.4(a) or the respective
Participants do not
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furnish Participant Information under Section 3.4(b); provided, however, to the
extent permitted by law and following an Irrevocable Election or Change in
Control, any Participant may commence legal action to enforce the obligations
and duties of the Company, the Bank or the Trustee under any Plan.
3.5 Committee's Right to Information. The Participant Information,
records and all other information and documentation (including updates thereto)
to be delivered or otherwise made available to the Trustee by the Dime pursuant
to the foregoing provisions of this Article shall also be delivered or otherwise
made available by the Dime to the Committee or its agent upon request. In
addition, the Trustee shall deliver or make available such information and
documentation to the Committee or its agent upon request. The Committee shall be
entitled to rely on any such information or documentation delivered or made
available to it by the Dime or the Trustee to the same extent that the Trustee
is entitled to rely on such information or documentation pursuant to the
foregoing provisions of this Article.
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ARTICLE IV
Establishment of Accounts and Contributions
4.1 Accounts.
A separate Expense Account shall be established and maintained in
accordance with Section 7.3. Separate accounts also shall be established and
maintained to segregate Company Assets and Bank Assets. No separate Trust
accounts shall be maintained with respect to Participants in any Designated
Arrangement (except for bookkeeping accounts to the extent required to determine
the amount of Benefits under a Designated Arrangement).
4.2 Contributions. Contributions shall be delivered to the Trustee as
follows:
(a) Prior to an Irrevocable Election or Change in Control, the
Company and the Bank shall deliver such cash, insurance policies, or other
property to the Trustee as each of them shall from time to time deem appropriate
for the funding of Benefits and payment of expenses under the Trust.
(b) (i) Upon an Irrevocable Election or Change in Control,
each of the Company and the Bank shall deliver to the Trustee additional
Contributions as shall be necessary so that the Trust holds (x) assets, valued
in accordance with Section 4.3 (but excluding any amounts allocated to the
Expense Account), equal in value to at least 110% of the present value of
projected Benefits payable to or with respect to all Participants and
Beneficiaries (such present value, as determined by the Trustee in the manner
and based upon the assumptions described in Section 5.3, is herein referred to
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as the "Benefit Valuation Amount"), plus (y) amounts required to be contributed
to and held in the Expense Account pursuant to Section 7.3, all determined as of
the date of such Irrevocable Election or Change in Control. The obligation of
each of the Company and the Bank hereunder shall be dependent on the Benefits
under the Designated Arrangements with respect to which each such entity may be
liable (with the entity identified as primarily obligated hereunder with respect
to any Joint Benefit deemed responsible for the full amount of any related asset
and contribution requirements) and the identification of the assets in the
determination above as Company Trust Assets or Bank Trust Assets, as
appropriate. In addition, subsequent to an Irrevocable Election or Change in
Control, the Trustee shall annually, as of the start of the month commencing
coincident with or immediately following each yearly anniversary of the date of
the Irrevocable Election or Change in Control, review its calculation of the
Benefit Valuation Amount in order to determine if the assets then held under the
Trust, valued in accordance with Section 4.3 (but excluding any amounts
allocated to the Expense Account), are equal in value to at least 110% of the
Benefit Valuation Amount as of the date of such determination. If the Trustee
determines that the Trust does not, at the date as of such date, have assets,
valued in accordance with Section 4.3 (but excluding for these purposes any
amounts allocated to the Expense Account) equal in value to at least 110% of the
Benefit Valuation Amount (calculated separately with respect to the respective
obligations of the Company and the Bank in the manner described above), then the
Trustee shall notify the Company and the Bank, and the Company and/or the Bank
shall deliver to the Trustee within 30 days, such
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additional cash Contributions as shall be necessary to provide the Trustee with
such additional cash or other readily marketable assets to satisfy such
obligation. The amount of these cash Contributions shall be determined by the
Trustee, after consultation with and approval by the Committee, based upon the
respective obligations of the Company and the Bank, and the identification of
the assets in the determination above as Company Trust Assets or Bank Trust
Assets, as appropriate.
(ii) In each instance described above in clause (i), in
the event that the Bank has not fulfilled its funding obligations, the Company
shall be required to make additional cash contributions to the Trustee in an
amount equal to the lesser of 110% of the value (determined in accordance with
Section 4.3) of the Joint Benefits and the amount of the Bank's funding
shortfall. In the event that the Company has not fulfilled its funding
obligations, the Bank shall be required to make additional cash contributions to
the Trustee in an amount equal to the lesser of 110% of the value (determined in
accordance with Section 4.3) of the Joint Benefits and the amount of the
Company's funding shortfall. Each such Contribution shall be made to the Trustee
within 30 days of the Committee's approval of a request for such Contribution
from the Trustee or as soon as practicable thereafter.
(c) If any of the Contributions required by Section 4.2
(b) or deposits required by Section 7.3 are not made when required, the Trustee
shall notify each Participant, each Beneficiary of a then-deceased Participant
and the Committee of such event.
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(d) All Contributions received directly or indirectly from the
Company shall be considered Company Trust Assets, and all Contributions received
directly or indirectly from the Bank shall be considered Bank Trust Assets,
unless the party making the Contributions shall otherwise notify the Trustee.
(e) Notwithstanding the foregoing, neither the Trustee nor the
Committee shall be liable for any failure by either the Company or the Bank to
make the Contributions required by Section 4.2(b). Neither the Trustee nor the
Committee shall have any duty to see that the Trust Fund is ultimately adequate
to meet liabilities under the Designated Arrangements. The Committee and the
Trustee are, however, authorized hereunder to seek payment from the Company or
the Bank of any Contributions required by Section 4.2(b) or deposits required by
Section 7.3 that are not made when required, including, without limitation, by
bringing suit therefor against the Company, the Bank or both of them in a court
of competent jurisdiction as provided in Section 13.1 hereof.
4.3 Valuation of Trust Fund
The Trustee may hold, invest and reinvest the assets of the Trust
Fund as a consolidated single fund. Earnings and losses shall be allocated
between Company Trust Assets and Bank Trust Assets, as applicable. As of the
last business day of each calendar month, the Trustee shall value the Trust Fund
at current market values, and shall report such valuation, and the allocation
thereto as between Company Trust Assets and Bank Trust Assets, to the Company
and the Bank and, following an Irrevocable Election or Change in Control, to the
Committee. The report of
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any such valuation shall not constitute a representation by the Trustee that the
amounts reported as fair market values would actually be realized upon the
liquidation of the Trust Fund. Such valuation shall reflect Contributions,
income of the Trust Fund, gains or losses (including gains or losses not yet
realized), distributions and expenses incurred during the month. If the Trust
shall hold at any valuation date any life insurance policies, such policies
shall be valued at the cash surrender value thereof in determining the assets of
the Trust Fund.
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ARTICLE V
Distributions From Trust Fund
5.1 Distributions.
(a) Subject to the provisions of Article XII, prior to an
Irrevocable Election or Change in Control, Benefits shall be paid from the Trust
Fund to Participants and Beneficiaries and insurance premiums shall be paid from
the Trust Fund, only as directed by the Committee. In no event shall payment to
a Participant or his Beneficiary be made in excess of the Benefits due the
Participant or Beneficiary under the applicable Designated Arrangement.
(b) Subject to the provisions of Article XII, the following
provisions shall apply subsequent to an Irrevocable Election or Change in
Control:
(i) The Dime shall, and the Committee may, be
responsible for notifying the Trustee when it believes a Participant or
Beneficiary is entitled to payment of a Benefit or a premium on a life insurance
policy is due. The Committee may also notify the Trustee when it believes a
Participant or Beneficiary is entitled to payment of a Benefit or a premium on a
life insurance policy is due, and the Trustee may receive information from other
sources deemed reliable by it (including, but not limited to, insurance
companies), for purposes of determining when payment of a Benefit or a premium
on a life insurance policy is due. In addition, a Participant or Beneficiary who
believes that he is entitled to payment of a Benefit under a Designated
Arrangement may apply in writing directly to the Trustee for payment of such
Benefit. Such application shall advise the Trustee of the circumstances which
entitle such
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Participant or Beneficiary to payment of such Benefit. Subsequent to receiving
any such aforesaid notice, information or application, and subject to the
provisions of this Section 5.1 (including the right of the Committee to make
final determinations regarding Benefit payments pursuant to Section 5.1(c)) or
otherwise based on the Trustee's determination that a Benefit is payable under a
Designated Arrangement (or a premium on a life insurance policy is due),
distributions from the Trust Fund shall be made by the Trustee to the
Participants and Beneficiaries, or to pay insurance premiums, at the times and
in the amounts as the Trustee shall determine based on the terms of the
applicable Designated Arrangement(s) and the Participant Information, and the
Trustee shall further determine the amount of each payment that shall be charged
against the Company Trust Assets and Bank Trust Assets, respectively.
(ii) The Trustee shall pay from the Trust Fund any
Benefit when due, as determined pursuant to Section 5.1(b)(i), and any premium
on life insurance held by the Trust, unless the Trustee has received evidence,
satisfactory to the Trustee, that such Benefit or premium has been paid by the
Company or the Bank or another entity (or, in the case of a premium on a life
insurance policy, has been paid out of dividends on such policy). Prior to
making a Benefit payment, the Trustee shall notify the Company, the Bank, the
Committee and the Participant or Beneficiary. If, within five business days of
such notification, the Company, the Bank, the Committee or the Participant or
Beneficiary has not objected to the Trustee's determination to pay such
Benefits, then the Trustee's determination shall be final, and, if such payment
is the first in a series of payments, the Trustee's determination shall be final
for all
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payments of such series. If, however, an objection is made by the Company, the
Bank, the Committee or the Participant or Beneficiary within five business days
of the notification, then the procedures set forth in Section 5.1(c) shall
apply. Payment of Benefits shall be made as follows: (A) payment shall first be
made of Company Benefits that are not Joint Benefits to the extent of Company
Trust Assets not allocated to the Expense Account and of Bank Benefits that are
not Joint Benefits to the extent of Bank Trust Assets not allocated to the
Expense Account; and (B) payment shall next be made of any Joint Benefits out of
remaining Company Trust Assets and Bank Trust Assets, as applicable, based upon
the respective obligations of the Company and the Bank (with payment to first be
made out of the assets of the entity (e.g. Bank Trust Assets or Company Trust
Assets) that is listed on Appendix I as the primary obligor hereunder with
respect to the Designated Arrangement, and then, if necessary, out of the assets
of the entity (e.g. Bank Trust Assets or Company Trust Assets) that is listed on
Appendix I as the secondary obligor hereunder with respect to the Designated
Arrangement) until either the Company Trust Assets or Bank Trust Assets not
allocated to the Expense Account shall be exhausted; and (C) thereafter, payment
of any remaining Joint Benefits shall be made out of any remaining Trust Assets
not allocated to the Expense Account.
(iii) If the amount of Company Trust Assets and Bank Trust
Assets not allocated to the Expense Account is insufficient to pay in full all
Company Benefits or Bank Benefits, then payment shall nonetheless be made in
accordance with and to the extent permitted by the preceding clause (ii);
provided, that
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(A) if either Company Trust Assets not allocated to the Expense Account are
insufficient to pay the Company Benefits in full or Bank Trust Assets not
allocated to the Expense Account are insufficient to pay the Bank Benefits,
and/or if the Company Trust Assets and Bank Trust Assets not allocated to the
Expense Account are insufficient to pay the Joint Benefits, then the Trustee
shall so notify the Company or the Bank, as the case may be, and such entity
shall either pay such Benefits directly to the Participant or Beneficiary to
whom they are due (and provide evidence of such payment to the Trustee) or
contribute to the Trust within thirty days of such notice an amount sufficient
to pay all such remaining Benefits, which the Trustee shall then pay to the
Participant or Beneficiary to whom they are due; and (B) if any portion of the
Joint Benefits is paid in accordance with clause (ii)(C) rather than clause
(ii)(B) above, then the entity whose Trust Assets were insufficient to pay its
appropriate (because of its status as a primary obligor hereunder or otherwise)
share of the Joint Benefits shall, upon notification of such shortfall by the
Trustee, contribute to the Trust within thirty days an amount equal to such
shortfall, which shall thereupon be credited as a contribution to the Trust
Assets of the other entity, from whose Trust Assets all or any portion of such
shortfall was paid, in an amount equal to the Benefit so paid, with the
remainder, if any, of such shortfall being paid to the Participant or
Beneficiary to whom such Benefits are due; provided, that neither the Trustee
nor any Participant shall be liable to the Company, the Bank, or any creditor
thereof for amounts paid as Joint Benefits under clause (ii)(C) in excess of the
Company's or the Bank's appropriate share thereof.
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(c) The following additional provisions shall apply subsequent
to an Irrevocable Election or Change in Control:
(i) Whenever the Trustee determines that an
interpretation of the provisions of a Designated Arrangement is necessary or
advisable to a determination of whether, in what form, or in what amount
Benefits may be payable to a Participant or Beneficiary under such Designated
Arrangement pursuant to Section 5.1(b)(i), the Trustee shall make inquiry of the
Committee concerning such interpretation. The Committee shall have the authority
to interpret the applicable Designated Arrangement and to determine, based on
such interpretation, the applicable Participant Information and such other
information supplied by the Participant or Beneficiary and the Company or the
Bank as it shall deem relevant, whether, and if so in what form and amount,
Benefits are payable thereunder to such Participant or Beneficiary. The
Committee shall report its determination to the Trustee, and the Trustee shall
notify the affected Participant or Beneficiary and the Company and the Bank of
the Committee's determination and the Trustee's intent to commence benefit
payments in accordance therewith. Unless either the Participant or Beneficiary,
or the Company or the Bank, shall within five business days of such notification
notify the Trustee that it objects to the determination of the Committee, then
such determination shall become final and the Trustee shall, pursuant to Section
5.1(b)(i) hereof, make such distributions from the Trust Fund to the Participant
and Beneficiary as is called for in such determination; provided, that no
0Participant or Beneficiary shall be deprived by such determination (or other
determination pursuant to this Section
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5.1(c)) of any right such person may have under applicable law or regulation to
claim that such determination (or other determination pursuant to this Section
5.1(c)) was erroneous under the terms of the applicable Designated Arrangement.
If any party shall within such five business day period object to the
determination made by the Committee, then the Trustee shall review such
determination. Such review shall be limited to whether the Committee's
determination was reasonable. If the Trustee finds that such determination
appears reasonable, then such determination shall become final and the Trustee
shall, pursuant to Section 5.1(b)(i), make such distributions from the Trust
Fund to the Participant or Beneficiary as is called for by such determination.
If the Trustee shall conclude that such determination should be further reviewed
by the Committee, in light of the objection thereto, it shall request that the
Committee further consider such matter, in light of such objection and such
other factors as the Trustee may bring to its attention or request it to review
or reconsider. The Committee shall reconsider such matter, based on such facts
as it shall deem relevant, and shall report its determination to the Trustee.
Upon receipt by the Trustee of such report, the determination of the Committee
shall become final, and the Trustee shall make such distribution from the Trust
Fund to the Participant and Beneficiary as is called for by such determination.
Once a determination of the Committee has become final in accordance with this
Section 5.1(c), the Company and the Bank, for themselves, their subsidiaries,
and their successors and assigns, agree to be bound by such determination and
hereby waive any and all rights to recoup any Benefits paid in accordance
therewith, either from the recipient thereof, the Trust, the Trustee or the
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Committee, or to hold any of such parties liable with respect to the payment
thereof. The Committee's powers of determination under this Section 5.1(c) shall
include, without limitation, the authority to interpret the provisions of the
Designated Arrangements that govern the determination of eligibility for,
amount, form and timing of payments under the Designated Arrangements,
notwithstanding any authority otherwise provided to another individual, group of
individuals, committee or entity under any such Designated Arrangement.
Notwithstanding the foregoing, to the extent required under the Employee
Retirement Income Security Act of 1974, as amended, the Committee may establish
alternative claims review procedures for Participants and Beneficiaries.
(ii) The Company, the Bank or the Committee shall notify
the Trustee if any "change in control" or "transfer of control" has occurred
under any of the Designated Arrangements. If no such notice has been provided,
but a Designated Arrangement requires a determination of whether a change in
control-related event has occurred, the Trustee shall request of the Committee
that the Committee make a determination whether such "change in control" or
"transfer of control" has occurred under such Designated Arrangement. The
Committee shall thereupon either (A) make such determination, in which case the
Trustee shall rely on the determination of the Committee, or (B) (1) communicate
the materials and information necessary to the making of such determination to
the Trustee and (2) direct the Trustee to make such determination. In the event
the Committee fails to respond to the Trustee's request within 30 days of the
date of such inquiry, the Trustee shall make its own determination as to whether
such a change in control-related event has occurred.
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(iii) Subject to the provisions of this Section 5.1, if the
Committee so desires, it may, in its sole discretion, or, if so directed by the
Committee, the Trustee may, in its sole discretion, make such additional
inquiries and/or take such additional measures as it deems necessary in order to
enable it to determine whether Benefits are due and payable, including, but not
limited to, interviewing or requesting affidavits from appropriate persons.
5.2 Payment Upon Constructive Receipt. Notwithstanding any other
provision of this Trust Agreement, if any amounts held in the Trust Fund are
found in a "determination" (within the meaning of Section 1313(a) of the Code)
to have been includible in the taxable income of a Participant or Beneficiary
prior to, or without, payment of corresponding amounts under the Designated
Arrangements, and the Participant or Beneficiary provides the Trustee with such
determination, the Trustee promptly shall forward the determination to the
Committee. The Trustee then, unless directed otherwise by the Committee, shall
make a finding as to the extent to which such determination applies to (i)
Company Benefits, Bank Benefits or Joint Benefits and (ii) amounts otherwise
arising out of the Participant's or Beneficiary's interest in, or relationship
to, the Trust. Then, subject to the provisions of Section 5.1(b) and (c) hereof
(without regard to whether there has been an Irrevocable Election or Change in
Control), the Trustee shall pay to such Participant or Beneficiary, as soon as
practicable, an amount equal to the sum of (A) the amount described in (i)
above, reduced by Benefits already paid (whether by the Trust or otherwise)
which were included in such determination (so as to avoid any double payment of
the same Benefits), plus (B) solely with respect to the amount described in (ii)
above, an amount (as determined by the Trustee) sufficient to pay all taxes,
interest
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and penalties, if any, imposed on the Participant or Beneficiary with respect
to the amount described in (ii) above, plus sufficient additional amounts to pay
all taxes imposed on payments made pursuant to this clause (B). Amounts paid
pursuant to clause (A) above shall be deemed to be advance payment of the
applicable portion of Benefits payable under the applicable Designated
Arrangement, as determined by the Committee. Notwithstanding the foregoing, in
the event a Participant or Beneficiary provides the Trustee a Notice (as defined
below), the Trustee promptly shall forward the Notice to the Committee. In such
case, the Trustee, at the direction of the Committee, or the Committee, may
contest the Notice in whole or in part (and be reimbursed by the Trust for all
reasonable costs of such contest), in which case the Participant or Beneficiary
must fully cooperate and assist the Trustee (or, as appropriate, the Committee)
in connection with such contest and the payment described above will not be made
pending the outcome of such contest. At the resolution of such contest (as
determined by the Committee, whether following a litigation, settlement or
otherwise), the Trustee promptly shall pay (C) all amounts (if any) payable to
the Participant or Beneficiary calculated as set forth in clauses (A) and (B)
above (adjusted for the results of the contest) plus (D) in the case of payments
related to the amount described in (i) above, all interest and penalties, if
any, imposed on the Participant or Beneficiary, plus sufficient additional
amounts to pay all taxes imposed on payments made pursuant to this clause D. For
purposes of this Section 5.2, the term "Notice" shall mean a revenue agent's
report or notice of proposed adjustment or notice of deficiency (or any
amendments to the foregoing) or set-off of refund claim issued by a taxing
authority to the Participant or Beneficiary with respect to the inclusion in the
Participant's or Beneficiary's
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taxable income of any amounts held in the Trust Fund prior to, or without,
payment of corresponding amounts under the Designated Arrangements.
5.3 Excess Amounts and Excess Assets.
(a) Prior to the termination of the Trust and upon the request
of the Dime (no more frequently than once every 12 months), the Trustee shall
determine whether the Trust Fund then holds Excess Assets (as described below).
The Trust shall be deemed to hold Excess Assets if at the time of such
determination the value of the assets of the Trust Fund that are Company Trust
Assets or Bank Trust Assets, determined in accordance with Section 4.3
(excluding for these purposes any amounts allocated to the Expense Account),
exceeds, respectively, 110% of the Benefit Valuation Amount that reflects either
(i) the present value of Company Benefits, or (ii) the present value of Bank
Benefits; provided, however, that (x) if the value of Bank Trust Assets,
determined in accordance with Section 4.3 (excluding any amounts allocated to
the Expense Account) is less than 110% of the portion of the Benefit Valuation
Amount that so reflects Bank Benefits, Company Trust Assets shall be considered
Excess Assets only to the extent that the value of Company Trust Assets,
determined in accordance with Section 4.3 (excluding any amounts allocated to
the Expense Account) exceeds 110% of the Benefit Valuation Amount that would be
deemed to reflect Company Benefits if the Company were primarily obligated
hereunder with respect to all Joint Benefits, and (y) if the value of Company
Trust Assets, determined in accordance with Section 4.3 (excluding any amounts
allocated to the Expense Account) is less than 110% of the portion of the
Benefit Valuation Amount that so reflects Company Benefits, Bank Trust Assets
shall be considered Excess
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Assets only to the extent that the value of Bank Trust Assets, determined in
accordance with Section 4.3 (excluding any amounts allocated to the Expense
Account) exceeds 110% of the Benefit Valuation Amount that would be deemed to
reflect Bank Benefits if the Bank were primarily obligated hereunder with
respect to all Joint Benefits. If the Trustee determines that the Trust Fund
holds Excess Assets with respect to either the Company or the Bank, the Trustee
shall notify the Company or the Bank of the amount of such Excess Assets, and,
if the Company or the Bank so request, shall deliver such Excess Assets (or any
portion thereof) to the Company or the Bank as its respective interests may
appear; provided, however, that following an Irrevocable Election or Change in
Control, no such Excess Assets may be delivered to the Company or the Bank
without the consent of the Committee (which consent shall not be unreasonably
withheld).
(b) For purposes of determining the present value of the
projected total Benefits payable to all Participants and Beneficiaries and
whether there are Excess Assets, the Trustee shall use the following
assumptions:
(i) With respect to the Severance Pay Program for
Employees of Dime Bancorp, Inc. and Participating Subsidiaries, the Severance
Pay Plan of North American Mortgage Company, and the Senior Executive Severance
Pay Plan of North American Mortgage Company (the "Severance Program"), it shall
be assumed that the present value of projected Benefits payable to a Participant
actively employed (or on a paid or unpaid leave) by the Company, the Bank or an
Affiliate at the date of determination (an "Active Participant") shall equal the
greater of (A) the total Benefits
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that would be payable under the Severance Program if employment were
involuntarily terminated in a circumstance resulting in eligibility for
severance pay thereunder on the second anniversary of the date of determination,
but not following a change in control (as defined in the Severance Program), and
assuming that the Participant's earnings increase annually during the two year
period between the date of determination and the second anniversary thereof by a
rate not less than the rate of increase in the Consumer Price Index (as defined
in subsection (iii) below) for the preceding 12 month period plus 2 percentage
points (the "CPI + 2 Rate"), and (B) the Benefits that would be payable under
the Severance Program if employment were involuntarily terminated on December
31, 2001 following a change in control (as defined under the Severance Program)
that took place after May 18, 2000, assuming that the Participant's earnings
increase annually during the period between the date of determination and
December 31, 2001 at the CPI + 2 Rate. With respect to a Participant whose
employment by the Company, the Bank or an Affiliate has terminated prior to the
date of determination (an "Inactive Participant"), the present value of the
Benefits payable under the Severance Program will equal the total then as yet
unpaid Benefits payable to or with respect to the Participant under the
Severance Program.
(ii) With respect to accrued but unpaid vacation time,
the present value of projected Benefits payable to an Active Participant shall
equal the actual accrued by unpaid vacation time as of the date of
determination, based on the employee's salary as of date of determination. With
respect to an Inactive Participant,
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the present value of such projected Benefits shall be the total amount due to or
with respect to the Participant with respect to previously accrued but unpaid
vacation time.
(iii) "Consumer Price Index" shall mean the Consumer Price
Index for All Urban Consumers, CPI-U, published by the Bureau of Labor
Statistics of the United States Department of Labor, New York - Northern New
Jersey - Long Island, NY-NJ-CT Area, 'All Items' (1982-84 = 100), or any
successor index thereto covering New York City, appropriately adjusted.
5.4 Transfers to Another Trust. Prior to an Irrevocable Election or
Change in Control, upon the direction of the Company and the Bank concurred in
by the Committee, the Trustee shall deliver such assets of the Trust Fund as the
Company, the Bank and the Committee may direct to another irrevocable trust
established by the Company or the Bank, respectively, for the purpose of paying
Benefits to Participants and Beneficiaries under the Designated Arrangements.
The Trustee shall deliver a copy of the Committee's certification to the trustee
of the transferee trust at the time of delivery of the Trust assets.
5.5 Withholding Tax.
(a) To the extent that amounts are to be paid under this
Article V by the Trustee directly to Participants and Beneficiaries, such
amounts shall be reduced by the Trustee by the amount of any income and
employment tax withholding required by law, as determined by the Dime and
promptly communicated to the Trustee. The Trustee also shall inform each
Participant and Beneficiary to whom payment is made, of the amounts withheld and
the purposes for such withholdings. Such withheld
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amounts shall then be paid by the Trustee to the Dime, which shall remit such
withheld amounts to, and shall file the appropriate withholding reports with,
the appropriate governmental agencies.
(b) To the extent that amounts are to be paid under this
Article V by the Trustee directly to Participants and Beneficiaries, but the
Dime fails to direct the Trustee with respect to the appropriate amounts to be
withheld by the Trustee toward the satisfaction of applicable withholding
requirements, then the Trustee shall withhold amounts in respect of taxes at the
highest applicable rate for the appropriate jurisdiction as determined in good
faith by the Trustee, shall reduce such amounts by the such amount of tax
withholding, and shall inform the Dime and each Participant and Beneficiary to
whom payment is made, of the amounts withheld and the purposes for such
withholdings. Such withheld amounts shall then be paid by the Trustee to the
Dime, which shall remit such withheld amounts to, and shall file the appropriate
withholding reports with, the appropriate governmental agencies.
(c) Unless otherwise agreed to by the Trustee, the Dime shall
be responsible for all tax information reporting with respect to payments made
to Participants and Beneficiaries hereunder.
5.6 Legal Action by Trustee. Except in the event the Company or the
Bank is Insolvent (as defined in Section 12.1), the Trustee shall not itself
commence any legal action, whether in the nature of an interpleader action,
request for declaratory judgment, or otherwise, requesting the court to (i)
determine the validity of this Trust Agreement or (ii) make any determination in
the Trustee's or the Committee's stead
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with respect to Benefits which this Trust Agreement requires to be made by the
Trustee or the Committee. Notwithstanding the foregoing sentence, in defending
any legal action brought by a Participant or Beneficiary with respect to
Benefits due on account of a Participant (and with respect to the Committee, at
any time in its sole discretion), the Trustee and the Committee shall each be
entitled to ask the court to determine the Benefits due on account of such
Participant.
5.7 Dime Obligations. Notwithstanding the provisions of this Trust
Agreement, each of the Dime entities shall remain obligated to pay all Benefits
to the full extent of its respective liabilities under the Designated
Arrangements. Following an Irrevocable Election or Change in Control, to the
extent the Trust assets are not sufficient to pay any Benefit or related
insurance premium in full when due, and the amount of such shortfall is not
contributed to the Trust as provided in Section 5.1(b) hereof, then the Company
and the Bank, to the extent of their respective obligations, shall pay the
amount not otherwise payable from the Trust directly to the Participant or
Beneficiary, and shall provide the Trustee with evidence of such payment.
Nothing in this Trust Agreement shall relieve the Company or the Bank of any
respective liabilities to pay Benefits except to the extent such liabilities are
satisfied from the Trust Fund.
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ARTICLE VI
Settlement of Accounts
6.1 Trustee Records. The Trustee shall keep full, accurate and
detailed accounts of all investments, receipts and disbursements and other
transactions hereunder. Its financial statements, books and records with respect
to the Trust Fund shall be open to inspection by the Company, the Bank and the
Committee, and to their respective attorneys, accountants and agents upon
reasonable notice at all reasonable times during business hours of the Trustee.
6.2 Trustee Statements.
(a) The Trustee shall render to the Company, the Bank, and the
Committee monthly statements of its receipts and disbursements as Trustee
hereunder. Within 60 days after the close of each calendar year or any
termination of the duties of the Trustee, the Trustee shall prepare, sign and
mail to each of the Company, the Bank and the Committee one or more summary
reports. These reports shall show all purchases, sales, receipts, disbursements,
and other transactions effected by the Trustee during the year or period for
which the applicable report or reports are filed, and shall contain an exact
description, the cost as shown on the Trustee's books, and the fair market value
as of the end of such period, of every item held in the Trust and the amount and
nature of every obligation owed by the Trust, and any allocations of Trust Funds
made under the terms hereof. Each of the Company and the Bank shall make a copy
of such reports (or any adjustment thereof) available for inspection by
Participants and Beneficiaries (and persons designated by them) at its principal
executive office during
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business hours for a period of 60 days (30 days in the case of an adjusted
report). If within 90 days after receipt of the report neither the Company, the
Bank nor any Participant, Beneficiary or Committee member has filed with the
Trustee notice of any objection to any act or transaction of the Trustee, the
initial report shall become final as between the Trustee, the Company, the Bank,
the Committee and the Participants and Beneficiaries. If any objection has been
filed, and if the objecting party is satisfied that it should be withdrawn, the
objecting party shall in writing filed with the Trustee signify its approval of
the report, and it shall become a final report as between the Trustee, the
Company, the Bank, the Committee and the Participants and Beneficiaries. If the
report is adjusted following an objection thereto, the Trustee shall mail to the
Company, the Bank and the Committee the adjusted report, and if within 30 days
after receipt of the adjusted report neither the Company, the Bank nor any
Participant, Beneficiary or Committee member has filed with the Trustee notice
of any objection to the transactions as so adjusted, the adjusted report shall
become a final report as between the Trustee, the Company, the Bank, the
Committee and the Participants and Beneficiaries.
(b) Unless a report is fraudulent, when it becomes a final
report it shall be finally settled, and to the extent permitted by law, the
Trustee shall be completely discharged and released, as if such report had been
settled and allowed by a judgment or decree of a court of competent jurisdiction
in an action or proceeding in which the Trustee, the Company, the Bank, and the
Participants and Beneficiaries were parties.
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6.3 Audit. The Trustee shall from time to time permit an independent
public accountant selected by the Dime or the Committee to have access during
ordinary business hours to such records as may be necessary to audit the
Trustee's accounts.
6.4 Judicial Settlement. Nothing contained in this Trust Agreement
shall be construed as depriving the Trustee, the Company, the Bank or the
Committee of the right to have a judicial settlement of the Trustee's accounts,
and upon any proceeding for a judicial settlement of the Trustee's accounts or
for instructions the only necessary parties thereto in addition to the Trustee
shall be the Company, the Bank and the Committee.
6.5 Delivery of Records to Successor. In the event of the removal or
resignation of the Trustee, the Trustee shall deliver to the successor Trustee
all records which shall be required by the successor Trustee to enable it to
carry out the provisions of this Trust Agreement.
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ARTICLE VII
Taxes, Expenses and Compensation of Trustee
7.1 Taxes.
(a) Each of the Company and the Bank agrees that, for tax
purposes, all income, deductions and credits of the Trust Fund belong to them
(and not to the Trust Fund), as their interests may appear, as owners for income
tax purposes and shall be included on their respective income tax returns and
each of the Company and the Bank agrees to pay any taxes imposed on such
amounts.
(b) The Company and the Bank, as their interests may appear,
shall from time to time pay any and all taxes (references in this Trust
Agreement to taxes shall include interest and applicable penalties) of any and
all kinds whatsoever which at any time are due lawfully levied or assessed upon
or become payable in respect of the Trust Fund, its income or any property
forming a part thereof, or any security transaction pertaining thereto.
Notwithstanding the foregoing, in the event that the Trustee is notified that
taxes are nonetheless levied or assessed upon or are payable in respect of the
Trust Fund (notwithstanding its status as a "grantor trust") and have not been
paid by the Company or the Bank, such amounts may be paid from the Trust Fund,
and, if so paid, thereafter all determinations of funding obligations and excess
assets will be based on the assumption that the future earnings of the Trust
Fund (as assumed in present value calculations) will be reduced by taxes
thereon. The Trustee shall notify the Dime of any proposed or final assessments
of taxes and may assume that any such taxes are lawfully levied or assessed
unless the Company or the
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Bank advise it in writing to the contrary within 15 days after receiving the
above notice from the Trustee. In such case, the Trustee, if requested by the
Company or the Bank in writing, shall contest the validity of such taxes in any
manner deemed appropriate by the Company or the Bank (and the Company or the
Bank shall pay all fees and disbursements related to such contest, including
costs of counsel, accountants and other professionals); or the Company or the
Bank may contest the validity of any such taxes, in which case the Company or
the Bank shall so notify the Trustee and the Trustee shall have no
responsibility to contest such taxes. If any party to this Trust Agreement
contests any such proposed levy or assessment, the other parties shall provide
such information and cooperation as the party conducting the contest shall
reasonably request. In lieu of contesting any proposed levy or assessment, the
Company or the Bank may pay all or any portion of any such taxes at any time. If
either the Company or the Bank are paying such taxes it shall notify the Trustee
of its intention to do so within 15 days after receiving the above notice from
the Trustee or within five days after a determination of any such contested levy
or assessment becomes final, either because the determination cannot be appealed
or no appeal of the determination was made.
7.2 Expenses and Compensation. The Trustee shall be paid compensation
by the Dime in accordance with the schedule of fees attached hereto as Appendix
II. The Dime and the Trustee may mutually agree to revise such schedule from
time to time. Subject to the Dime's approval prior to an Irrevocable Election or
a Change in Control, and subject to the approval of the Committee following an
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Irrevocable Election or a Change in Control, the Trustee shall be reimbursed by
the Dime for its reasonable expenses of management and administration of the
Trust, including reasonable compensation of the actuary and any counsel or other
service providers engaged by the Trustee to assist it in such management and
administration in accordance with Sections 2.3(h) and (i) hereof.
7.3 Expense Account and Service Providers
(a) The Dime may from time to time make contributions to the
Trust Fund to be held in an Expense Account, the contributions to which may be
used to pay the Trustee's and the Committee's and the Director Committee's (as
defined in Section 8.2(b)) fees and expenses in accordance with this Trust
Agreement. At the time of an Irrevocable Election or Change in Control, the
Committee shall determine the amount that is reasonably necessary to pay
anticipated Trust expenses over the remaining life of the Trust, which amount
shall not be less than $5 million, and the Company and the Bank shall each be
jointly and severally liable to pay and deliver to the Trustee an amount
determined so that when it is added to amounts previously contributed to be held
in the Expense Account, the amount held or the Expense Account equals such
amount. The allocation of amounts contributed to and held in the Expense Account
as Company Trust Assets and Bank Trust Assets shall be based on the proportion
of the amounts actually contributed by each entity, provided that the Company
and the Bank may agree to a different allocation of those amounts between and
among Company Trust Assets and Bank Trust Assets if either initially contributes
more than 50% of the total amount so contributed or otherwise, in which event
the
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Company and the Bank shall inform the Trustee and the Committee of such revised
allocation, which revised allocation shall apply; provided, however, that after
a Change in Control or an Irrevocable Election, revision of a previously
applicable allocation of Expense Account amounts between Company Trust Assets
and Bank Trust Assets shall require the consent of the Committee. On and after
an Irrevocable Election or a Change in Control, the Trustee shall allocate to
the Expense Account, on a pro-rata basis with the remainder of the Trust Fund,
the income of the Trust Fund and gains and losses (including gains and losses
not yet realized on Trust Fund assets), as of the last day of each calendar
month; provided, however, that the Committee may direct that the Expense Account
be invested separately from other assets of the Trust Fund, in which event the
Expense Account will be allocated the gains and losses of those separate
investments. To the extent there is a balance in the Expense Account, the
Trustee shall utilize such balance for payment of its fees and expenses and
the fees and expenses of the Committee and the Director Committee (as defined in
Section 8.2(b)) as provided in Section 7.2 and this Section 7.3 and for payment
of the indemnities referred to in Section 9.1 and 9.2, and in the absence of
such a balance, shall seek reimbursement from the Dime. In the event that the
Dime shall fail or refuse to make such reimbursement within 90 days of demand,
the Committee shall direct the Trustee to satisfy such obligations out of the
other assets of the Trust Fund in such manner as the Committee deems to be
reasonable in the circumstances. If the Committee directs the Trustee to pay
fees and expenses from other Trust Fund assets, the Dime shall, upon demand by
the Committee, deposit into the Trust Fund a sum equal to the amount paid from
other assets of the Trust Fund for such fees and expenses. Before an Irrevocable
Election or a Change in Control, amounts may be reallocated from the Expense
Account to be maintained as other assets of the Trust
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Fund at the direction of the Company and the Bank, acting together. After an
Irrevocable Election or a Change in Control, solely to the extent the Committee
determines appropriate, amounts may be reallocated from the Expense Account to
be maintained as other assets of the Trust Fund, at the time and in the manner
directed by the Committee.
(b) Each of the Committee and the Director Committee (as
defined in Section 8.2(b)) shall have the power and authority to engage counsel
or other service providers (including consultants and administrators) of its
choice to the extent it deems it necessary or appropriate in order to fulfill
its obligations hereunder, or otherwise to determine, defend or assert any of
the rights or interests of the Committee, the Director Committee, the Trust or
its beneficiaries provided for under this Trust Agreement (which, in the case of
the Committee, shall include the authority to engage actuaries, counsel and
other experts as it deems necessary in order to perform its duties under Section
5.1). The Committee shall, in addition, have the power and authority to direct
the Trustee to purchase liability insurance to cover any or all of (a) the
Committee, (b) each of the Committee's current and former members, (c) any
current or former director, officer or employee of the Dime who is or was
serving or agrees to serve at the request of the Dime or the Committee as an
authorized agent or delegatee of the Bank or the Committee, (d) any other agent
of the Committee or the Trust and (e) the Trustee (each, to the extent so
insured, an "Insured Party") with respect to any and all liabilities to which
such Insured Party may become subject pursuant to, arising out of, occasioned
by, or incurred in connection with or in any way
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associated with this Trust Agreement, including, without limitation, liabilities
to the Dime, subject to such limitations on coverage, deductibles, or other
terms and conditions as the Committee shall in its sole discretion deem
reasonable. To the extent the Committee or the Director Committee (or the
Trustee as directed by the Committee) incurs reasonable expenses as described
above, or incurs other reasonable expenses in performing its duties under this
Trust Agreement, such expenses shall be paid or otherwise reimbursed out of the
Expense Account as a Trust Expense, if and to the extent directed by the
Committee, and if not otherwise previously paid or reimbursed by the Dime. In
the event that there are insufficient funds in the Expense Account and the Dime
shall fail or refuse to make such reimbursement within 90 days of demand, the
Committee may direct that other Trust Fund assets be applied to satisfy such
reimbursement obligation. If such fees and expenses are paid from other Trust
Fund assets, the Dime shall, upon demand by the Committee, deposit into the
Trust Fund a sum equal to the amount paid from other assets of the Trust Fund
for such fees and expenses.
(c) Following an Irrevocable Election or Change in Control,
each member of the Committee who is not at the time of any meeting of the
Committee an employee, officer or director of the Dime shall receive a fee of
$1,500 for each meeting of the Committee which he or she attends personally and
$1,000 for each meeting of the Committee which he or she attends by telephone or
other electronic or wireless means enabling all members in attendance to
communicate with each other contemporaneously, and, following the time such
member of the Committee ceases to
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be an employee, officer or director of the Dime, shall be reimbursed for any
reasonable out-of-pocket expenses incurred in connection with performing his or
her duties under this Trust Agreement. Upon presentation of a request for such
reimbursements to the Trustee (containing such information, including receipts
for out-of-pocket expenses, as the Trustee may reasonably request), then, if not
previously reimbursed by the Dime or pursuant to another Umbrella Trust (as
defined below), the Committee shall direct the Trustee to make such
reimbursements, which shall be reimbursed out of the Trust Fund. In the event
the Committee hereunder undertakes a meeting that is combined with or occurs on
the same day as a meeting of one or more committees under the trust under the
Umbrella Trust Agreement, dated as of May 18, 2000, among the Company, the Bank
and HSBC Bank USA, as Trustee with respect to the Covered Arrangements of the
Bank and Related Entities (including any subsequent amendments or successor
agreements thereto) (the "Executive Trust"), or the Benefit Protection Trust
Agreement, dated as of May 18, 2000, among the Company, the Bank and HSBC Bank
USA, as Trustee (including any subsequent amendments or successor agreements
thereto) (the "Benefit Protection Trust" and, each of the Benefit Protection
Trust and the Executive Trust, an "Umbrella Trust"), any Committee member who is
a member of such other committee(s) shall be entitled to only a single fee for
such meeting or meetings, and the Trustee shall pay a pro-rated portion of the
fee for the meeting (based upon the number of trusts to which the meeting or
meetings relate) out of the assets of this Trust Fund.
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ARTICLE VIII
For Protection of Trustee and Committees
8.1 Evidence of Action by the Dime.
(a) Each of the Company and the Bank has certified to the
Trustee the name or names of any person or persons authorized to act for it on
Appendix IV hereto. Unless the Company or the Bank notifies the Trustee, in a
notice signed by its Secretary or by an Assistant Secretary, that any person
listed on Appendix IV to this Trust Agreement is no longer authorized to act for
the Company or the Bank, the Trustee may continue to rely upon the authority of
such person. The Company or the Bank may certify to the Trustee, in a notice
signed by its Secretary or by an Assistant Secretary, the names of any
additional persons authorized to act for the Company or the Bank. Appendix IV
shall be deemed to be revised to reflect any additions or deletions made in
accordance with this Section 8.1(a).
(b) The Trustee may rely upon any certificate, notice or
direction of the Company or the Bank which the Trustee reasonably believes to
have been signed by at least two duly authorized officers or agents of the
Company or the Bank.
(c) With respect to any action required or permitted to be
taken by Dime hereunder, the Trustee may rely upon the authorization, approval,
direction or consent given by either the Company or the Bank in accordance
herewith, and shall not be required to obtain any additional authorization,
approval, direction or consent of the
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other party hereto, and any action taken by either of the Company or the Bank
for such purposes shall be binding on the other.
8.2 Evidence of Action by the Committee or the Director Committee.
(a) The Trustee may rely on a signed notice of resignation by a
Committee member, and a notice of vacancy or appointment of a successor provided
in accordance with Section 13.6.
(b) The Trustee may rely upon any certificate, notice or
direction of the Committee or the "Committee" under the Umbrella Trust Agreement
(the "Director Trust Agreement") among Dime Bancorp, Inc., The Dime Savings Bank
of New York, FSB and HSBC Bank USA, as Trustee with respect to the covered
Arrangements for Outside Directors of The Dime Savings Bank of New York, FSB and
Related Entities, as amended and restated effective May 18, 2000, as may
subsequently be amended (and any successor agreement thereto) (the "Director
Committee"), which the Trustee reasonably believes to have been signed by at
least two members of the Committee or the Director Committee, as applicable, or,
if the Committee or the Director Committee than consists of only one member, by
such member. The makeup of the Director Committee shall be determined in
accordance with the terms of the Director Trust Agreement.
(c) The Committee may from time to time delegate to one or more
persons any or all of its rights, powers, duties and responsibilities hereunder.
Such delegation shall be effective when made in writing and delivered to the
Trustee, the Company and the Bank as provided in Section 13.7 hereof, for the
period and to
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the extent set forth therein. Notwithstanding the foregoing, however, the
Committee may not delegate any of its rights, powers, duties or responsibilities
under any of Sections 12.3, 12.6, 13.6(b) or 13.6(c) of this Trust, and the
Director Committee may not delegate its authority pursuant to Section 13.5 of
this Trust. The Trustee may rely upon any certificate, notice or direction of
such delegatee or delegatees which the Trustee reasonably believes to have been
signed by such delegatee or delegatees, as to matters within the authority
granted by the Committee to such person or persons. Any such delegation may be
partially or wholly revoked by the Committee at any time, in accordance with
Section 13.6(d) hereof. To the extent that at any time the Director Committee
(as defined in Section 8.2(b)) does not exist, those actions which may otherwise
be taken by the Director Committee may be taken by the Committee.
8.3 Fiduciary Responsibility.
(a) The Trustee shall discharge its duties under this Trust
Agreement in a manner consistent with the objectives of this Trust Agreement and
in accordance with applicable law. Except as otherwise provided in this Trust
Agreement, or under applicable law, the Trustee shall have no liability for (i)
loss sustained by the Trust Fund by reason of the purchase, retention, sale or
exchange of any investment made in accordance with the written directions of the
Dime or the Committee; (ii) failure of the Company or the Bank to make
contributions to the Trust Fund; or (iii) for any insufficiency of assets in the
Trust Fund to pay Benefits when due, unless such loss, failure or insufficiency
is the result of the Trustee's own negligence or willful misconduct.
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(b) The Trustee's duties and obligations shall be limited to
those expressly imposed upon it by this Trust Agreement.
(c) The Company and the Bank at any time may employ as agent
(to perform any act, keep any records or accounts, or make any computations
required of either of them by this Trust Agreement or the Designated
Arrangements) the corporation or association serving as Trustee hereunder.
Nothing done by said corporation or association as such agent shall affect its
responsibilities or liability as Trustee hereunder.
(d) In the exercise of its discretion hereunder, each of the
Committee and the Director Committee shall have due regard for the interests of
each of the Company, the Bank and the Participants (and their Beneficiaries) as
a class; provided, that inasmuch as the interests of such class or entities may
be expected to conflict in certain circumstances, and notwithstanding that
members of the Committee may themselves be Participants, any determination made
by the Committee or the Director Committee that has the effect of being more
favorable to one entity or class to which it owes a duty over another shall not
thereby be deemed invalid or a breach of the Committee's or the Director
Committee's duty to such disfavored entity or class, so long as the Committee or
the Director Committee, as applicable, acts in good faith in making its
determination.
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ARTICLE IX
Indemnity of Trustee and Committees
9.1 Indemnity of Trustee. The Company and the Bank (the "Indemnifying
Parties") hereby jointly and severally indemnify and hold the Trustee harmless
from and against any Liabilities (as defined in Section 9.2) to which the
Trustee may become subject pursuant to, arising out of, occasioned by, or
incurred in connection with or in any way associated with this Trust Agreement,
unless such Liabilities result or arise from any act or omission constituting
gross negligence or willful misconduct of the Trustee. If one or more
Liabilities shall arise and the Indemnifying Parties fail to indemnify the
Trustee as provided herein, then the Trustee may engage counsel of the Trustee's
choice at the expense of the Indemnifying Parties, provided such expenses are
reasonable; and provided further, the Trustee shall be entitled either to
conduct the defense against such Liabilities or to conduct such actions as may
be necessary to obtain the indemnity provided for herein, or to take both such
actions. The Trustee shall notify the Indemnifying Parties of the name and
address of such counsel before the Trustee has so engaged such counsel. If the
Trustee shall be entitled to indemnification by the Indemnifying Parties,
pursuant to this Section 9.1, as determined by a court of competent jurisdiction
and the Indemnifying Parties shall not provide such indemnification upon demand,
the Trustee may apply assets of the Trust Fund in full satisfaction of the
obligations for indemnity by the Indemnifying Parties, and any legal proceeding
by the Trustee against the Indemnifying Parties for such indemnification shall
be in behalf of the Trust.
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9.2 Indemnification of Committees and Agents. The Indemnifying Parties
shall indemnify, to the fullest extent permitted by their respective
Certificates of Incorporation (or equivalent) and By-Laws (collectively, the
"Governing Documents") and applicable law, (including the provisions thereof
relating to advances of costs, charges and expenses), any person who is, or
business entity, including without limitation a corporation, limited liability
company or partnership, that is owned by, a current or former director, officer
or employee of either of such Indemnifying Parties or of any of their direct or
indirect subsidiaries who is or was serving or agrees to serve either at the
request of either of such Indemnifying Parties or of such subsidiary or as a
result of being selected to serve in accordance with Section 13.6 hereof or the
corresponding provision of the Director Trust Agreement as a member of the
Committee or the Director Committee, or as an authorized agent or delegatee of
the Company, the Bank, the Committee or the Director Committee (each such
indemnified person or business entity, an "Indemnified Party") against any loss,
damage, liability, cost, charge or expense (including attorneys' fees),
judgment, fine and amount paid in settlement (herein "Liabilities") actually and
reasonably incurred by such Indemnified Party or on such Indemnified Party's
behalf in connection with any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, investigative or administrative, and
whether threatened or brought by a third party or by the Dime, relating to or in
connection with such Indemnified Party's service as a member of the Committee or
Director Committee or as such authorized agent or delegatee; provided, that the
Indemnified Party has met any applicable standard of conduct required by or
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pursuant to the Governing Documents or by applicable law or regulation in order
to qualify for indemnification thereunder, as well as any other conditions to
such indemnification imposed by the Governing Documents or by applicable law or
regulation and provided, further, that in the event that such indemnification
(including any provision relating to advances of costs, charges and expenses) is
permissible but not required by the Governing Documents, and the Indemnifying
Parties shall fail to provide such indemnification when requested by an
Indemnified Party, then subject to any conditions set forth in the Governing
Documents, the Trustee shall indemnify such Indemnified Party out of the assets
of the Trust Fund. In connection with such indemnification, the Company and the
Bank hereby acknowledge that each member of the Committee and the Director
Committee and each authorized agent or delegatee of the Company, the Bank, the
Committee or the Director Committee is or will be serving as such at the request
of each of the Company and the Bank, both before and after any Change in Control
or Irrevocable Election. Any determination as to whether the Indemnified Party
has met such applicable standard of conduct or other conditions to
indemnification shall be made in accordance with the provisions of the Governing
Documents and applicable law or regulation, as in effect at the time of an
Irrevocable Election or Change in Control. Unless otherwise required by
applicable law, this Section 9.2 may be amended only in accordance with Section
11.3 hereof; provided that, in addition, this Section 9.2 shall not be rescinded
or modified so as to materially reduce the indemnification provided hereunder
without first giving thirty (30) days advance written notice of such rescission
or modification to each individual then
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entitled to indemnification hereunder, or so as to materially reduce the
indemnification provided hereunder with respect to actions taken or omitted to
be taken prior to the effective date of such rescission or modification. An
Indemnifying Party may satisfy its obligation under this Section 9.2 in whole or
in part by purchase of a policy or policies of insurance, but no insurer shall
have any rights against an Indemnifying Party or the Trust arising out of this
Section 9.2. If an Indemnified Party shall be entitled to indemnification by an
Indemnifying Party, pursuant to this Section 9.2, as determined by a court of
competent jurisdiction and such Indemnifying Party shall not provide such
indemnification upon demand, the Trustee shall, to the extent permitted by law,
apply the Company Trust Assets or Bank Trust Assets in full satisfaction of the
obligations for indemnity by the Company or the Bank, as the case may be, and
any subsequent legal proceedings by the Indemnified Party against the Company or
the Bank for such indemnification shall be on behalf of the Trust.
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ARTICLE X
Resignation and Removal of Trustee
10.1 Resignation of Trustee. The Trustee may resign upon 90
days' prior written notice to the Committee and the Dime, except that any such
resignation shall not be effective until the Dime has appointed in writing a
successor Trustee, which must be a bank or trust company, acceptable to the
Committee. The Dime shall make a good faith effort, following receipt of notice
of resignation from the Trustee, to appoint a successor Trustee under this Trust
Agreement. In the event the Dime has failed to appoint a successor Trustee
within six months of the Trustee's notice of resignation, the Trustee shall be
entitled to seek judicial removal.
10.2 Removal of Trustee. At any time prior to the occurrence of an
Irrevocable Election, Change in Control or Potential Change in Control, the Dime
may remove the Trustee without cause upon at least 30 days' notice in writing to
the Trustee. At any time after the occurrence of an Irrevocable Election, Change
in Control or Potential Change in Control, the Trustee may be removed by action
of the Committee. In case of a removal of the Trustee for cause (which, for
these purposes, shall include criminal conduct, gross negligence, mismanagement
of trust funds, or any other material breach of fiduciary duty hereunder), the
party having power to do so hereunder may remove the Trustee immediately,
without any prior notice. At any time after the occurrence of an Irrevocable
Election or Change in Control, the Trustee may also be removed by the Dime upon
the action of the Participants who, at the time such removal is sought, hold in
the aggregate a majority of the beneficial interests in the
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Trust Fund. Any notice sent to Participants seeking their consent to removal of
the Trustee, shall, to the extent the Dime has selected a successor Trustee,
include the name and address of the proposed successor trustee. For purposes of
this Section 10.2, and all other Sections of this Trust Agreement which refer to
this Section 10.2 for purposes of determining the Participants who hold a
majority of the beneficial interests in the Trust Fund, the beneficial interest
of each Participant shall be deemed to be the present value of the projected
total Benefits payable to the Participant, determined in accordance with Section
5.3(b). For purposes of this Trust Agreement where the exercise of rights or
powers conferred on a Participant hereunder requires "action," such action may
be taken by the vote of the Participant present in person or by proxy at a duly
held meeting of Participants or by the written consent of such Participant.
10.3 Successor Trustee. (ai If the Trustee resigns (or is removed) in
accordance with Section 10.1 or 10.2 hereof, (i) prior to an Irrevocable
Election, Change in Control or Potential Change in Control, the Dime may appoint
any third party, such as a bank trust department or other party that may be
granted corporate trustee powers under state law, as a successor to replace the
Trustee upon resignation or removal, and (ii) on or after the date of an
Irrevocable Election, Change in Control or Potential Change in Control, only the
Committee may appoint any third party, such as a bank trust department or other
party that may be granted corporate trustee powers under state law, as a
successor to replace the Trustee upon resignation or removal; provided, however,
that in the case of either the preceding clause (i) or (ii), such successor
Trustee may not be an Affiliate of the Company or the Bank or a party (or
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Affiliate of a party) to a Change in Control or then existing Potential Change
in Control. The appointment shall be effective when accepted in writing by the
new Trustee. The former Trustee shall execute any instrument(s) necessary or
reasonably requested by the Dime or the successor Trustee to evidence the
transfer.
(b) All of the provisions set forth herein with respect to the
Trustee shall relate to each successor Trustee with the same force and effect as
if such successor had been originally named as the Trustee hereunder.
10.4 Transfer of Trust Fund to Successor. Upon the resignation or
removal of the Trustee and appointment of a successor, the Trustee shall
transfer and deliver the Trust Fund and such records or copies of such records
as are reasonably requested to such successor. Following the effective date of
the appointment of the successor, the Trustee's responsibility hereunder shall
be limited to managing the assets in its possession and transferring such assets
to the successor, and settling its final account. Neither the Trustee nor the
successor shall be liable for the acts of the other.
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ARTICLE XI
Duration, Termination and Amendment of Trust
11.1 Duration and Termination. (ai Except as provided in this Trust
Agreement, the Trust is hereby declared to be irrevocable and shall continue
until whichever of the following shall first occur: (i) all payments required by
this Trust Agreement have been made or (ii) the Trust Fund contains no assets
and retains no claims to recover assets from Company or the Bank pursuant to any
provision hereof.
(b) The Company and the Bank may terminate this Trust prior to
the time all Benefit payments under the Designated Arrangements have been made,
provided, however, that the prior written consent of the Participants who, at
the time such termination is sought, hold in the aggregate a majority of the
beneficial interests in the Trust Fund, must be obtained. The determination of
each Participant's beneficial interest for this purpose shall be made in
accordance with Section 10.2. All Company Trust Assets in the Trust upon the
termination of the Trust pursuant to this Section 11.1(b) shall be returned to
the Company, and all Bank Trust Assets in the Trust upon such termination shall
be returned to the Bank.
11.2 Distribution Upon Termination. If this Trust terminates under the
provisions of Section 11.1(a), the Trustee shall liquidate the Trust Fund and,
after its final account has been settled as provided in Article VI, shall
distribute to the Company and the Bank the net balance of any Company Trust
Assets and Bank Trust Assets, respectively, and the net balance of the Expense
Account, remaining after all Benefits and expenses have been paid. Upon making
such distribution, the Trustee shall be
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relieved from all further obligations. The powers of the Trustee hereunder shall
continue so long as any assets of the Trust Fund (including claims against the
Company or the Bank) remain in its hands.
11.3 Amendment.
(a) Prior to an Irrevocable Election, Change in Control or
Potential Change in Control, this Trust Agreement may be amended from time to
time by action of the Company and the Bank, which action may be taken, and shall
be evidenced, in writing by any of the Chief Executive Officer, the Chief
Operating Officer or the Chief Human Resources Officer of each entity, certified
by the Secretary or an Assistant Secretary of such entity.
(b) Subsequent to an Irrevocable Election, Change in Control or
Potential Change in Control, this Trust Agreement may be amended only by the
Committee, provided that the Committee shall exercise its authority to amend the
Trust Agreement only to the extent that such exercise of authority does not
eliminate the rights of creditors of the Bank or the Company to Trust assets in
the event that the Bank or Company becomes Insolvent (as such term is used in
Article XII) or otherwise cause the Trust to fail to be a "grantor trust"
pursuant to Sections 671 through 679 of the Code. No amendment to this Trust
Agreement shall adversely affect any of a Participant's Benefits, or, after an
Irrevocable Election or Change in Control, the amount credited to a
Participant's Account without the consent of the affected Participant. No
amendment to this Trust Agreement that could materially increase the costs of
the Trust to the Company or the Bank shall be made without the approval of
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the affected entity, which approval may be evidenced by a writing by any of the
Chief Executive Officer, the Chief Operating Officer or the Chief Human
Resources Officer of such entity, certified by the Secretary or an Assistant
Secretary of such entity. In the event there is any dispute between the
Committee and the Dime as to whether a proposed amendment to the Trust Agreement
could materially increase the costs of the Trust to the Company or the Bank, the
Trustee shall reach its own independent determination with respect to such
dispute, which determination shall be final and binding on the parties.
(c) No amendment of this Trust Agreement shall be made that
alters the irrevocable character of the Trust established under this Trust
Agreement, and no amendment shall materially increase the duties or
responsibilities of the Trustee unless the Trustee consents thereto in writing.
(d) (i) A "Potential Change in Control" shall be deemed to
have occurred if the event set forth in any one of the following paragraphs
shall have occurred:
(A) the Company enters into an agreement, the
consummation of which would result in the occurrence of a Change in Control;
(B) the Company or any Person publicly announces
an intention to take or to consider taking actions which, if consummated, would
constitute a Change in Control;
(C) any Person becomes the Beneficial Owner,
directly or indirectly, of securities of the Company representing 15% or more of
either
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the then outstanding shares of common stock of the Company or the combined
voting power of the Company's then outstanding securities (not including in the
securities beneficially owned by such Person, any securities acquired directly
from the Company or its Affiliates); or
(D) the Board of Directors of the Company adopts
a resolution to the effect that, for purposes of this Agreement, a Potential
Change in Control has occurred.
As used in connection with the foregoing definition of
Potential Change in Control, "Affiliate," "Beneficial Owner," "Exchange Act" and
"Person" shall have the respective meanings as set forth in Section 13.4 hereof.
(ii) The Committee shall determine whether a Potential
Change in Control or an Abandonment Date has occurred. If the Committee makes
such a determination, then the Committee shall promptly notify the Company, the
Bank and the Trustee of such determination.
In particular, and without limiting the generality of the foregoing, the
parties to this Trust Agreement acknowledge that, as of the date hereof, a
Potential Change in Control has occurred in respect of the exchange offer by
North Fork Bancorporation, Inc. for common shares of the Company.
(iii) As used in this Section, the term "Abandonment Date"
shall mean the date on which (A) an agreement described in Section (d)(i)(A)
above is terminated (pursuant to its terms or otherwise) without having been
consummated, (B) all parties described in Section (d)(i)(B) above publicly
announce
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that they have unconditionally abandoned the transactions contemplated, (C) the
Board adopts a resolution rescinding its previous determination that a Potential
Change in Control has occurred or (D) a court or regulatory body having
competent jurisdiction enjoins or issues a cease and desist or stop order with
respect to or otherwise prevents the consummation of, or a regulatory body
notifies the Bank or the Company that it will not approve, a transaction
described in Section (d)(i)(A) or (B) above or the transactions contemplated
thereby and such injunction, order or notice has become final and not subject to
appeal.
(iv) Following the Abandonment Date of a Potential Change
in Control, the provisions of this Trust Agreement in effect following a
Potential Change in Control shall no longer apply, and the provisions of this
Trust Agreement in effect prior to a Potential Change in Control shall again
apply, unless and to the extent that, prior to the Abandonment Date of such
Potential Change in Control, another Potential Change in Control, or an
Irrevocable Election or Change in Control, has occurred with respect to which
those provisions, as applicable, will continue to separately apply.
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ARTICLE XII
Claims of Creditors
12.1 Insolvency of Bank. As used in this Article XII, the Bank shall be
deemed to be "Insolvent" if (i) the Bank is subject to a pending proceeding
seeking a decree or order of a court or agency or supervisory authority having
jurisdiction in the premises for the appointment of a conservator or receiver or
trustee or liquidator in any insolvency, liquidation, taking of possession,
termination of deposit insurance, readjustment of debt, marshaling of assets and
liabilities or similar proceedings of or relating to the Bank or of or relating
to all or substantially all of its property, or for the winding up or
liquidation of its affairs, under any federal or state law relating to
bankruptcy or insolvency, or (ii) the Bank is unable to pay its debts as they
become due. The Chief Executive Officer or Board of Directors of the Bank shall
promptly notify the Trustee in the event that the Bank becomes Insolvent. If at
any time the Trustee has determined that the Bank is Insolvent, the Trustee
shall discontinue payments to Participants or their Beneficiaries from the Bank
Trust Assets and shall hold the Bank Trust Assets of the Trust for the benefit
of the Bank's general creditors. Nothing in this Trust Agreement shall in any
way diminish any rights of Participants or their Beneficiaries to pursue their
rights as general creditors of the Bank with respect to Benefits due under the
Designated Arrangements or otherwise, or (except in the event the Company
becomes Insolvent) the rights of Participants or their Beneficiaries to receive
payments of Company Benefits from the Company Trust Assets.
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12.2 Trustee's Responsibilities if Bank May Be Insolvent.
(a) If at any time the Bank or a person claiming to be a
creditor of the Bank alleges in writing to the Trustee that the Bank has become
Insolvent, the Trustee shall within 30 days of such allegation, independently
determine whether the Bank is Insolvent and, pending such determination, the
Trustee shall discontinue payments from the Bank Trust Assets of Benefits under
the Designated Arrangements and this Trust Agreement.
(b) If the Bank notifies the Trustee or the Trustee determines
that the Bank is Insolvent, the Trustee shall hold the Bank Trust Assets for the
benefit of the Bank's general creditors, and shall disburse assets from the Bank
Trust Assets to creditors of the Bank only pursuant to an order from a court of
competent jurisdiction.
(c) If the Trustee discontinues payment from the Bank Trust
Assets of Benefits pursuant to this Section 12.2, the Trustee shall resume
payments from the Bank Trust Assets of Benefits under the Designated
Arrangements only after the Trustee has determined that the Bank is not
Insolvent (or is no longer Insolvent, if the Trustee initially determined the
Bank to be Insolvent). The first payment to a Participant following such
discontinuance shall include an aggregate amount equal to the difference between
the payments which would have been made to such Participant under this Trust
Agreement but for this Section 12.2 and the aggregate payments actually
otherwise made to such Participant pursuant to the Designated Arrangements
during any such period of discontinuance; provided, however, that such payment
shall
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be made from the Bank Trust Assets only to the extent Bank Trust Assets are then
available for such purposes.
12.3 Trust Recovery of Payments to Creditors. In the event that an
amount is paid from the Trust Fund to creditors of the Bank (other than as
provided in Article V and Section 7.3), then as soon as practicable (or if the
Bank is then Insolvent, as soon as the Bank is no longer Insolvent) but subject
to the sole discretion of the Bank or, following an Irrevocable Election or
Change in Control, subject to the sole discretion of the Committee, and upon the
Trustee's demand, the Bank shall deposit into the Trust Fund a sum equal to the
amount paid by the Trust Fund to such creditors.
12.4 Insolvency of Company. As used in this Article XII, the Company
shall be deemed to be "Insolvent" if (i) the Company is subject to a pending
proceeding seeking a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
conservator or receiver or trustee or liquidator in any insolvency, liquidation,
taking of possession, readjustment of debt, marshaling of assets and liabilities
or similar proceedings of or relating to the Company or of or relating to all or
substantially all of its property, or for the winding up or liquidation of its
affairs, under any federal or state law relating to bankruptcy or insolvency, or
(ii) the Company is unable to pay its debts as they become due. The Chief
Executive Officer or Board of Directors of the Company shall promptly notify the
Trustee in the event that the Company becomes Insolvent. If at any time the
Trustee has determined that the Company is Insolvent, the Trustee shall
discontinue payments to Participants or their Beneficiaries from the Company
Trust Assets and shall hold the
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Company Trust Assets of the Trust for the benefit of the Company's general
creditors. Nothing in this Trust Agreement shall in any way diminish any rights
of Participants or their Beneficiaries to pursue their rights as general
creditors of the Company with respect to Benefits due under the Designated
Arrangements or otherwise, or (except in the event the Bank becomes insolvent)
the rights of Participants or their Beneficiaries to receive payments of Bank
Benefits from the Bank Trust Assets.
12.5 Trustee's Responsibilities if Company May Be Insolvent.
(a) If at any time the Company or a person claiming to be a
creditor of the Company alleges in writing to the Trustee that the Company has
become Insolvent, the Trustee shall within 30 days of such allegation,
independently determine whether the Company is Insolvent and, pending such
determination, the Trustee shall discontinue payments from the Company Trust
Assets of Benefits under the Designated Arrangements and this Trust Agreement.
(b) If the Company notifies the Trustee or the Trustee
determines that the Company is Insolvent, the Trustee shall hold the Company
Trust Assets for the benefit of the Company's general creditors, and shall
disburse assets from the Company Trust Assets to creditors of the Company only
pursuant to an order from a court of competent jurisdiction.
(c) If the Trustee discontinues payment from the Company Trust
Assets of Benefits pursuant to this Section 12.5, the Trustee shall resume
payments from the Company Trust Assets of Benefits under the Designated
Arrangements only after the Trustee has determined that the Company is not
Insolvent (or is no longer
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Insolvent, if the Trustee initially determined the Company to be Insolvent). The
first payment to a Participant following such discontinuance shall include an
aggregate amount equal to the difference between the payments which would have
been made to such Participant under this Trust Agreement but for this Section
12.5 and the aggregate payments actually otherwise made to such Participant
pursuant to the Designated Arrangements during any such period of
discontinuance; provided, however, that such payment shall be made from the
Company Trust Assets only to the extent Company Trust Assets are then available
for such purposes.
12.6 Trust Recovery of Payments to Creditors. In the event
that an amount is paid from the Trust Fund to creditors of the Company (other
than as provided in Article V and Section 7.3), then as soon as practicable (or
if the Company is then Insolvent, as soon as the Company is no longer Insolvent)
but subject to the sole discretion of the Company or, following an Irrevocable
Election or Change in Control, subject to the sole discretion of the Committee,
and upon the Trustee's demand, the Company shall deposit into the Trust Fund a
sum equal to the amount paid by the Trust Fund to such creditors.
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ARTICLE XIII
Miscellaneous
13.1 Governing Law. This Trust Agreement and the Trust hereby created
shall be governed, construed and regulated by the laws of the State of New York,
without regard to the conflict of laws principles thereof. The parties to this
Agreement agree and expressly consent that any action brought pursuant to or to
enforce the terms of this Agreement may be brought in the courts of the State of
New York sitting in New York, New York, or the United States District Court for
the Southern District of New York. Each of the parties to this Agreement agrees
and expressly consents to submit to the exclusive jurisdiction of the
above-listed courts in any action alleging a breach of this Agreement or seeking
to invalidate or limit the enforceability of this Agreement or of any provision
thereof. Nothing in this provision, however, shall be construed to limit the
Trustee's or the Committee's ability to serve process or commence any action
against any of the parties hereto in any appropriate forum.
13.2 Titles and Headings Not to Control. The titles to Articles and
headings of Sections in this Trust Agreement are placed herein for convenience
of reference only and in case of any conflict, the text of this Trust Agreement,
rather than such titles or headings, shall control.
13.3 Successors and Assigns. Except as provided herein, this Trust
Agreement may not be assigned by any party without the prior written consent of
the other parties, and any purported assignment without such prior written
consent shall be null and void. This Trust Agreement shall be binding upon the
successors and
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permitted assigns of each party hereto. In the case of any
consolidation of the Company or the Bank with, or merger of the Company or the
Bank with or into, any corporation or other entity, or any sale or conveyance of
all or substantially all of the assets of the Company or the Bank, the
corporation or other entity formed by such consolidation, or with or into which
the Company or the Bank is merged, or any Person which acquires all or a
majority of the assets of the Company or the Bank, shall expressly assume in
writing, in form satisfactory to the Trustee, the duties and obligations of the
Company or the Bank, as the case may be, under this Trust Agreement and the
Designated Arrangements; provided, however, that the duties and obligations of
the Company or the Bank, as the case may be, under this Trust Agreement and the
Designated Arrangements shall be binding on any such successor notwithstanding
its failure to expressly assume such duties and obligations in writing. Neither
the Company nor the Bank shall sell or convey all or a majority of its assets to
any Person unless such Person has expressly assumed in writing, in form
satisfactory to the Trustee, each of the duties and obligations of the Company
or the Bank, as the case may be, under this Trust Agreement and the Designated
Arrangements.
13.4 Change in Control. For purposes of this Trust Agreement, a "Change
in Control" shall be deemed to have occurred if the event set forth in any one
of the following paragraphs shall have occurred:
(i) any Person is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Company (not including in the
securities beneficially owned by such Person any securities acquired directly
from the Company
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or its Affiliates) representing 35% or more of the combined voting power of the
Company's then outstanding securities; or
(ii) the following individuals cease for any reason to
constitute a majority of the number of directors then serving as directors of
the Company: individuals who, on July 24, 1997, constitute the Board of
Directors of the Company and any new director (other than a director whose
initial assumption of office is in connection with the settlement of an actual
or threatened election contest, including but not limited to a consent
solicitation, relating to the election of directors of the Company) whose
appointment or election by the Board of Directors of the Company or nomination
for election by the Company's stockholders was approved or recommended by a vote
of at least two-thirds (2/3) of the directors then still in office who either
were directors on July 24, 1997 or whose appointment, election or nomination for
election was previously so approved or recommended; or
(iii) there is consummated a merger or consolidation of
the Company or any direct or indirect subsidiary of the Company with any other
corporation or entity, other than (A) a merger or consolidation which would
result in the voting securities of the Company outstanding immediately prior to
such merger or consolidation continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving entity
or any Parent thereof), in combination with the ownership of any trustee or
other fiduciary holding securities under an employee benefit plan of the Company
or any subsidiary of the Company, at least 65% of the combined voting power of
the securities of the Company, such
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surviving entity or any Parent thereof outstanding immediately after such merger
or consolidation or (B) a merger or consolidation affected solely to implement a
recapitalization of the Company or the Bank (or similar transaction) in which no
Person is or becomes the Beneficial Owner, directly or indirectly, of securities
of the Company or the Bank (not including in the securities beneficially owned
by such Person any securities acquired directly from the Company or its
Affiliates) representing 35% or more of the combined voting power of the
Company's or the Bank's then outstanding securities; or
(iv) the stockholders of the Company or the Bank approve
a plan of complete liquidation or dissolution of the Company or the Bank,
respectively, or there is consummated a sale or disposition by the Company or
any of its subsidiaries of any assets which individually or as part of a series
of related transactions constitute all or substantially all of the Company's
consolidated assets (provided that, for these purposes, a sale of all or
substantially all of the voting securities of the Bank or a Parent of the Bank
shall be deemed to constitute a sale of substantially all of the Company's
consolidated assets), other than any such sale or disposition to an entity at
least 65% of the combined voting power of the voting securities of which are
owned by stockholders of the Company in substantially the same proportions as
their ownership of the voting securities of the Company immediately prior to
such sale or disposition.
As used herein, "Affiliate" shall have the meaning set forth in Rule
12b-2 promulgated under Section 12 of the Exchange Act; "Beneficial Owner" shall
have the
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meaning set forth in Rule 13d-3 under the Exchange Act; "Exchange Act" shall
mean the Securities Exchange Act of 1934, as amended from time to time; "Parent"
shall mean any entity that becomes the Beneficial Owner of at least 80% of the
voting power of the outstanding voting securities of the Company or of an entity
that survives any merger or consolidation of the Company or any direct or
indirect subsidiary of the Company; and "Person" shall have the meaning given in
Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and
14(d) thereof, except that such term shall not include the Company or any of its
subsidiaries, a trustee or other fiduciary holding securities under an employee
benefit plan of the Company or any of its Affiliates, an underwriter temporarily
holding securities pursuant to an offering of such securities, or a corporation
or entity owned, directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the Company.
For purposes of this Trust Agreement, the Committee or the Director
Committee (as defined in Section 8.2(b)) shall determine whether a "Change in
Control" has occurred and if such a determination is made, shall promptly notify
the Company, the Bank, the Committee and the Trustee in writing of such
determination.
13.5 Irrevocable Election.
(a) Either the Committee, acting by majority or if only one
Committee member exists then by such member, or the Director Committee (as
defined in Section 8.2(b)), acting by majority or if only one Director Committee
member exists then by such member, may at any time make an Irrevocable Election
pursuant to this
74
<PAGE> 76
Section 13.5 by notifying the Trustee in writing in substantially the form
attached hereto as Appendix III. Without limiting the ability of the Committee
or the Director Committee to make an Irrevocable Election at any time and in
their respective sole and absolute discretion, an Irrevocable Election may (but
need not) be made by the Committee or the Director Committee at any time after a
Potential Change in Control. Such Irrevocable Election shall remain in effect
unless revoked by the action of the Participants who, at the time such
revocation is sought, hold in the aggregate, at least 75% of the beneficial
interests in the Trust Fund. The determination of each Participant's beneficial
interest for this purpose shall be made in accordance with Section 10.2.
(b) Following the revocation or cancellation of an Irrevocable
Election in accordance with Section 13.5(a), the provisions of this Trust
Agreement in effect following an Irrevocable Election shall no longer apply, and
the provisions of this Trust Agreement in effect prior to an Irrevocable Change
in Control shall again apply, unless and to the extent that, prior or subsequent
to the revocation or cancellation of such Irrevocable Election, another
Irrevocable Election, or a Change in Control or Potential Change in Control, has
occurred with respect to which those provisions, as applicable, will continue to
separately apply.
(c) The Committee (or, as applicable, the Director Committee)
shall promptly notify the Trustee of any revocation or cancellation of an
Irrevocable Election.
75
<PAGE> 77
13.6 The Committee.
(a) Prior to a Potential Change in Control (as defined in
Section 11.3(d)), an Irrevocable Election or a Change in Control (as defined in
Section 13.4), the Committee shall consist of those individuals holding the
following offices in the Company or in the Bank: (i) Chief Executive Officer;
(ii) Chief Operating Officer; (iii) Chief Financial Officer; (iv) Treasurer; (v)
General Counsel; and (vi) Chief Human Resources Officer, it being understood
that one individual may hold more than one such position. Any member of the
Committee may resign upon 30 days' prior written notice to the Company, the
Bank, the Trustee, and the other members of the Committee. Prior to an
Irrevocable Election, a Change in Control or a Potential Change in Control, each
member of the Committee who is an officer of the Company may be removed by the
Chief Executive Officer of the Company, and each member of the Committee who is
an officer of the Bank may be removed by the Chief Executive Officer of the
Bank, and, in the event of a vacancy on the Committee, if no individual then
holds the officer position so vacated the Chief Executive Officer of the Company
or the Bank, as the case may be, shall appoint a successor. The Dime and the
Committee shall inform the Trustee of the membership of the Committee and any
changes therein, and the Trustee shall, upon the request of any Participant,
provide the Participant with a list of Committee members.
(b) Subsequent to a Potential Change in Control, those members
of the Committee who were members of the Committee immediately preceding the
Potential Change in Control shall continue as members of the Committee
76
<PAGE> 78
whether or not such individuals continue to hold the officer positions described
in Section 13.6(a), and the number of members of the Committee shall, unless
otherwise reduced as provided below, be equal to the number of members of such
Committee continuing as such immediately after such Potential Change in Control;
provided, however, that except as otherwise provided below, the membership of
each such individual on the Committee shall cease if such individual is no
longer employed by either the Company or the Bank (or a successor or any parent
or subsidiary of any of such entities). In the event of a vacancy on the
Committee subsequent to a Potential Change in Control, a successor to the
vacancy on the Committee shall be appointed by action (evidenced by written
approval) of a majority of the remaining members of the Committee. No individual
shall be eligible to be named to fill a vacancy on the Committee, however,
unless such individual is, at the time of such appointment, (x) an employee of
the Company or the Bank (or a successor or any parent or subsidiary of any of
such entities) and (y) a Participant, and such individual may continue as a
member on the Committee during the period such individual is both an employee of
the Company or the Bank (or a successor or any parent or subsidiary of any of
such entities) and a Participant. If at any time after a Potential Change in
Control but prior to a Change in Control or an Irrevocable Election (in either
of which event paragraph (c) of this Section 13.6 shall control and be
immediately effective) no member of the Committee, as constituted at such time,
would remain a member of the Committee because all such members have ceased to
be employed by either the Company or the Bank (or a successor or any parent or
subsidiary of any of such entities), then during
77
<PAGE> 79
the 90-day period following the date the last such member ceases to be so
employed, the membership of the Committee shall be made up of the most recent
members of the Committee in number equal to the number provided for in the first
sentence of this Subsection 13.6(b). During such 90-day period, (i) those
reconstituted Committee members may, by vote or written consent of a majority
thereof, elect one or more new members of the Committee who satisfy the
requirements set forth in (x) and (y) above (in which event such new members
shall from and after their election constitute the Committee for all purposes of
this Trust Agreement, subject to the other provisions of this Subsection
13.6(b), and the reconstituted Committee members shall cease to serve as
Committee members), or (ii) if the Director Committee shall make an Irrevocable
Election prior to the election of one or more new Committee members, then the
reconstituted Committee members shall constitute the Committee and the
provisions of Section 13.6(c) shall control. If neither of the actions set forth
in the preceding sentence are taken, then, on and after the end of such 90-day
period, successor members of the Committee shall be appointed by action of the
Participants who at such time hold in the aggregate a majority of the beneficial
interests in the Trust Fund. The determination of each Participant's beneficial
interest for each of these purposes shall be made in accordance with Section
10.2. The Trustee shall promptly inform Participants of any vacancy of the
Committee that Participants have the right to fill, and of that right.
(c) Following an Irrevocable Election or a Change in Control
(and irrespective of whether a Potential Change in Control has previously taken
place),
78
<PAGE> 80
the Committee shall consist of those individuals who were members of the
Committee immediately prior to the Irrevocable Election or Change in Control,
and the number of Committee members shall, unless otherwise reduced as provided
below, continue at the same level as applied before such Irrevocable Election or
Change in Control, unless such number is changed by action of the Participants
who hold in the aggregate a majority of the beneficial interests in the Trust
Fund. Further, subsequent to an Irrevocable Election or a Change in Control, no
member of the Committee may be removed unless removed by the action of the
Participants who then hold in the aggregate a majority of the beneficial
interests in the Trust Fund. Following an Irrevocable Election or a Change in
Control, after the death, resignation or removal of a member of the Committee, a
successor to a vacancy on the Committee shall be appointed by a majority of the
remaining members of the Committee. However, if following an Irrevocable
Election or a Change in Control all membership positions on the Committee are
vacant, successor members of the Committee shall be appointed by action of the
Participants who at such time hold in the aggregate a majority of the beneficial
interests in the Trust Fund. The determination of each Participant's beneficial
interest for each of these purposes shall be made in accordance with Section
10.2. The Trustee shall promptly inform participants of any vacancy of the
Committee that Participants have the right to fill, and of that right.
(d) Any action by the Committee, unless and to the extent
validly delegated pursuant to Section 8.2(c) hereunder, shall require the
written approval of the majority of the members of the Committee or if the
Committee then
79
<PAGE> 81
consists of only one member, by such member. A Committee member or delegatee
shall not be liable hereunder for any act taken or omitted to be taken in good
faith, except for such person's own gross negligence or willful misconduct.
(e) All of the provisions set forth herein with respect to a
member of the Committee shall relate to each successor with the same force and
effect as if such successor had been originally named as a member of the
Committee.
(f) In the case of any ambiguity under this Trust, the Trustee
may seek the direction of, or a determination by, as applicable, the Committee.
13.7 Notices.
(a) Communications to the Trustee shall be sent in writing to
the Trustee's office at 140 Broadway, New York, New York 10005, Attention: James
Esposito, Vice President, or to such other address as the Trustee may specify.
No communication shall be binding upon the Trust Fund or the Trustee until it is
received by the Trustee and unless it is in writing and signed by an authorized
person.
(b) Communications to the Bank shall be sent in writing to the
Bank at 589 Fifth Avenue, New York, New York 10017, Attention: Chief Human
Resources Officer, or to such other address as the Bank may specify. No
communication shall be binding upon the Bank until it is received by the Bank.
(c) Communications to the Company shall be sent in writing to
the Company at 589 Fifth Avenue, New York, New York 10017, Attention: General
Counsel, or to such other address as the Company may specify. No communication
shall be binding upon the Company until it is received by the Company.
80
<PAGE> 82
(d) Communications to the Committee shall be sent in
writing to each of the Committee members as follows:
Committee Under the Umbrella Trust Agreement
Dime Bancorp, Inc./The Dime Savings Bank of New York, FSB
589 Fifth Avenue
New York, New York 10017
Attn: name of Committee member
with a copy to:
Patterson, Belknap, Webb & Tyler LLP
1133 Avenue of the Americas
New York, New York 10036
Attn: David M. Glaser, Esq.
Douglas E. Barzelay, Esq.
or to such other address as the respective Committee member may specify. No
communication shall be binding upon the Committee until it is received by at
least two of the Committee members or, if the Committee shall then consist of
only one member, by such member.
(e) Communication to the Director Committee shall be sent in
writing to each of the Committee members as follows:
Committee Under the Directors Umbrella Trust Agreement
Dime Bancorp, Inc./The Dime Savings Bank of New York, FSB
589 Fifth Avenue
New York, New York 10017
Attn: name of Director Committee member
81
<PAGE> 83
with a copy to:
Patterson, Belknap, Webb & Tyler LLP
1133 Avenue of the Americas
New York, New York 10036
Attn: David M. Glaser, Esq.
Douglas E. Barzelay, Esq.
or to such other address as the respective Director Committee member may
specify. No communication shall be binding upon the Director Committee until it
is received by at least two of the Director Committee members or, if the
Director Committee shall then consist of only one member, by such member.
(f) Where any communication is required to be given to the
Dime, such communication shall be sent to both the Company and the Bank as
provided in paragraphs (b) and (c) of this Section 13.7.
13.8 Obligations of The Dime
Wherever this Trust requires that an obligation be performed by
the Dime, then the Company and the Bank shall be jointly and severally liable
for the performance of such obligation.
82
<PAGE> 84
13.9 Invalidity of Particular Sections.
Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without invalidating the
remaining provisions hereof which shall continue in full force and effect.
13.10 Code References. Any reference to a Code section herein shall be
deemed to be a reference to its successor provisions to the extent that such
section of the Code has been replaced, renumbered or superseded.
13.11 Counterparts. This Trust Agreement may be executed in any number
of separate counterparts, each such counterpart being deemed to be an original
of this Trust Agreement, and all such counterparts together constituting the
same agreement.
IN WITNESS WHEREOF, DIME BANCORP, INC., THE DIME SAVINGS BANK OF
NEW YORK, FSB and HSBC Bank USA, as Trustee have caused this amended and
restated Trust Agreement to be executed by their duly authorized officers and
their respective seals to be hereunto affixed as of the day and year first above
written.
DIME BANCORP, INC.
By:
------------------------------------------
Name:
------------------------------------------
Title:
SEAL
Attest:
- --------------------------
83
<PAGE> 85
THE DIME SAVINGS BANK OF NEW YORK, FSB
By:
--------------------------------------
Name:
--------------------------------------
Title:
SEAL
Attest:
- --------------------------
HSBC BANK USA, as Trustee
By:
--------------------------------------
Name:
--------------------------------------
Title:
SEAL
Attest:
- --------------------------
84
<PAGE> 86
APPENDIX I
DESIGNATED ARRANGEMENTS(1)
A. Bank Primary Obligations
1. Severance Pay Program for Employees of Dime Bancorp, Inc. and
Participating Subsidiaries (with respect to eligible individuals employed
by the Company or the Bank or their subsidiaries immediately prior to an
eligible termination of employment)
2. Vacation pay provided under any program or policy established by the
Company or the Bank or their subsidiaries (if, with regard to programs or
policies of a subsidiary, payable while the entity is a subsidiary of the
Company or the Bank)
3. Severance Pay Plan of North American Mortgage Company, but only during
the periods and with respect to the benefits with regard to which the
Bank bears joint and several liability in the event that North American
Mortgage Company (or its successor) does not pay Benefits thereunder
4. Senior Executive Severance Pay Plan of North American Mortgage Company,
but only during the periods and with respect to the benefits with regard
to which the Bank bears joint and several liability in the event that
North American Mortgage Company (or its successor) does not pay Benefits
thereunder
B. Bank Secondary Obligations
None
C. Company Primary Obligations
None
D. Company Secondary Obligations
1. Severance Pay Program for Employees of Dime Bancorp, Inc. and
Participating Subsidiaries (with respect to eligible individuals employed
by the Company or
- --------
(1) Unless otherwise noted, references to particular benefit plans and
arrangements include those plans and arrangements as initially adopted
or entered into, and such plans and arrangements as they may be amended
from time to time.
<PAGE> 87
the Bank or their subsidiaries immediately prior to an eligible
termination of employment)
2. Vacation pay provided under any program or policy established by the
Company or the Bank or their subsidiaries (if, with regard to programs or
policies of a subsidiary, payable while the entity is a subsidiary of the
Company or the Bank)
<PAGE> 88
APPENDIX II
LIST OF FEES AND EXPENSES OF TRUSTEE
A. Administration and Accounting
For the administration, including custody and monthly basic accounting
services, the fee will be computed at the following annual rates applied
to the market value of each of the Bank Trust Assets and the Company
Trust Assets.
.15 of 1% on the first $10 million
.08 of 1% on the next $20 million
.05 of 1% on the balance
Minimum annual fee - $25,000 for the Bank Trust Assets
$5,000 for the Company Trust Assets (provided there
are any Company Trust Assets)
Fees for a period of less than one year shall be pro-rated.
In the event that any of the following occur: (a) a Change in Control,
(b) the filing of an Irrevocable Election, or (c) the Bank or the Company
is determined to be Insolvent, the above annual rates and minimum annual
fees will increase by 100%; provided, however, that in the event such
increase in fees is on account of the Insolvency of the Bank (but not on
account of either of the reasons set forth in (a) or (b) above), such
increase in annual rates and minimum annual fees shall only relate to the
fees regarding Bank Trust Assets, and in the event such increase in fees
is on account of the Insolvency of the Company (but not on account of
either of the reasons set forth in (a) or (b) above), such increase in
annual rates and minimum annual fees shall only relate to the fees
regarding Company Trust Assets. Notwithstanding the foregoing, in no
event (without an appropriate modification of this Appendix II) will the
above annual rates and minimum annual fees increase by more than 100%.
B. Wire Transfers and Security Processing
$20.00 per transaction
C. Disbursement Services
$1.25 per periodic check issued, plus postage
$5.00 per non-periodic check issued, including postage
$10.00 per check rush-issued (24-hours turnaround)
<PAGE> 89
$10.00 per tax form
D. Other Administrative Services
For administrative services not covered by the preceding provisions that
are relative to carrying out trustee responsibilities beyond routine
custodial and accounting duties, the Trustee shall maintain time logs
indicating the time spent by its employees and agents on the discharge of
its duties as Trustee. Each hour shall be charged at the Trustee's hourly
rates then in effect under this Agreement or subsequent amendment. The
hourly rates as of the effective date of the Umbrella Trust Agreement
are:
Department Managers $125.00
Vice Presidents... $100.00
All Other Officers $ 75.00
Other Staff....... $ 35.00
Time spent by the Operations Department of the Trustee on the handling of
assets, generation of accounting reports and other standard operations
are not subject to an hourly charge.
E. Participant Recordkeeping Services, if requested or required
Set-Up and Conversion Per Plan
$250 (One-Time Fee)
On-Going Processing Per Plan - Participant Accounting:
Administrative Fee: $1,000 per valuation per year
Participant Fee: $ 25 per year
Out-of-Pocket Expenses
Cost of custom processing, custom statement paper, "reruns"
due to customer error to be billed at cost.
<PAGE> 90
APPENDIX III
FORM OF NOTICE OF IRREVOCABLE ELECTION
HSBC Bank USA
insert Trustee address then
in effect, per Section 13.7
Attention:
----------------
Re: Amended and Restated Umbrella Trust Agreement dated
as of __________, 2000, between Dime Bancorp, Inc.,
The Dime Savings Bank of New York, FSB and HSBC Bank
USA, as Trustee, with respect to the Designated
Arrangements of The Dime Savings Bank of New York,
FSB and related entities.
Gentlemen:
You are hereby notified that the [Committee (as defined in Section 13.6
of the Trust Agreement referred to above)] [Director Committee (as defined in
Section 8.2(b))] is making an Irrevocable Election pursuant to Section 13.5 of
such Trust Agreement. You are hereby directed to take all actions and undertake
such responsibilities as are provided for under the Trust Agreement in the event
of an Irrevocable Election.
Sincerely yours(2)
- ------------------
(2) To be signed by a majority of the Committee appointed pursuant to Section
13.6, or a majority of the Director Committee, or, if the relevant
Committee then consists of only one member, then by such member.
<PAGE> 91
APPENDIX IV
CERTIFICATIONS OF AUTHORIZED PERSONS
INDIVIDUALS HAVING AUTHORITY TO
ACT ON BEHALF OF THE BANK
<TABLE>
<S> <C>
Benefits Committee Members Treasury Division
- -------------------------- -----------------
Lawrence J. Toal Alberto Diaz
D. James Daras
Arthur C. Bennett
Anthony Burriesci
James E. Kelly
Human Resources Department Law Department
- -------------------------- --------------
Norman J. Stafford Paul Marcotrigiano
David K. McDowell. Jacquelyn Hart
Michael J. Connolly
Janet D. Krasowski Office of the Corporate Secretary
---------------------------------
Denise Halleran Gene C. Brooks
</TABLE>
INDIVIDUALS HAVING AUTHORITY TO
ACT ON BEHALF OF THE COMPANY
<TABLE>
<S> <C>
Benefits Committee Members Treasury Division
- -------------------------- -----------------
Lawrence J. Toal Alberto Diaz
D. James Daras
Arthur C. Bennett
Anthony Burriesci
James E. Kelly
Human Resources Department Law Department
- -------------------------- --------------
Norman J. Stafford Paul Marcotrigiano
David K. McDowell. Jacquelyn Hart
Michael J. Connolly
Janet D. Krasowski Office of the Corporate Secretary
---------------------------------
Denise Halleran Gene C. Brooks
</TABLE>
<PAGE> 1
BENEFIT PROTECTION TRUST
among
DIME BANCORP, INC.,
THE DIME SAVINGS BANK OF NEW YORK, FSB
and
HSBC Bank USA, as Trustee
<PAGE> 2
BENEFIT PROTECTION TRUST AGREEMENT (the "Trust Agreement"), dated as of
May 18, 2000, by and among THE DIME SAVINGS BANK OF NEW YORK, FSB, a federal
savings bank with its executive offices at 589 Fifth Avenue, New York, New York
10017 (the "Bank"), DIME BANCORP, INC., a Delaware corporation with its
executive offices at 589 Fifth Avenue, New York, NY 10017 (the "Company"), and
HSBC Bank USA, a banking association with an office at 140 Broadway, New York,
New York 10005 (the "Trustee").
WHEREAS, the Bank is at the date hereof a wholly-owned subsidiary of the
Company (the Bank and the Company being collectively referred to herein as the
"Dime"); and
WHEREAS, the Covered Arrangements (as defined in Section 1.5 of this
Trust Agreement) provide for the payment of certain benefits (the "Benefits") to
certain Participants and their Beneficiaries (as defined in Section 1.5 of this
Trust Agreement); and
WHEREAS, the Bank and the Trustee wish to enter into this Trust Agreement
to establish a trust (the "Trust"), to which contributions will be made for the
purpose of providing a source of funds to aid Participants and Beneficiaries in
proceeding with any valid claim for benefits under the Covered Arrangements
which are not timely provided by the Dime following an Irrevocable Election or
Change in Control; and
WHEREAS, the cash and property to be contributed to the Trust by the Bank
has been and shall continue to be subject to the claims of the Bank's creditors
in
<PAGE> 3
the event the Bank becomes Insolvent, as herein defined, until paid in
accordance with the terms of this Trust; and
WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of any
Covered Arrangement as an unfunded plan or agreement, and the assets of the
Trust shall not constitute plan assets, within the meaning of the Employee
Retirement Income Security Act of 1974, as amended, of any Covered Arrangement;
and
WHEREAS, the Trust is intended to be a "grantor trust" with the corpus
and income of the Trust treated as assets and income of the Bank for federal
income tax purposes pursuant to Sections 671 through 679 of the Internal Revenue
Code of 1986, as amended (the "Code") and shall be construed accordingly;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the Bank, the Company and the Trustee agree as follows:
2
<PAGE> 4
ARTICLE I
Establishment of Trust
1.1 Trust Fund. The Bank hereby establishes the Trust with the
Trustee, consisting of such sums of money, policies of life insurance, and other
property acceptable to the Trustee as from time to time shall be paid or
delivered to the Trustee (the "Contributions"). All such Contributions, all
investments made therewith or proceeds thereof and all earnings and profits
thereon, less all payments and charges as authorized herein, shall constitute
the "Trust Fund." The Trust Fund shall be held by the Trustee in trust separate
and apart from other funds of the Bank and shall be applied in accordance with
the provisions of this Trust Agreement. The Trust Fund shall at all times be
subject to the claims of general creditors of the Bank, as provided in Article
XII. Participants and their Beneficiaries shall have no preferred claim on, or
any beneficial ownership interest in, any assets of the Trust. Any rights
created under this Trust Agreement shall be mere unsecured contractual rights of
the Participants and their Beneficiaries against the Bank.
1.2 Irrevocability. The Trust shall be irrevocable, and except as
provided in Article XII, the assets of the Trust shall be held for the exclusive
purposes of providing legal assistance to Participants and Beneficiaries in
proceeding with any valid claim for Benefits under the Covered Arrangements and
defraying expenses of the Trust in accordance with the provisions of this Trust
Agreement. Except as expressly provided in this Trust Agreement, no part of the
income or corpus of the Trust Fund shall be recoverable by or applied for the
benefit of the Bank or its creditors.
3
<PAGE> 5
1.3 Inalienability of Interests. No interest, right or claim in or
to any part of this Trust Agreement shall be sold, anticipated, transferred,
assigned (either at law or in equity), alienated, pledged, encumbered, or
subjected to attachment, garnishment, levy, execution or other legal or
equitable process, except as required by law.
1.4 Acceptance by the Trustee. The Trustee accepts the Trust
established under this Trust Agreement on the terms and subject to the
provisions set forth herein, and it agrees to discharge and perform fully and
faithfully all of the duties and obligations imposed upon it under this Trust
Agreement.
1.5 Description of Covered Arrangements, Participants and
Beneficiaries. (a) The Trust shall serve to accumulate amounts for the purpose
of providing legal assistance to Participants and Beneficiaries in proceeding
with any Valid Claim (as defined in Section 5.1(b)(ii)) for benefits under a
Covered Arrangement. As used in this Trust Agreement: 1.3.1. the term "Covered
Arrangement" shall include any bonus, profit sharing, thrift, compensation,
stock option, restricted stock, pension, retirement, deferred compensation,
employment, termination, welfare benefit, severance or other plan, agreement,
policy or arrangement in existence at the time of an Irrevocable Election or
Change in Control for the benefit of any one or more officers or employees of
Dime; provided, however, that: (i) neither the trust under the Amended and
Restated Umbrella Trust Agreement, dated as of May 18, 2000, among the Company,
the Bank and HSBC Bank USA, as Trustee, with respect to the Covered Arrangements
of the Bank and Related Entities (including any subsequent amendments
4
<PAGE> 6
or successor agreements thereto) (the "Executive Trust") nor the trust under the
Umbrella Trust Agreement, dated as of May 18, 2000, among the Company, the Bank
and HSBC Bank USA, as Trustee, with respect to the Designated Arrangements of
the Bank and Related Entities (including any subsequent amendments or successor
agreements thereto) (the "Broad-Based Trust" and, each of the Executive Trust,
the Director Trust (as defined in Section 8.2(b)) and the Broad-Based Trust, an
"Umbrella Trust") shall be deemed to be a Covered Arrangement hereunder; and
(ii) there shall be excluded from the Covered Arrangements any plan, agreement,
policy or arrangement that is defined as a "Covered Arrangement" under the
Executive Trust or as a "Designated Arrangement" under the Broad-Based Trust
(provided, (A) that if under the terms of such Umbrella Trusts, only certain of
the benefits under the "Covered Arrangements" or the "Designated Arrangements,"
as the case may be, referred to therein are payable under the terms of such
Umbrella Trusts, then only the benefits so payable shall be excluded from the
Covered Arrangements under this Trust and (B) that if any portion of any
benefits under the "Covered Arrangements" or the "Designated Arrangements," as
the case may be, referred to therein are not paid by such Umbrella Trusts due to
such Umbrella Trusts' lack of funds for such payment, then only the portion of
such benefits that are paid by such Umbrella Trusts shall be excluded from the
Covered Arrangements under this Trust. For purposes of this Section 1.5, the
term "Dime" shall mean the Company, any successor thereto and each other entity
that is a direct or indirect subsidiary of the Company or a successor thereto,
in each such case at the time of such Irrevocable Election or Change in
5
<PAGE> 7
Control, but shall not include any entity that is not a subsidiary of the
Company or a successor thereto at such time, notwithstanding that it was
formerly, or subsequently becomes, a subsidiary of the Company or a successor
thereto.
(b) The term "Participant" shall mean any person who at the
time of an Irrevocable Election or Change of Control, or at any time prior
thereto, is or was an officer or employee of Dime (as defined in paragraph (a)
of this Section 1.5) and at such time is or could become entitled to any benefit
pursuant to, or otherwise could be deemed to be a participant in, any Covered
Arrangement (but shall not include any person serving as a non-employee director
of the Bank or the Company with respect to any Benefits accrued solely in such
capacity); and
(c) The term "Beneficiary" shall mean any person who is or
may become entitled to Benefits under any of the Covered Arrangements in the
event of a Participant's death.
6
<PAGE> 8
ARTICLE II
General Powers of Trustee
2.1 Investment of the Trust.
(a) Prior to a Change in Control (as defined in Section
13.4) or an Irrevocable Election (as defined in Section 13.5), the assets of the
Trust Fund shall be invested by the Trustee in the manner directed by the Bank,
or, to the extent no such specific direction has been given by the Bank, in
accordance with the written investment guidelines provided from time to time by
the Committee.
(b) Subsequent to an Irrevocable Election or Change in
Control, the Trustee shall invest the assets of the Trust Fund, without
distinction between principal and income, and in accordance with such written
investment guidelines as may be provided from time to time by the Committee, in
(i) life insurance policies and guaranteed annuity contracts issued by insurers
which, at the time of investment, are rated A+ or better by Standard & Poor's or
the equivalent rating by any nationally recognized rating service, (ii) bonds
rated at least A by Standard & Poor's or the equivalent rating by any nationally
recognized rating service, (iii) certificates of deposit, money market funds or
other high quality cash equivalents, or (iv) mutual funds designed to invest in
those items described in clauses (i) through (iii) above.
(c) Subsequent to an Irrevocable Election or a Change in
Control and notwithstanding the foregoing provisions of this Section 2.1, at any
time that the assets of the Trust Fund together with the assets of any other
trust fund established by the Dime with which the assets of the Trust Fund are
commingled for
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investment purposes (excluding in each case any life insurance policies and
guaranteed annuity contracts then in effect) do not exceed $500,000, such assets
shall be held in one or more interest-bearing accounts at a commercial bank or
savings bank (which may include the Trustee), with maturities in the Trustee's
discretion based on the anticipated need for funds, but not in excess of one
year.
(d) Prior to an Irrevocable Election or a Change in Control,
the Bank shall have the right at any time, and from time to time in its sole
discretion, to substitute assets of equal fair market value for any asset held
by the Trust. This right is exercisable by the Bank in a non-fiduciary capacity
without the approval or consent of any person in a fiduciary capacity. After an
Irrevocable Election or a Change in Control, such right shall continue, but any
asset so substituted by the Bank shall be of equivalent or greater liquidity as
compared to the asset for which it is substituted, and such right may only be
exercised with the consent of the Committee.
2.2 Investment Powers of Trustee. Subject to the provisions of this
Trust Agreement and the directions or investment guidelines provided pursuant to
Section 2.1, the Trustee shall have, with respect to the Trust Fund, the
following investment powers in its discretion:
(a) To invest and reinvest in any property, real, personal
or mixed, wherever situated, foreign or domestic, including, common and
preferred stocks, bonds, notes and debentures (including convertible stocks and
securities but not including any stock or securities or debt instruments of the
Bank or its affiliates unless otherwise expressly directed by the Bank pursuant
to Section 2.1(a)); leaseholds;
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<PAGE> 10
mortgages (including, without limitation, any collective or part interest in any
bond and mortgage or note and mortgage); certificates of deposit and money
market funds (including certificates of deposit and money market funds of the
Dime); and life insurance and guaranteed annuity contracts. Such investments may
be made regardless of diversification and without being limited to investments
authorized by law for the investment of trust funds.
(b) To use Trust Fund assets to purchase, and pay all
premiums and other charges upon, individual or group annuity or life insurance
contracts, the rates of return and maturity dates of which may reasonably be
expected to yield appropriate assets of the Trust Fund and to withdraw from or
borrow against such policies.
(c) To retain any property at any time received by it.
(d) To sell, exchange, convey, transfer or dispose of, and
to grant options for the purchase or exchange with respect to, any property at
any time held by it, by public or private sale, for cash or on credit or partly
for cash and partly on credit.
(e) To participate in any plan of reorganization,
consolidation, merger, combination, liquidation or other similar plan and to
consent to or oppose any such plan or any action thereunder, or any contract,
lease, mortgage, purchase, sale or other action by any person or corporation or
other entity any of the securities of which may at any time be held in the Trust
Fund, and to do any act with reference thereto.
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(f) To deposit any property with any protective,
reorganization or similar committee, to delegate discretionary power to any such
committee and to pay and agree to pay part of the expenses and compensation of
any such committee and any assessments levied with respect to any property so
deposited.
(g) To exercise all conversion and subscription rights
pertaining to any property, and to do any act with reference thereto, including
the exercise of options, the making of agreements or subscriptions and the
payment of expenses, assessments or subscriptions, which may be deemed necessary
or advisable in connection therewith, and to hold and retain any securities or
other property which it may so acquire.
(h) To extend the time of payment of any obligation held in
the Trust Fund.
(i) To enter into standby agreements for future investment,
either with or without a standby fee.
(j) To invest and reinvest all or any specified portion of
the Trust Fund through the medium of any common, collective or commingled trust
fund which has been or may hereafter be established and maintained by the
Trustee, provided that prior to investing any portion of the Trust Fund for the
first time in any such common, collective or commingled trust fund, the Trustee
shall advise the Committee of its intent to make such an investment and furnish
to the Committee any information it may reasonably request with respect to such
common, collective or commingled trust fund.
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(k) To the extent permitted by law, to commingle assets of
the Trust Fund, for investment purposes only, with assets of other trust funds
established by the Dime, provided that the Trustee shall maintain separate
records with respect to each such other trust or plan, and further provided that
the assets of the Trust Fund shall not be commingled in any fund intended to
hold only assets of qualified retirement plans within the meaning of Section
401(a) of the Code.
(l) To acquire, renew or extend or participate in the
renewal or extension of any mortgage, and to agree to a reduction in the rate of
interest on any indebtedness or mortgage or to any other modification or change
in the terms of any indebtedness or mortgage or of any guarantee pertaining
thereto, in any manner and to any extent that may be deemed advisable for the
protection of the Trust or the preservation of any covenant or condition of any
indebtedness or mortgage or in the performance of any guarantee, or to enforce
any default in such manner and to such extent as may be deemed advisable; and to
exercise and enforce any and all rights of foreclosure, to bid on any property
in foreclosure, to take a deed in lieu of foreclosure with or without paying a
consideration therefor and in connection therewith to release the obligation on
the bond secured by such mortgage, and to exercise and enforce in any action,
suit or proceeding at law or in equity any rights or remedies in respect of any
such indebtedness or mortgage or guarantee.
(m) To make, execute and deliver, as Trustee, any and all
deeds, leases, notes, bonds, guarantees, mortgages, conveyances, contracts,
waivers,
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releases or other instruments in writing necessary or proper for the
accomplishment of any of the foregoing powers.
2.3 Administrative Powers of Trustee. Subject to the provisions of
this Trust Agreement, the Trustee shall have the following administrative powers
in its discretion:
(a) To exercise all voting rights with respect to the shares
of stock, if any, held in the Trust Fund and to grant proxies, discretionary or
otherwise.
(b) To cause any shares of stock to be registered and held
in the name of one or more of its nominees, or one or more nominees of any
system for the central handling of securities, without increase or decrease of
liability.
(c) To collect and receive any and all money and other
property due to the Trust Fund and to give full discharge therefor.
(d) To settle, compromise or submit to arbitration any
claims, debts or damages due or owing to or from the Trust; to commence or
defend suits or legal proceedings to protect any interest of the Trust; and to
represent the Trust in all suits or legal proceedings in any court or before any
other body or tribunal.
(e) To organize under the laws of any state a corporation,
partnership or trust for the purpose of acquiring and holding title to any
property which it is authorized to acquire under this Trust Agreement and to
exercise with respect thereto any or all of the powers set forth in this Trust
Agreement.
(f) To determine how all receipts and disbursements shall be
credited, charged or apportioned as between income and principal, and the
decision of
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the Trustee shall be final and not subject to question by the Company or the
Bank or any Participant or Beneficiary.
(g) To engage such independent third parties as the Trustee
may deem necessary to assist in making determinations under the Trust.
(h) To engage any legal counsel, including counsel to the
Dime, or any other suitable agents (including outside investment managers), to
consult with such counsel or agents with respect to the implementation and
construction of this Trust Agreement, the duties of the Trustee hereunder, the
transactions contemplated by this Trust Agreement, or any act which the Trustee
proposes to take or omit, to rely upon the advice of such counsel or agents, and
to pay its reasonable fees, expenses and compensation.
(i) To do all other acts, subject to the approval of the
Committee, which the Trustee may deem necessary or desirable for the protection
of the Trust Fund.
2.4 Limitation on Trustee Powers . Notwithstanding any powers
granted to Trustee pursuant to this Trust Agreement or to applicable law, the
Trustee shall not have any power that could give this Trust the objective of
carrying on a business and dividing the gains therefrom, within the meaning of
Section 301.7701-2 of the Procedure and Administrative Regulations promulgated
pursuant to the Internal Revenue Code.
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2.5 Dealings with Trustee. Persons dealing with the Trustee shall be
under no obligation to see to the proper application of any money paid or
property delivered to the Trustee or to inquire into the Trustee's authority as
to any transaction.
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ARTICLE III
Documents, Participant Information and Records
3.1 Copy of Covered Arrangements. The Bank shall provide the Trustee
with a copy of each of the Covered Arrangements and shall provide the Trustee
with a copy of any amendment to any of the Covered Arrangements as soon as
practicable following its adoption. The Trustee shall be entitled to rely on the
terms of any Covered Arrangement as in effect prior to its amendment until the
Trustee receives a copy of such amendment. Copies of Covered Arrangements and
any amendments thereto may also be provided to the Trustee by the Committee or
by any Participant or Beneficiary.
3.2 Participant Information. The Bank shall deliver to the Trustee
the name and address of each Participant and Beneficiary in each Covered
Arrangement, along with each Participant's date of birth and date of hire,
together with such other information concerning the Participants as the Trustee
may from time to time request (all such information, the "Participant
Information").
3.3 Updating the Participant Information.
(a) Prior to an Irrevocable Election or Change in Control,
the Participant Information to be provided by the Bank shall be based on
then-current information concerning persons who could be deemed Participants and
Beneficiaries if a Change in Control or Irrevocable Election were to occur on
the date as of which such information is reported. The Bank may from time to
time notify the Trustee of any changes to the Participant Information (including
any changes in the list of
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Participants). Each such notice shall be signed and dated by an Authorized
Officer of the Bank, shall set forth the name of each Participant with respect
to whom the Participant Information is being changed (or who is being added to
or deleted from the list of Participants), and all additions to or changes from
the information previously supplied with respect to such Participant. An
"Authorized Officer" of the Bank shall for this purpose be any of the
individuals listed in Schedule I to this Trust Agreement, whose specimen
signatures shall be provided by the Bank to the Trustee.
(b) Upon an Irrevocable Election or Change in Control, the
Bank shall either (i) notify the Trustee that there have been no changes in the
Participant Information from the Participant Information most recently provided
or (ii) if there have been changes in the Participant Information, provide the
Trustee with Participant Information updated to the date of the Irrevocable
Election or Change in Control.
(c) Subsequent to an Irrevocable Election or Change in
Control, the Trustee shall update the Participant Information, at such time as
it determines appropriate, from information furnished to it by the Bank,
Participants or the Committee. The Trustee shall request information from the
Bank, Participants and the Committee as necessary to update the Participant
Information.
Notwithstanding the foregoing, subsequent to an
Irrevocable Election or Change in Control, unless the Committee otherwise
determines, no person shall be added as a Participant with respect to a Covered
Arrangement if such person
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was not a Participant with respect to such Covered Arrangement at the time of
the Irrevocable Election or Change in Control.
(d) The Trustee shall be under no obligation to commence any
action seeking judicial or administrative relief in the event that the Bank, the
Committee or any Participant does not furnish information to it as contemplated
above.
3.4 Committee's Right to Information . The Participant Information,
records and all other information and documentation (including updates thereto)
to be delivered or otherwise made available to the Trustee by the Bank pursuant
to the foregoing provisions of this Article shall also be delivered or otherwise
made available by the Bank to the Committee or its agent upon request. In
addition, the Trustee shall deliver or make available such information and
documentation to the Committee or its agent upon request. The Committee shall be
entitled to rely on any such information or documentation delivered or made
available to it by the Bank or the Trustee to the same extent that the Trustee
is entitled to rely on such information or documentation pursuant to the
foregoing provisions of this Article.
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ARTICLE IV
Contributions and Valuation
4.1 Contributions. Contributions shall be delivered to the Trustee
as follows:
(a) Prior to an Irrevocable Election or Change in Control,
the Bank shall deliver such cash, securities or other property to the Trustee as
is necessary for the payment of expenses under the Trust, and may deliver
additional cash or other property up to the value specified in paragraph (b) of
this Section 4.1.
(b) Upon an Irrevocable Election or Change in Control, the
Bank shall deliver to the Trustee additional Contributions as shall be necessary
so that the assets of the Trust Fund are of fair market value not less than
$7,000,000.
(c) Notwithstanding the foregoing, neither the Trustee nor
the Committee shall be liable for any failure by the Bank to make the
Contributions required by Section 4.1(b).
4.2 Valuation of Trust Fund.
(a) The Trustee may hold, invest and reinvest the assets of
the Trust Fund as a consolidated single fund. As of the last business day of
each calendar month, the Trustee shall value the Trust Fund at current market
values, and shall report such valuation to the Bank and, following an
Irrevocable Election or Change in Control, to the Committee. The report of any
such valuation shall not constitute a representation by the Trustee that the
amounts reported as fair market values would actually be realized upon the
liquidation of the Trust Fund. Such valuation shall reflect
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Contributions, income of the Trust Fund, gains or losses (including gains or
losses not yet realized), distributions and expenses incurred during the month.
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ARTICLE V
Payments From Trust Fund
5.1 Payments.
(a) Subject to the provisions of Article XII, prior to an
Irrevocable Election or Change in Control, the Trustee from time to time upon
receipt of direction from the Bank shall make payments from the Trust, as
specified in such direction to such persons, and in such amounts as the Bank
shall direct.
(b) Subject to the provisions of Article XII, the following
provisions shall apply subsequent to an Irrevocable Election or Change in
Control:
(i) Within ninety (90) days after a Change in
Control or Irrevocable Election the Trustee shall notify each previously
identified Participant and Beneficiary in writing of the Trustee's availability
to arrange for aid in pursuing any Valid Claims they may have against the Dime
(as defined in Section 1.5) or its successors or its agents (including insurance
companies or contract administrators or other parties with whom the Dime has
contracted to provide benefits under Covered Arrangements, if any) with respect
to the Covered Arrangements in which they participate. Such notice shall be in
such form as the Trustee shall determine and the Trustee's obligations under
this clause (i) shall be limited to the delivery of such notice to Participants
who remain in Dime's employ at their workplace or, for Participants no longer in
Dime's employ or Beneficiaries or, if so determined by the Trustee, with respect
to those Participants in Dime's employ, the mailing of such notice to the
address, if any, provided for such Participant or Beneficiary in the Participant
Information.
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(ii) If, after a Change in Control or Irrevocable
Election, a Participant or Beneficiary notifies the Trustee that the Dime (or
any insurance company, contract administrator or any other party, if applicable)
has refused to pay a claim asserted by the Participant or Beneficiary under any
of the Covered Arrangements (such claim, a "Submitted Claim"), the Trustee shall
notify the Committee, and the Committee will, with the assistance of counsel
chosen by the Committee and such other advisors as the Committee shall
reasonably require, determine whether the Submitted Claim (1) relates to a
Covered Arrangement; (2) is made by or on behalf of a Participant or
Beneficiary; (3) is timely made; (4) is well grounded in fact; and (5) is
warranted by existing law or would be warranted by a good faith argument for the
extension, modification or reversal of existing law (a "Valid Claim"). If the
Committee determines that the Submitted Claim is a Valid Claim, then (except as
otherwise hereinafter provided) the Trustee will pay the fees of the counsel
determined under subparagraph (iii) of this Section 5.1(b) to pursue such claim,
whether through a law suit, arbitration, plan claims procedure or otherwise, and
any other reasonable expenses (including, without limitation, the reasonable
out-of-pocket expenses of such counsel and the fees of other professionals,
local counsel and experts) incurred in pursuing such claim. If the Committee
determines that a Submitted Claim is not a Valid Claim, nothing in this Section
5.1(b) shall preclude a Participant or Beneficiary from requesting that the
Committee again consider the Submitted Claim's validity if new or additional
facts become known, if the Submitted Claim ripens through the passage of time or
if changes in applicable law occur that may affect the validity of the Submitted
Claim, nor shall
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such a determination preclude the Participant or Beneficiary from pursuing such
claim with his or her own counsel and at his or her own expense. Notwithstanding
the foregoing, in no event shall any Submitted Claim be deemed to be a Valid
Claim if the Submitted Claim arises under a Covered Arrangement which is
qualified under Section 401(a) of the Code and the Participant or Beneficiary
has not exhausted his or her rights under the claim procedures under such
Covered Arrangement; provided, however, that in the case of any benefit claimed
under any Covered Arrangement that is not qualified under Section 401(a) of the
Code, if the Committee in its sole discretion after consultation with counsel
determines that the cost of pursuing such Submitted Claim is likely to exceed
the amount that is likely to be recovered on such Submitted Claim, then the
Committee may, in its sole and absolute discretion, direct that the Trustee pay
the amount of such Submitted Claim or such lesser amount as the Committee
determines to be appropriate (and thereby become subrogated to the Participant's
or Beneficiary's claim against the Dime), provided only that the Committee in
its sole discretion determines that such Submitted Claim is a Valid Claim and
that paying such Submitted Claim would not be contrary to the purpose for which
this Trust is established.
To the extent that any Covered Arrangements require the Company or the
Bank to pay the legal fees and expenses incurred by a Participant or Beneficiary
to enforce his or her rights thereunder and the Committee determines that a
Valid Claim exists, the Trustee (if so directed by the Committee) shall seek
recovery from the Company or the Bank, as appropriate, of any fees and expenses
or benefits paid or payable in respect of such Participant or Beneficiary from
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the Trust, with any payment from the Company or the Bank to the Trust to be
made part of the Trust Fund, provided, however, that the Committee shall have
discretion regarding the manner in which the Trustee shall seek such recovery.
(iii) The Bank has designated on Schedule II, in order
of priority, the law firms to be engaged to pursue any Valid Claim. In making
such designation, the Bank specifically acknowledges that it is willing to, and
hereby does, waive any claim of conflict of interest on the part of any of such
law firms arising out of any representation of the Company, the Bank or any of
their respective affiliates or successors or the Trust or the Committee or any
Umbrella Trust or Committee either prior to or contemporaneously with the
engagement of such firm to pursue such Valid Claim. Prior to the occurrence of
an Irrevocable Election or Change in Control, the Bank may modify any such
designations, or the order of priority of such law firms, by a notice in writing
delivered to the Trustee, provided that after a Potential Change in Control, the
consent of the Committee to any such modification is required. After an
Irrevocable Election or Change in Control, the Committee may modify any such
designations, or the order of priority of such law firms, by a notice in writing
delivered to the Trustee. If no designated law firm is ready and able to provide
representation with respect to a Valid Claim, the Trustee shall engage a law
firm qualified by reason of its experience in comparable matters to pursue such
Valid Claim and approved by the Committee.
(iv) The Committee, and, in consultation with the
Committee, the Trustee, may separately or together engage an actuary to assist
it or them in determining whether a claim is valid. In addition, the
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Committee and, in consultation with the Committee, the Trustee may separately or
together engage counsel, other experts or other administrators or service
providers as it or they deem necessary for the purpose of performing its or
their duties under this Trust. The reasonable costs of such actuaries, counsel
and other persons or entities, and any other costs reasonably incurred by the
Trustee or Committee in making any determination or performing any other duty
hereunder, shall be paid by the Bank (provided, in the case of costs incurred by
the Trustee, that the Committee approves such cost or expense in advance, which
approval shall not unreasonably be withheld), and if any of such amounts are not
paid by the Bank within thirty days after written request is made therefor, they
shall be payable from the Trust Fund and the Trustee shall be entitled to
reimbursement on behalf of the Trust Fund from the Bank.
(v) Subject to the provisions of this Section 5.1,
as promptly as possible the Committee shall determine whether a Submitted Claim
is a Valid Claim. By submitting a Submitted Claim hereunder, the Participant or
Beneficiary with respect to such Submitted Claim agrees that the determination
by the Committee of whether such Submitted Claim is a Valid Claim shall be final
and binding upon such Participant or Beneficiary for all purposes of this Trust
Agreement; provided, that such determination may not be introduced in evidence,
or otherwise made the basis for any claim of estoppel or similar claim, by the
Dime or such Participant or Beneficiary in litigation or any other proceeding
with respect to such claim brought by such Participant or Beneficiary against
the Dime.
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(vi) The Committee may require, as a condition to
payment by the Trustee of the fees of counsel in respect of any Valid Claim,
such undertakings from the Participant or Beneficiary as the Committee may in
its sole discretion determine. In particular, and without limiting the
generality of the foregoing, such undertakings may include (1) a waiver of any
claim of conflict of interest, on the part of the law firm so engaged, arising
out of or relating to such firm's representation of the Company, the Bank or any
of their respective affiliates or successors, the Trust, the Committee or any
related entity; (2) an agreement that the fees and other costs to be paid by the
Trust will be limited to the Valid Claim and will not, without the prior written
consent of the Committee, include fees relating to the pursuit of other claims,
even if related to the Valid Claim; (3) an agreement limiting the amount of fees
and expenses that the Trustee will pay with respect to any particular Valid
Claim without the prior consent of the Committee; and (4) an undertaking by the
Participant or Beneficiary to pay any fees of counsel incurred in excess of
specified limitations.
(vii) Notwithstanding anything in this Trust Agreement
to the contrary, the Trustee shall not be required to make any payment in
respect of a Valid Claim hereunder to the extent that it determines that such
payment would exceed the remaining assets in the Trust Fund (after setting aside
such amounts as it deems, after consultation with the Committee, reasonably
necessary for payment of expenses of the Trust under Article VII hereof for the
period following such determination through the winding up of the Trust), and
neither the Trustee nor the Committee shall have any liability to counsel, any
Participant or Beneficiary, the Bank or any third party for any
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loss, liability or damages (including, without limitation, consequential
damages) resulting from or relating to such failure to make a payment hereunder.
For purposes of this Section 5.1(b), "Dime" shall have the meaning
ascribed thereto in Section 1.5.
5.2 Gross Up. Notwithstanding any other provision of this Trust
Agreement, if any amounts paid under the Trust Fund to aid a Participant or
Beneficiary in pursuing claims under Covered Arrangements are found in a
"determination" (within the meaning of Section 1313(a) of the Code) to have been
includible in the taxable income of a Participant or Beneficiary without the
benefit of a corresponding deduction and the Participant provides the Trustee
with such determination, the Trustee promptly shall forward the determination to
the Committee. In such event, or in the event that the Committee otherwise
determines that such amounts are includible in the taxable income of a
Participant or Beneficiary without the benefit of a corresponding deduction, the
Trustee shall, to the extent directed by the Committee, pay to such Participant
or Beneficiary as soon as practicable, an amount (as determined by the Trustee)
sufficient to pay all taxes, interest and penalties, if any, imposed on the
Participant or Beneficiary with respect to the amount described above, plus
sufficient additional amounts to pay all taxes imposed on payments made pursuant
to this Section 5.2. Notwithstanding the foregoing, in the event a Participant
or Beneficiary provides the Trustee a Notice (as defined below), the Trustee
promptly shall forward the Notice to the Committee. In such case, the Trustee,
at the direction of the Committee, or the Committee, may contest the Notice in
whole or in part (and be reimbursed by the Trust for all reasonable costs of
such contest), in which case the Participant or Beneficiary must fully cooperate
and assist the Trustee (or, as appropriate, the Committee) in connection with
such contest and the payment
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described above will not be made pending the outcome of such contest. At the
resolution of such contest (as determined by the Committee, whether following a
litigation, settlement or otherwise), the Trustee promptly shall pay all amounts
(if any) payable to the Participant or Beneficiary calculated as set forth above
(adjusted for the results of the contest). For purposes of this Section 5.2, the
term "Notice" shall mean a revenue agent's report or notice of proposed
adjustment or notice of deficiency (or any amendments to the foregoing) or
set-off of refund claim issued by a taxing authority to the Participant or
Beneficiary with respect to the inclusion in the Participant's or Beneficiary's
taxable income (without the benefit of an offsetting deduction) of any amounts
paid under the Trust Fund to aid a Participant or Beneficiary in pursuing claims
under Covered Arrangements.
5.3 Transfers to Another Trust. Prior to an Irrevocable Election or
Change in Control, upon the direction of the Bank concurred in by the Committee,
the Trustee shall deliver such assets of the Trust Fund as the Bank and the
Committee may direct to another irrevocable trust established by the Bank (alone
or with one or more of its subsidiaries) for the purpose of providing the
benefits contemplated hereunder.
5.4 Withholding Tax.
(a) To the extent that amounts are to be paid under this
Article V by the Trustee directly to Participants and Beneficiaries, such
amounts shall be reduced by the Trustee by the amount of any income and
employment tax withholding required by law, as determined by the Bank and
promptly communicated to the Trustee.
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The Trustee also shall inform each Participant and Beneficiary to whom payment
is made, of the amounts withheld and the purposes for such withholdings. Such
withheld amounts shall then be paid by the Trustee to the Bank, which shall
remit such withheld amounts to, and shall file the appropriate withholding
reports with, the appropriate governmental agencies.
(b) To the extent that amounts are to be paid under this
Article V by the Trustee directly to Participants and Beneficiaries, but the
Bank fails to direct the Trustee with respect to the appropriate amounts to be
withheld by the Trustee in satisfaction of applicable withholding requirements,
then the Trustee shall withhold amounts in respect of taxes at the highest
applicable rate for the appropriate jurisdiction as determined in good faith by
the Trustee, shall reduce such amounts by the amount of taxes withheld, and
shall inform the Bank and each Participant and Beneficiary to whom payment is
made, of the amounts withheld and the purposes for such withholdings. Such
withheld amounts shall then be paid by the Trustee to the Bank, which shall
remit such withheld amounts to, and shall file the appropriate withholding
reports or returns with, the appropriate governmental agencies. Provided that
the Trustee has used its best efforts to determine applicable withholding under
this Section 5.4(b), it shall have no liability for failure to withhold amounts
sufficient to meet the applicable requirements.
(c) Unless otherwise agreed to by the Trustee, the Dime
shall be responsible for all tax information reporting with respect to payments
made to Participants and Beneficiaries hereunder.
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5.5 Legal Action by Trustee. Except in the event the Bank is
Insolvent (as defined in Section 12.1), the Trustee shall not itself commence
any legal action, whether in the nature of an interpleader action, request for
declaratory judgment, or otherwise, requesting the court to (i) determine the
validity of this Trust Agreement or (ii) make any determination in the Trustee's
or the Committee's stead with respect to payments which this Trust Agreement
requires to be made by the Trustee, except at the direction of the Committee.
Notwithstanding the foregoing sentence, in defending any legal
action brought by a Participant or Beneficiary with respect to amounts payable
with respect to a Participant, the Trustee shall be entitled to ask the court to
determine the amounts payable with respect to such Participant.
5.6 Dime Obligations. Notwithstanding the provisions of this Trust
Agreement, each of the Dime (as defined in Section 1.5) entities shall remain
obligated to pay all Benefits to the full extent of its respective liabilities
under the Covered Arrangements.
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ARTICLE VI
Settlement of Accounts
6.1 Trustee Records. The Trustee shall keep full, accurate and
detailed accounts of all investments, receipts and disbursements and other
transactions hereunder. Its financial statements, books and records with respect
to the Trust Fund shall be open to inspection by the Bank and the Committee, and
to their respective attorneys, accountants and agents upon reasonable notice at
all reasonable times during business hours of the Trustee.
6.2 Trustee Statements.
(a) The Trustee shall render to the Bank and the Committee
monthly statements of its receipts and disbursements as Trustee hereunder.
Within 60 days after the close of each calendar year or any termination of the
duties of the Trustee, the Trustee shall prepare, sign and mail to each of the
Bank and the Committee one or more summary reports. These reports shall show all
purchases, sales, receipts, disbursements, and other transactions effected by
the Trustee during the year or period for which the applicable report or reports
are filed, and shall contain an exact description, the cost as shown on the
Trustee's books, and the fair market value as of the end of such period, of
every item held in the Trust and the amount and nature of every obligation owed
by the Trust, and information concerning the status of any Valid Claims
remaining outstanding and unsatisfied at the end of such period. The Trustee
shall make a copy of such reports (or any adjustment thereof) available for
inspection by Participants and Beneficiaries (and persons designated by them) at
its principal executive office in New York City during business hours for a
period of 60 days (30 days in the
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case of an adjusted report). If within 90 days after receipt of any report
neither the Bank nor any Participant, Beneficiary or Committee member has filed
with the Trustee notice of any objection to any act or transaction of the
Trustee, the initial report shall become final as between the Trustee, the Bank,
the Committee and the Participants and Beneficiaries. If any objection has been
filed, and if the objecting party is satisfied that it should be withdrawn, the
objecting party shall in writing filed with the Trustee signify its approval of
the report, and it shall become a final report as between the Trustee, the Bank,
the Committee and the Participants and Beneficiaries. If the report is adjusted
following an objection thereto, the Trustee shall mail to the Bank and the
Committee the adjusted report, and if within 30 days after receipt of the
adjusted report neither the Bank nor any Participant, Beneficiary or Committee
member has filed with the Trustee notice of any objection to the transactions as
so adjusted, the adjusted report shall become a final report as between the
Trustee, the Bank, the Committee and the Participants and Beneficiaries.
(b) Unless a report is fraudulent, when it becomes a final
report it shall be finally settled, and to the extent permitted by law, the
Trustee shall be completely discharged and released, as if such report had been
settled and allowed by a judgment or decree of a court of competent jurisdiction
in an action or proceeding in which the Trustee, the Bank and the Participants
and Beneficiaries were parties.
6.3 Audit. The Trustee shall from time to time permit an independent
public accountant selected by the Bank or the Committee to have access during
ordinary business hours to such records as may be necessary to audit the
Trustee's accounts.
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6.4 Judicial Settlement. Nothing contained in this Trust Agreement
shall be construed as depriving the Trustee or the Bank or the Committee of the
right to have a judicial settlement of the Trustee's accounts, and upon any
proceeding for a judicial settlement of the Trustee's accounts or for
instructions the only necessary parties thereto in addition to the Trustee shall
be the Bank and the Committee.
6.5 Delivery of Records to Successor. In the event of the removal or
resignation of the Trustee, the Trustee shall deliver to the successor Trustee
all records which shall be required by the successor Trustee to enable it to
carry out the provisions of this Trust Agreement.
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ARTICLE VII
Taxes, Expenses and Compensation of Trustee and Committee
7.1 Taxes.
(a) The Bank agrees that all income, deductions and credits
of the Trust Fund belong to it, as owner for income tax purposes and shall be
included on its income tax return.
(b) The Bank, shall from time to time pay taxes (references
in this Trust Agreement to the payment of taxes shall include interest and
applicable penalties) of any and all kinds whatsoever which at any time are
lawfully levied or assessed upon or become payable in respect of the Trust Fund,
the income or any property forming a part thereof, or any security transaction
pertaining thereto. Notwithstanding the foregoing, in the event that the Trustee
is notified that taxes are nonetheless levied or assessed upon or in respect of
the Trust Fund (notwithstanding its status as a "grantor trust") and have not
been paid by the Bank, such amounts shall be paid from the Trust Fund. The
Trustee shall notify the Bank of any proposed or final assessments of taxes and
may assume that any such taxes are lawfully levied or assessed unless the Bank
advises it in writing to the contrary within 15 days after receiving the above
notice from the Trustee. In such case, the Trustee, if requested by the Bank in
writing, shall contest the validity of such taxes in any manner deemed
appropriate by the Bank; or the Bank may contest the validity of any such taxes,
in which case the Bank shall so notify the Trustee and the Trustee shall have no
responsibility to contest such taxes. If any party to this Trust Agreement
contests any
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such proposed levy or assessment, the other parties shall provide such
information and cooperation as the party conducting the contest shall reasonably
request. In lieu of contesting any proposed levy or assessment that the Trustee
provides notification of, the Bank may pay all or any portion of any such taxes
by so notifying the Trustee of its intention to do so within 15 days after
receiving the above notice from the Trustee or within five days after a
determination of any such contested levy or assessment becomes final, either
because the determination cannot be appealed or no appeal of the determination
was made.
7.2 Expenses and Compensation. The Trustee shall be paid
compensation by the Bank in accordance with the schedule of fees attached hereto
as Schedule III. The Bank and the Trustee may mutually agree to revise such
schedule from time to time. Subject to the Bank's approval prior to an
Irrevocable Election or a Change in Control, and subject to the approval of the
Committee following an Irrevocable Election or a Change in Control, the Trustee
shall be reimbursed by the Bank for its reasonable expenses of management and
administration of the Trust, including reasonable compensation of the actuary
and any counsel or other service providers engaged by the Trustee to assist it
in such management and administration in accordance with Section 5.1(b)(iv)
hereof (but not including the costs of legal defense paid by the Trust Fund
pursuant hereto in aid of Valid Claims). The fees hereunder, and reasonable
expenses of the Trustee approved by the Bank or the Committee as applicable and
as described above, shall be paid out of the Trust Fund, if not otherwise paid
by the Bank.
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7.3 Committee Expenses and Fees.
(a) Each of the Committee and the Director Committee (as
defined in Section 8.2(b)) shall have the power and authority to engage counsel,
other experts or other administrators or service providers of its choice to the
extent it deems it necessary or appropriate in order to defend or assert any of
the rights or interests of the Committee or the Director Committee, the Trust or
its beneficiaries provided for under this Trust Agreement (which, in the case of
the Committee, shall be in addition to its authority to engage actuaries,
counsel and other experts as it deems necessary in order to perform its duties
and provide benefits under Section 5.1). The Committee shall, in addition, have
the power and authority to direct the Trustee to purchase liability insurance to
cover any or all of (a) the Committee and the Director Committee, (b) each of
the Committee's and the Director Committee's current and former members, (c) any
current or former director, officer or employee of the Dime who is or was
serving or agrees to serve at the request of the Dime, the Committee or the
Director Committee as an authorized agent or delegatee of the Bank or the
Committee or the Director Committee, (d) any other agent of the Committee, the
Director Committee or the Trust and (e) the Trustee (each, to the extent so
insured, an "Insured Party") with respect to any and all liabilities to which
such Insured Party may become subject pursuant to, arising out of, occasioned
by, or incurred in connection with or in any way associated with this Trust
Agreement, including, without limitation, liabilities to the Dime, subject to
such limitations on coverage, deductibles, or other terms and conditions as the
Committee shall in its sole discretion deem reasonable. To the extent the
Committee or
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the Director Committee (or the Trustee as directed by the Committee) incurs
reasonable expenses as described above, or incurs other reasonable expenses in
performing its duties under this Trust Agreement, such expenses shall be paid or
otherwise reimbursed out of the Trust Fund, if and to the extent directed by the
Committee, and if not otherwise previously paid or reimbursed by the Bank.
(b) Following an Irrevocable Election or Change in Control,
each member of the Committee who is not at the time of any meeting of the
Committee an employee, officer or director of the Dime shall receive a fee of
$1,500 for each meeting of the Committee which he or she attends personally and
$1,000 for each meeting of the Committee which he or she attends by telephone or
other electronic or wireless means enabling all members in attendance to
communicate with each other contemporaneously, and following the time such
member of the Committee ceases to be an employee, officer or director of the
Dime, shall be reimbursed for any reasonable out-of-pocket expenses incurred in
connection with performing his or her duties under this Trust Agreement. Upon
presentation of a request for such reimbursements to the Trustee (containing
such information, including receipts for out-of-pocket expenses, as the Trustee
may reasonably request), then, if not previously reimbursed by the Bank or
pursuant to any Umbrella Trust, the Committee shall direct the Trustee to make
such reimbursements, which shall be reimbursed out of the Trust Fund. In the
event the Committee hereunder undertakes a meeting that is combined with or
occurs on the same day as one or more meetings of the committees under the
Umbrella Trusts, any Committee member who is a member of such other committee(s)
shall be entitled to
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only a single fee for such meeting or meetings, and the Trustee shall pay a
pro-rated portion of the fee for the meeting (based upon the number of trusts to
which the meeting or meetings relate) out of the assets of this Trust Fund.
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ARTICLE VIII
For Protection of Trustee and Committees
8.1 Evidence of Action by the Dime.
(a) Each of the Company and the Bank has certified to the Trustee
the name or names of any person or persons authorized to act for it on Schedule
I hereto. Unless the Company or the Bank notifies the Trustee, in a notice
signed by its Secretary or by an Assistant Secretary, that any person listed on
Schedule I to this Trust Agreement is no longer authorized to act for the
Company or the Bank, the Trustee may continue to rely upon the authority of such
person. The Company or the Bank may certify to the Trustee, in a notice signed
by its Secretary or by an Assistant Secretary, the names of any additional
persons authorized to act for the Company or the Bank. Schedule I shall be
deemed to be revised to reflect any additions or deletions made in accordance
with this Section 8.1(a).
(b) The Trustee may rely upon any certificate, notice or
direction of the Company or the Bank which the Trustee reasonably believes to
have been signed by at least two duly authorized officers or agents of the
Company or the Bank.
8.2 Evidence of Action by the Committee or the Director Committee.
(a) The Trustee may rely on a signed notice of resignation
by a Committee member, and a notice of vacancy or appointment of a successor
provided in accordance with Section 13.6.
(b) The Trustee may rely upon any certificate, notice or
direction of the Committee or the "Committee" under the Umbrella Trust Agreement
(the "Director Trust"), dated as of May 18, 2000, among the Company, the Bank
and HSBC
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Bank USA, as trustee, with respect to the "Covered Arrangements" for "Outside
Directors" of the Bank and related entities (the "Director Committee"), which
the Trustee reasonably believes to have been signed by at least two members of
the Committee or the Director Committee, as applicable, or, if the Committee or
the Director Committee then consists of only one member, by such member. The
makeup of the Director Committee shall be determined in accordance with the
terms of the Director Trust.
(c) The Committee may from time to time delegate to one or
more persons any or all of its rights, powers, duties and responsibilities
hereunder. Such delegation shall be effective when made in writing and delivered
to the Trustee and the Bank as provided in Section 13.7 hereof, for the period
and to the extent set forth therein. Notwithstanding the foregoing, however, the
Committee may not delegate any of its rights, powers, duties or responsibilities
under any of Sections 12.3, 13.6(b) or 13.6(c) of this Trust, and the Director
Committee may not delegate its authority pursuant to Section 13.5 of this Trust.
The Trustee may rely upon any certificate, notice or direction of such delegatee
or delegatees which the Trustee reasonably believes to have been signed by such
delegatee or delegatees, as to matters within the authority granted by the
Committee to such person or persons. Any such delegation may be partially or
wholly revoked by the Committee at any time, in accordance with Section 13.6(d)
hereof. To the extent that at any time the Director Committee (as defined in
Section 8.2(b)) does not exist, those actions which may otherwise be taken by
the Director Committee may be taken by the Committee.
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8.3 Fiduciary Responsibility.
(a) The Trustee shall discharge its duties under this Trust
Agreement in a manner consistent with the objectives of this Trust Agreement and
in accordance with applicable law. Except as otherwise provided in this Trust
Agreement, or under applicable law, the Trustee shall have no liability for (i)
loss sustained by the Trust Fund by reason of the purchase, retention, sale or
exchange of any investment made in accordance with the written directions of the
Bank; (ii) failure of the Bank to make contributions to the Trust Fund; or (iii)
for any insufficiency of assets in the Trust Fund to pay amounts contemplated
hereunder, unless such loss, failure or insufficiency is the result of the
Trustee's own negligence or willful misconduct.
(b) The Trustee's duties and obligations shall be limited to
those expressly imposed upon it by this Trust Agreement.
(c) The Bank at any time may employ as agent (to perform any
act, keep any records or accounts, or make any computations required of it by
this Trust Agreement or the Covered Arrangements) the corporation or association
serving as Trustee hereunder. Nothing done by said corporation or association as
such agent shall affect its responsibilities or liability as Trustee hereunder.
(d) In the exercise of its discretion hereunder, each of the
Committee and the Director Committee shall have due regard for the interests of
each of the Bank and the Participants (and their Beneficiaries) as a class;
provided, that inasmuch as the interests of such class or entities may be
expected to conflict in certain circumstances, and notwithstanding that members
of the Committee may
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themselves be Participants, any determination made by the Committee or the
Director Committee that has the effect of being more favorable to one entity or
class to which it owes a duty over another shall not thereby be deemed invalid
or a breach of the Committee's or the Director Committee's duty to such
disfavored entity or class, so long as the Committee or the Director Committee,
as applicable, acts in good faith in making its determination.
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ARTICLE IX
Indemnity of Trustee and Committees
9.1 Indemnity of Trustee . The Company and the Bank (the
"Indemnifying Parties") hereby jointly and severally indemnify and hold the
Trustee harmless from and against any Liabilities (as defined in Section 9.2) to
which the Trustee may become subject pursuant to, arising out of, occasioned by,
or incurred in connection with or in any way associated with this Trust
Agreement, including, without limitation, Liabilities to the Bank or the
Company, unless such Liabilities result or arise from any act or omission
constituting gross negligence or willful misconduct of the Trustee. If one or
more Liabilities shall arise and the Indemnifying Parties fail to indemnify the
Trustee as provided herein, then the Trustee may engage counsel of the Trustee's
choice at the expense of the Indemnifying Parties, provided such expenses are
reasonable; and provided further, the Trustee shall be entitled either to
conduct the defense against such Liabilities or to conduct such actions as may
be necessary to obtain the indemnity provided for herein, or to take both such
actions. The Trustee shall notify the Indemnifying Parties of the name and
address of such counsel before the Trustee has so engaged such counsel. If the
Trustee shall be entitled to indemnification by the Indemnifying Parties,
pursuant to this Section 9.1, as determined by a court of competent jurisdiction
and the Indemnifying Parties shall not provide such indemnification upon demand,
the Trustee may apply assets of the Trust Fund in full satisfaction of the
obligations for indemnity by the Indemnifying Parties, and any legal
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proceeding by the Trustee against the Indemnifying Parties for such
indemnification shall be in behalf of the Trust.
9.2 Indemnification of Committees and Agents. The Indemnifying
Parties shall indemnify, to the fullest extent permitted by their respective
Certificates of Incorporation (or equivalent) and By-Laws (collectively, the
"Governing Documents") and applicable law (including the provisions thereof
relating to advances of costs, charges and expenses), any person who is, or
business entity, including without limitation a corporation, limited liability
company or partnership, that is owned by, a current or former director, officer
or employee of either of such Indemnifying Parties or of any of their direct or
indirect subsidiaries who is or was serving or agrees to serve either at the
request of either of the Indemnifying Parties or of such subsidiary or as a
result of being selected to serve in accordance with Section 13.6 hereof or the
corresponding provision of the Director Trust Agreement as a member of the
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Committee or the Director Committee or as an authorized agent or delegatee of
the Bank, the Committee or the Director Committee (each such indemnified person
or business entity, an "Indemnified Party") against any loss, damage, liability,
cost, charge or expense (including attorneys' fees), judgment, fine and amount
paid in settlement (herein "Liabilities") actually and reasonably incurred by
such Indemnified Party or on such Indemnified Party's behalf in connection with
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, investigative or administrative, and whether threatened or brought by
a third party or by the Company, the Bank or any of their respective affiliates
or successors, relating to or in connection with such Indemnified Party's
service as a member of the Committee or the Director Committee or as such
authorized agent or delegatee; provided, that the Indemnified Party has met any
applicable standard of conduct required by or pursuant to the Governing
Documents or by applicable law or regulation in order to qualify for
indemnification thereunder, as well as any other conditions to such
indemnification imposed by the Governing Documents or by applicable law or
regulation, and provided, further, that in the event that such indemnification
(including any provision relating to advances of costs, charges and expenses) is
permissible but not required by the Governing Documents, and the Indemnifying
Parties shall fail to provide such indemnification when requested by an
Indemnified Party, then subject to any conditions set forth in the Governing
Documents, the Trustee shall indemnify such Indemnified Party out of the assets
of the Trust Fund. In connection with such indemnification, the Company and the
Bank hereby acknowledge that each member of the Committee and the Director
Committee and each authorized agent or delegatee of the Bank, the Committee and
the Director Committee is or will be serving as such at the request of the Bank,
both before and after any Change in Control or Irrevocable Election. Any
determination as to whether the Indemnified Party has met such applicable
standard of conduct or other conditions to indemnification shall be made in
accordance with the provisions of the Governing Documents and applicable law or
regulation as in effect at the time of an Irrevocable Election or Change in
Control. Unless otherwise required by applicable law, this Section 9.2 may be
amended only in accordance with Section 11.3 hereof; provided that, in addition,
this Section 9.2 shall not be rescinded or modified so as to materially reduce
the indemnification provided
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hereunder without first giving thirty (30) days advance written notice of such
rescission or modification to each individual then entitled to indemnification
hereunder, or so as to materially reduce the indemnification provided hereunder
with respect to actions taken or omitted to be taken prior to the effective date
of such rescission or modification. An Indemnifying Party may satisfy its
obligation under this Section 9.2 in whole or in part by purchase of a policy or
policies of insurance, but no insurer shall have any rights against an
Indemnifying Party or the Trust arising out of this Section 9.2. If an
Indemnified Party shall be entitled to indemnification by an Indemnifying Party,
pursuant to this Section 9.2, as determined by a court of competent jurisdiction
and the Indemnifying Party shall not provide such indemnification upon demand,
the Trustee shall, to the extent permitted by law, apply the assets of the Trust
Fund in full satisfaction of the obligations for indemnity by the Company or the
Bank, as the case may be, and any subsequent legal proceedings by the
Indemnified Party against the Company or the Bank for such indemnification shall
be on behalf of the Trust.
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ARTICLE X
Resignation and Removal of Trustee
10.1 Resignation of Trustee. The Trustee may resign upon 90 days'
prior written notice to the Committee and the Bank. Any resignation of the
Trustee shall not be effective until the Committee has appointed in writing a
successor Trustee. The Committee shall make a good faith effort, following
receipt of notice of resignation from the Trustee, to appoint a successor
Trustee under this Trust Agreement. In the event the Committee has failed to
appoint a successor Trustee within six months of the Trustee's notice of
resignation, the Trustee shall be entitled to seek judicial removal.
10.2 Removal of Trustee. At any time prior to the occurrence of an
Irrevocable Election, Change in Control or Potential Change in Control, the Bank
may remove the Trustee without cause upon at least 30 days' notice in writing to
the Trustee. At any time after the occurrence of an Irrevocable Election, Change
in Control or Potential Change in Control, the Trustee by be removed only by
action of the Committee. In case of a removal of the Trustee for cause (which,
for these purposes, shall include criminal conduct, gross negligence,
mismanagement of trust funds, or any other material breach of fiduciary duty
hereunder), the party having power to do so hereunder may remove the Trustee
immediately, without any prior notice.
10.3 Successor Trustee. (a) If the Trustee resigns (or is
removed) in accordance with Section 10.1 or 10.2 hereof, (i) prior to an
Irrevocable Election, Change in Control or Potential Change in Control, the Bank
may appoint any third party, such as a bank trust department or other party that
may be granted corporate
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trustee powers under state law, as a successor to replace the Trustee upon
resignation or removal, and (ii) on or after the date of an Irrevocable
Election, Change in Control or Potential Change in Control, only the Committee
may appoint any third party, such as a bank trust department or other party that
may be granted corporate trustee powers under state law, as a successor to
replace the Trustee upon resignation or removal; provided, however, that in the
case of either the preceding clause (i) or (ii), such successor Trustee may not
be an Affiliate of the Dime or a party (or Affiliate of a party) to a Change in
Control or then existing Potential Change in Control. The appointment shall be
effective when accepted in writing by the new Trustee. The former Trustee shall
execute any instrument(s) necessary or reasonably requested by the Bank or the
successor Trustee to evidence the transfer.
(b) All of the provisions set forth herein with respect to
the Trustee shall relate to each successor Trustee with the same force and
effect as if such successor had been originally named as the Trustee hereunder.
10.4 Transfer of Trust Fund to Successor. Upon the resignation or
removal of the Trustee and appointment of a successor, the Trustee shall
transfer and deliver the Trust Fund and such records or copies of such records
as are reasonably requested to such successor. Following the effective date of
the appointment of the successor, the Trustee's responsibility hereunder shall
be limited to managing the assets in its possession and transferring such assets
to the successor, and settling its final account. Neither the Trustee nor the
successor shall be liable for the acts of the other.
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ARTICLE XI
Duration, Termination and Amendment of Trust
11.1 Duration and Termination . (a) Except as provided in this Trust
Agreement, the Trust is hereby declared to be irrevocable and shall continue
until the tenth anniversary of the date hereof; provided, however, that (i) if
on the tenth anniversary of the date hereof, any Valid Claims are then
outstanding and have not been resolved or any Submitted Claims have been
submitted to the Committee and the Committee has not yet made a determination of
whether or not such Submitted Claims are Valid Claims, then the Trust shall
continue until such time as each of such Valid Claims or Submitted Claims has
been resolved, withdrawn or abandoned, except that, on and after such tenth
anniversary, the Trust shall accept no additional claims by Participants or
Beneficiaries and (ii) the Trustee may, at most twice in every calendar year,
request the Committee to determine whether the Trust Fund is sufficient to pay
what the Committee estimates to be the costs of winding-up the Trust (including,
without limitation, the fees of the Trustee therefor) and that if the Committee
determines that the Trust Fund is insufficient to pay such costs, then (x) the
Trust shall cease accepting new claims by Participants or Beneficiaries, and (y)
after all Valid Claims then outstanding, and all Submitted Claims that have been
submitted to the Committee, have been resolved, the Trust shall terminate.
(b) The Bank may terminate this Trust prior to the time all
Valid Claims under the Covered Arrangements have been resolved, provided,
however, that the prior written consent of the Committee must be obtained.
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11.2 Distribution Upon Termination. If this Trust terminates under
the provisions of Section 11.1(a) or (b), the Trustee shall liquidate the Trust
Fund and, after its final account has been settled as provided in Article VI,
shall distribute to the Bank the net balance of any Trust Fund assets remaining
(i) after all expenses have been paid and (ii) in the case of a termination of
the Trust pursuant to the provisions of Section 11.1(b), after all Valid Claims
have been resolved. Upon making such distribution, the Trustee shall be relieved
from all further obligations. The powers of the Trustee hereunder shall continue
so long as any assets of the Trust Fund (including claims against the Dime)
remain in its hands.
11.3 Amendment.
(a) Prior to an Irrevocable Election, Change in Control or
Potential Change in Control, this Trust Agreement may be amended from time to
time by action of the Bank , which action may be taken, and shall be evidenced,
in writing by any of the Chief Executive Officer, the Chief Operating Officer or
the Chief Human Resources Officer of the Bank , certified by the Secretary or an
Assistant Secretary of such entity.
(b) Subsequent to an Irrevocable Election, Change in Control
or Potential Change in Control, this Trust Agreement may be amended only by the
Committee, provided that the Committee shall exercise its authority to amend the
Trust Agreement only to the extent that such exercise of authority does not
eliminate the rights of creditors of the Bank to Trust Fund assets in the event
that the Bank becomes Insolvent (as such term is used in Article XII) or
otherwise cause the Trust to fail to be a
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"grantor trust" pursuant to Sections 671 through 679 of the Code. No amendment
to this Trust Agreement that could materially increase the costs of the Trust to
the Bank shall be made without the approval of the Bank , which approval may be
evidenced by a writing by any of the Chief Executive Officer, the Chief
Operating Officer or the Chief Human Resources Officer of such entity, certified
by the Secretary or an Assistant Secretary of such entity. In the event there is
any dispute between the Committee and the Bank as to whether a proposed
amendment to the Trust Agreement could materially increase the costs of the
Trust to the Bank , the Trustee shall reach its own independent determination
with respect to such dispute, which determination shall be final and binding on
the parties.
(c) No amendment of this Trust Agreement shall be made that
alters the irrevocable character of the Trust established under this Trust
Agreement, and no amendment shall materially increase the duties or
responsibilities of the Trustee unless the Trustee consents thereto in writing.
(d) (i) A "Potential Change in Control" shall be deemed
to have occurred if the event set forth in any one of the following paragraphs
shall have occurred:
(A) the Company or the Bank enters into an
agreement, the consummation of which would result in the occurrence of a Change
in Control;
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(B) the Company or the Bank or any Person
publicly announces an intention to take or to consider taking actions which, if
consummated, would constitute a Change in Control;
(C) any Person becomes the Beneficial Owner,
directly or indirectly, of securities of the Bank or the Company representing
15% or more of either the then outstanding shares of common stock of the Bank or
the Company or the combined voting power of the Bank's or the Company's then
outstanding securities (not including in the securities beneficially owned by
such Person, any securities acquired directly from the Bank or its affiliates);
or
(D) the Board of Directors of the Bank
adopts a resolution to the effect that, for purposes of this Agreement, a
Potential Change in Control has occurred.
(ii) The Committee shall determine whether a
Potential Change in Control or an Abandonment Date has occurred. If the
Committee makes such a determination, then the Committee shall promptly notify
the Company, the Bank and the Trustee of such determination.
In particular, and without limiting the generality of the foregoing, the
parties to this Trust Agreement acknowledge that, as of the date hereof, a
Potential Change in Control has occurred in respect of the exchange offer by
North Fork Bancorporation, Inc. for common shares of the Company.
(iii) As used in this Section, the term "Abandonment
Date" shall mean the date on which (A) an agreement described in Section
(d)(i)(A)
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above is terminated (pursuant to its terms or otherwise) without having been
consummated, (B) all parties described in Section (d)(i)(B) above publicly
announce that they have unconditionally abandoned the transactions contemplated,
(C) the Board adopts a resolution rescinding its previous determination that a
Potential Change in Control has occurred, or (D) a court or regulatory body
having competent jurisdiction enjoins or issues a cease and desist or stop order
with respect to or otherwise prevents the consummation of, or a regulatory body
notifies the Bank or the Company that it will not approve, a transaction
described in Section (d)(i)(A) or (B) above or the transactions contemplated
thereby and such injunction, order or notice has become final and not subject to
appeal.
(iv) Following the Abandonment Date of a Potential
Change in Control, the provisions of this Trust Agreement in effect following a
Potential Change in Control shall no longer apply, and the provisions of this
Trust Agreement in effect prior to a Potential Change in Control shall again
apply, unless and to the extent that, prior to the Abandonment Date of such
Potential Change in Control, another Potential Change in Control, or an
Irrevocable Election or Change in Control, has occurred with respect to which
those provisions, as applicable, will continue to separately apply.
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ARTICLE XII
Claims of Creditors
12.1 Insolvency of the Bank. As used in this Article XII, the Bank
shall be deemed to be "Insolvent" if (i) the Bank is subject to a pending
proceeding seeking a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
conservator or receiver or trustee or liquidator in any insolvency, liquidation,
taking of possession, termination of deposit insurance, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or relating to
the Bank or of or relating to all or substantially all of its property, or for
the winding up or liquidation of its affairs, under any federal or state law
relating to bankruptcy or insolvency, or (ii) the Bank is unable to pay its
debts as they become due. The Chief Executive Officer or Board of Directors of
the Bank shall promptly notify the Trustee in the event that the Bank becomes
Insolvent. If at any time the Trustee has determined that the Bank is Insolvent,
the Trustee shall discontinue payments on behalf of Participants or their
Beneficiaries from the Trust Fund assets and shall hold the Trust Fund assets
for the benefit of the Bank's general creditors. Nothing in this Trust Agreement
shall in any way diminish any rights of Participants or their Beneficiaries to
pursue their rights as general creditors of the Bank with respect to the Covered
Arrangements or otherwise.
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<PAGE> 55
12.2 Trustee's Responsibilities if the Bank May Be Insolvent.
(a) If at any time the Bank or a person claiming to be a
creditor of the Bank alleges in writing to the Trustee that the Bank has become
Insolvent, the Trustee shall inquire of the Committee whether the Bank is
insolvent and shall be bound by the determination of the Committee as to whether
the Bank is insolvent; provided, however, that if the Committee fails to make
any determination as to the insolvency of the Bank within 30 days following the
inquiry of the Trustee, then the Trustee shall, within 30 days following such
failure, independently determine whether the Bank is Insolvent and, pending the
determination by the Committee or the Trustee, as the case may be, the Trustee
shall suspend payments from the Trust Fund.
(b) If the Bank notifies the Trustee or the Trustee
determines that the Bank is Insolvent, the Trustee shall hold the assets of the
Trust Fund for the benefit of the Bank's general creditors, and shall disburse
assets from the Trust Fund to creditors of the Bank only pursuant to an order
from a court of competent jurisdiction.
(c) If the Trustee suspends payments from the Trust Fund
pursuant to this Section 12.2, the Trustee shall resume such payments only after
the Trustee has determined that the Bank is not Insolvent (or is no longer
Insolvent, if the Trustee initially determined the Bank to be Insolvent).
12.3 Trust Recovery of Payments to Creditors. In the event that an
amount is paid from the Trust Fund to creditors of the Bank (other than as
provided in Article V and Section 7.3), then as soon as practicable (or if the
Bank is then Insolvent, as soon as the Bank is no longer Insolvent) but subject
to the sole discretion of the
54
<PAGE> 56
Bank or, following an Irrevocable Election or Change in Control, subject to the
sole discretion of the Committee, and upon the Trustee's demand, the Bank shall
deposit into the Trust Fund a sum equal to the amount paid by the Trust Fund to
such creditors.
55
<PAGE> 57
ARTICLE XIII
Miscellaneous
13.1 Governing Law. This Trust Agreement and the Trust hereby created
shall be governed, construed and regulated by the laws of the State of New York,
without regard to the conflict of laws principles thereof. The parties to this
Agreement agree and expressly consent that any action brought pursuant to or to
enforce the terms of this Agreement may be brought in the courts of the State of
New York sitting in New York, New York, or the United States District Court for
the Southern District of New York. Each of the parties to this Agreement agrees
and expressly consents to submit to the exclusive jurisdiction of the
above-listed courts in any action alleging a breach of this Agreement or seeking
to invalidate or limit the enforceability of this Agreement or of any provision
thereof. Nothing in this provision, however, shall be construed to limit the
Trustee's or the Committee's ability to serve process or commence any action
against any of the parties hereto in any appropriate forum.
13.2 Titles and Headings Not to Control. The titles to Articles and
headings of Sections in this Trust Agreement are placed herein for convenience
of reference only and in case of any conflict, the text of this Trust Agreement,
rather than such titles or headings, shall control.
13.3 Successors and Assigns . Except as provided herein, this Trust
Agreement may not be assigned by any party without the prior written consent of
the other parties, and any purported assignment without such prior written
consent shall be null and void. This Trust Agreement shall be binding upon the
successors and
56
<PAGE> 58
permitted assigns of each party hereto. In the case of any consolidation of the
Bank with, or merger of the Bank with or into, any corporation or other entity,
the corporation or other entity formed by such consolidation, or with or into
which the Bank is merged, or any Person which acquires all or a majority of the
assets of the Bank, shall expressly assume in writing, in form satisfactory to
the Trustee, the duties and obligations of the Bank under this Trust Agreement;
provided, however, that the duties and obligations of the Bank under this Trust
Agreement shall be binding on any such successor notwithstanding its failure to
expressly assume such duties and obligations in writing. The Bank shall not sell
or convey all or a majority of its assets to any Person unless such Person has
expressly assumed in writing, in form satisfactory to the Trustee, each of the
duties and obligations of the Bank under this Trust Agreement.
13.4 Change in Control. For purposes of this Trust Agreement, a
"Change in Control" shall be deemed to have occurred if the event set forth in
any one of the following paragraphs shall have occurred:
(i) any Person is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Company (not including in the
securities beneficially owned by such Person any securities acquired directly
from the Company or its Affiliates) representing 35% or more of the combined
voting power of the Company's then outstanding securities; or
(ii) the following individuals cease for any reason
to constitute a majority of the number of directors then serving as directors of
the Company and the Bank: individuals who, on July 24, 1997, constitute the
Boards of
57
<PAGE> 59
Directors of the Company and the Bank and any new director (other than a
director whose initial assumption of office is in connection with the settlement
of an actual or threatened election contest, including but not limited to a
consent solicitation, relating to the election of directors of the Company)
whose appointment or election by the Boards of Directors of the Company or the
Bank or nomination for election by the Company's stockholders was approved or
recommended by a vote of at least two-thirds (2/3) of the directors then still
in office who either were directors on July 24, 1997 or whose appointment,
election or nomination for election was previously so approved or recommended;
or
(iii) there is consummated a merger or consolidation
of the Company or any direct or indirect subsidiary of the Company with any
other corporation or entity, other than (A) a merger or consolidation which
would result in the voting securities of the Company outstanding immediately
prior to such merger or consolidation continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity or any Parent thereof), in combination with the ownership of
any trustee or other fiduciary holding securities under an employee benefit plan
of the Company or any subsidiary of the Company, at least 65% of the combined
voting power of the securities of the Company, such surviving entity or any
Parent thereof outstanding immediately after such merger or consolidation or (B)
a merger or consolidation effected solely to implement a recapitalization of the
Company or the Bank (or similar transaction) in which no Person is or becomes
the Beneficial Owner, directly or indirectly, of securities of the Company
58
<PAGE> 60
or the Bank (not including in the securities beneficially owned by such Person
any securities acquired directly from the Company or its Affiliates)
representing 35% or more of the combined voting power of the Company's or the
Bank's then outstanding securities; or
(iv) the stockholders of the Company or the Bank
approve a plan of complete liquidation or dissolution of the Company or the
Bank, respectively, or there is consummated a sale or disposition by the Company
or any of its subsidiaries of any assets which individually or as part of a
series of related transactions constitute all or substantially all of the
Company's consolidated assets (provided that, for these purposes, a sale of all
or substantially all of the voting securities of the Bank or a Parent of the
Bank shall be deemed to constitute a sale of substantially all of the Company's
consolidated assets), other than any such sale or disposition to an entity at
least 65% of the combined voting power of the voting securities of which are
owned by stockholders of the Company in substantially the same proportions as
their ownership of the voting securities of the Company immediately prior to
such sale or disposition.
As used in this Trust Agreement, "Affiliate" shall have the meaning set
forth in Rule 12b-2 promulgated under Section 12 of the Exchange Act;
"Beneficial Owner" shall have the meaning set forth in Rule 13d-3 under the
Exchange Act; "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time; "Parent" shall mean any entity that becomes the
Beneficial Owner of at least 80% of the voting power of the outstanding voting
securities of the Company or of an
59
<PAGE> 61
entity that survives any merger or consolidation of the Company or any direct or
indirect subsidiary of the Company; and "Person" shall have the meaning given in
Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and
14(d) thereof, except that such term shall not include13.4.0.4.0.1. the Company
or any of its subsidiaries, a trustee or other fiduciary holding securities
under an employee benefit plan of the Company or any of its Affiliates, an
underwriter temporarily holding securities pursuant to an offering of such
securities, or a corporation or entity owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company.
For purposes of this Trust Agreement, the Committee shall determine
whether a "Change in Control" has occurred and if such a determination is made,
shall promptly notify the Company, the Bank and the Trustee in writing of such
determination.
13.5 Irrevocable Election.
(a) The Committee, acting by majority or if only one
Committee member exists then by such member, or the Director Committee (as
defined in Section 8.2(b)), acting by majority or if only one Director Committee
member exists then by such member, may at any time make an Irrevocable Election
pursuant to this Section 13.5 by notifying the Trustee in writing in
substantially the form attached hereto as Exhibit A. Without limiting the
ability of the Committee or the Director Committee to make an Irrevocable
Election at any time and in its sole and absolute discretion, an Irrevocable
Election may (but need not) be made by the Committee or the Director
60
<PAGE> 62
Committee at any time after a Potential Change in Control.
13.6 The Committee.
(a) Prior to a Potential Change in Control (as defined in
Section 11.3(d)), an Irrevocable Election or a Change in Control (as defined in
Section 13.4), the Committee shall consist of those individuals holding the
following offices in the Bank: (i) Chief Executive Officer; (ii) Chief Operating
Officer; (iii) Chief Financial Officer; (iv) Treasurer; (v) General Counsel; and
(vi) Chief Human Resources Officer, it being understood that one individual may
hold more than one such position. Any member of the Committee may resign upon 30
days' prior written notice to the Bank, the Trustee, and the other members of
the Committee. Prior to an Irrevocable Election, a Change in Control or a
Potential Change in Control, each member of the Committee may be removed by the
Chief Executive Officer of the Bank, and, in the event of a vacancy on the
Committee, if no individual then holds the officer position so vacated the Chief
Executive Officer of the Bank shall appoint a successor. The Bank and the
Committee shall inform the Trustee of the membership of the Committee and any
changes therein, and the Trustee shall, upon the request of any Participant,
provide the Participant with a list of Committee members.
(b) Subsequent to a Potential Change in Control, those
members of the Committee who were members of the Committee immediately preceding
the Potential Change in Control shall continue as members of the Committee
whether or not such individuals continue to hold the officer positions described
in
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<PAGE> 63
Section 13.6(a), and the number of members of the Committee shall, unless
otherwise reduced as provided below, be equal to the number of members of such
Committee continuing as such immediately after such Potential Change in Control;
provided, however, that except as otherwise provided below, the membership of
each such individual on the Committee shall cease if such individual is no
longer employed by the Dime (or a successor or any parent or subsidiary of any
of such entities). In the event of a vacancy on the Committee subsequent to a
Potential Change in Control, a successor to the vacancy on the Committee shall
be appointed by action (evidenced by written approval) of a majority of the
remaining members of the Committee. No individual shall be eligible to be named
to fill a vacancy on the Committee, however, unless such individual is, at the
time of such appointment, (x) an employee of the Company or the Bank (or a
successor or any parent or subsidiary of any of such entities) and (y) a
Participant, and such individual may continue as a member on the Committee
during the period such individual is both an employee of the Company or the Bank
(or a successor or any parent or subsidiary of any of such entities) and a
Participant. If at any time after a Potential Change in Control but prior to a
Change in Control or an Irrevocable Election (in either of which event paragraph
(c) of this Section 13.6 shall control and be immediately effective) no member
of the Committee, as constituted at such time, would remain a member of the
Committee because all such members have ceased to be employed by either the
Company or the Bank (or a successor or any parent or subsidiary of any of such
entities), then during the 90-day period following the date the last such member
ceases to be so employed, the
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<PAGE> 64
membership of the Committee shall be made up of the most recent members of the
Committee in number equal to the number provided for in the first sentence of
this Subsection 13.6(b). During such 90-day period, (i) those reconstituted
Committee members may, by vote or written consent of a majority thereof, elect
one or more new members of the Committee who satisfy the requirements set forth
in (x) and (y) above (in which event such new members shall from and after their
election constitute the Committee for all purposes of this Trust Agreement,
subject to the other provisions of this Subsection 13.6(b), and the
reconstituted Committee members shall cease to serve as Committee members), or
(ii) if the Committee or the Director Committee shall make an Irrevocable
Election prior to the election of one or more new Committee members, then the
reconstituted Committee members shall constitute the Committee and the
provisions of Section 13.6(c) shall control. If neither of the actions set forth
in the preceding sentence are taken, then, on and after the end of such 90-day
period, the Trustee shall appoint successor members of the Committee who satisfy
the requirements set forth in (x) and (y) above.
(c) Following an Irrevocable Election or a Change in Control
(and irrespective of whether a Potential Change in Control has previously taken
place), the Committee shall consist of those individuals who were members of the
Committee immediately prior to the Irrevocable Election or Change in Control,
and the number of Committee members shall continue at the same level as applied
before such Irrevocable Election or Change in Control. Further, subsequent to an
Irrevocable Election or a Change in Control, no member of the Committee may be
removed unless
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<PAGE> 65
removed by the action of at least two-thirds of the remaining members of the
Committee (but in no event shall such action be taken by less than two members
of the Committee). Following an Irrevocable Election or a Change in Control,
after the death, resignation or removal of a member of the Committee, a
successor to a vacancy on the Committee shall be appointed by a majority of the
remaining members of the Committee. However, if following an Irrevocable
Election or a Change in Control all membership positions on the Committee are
vacant, the Trustee shall appoint successor members of the Committee, each of
whom satisfies the condition that, at the time of such appointment, he or she be
a Participant.
(d) Any action by the Committee, unless and to the extent
validly delegated pursuant to Section 8.2(c) hereunder, shall require the
written approval of the majority of the members of the Committee or if the
Committee then consists of only one member, by such member. A Committee member
or delegatee shall not be liable hereunder for any act taken or omitted to be
taken in good faith, except for such person's own gross negligence or willful
misconduct.
(e) All of the provisions set forth herein with respect to a
member of the Committee shall relate to each successor with the same force and
effect as if such successor had been originally named as a member of the
Committee.
(f) In the case of any ambiguity under this Trust, the
Trustee may seek the direction of, or a determination by, as applicable, the
Committee.
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<PAGE> 66
13.7 Notices.
(a) Communications to the Trustee shall be sent in writing
to the Trustee's office at 140 Broadway, New York, New York 10005, Attention:
James Esposito, Vice President, or to such other address as the Trustee may
specify. No communication shall be binding upon the Trust Fund or the Trustee
until it is received by the Trustee and unless it is in writing and signed by an
authorized person.
(b) Communications to the Bank shall be sent in writing to
the Bank at 589 Fifth Avenue, New York, New York 10017, Attention: Chief Human
Resources Officer, or to such other address as the Bank may specify. No
communication shall be binding upon the Bank until it is received by the Bank.
(c) Communications to the Committee shall be sent in writing
to each of the Committee members as follows:
Committee Under the Benefit Protection Trust Agreement
Dime Bancorp, Inc.
589 Fifth Avenue
New York, New York 10017
Attn: name of Committee member
with a copy to:
Patterson, Belknap, Webb & Tyler LLP
1133 Avenue of the Americas
New York, New York 10036
Attn: Douglas E. Barzelay, Esq. and
David M. Glaser, Esq.
Telecopier: (212) 336-2222
or to such other address as the respective Committee member may specify. No
communication shall be binding upon the Committee until it is received by at
least two
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<PAGE> 67
of the Committee members or, if the Committee shall then consist of only one
member, by such member.
(d) Communication to the Director Committee shall be sent in
writing to each of the Committee members as follows:
Committee Under the Directors Umbrella Trust Agreement
Dime Bancorp, Inc./The Dime Savings Bank of New York, FSB
589 Fifth Avenue
New York, New York 10017
Attn: name of Director Committee member
with a copy to:
Patterson, Belknap, Webb & Tyler LLP
1133 Avenue of the Americas
New York, New York 10036
Attn: Douglas E. Barzelay, Esq. and
David M. Glaser, Esq.
Telecopier: (212) 336-2222
or to such other address as the respective Director Committee member may
specify. No communication shall be binding upon the Director Committee until it
is received by at least two of the Director Committee members or, if the
Director Committee shall then consist of only one member, by such member.
13.8 Obligations of the Dime
Wherever this Trust requires that an obligation be performed by
the Dime, then the Company and the Bank shall be jointly and severally liable
for the performance of such obligation. If the Bank is deemed, pursuant to its
Governing Documents or applicable law (including, without limitation, pursuant
to the decision or order of a court of competent jurisdiction or a regulatory
authority having supervisory
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<PAGE> 68
authority over the Bank) not to have the powers or authority necessary to fully
perform its obligations under this Trust Agreement, (i) the Company hereby
agrees that it shall immediately assume all of the rights and obligations of the
Bank hereunder, (ii) this Trust Agreement shall be deemed amended so that every
appearance of the word "Bank" hereunder shall henceforth refer to the Company
unless the context of such word requires otherwise and (iii) the Trust Fund
shall at all times thereafter be subject to the claims of general creditors of
the Company, as provided in Article XII hereof.
13.9 Invalidity of Particular Sections.
Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without invalidating the
remaining provisions hereof which shall continue in full force and effect.
13.10 Counterparts. This Trust Agreement may be executed in any number
of separate counterparts, each such counterpart being deemed to be an original
of this Trust Agreement, and all such counterparts together constituting the
same agreement.
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<PAGE> 69
IN WITNESS WHEREOF, THE DIME SAVINGS BANK OF NEW YORK, FSB, HSBC BANK
USA, as Trustee, and DIME BANCORP, INC. have caused this Trust Agreement to be
executed by their duly authorized officers and their respective seals to be
hereunto affixed as of the day and year first above written.
THE DIME SAVINGS BANK OF NEW YORK, FSB
By:
-----------------------------------
Name:
-----------------------------------
Title:
SEAL
Attest:
- --------------------------
HSBC BANK USA, as Trustee
By:
-----------------------------------
Name:
-----------------------------------
Title:
SEAL
Attest:
- --------------------------
<PAGE> 70
FOR THE PURPOSE OF CONSENTING TO THE JOINT AND
SEVERAL LIABILITIES EXPRESSLY IMPOSED HEREUNDER
AND THE PROVISIONS OF SECTION 13.8 HEREOF:
DIME BANCORP, INC.
By:
-----------------------------------
Name:
-----------------------------------
Title:
SEAL
Attest:
- --------------------------
<PAGE> 71
SCHEDULE I
LIST OF AUTHORIZED OFFICERS
INDIVIDUALS HAVING AUTHORITY TO ACT ON BEHALF OF THE BANK
<TABLE>
<S> <C>
Benefits Committee Members Treasury Division
- -------------------------- -----------------
Lawrence J. Toal Alberto Diaz
D. James Daras
Arthur C. Bennett
Anthony Burriesci
James E. Kelly
Human Resources Department Law Department
- -------------------------- --------------
Norman J. Stafford Paul Marcotrigiano
David K. McDowell Jacquelyn Hart
Michael J. Connolly
Janet D. Krasowski Office of the Corporate Secretary
Denise Halleran ---------------------------------
Gene C. Brooks
</TABLE>
INDIVIDUALS HAVING AUTHORITY TO
ACT ON BEHALF OF THE COMPANY
<TABLE>
<S> <C>
Benefits Committee Members Treasury Division
- -------------------------- -----------------
Lawrence J. Toal Alberto Diaz
D. James Daras
Arthur C. Bennett
Anthony Burriesci
James E. Kelly
Human Resources Department Law Department
- -------------------------- --------------
Norman J. Stafford Paul Marcotrigiano
David K. McDowell Jacquelyn Hart
Michael J. Connolly
Janet D. Krasowski Office of the Corporate Secretary
Denise Halleran ---------------------------------
Gene C. Brooks
</TABLE>
<PAGE> 72
SCHEDULE II
LIST OF ATTORNEYS
Patterson, Belknap, Webb & Tyler LLP
The Goldstein Law Firm
<PAGE> 73
SCHEDULE III
LIST OF FEES AND EXPENSES OF TRUSTEE
A. Administration and Accounting
For the administration, including custody and monthly basic accounting
services, the fee will be computed at the following annual rates applied
to the market value of the Trust Fund assets.
.15 of 1% on the first $10 million
.08 of 1% on the next $20 million
.05 of 1% on the balance
Minimum annual fee - $10,000
Multiple Accounts Fee - $1,500 each additional account
Market values of multiple accounts are combined for fee purposes. Fees
for a period of less than one year shall be pro-rated.
In the event that any of the following occur: (a) a Change in Control,
(b) the filing of an Irrevocable Election, or (c) the Bank or the
Company is determined to be Insolvent, the above annual rates and
minimum annual fees will increase by 100%; provided, however, that in
the event such increase in fees is on account of the Insolvency of the
Bank (but not on account of either of the reasons set forth in (a) or
(b) above), such increase in annual rates and minimum annual fees shall
only relate to the fees regarding the Company Trust Assets.
Notwithstanding the foregoing, in no event (without an appropriate
modification of this Schedule II) will the above annual rates and
minimum annual fees increase by more than 100%.
B. Wire Transfers and Transaction Processing
For securities transactions, including purchases and sales of equities,
fixed income securities, short term instruments, pay downs on pooled
mortgages, external mutual funds (except for pooled cash equivalent
investment purchases and sales) and wire transfers:
$20.00 per transaction
<PAGE> 74
For other securities transactions, including purchases and sales of
options, futures and international transfers of funds:
$40.00 per transaction
C. Disbursements
For check processing:
$10.00 Per check
$20.00 Per check rush-issued (24-hour turnaround)
D. Other Administrative Services
For administrative services not covered by the preceding provisions that
are relative to carrying out trustee responsibilities beyond routine
custodial and accounting duties, the Trustee shall maintain time logs
indicating the time spent by its employees and agents on the discharge
of its duties as Trustee. Each hour shall be charged at the Trustee's
hourly rates then in effect under this Agreement or subsequent
amendment. The hourly rates as of the effective date of the Benefit
Protection Trust are:
Department Managers $150.00
Vice President $125.00
All Other Officers $100.00
Other Staff $ 50.00
Time spent by the Operations Department of the Trustee on the handling
of assets, generation of accounting reports and other standard
operations are not subject to an hourly charge.
E. Participant Recordkeeping Services, if requested or required
Set-Up and Conversion Per Plan
$250 (One-Time Fee)
On-Going Processing Per Plan - Participant Accounting:
Administrative Fee: $1,000 per valuation
Participant Fee: $ 25 per year
Out-of-Pocket Expenses
<PAGE> 75
Cost of custom processing, custom statement paper, "reruns" due
to customer error to be billed at cost.
F. Extraordinary Services
Billed as mutually agreed upon.
<PAGE> 76
EXHIBIT A
HSBC Bank USA
insert Trustee address then
in effect, per Section 13.7
Attention:
----------------
Re: Benefit Protection Trust Agreement dated as
____________, 2000, between the Dime Savings Bank of New
York, FSB, Dime Bancorp, Inc. and HSBC Bank USA, as
Trustee.
Gentlemen:
You are hereby notified that the [Committee (as defined in Section 13.6
of the Trust Agreement referred to above)] [Director Committee (as defined in
Section 8.2(b))] is making an Irrevocable Election pursuant to Section 13.5 of
such Trust Agreement. You are hereby directed to take all actions and undertake
such responsibilities as are provided for under the Trust Agreement in the event
of an Irrevocable Election.
Sincerely yours(1)
- ----------------
(1) To be signed by a majority of the Committee appointed pursuant to
Section 13.6, or, if the Committee then consists of only one member,
then by such member.
<PAGE> 1
Non-Officers
SEVERANCE PAY PROGRAM FOR EMPLOYEES OF
DIME BANCORP, INC. AND PARTICIPATING SUBSIDIARIES
GENERAL
The Severance Pay Program (the "Program") is intended to
compensate certain regular employees of Dime Bancorp, Inc. (the "Company"), The
Dime Savings Bank of New York, FSB (the "Savings Bank") and other participating
affiliates of the Company (individually and collectively, the "Bank"), whose
termination of service is initiated by the Bank, so as to cushion the impact of
such termination of service and provide reasonable assistance during their job
search. This document describes the terms of the Program as it applies to
non-officer employees, and constitutes a Summary Plan Description.
NOTE REGARDING NORTH AMERICAN MORTGAGE COMPANY EMPLOYEES: Employees of
North American Mortgage Company and its subsidiaries ("NAMC") are not
covered by this Program (and, with respect to those employees, NAMC is
not deemed part of the "Bank" and is not a participating employer under
the Program), unless they were employed by the Savings Bank or Dime
Mortgage, Inc. immediately prior to November 1, 1997, and became a NAMC
employee on November 1, 1997.* To the extent any NAMC employee is
covered by this Program, if such an employee receives severance or
transition pay benefits under any other plan or program of NAMC
(including but not limited to the Severance Pay Plan of North American
Mortgage Company or the Senior Executive Severance Pay Plan of North
American Mortgage Company), the benefits under this Program will be
offset by any of such other benefits, in the manner determined by the
Plan Administrator.
ELIGIBILITY
Except as provided below, Severance Pay will be paid to a
non-officer employee of the Bank whose service is being terminated, at the
initiation of the Bank, for one of the following reasons:
- ---------------------------
* In all instances, if an individual employed by NAMC was an employee of
NAMC immediately prior to October 15, 1997, he or she will not be
eligible for this Program. NAMC employees described above who are
eligible for the Program will only be eligible until a severance from
service following initial employment by NAMC. If they later return to
service with NAMC, they will not be eligible for this Program with
respect to any subsequent termination from service with NAMC. For
purposes of the Program, an individual will be deemed solely an
employee of, and employed by, the employer who is ultimately
responsible for the payment of the individual's salary or wages, as
determined by the Plan Administrator.
<PAGE> 2
2
Non-Officers
- Reduction in the Bank's workforce
- Elimination of the employee's department or position
- Department relocation to a location more than a reasonable
commuting distance (as determined by the Plan Administrator)
from the employee's home, consolidation of facilities or the
closing of an office (other than the sale of a branch of the
Bank)
Severance Pay will not, however, be paid to an employee whose
service is being terminated for any of the following reasons:
- Voluntary resignation by the employee (not initiated by the
bank)
- Illness
- Excessive absenteeism/tardiness
- Death
- Failure to report to work
- Failure to return to work after a leave of absence
- Unsatisfactory job performance
- Refusal or unwillingness to perform work
- Misconduct
- Violation of Bank policies and procedures
- Insubordination
- Theft or suspected dishonesty
- Sale of a branch office of the Bank
In addition, Severance Pay will not be paid to any employee who, upon his or her
termination of employment, is entitled to severance benefits under an individual
agreement with the Bank (except to the extent that such individual agreement
provides for benefits under this Program). Severance Pay also will not be paid
to any employee who, in connection with an agreement between the Bank and
another employer under which the other employer will perform work previously
performed by the Bank, receives an offer of similar, ongoing employment from the
other employer whereby the employee need not experience any material period of
unemployment.
AMOUNT AND TIMING OF SEVERANCE PAY
The amount of Severance Pay is based on the eligible
employee's regular weekly salary (before deduction for pre-tax contributions
under the Dime Bancorp, Inc. Flexible Benefits Plan or the Retirement 401(k)
Investment Plan of Dime Bancorp, Inc. or any other similar plan or program
providing for pre-tax contributions), but exclusive of shift differential pay,
overtime, bonuses, commissions, incentive payments, expense allowances, fringe
benefits and any other contributions to any pension, insurance, welfare or other
employee benefit plan. If an employee is on a disability leave when the Bank
initiates the termination of service, Severance Pay, if any, will commence after
the
<PAGE> 3
3
Non-Officers
earlier of (i) the date the employee is able to return to work, as determined by
a physician, or (ii) the end of the period of short term disability leave.
For an eligible salaried employee, Severance Pay is in the
form of bi-weekly pay continuance for the following number of days or weeks,
based on the number of complete years or months of Service as a salaried
employee of the Bank completed by the eligible individual prior to the start of
any Severance Pay:
Period of Service Days/weeks of Severance Pay
----------------- ---------------------------
Less than 6 months 4 days
6 but less than 12 months 9 days
1 full year 2 weeks
2 full years 4 weeks
3 full years 6 weeks
4 full years 8 weeks
5 full years 10 weeks
6 full years 12 weeks
7 full years 14 weeks
8 full years 16 weeks
9 full years 18 weeks
10 full years 20 weeks
11 full years 22 weeks
12 full years 24 weeks
13 or more full years 26 weeks (maximum)
For these purposes, years and months of Service mean full years or months of
service as a salaried employee of the Bank. In the event of a break in the
service of an employee, prior years or months of service will be counted in a
later determination of the Period of Service as long as the length of the break
in service is less than 5 years or otherwise does not exceed the length of the
period of service before the break.
A different rule applies for hourly employees. For purposes of
determining Severance Pay, an eligible hourly employee will be credited with 1
month of Service for each 2 full-month period worked as an hourly employee.**
After the eligible hourly employee's Period of Service is thereby determined,
the chart set forth above will be applied. The amount of pay continuation for an
eligible
- ---------------------------
** Like the rule for salaried employees, if there is a break in the
service of an hourly employee, prior years or months of service will be
counted in a later determination of the Period of Service as long as
the length of the break in service is less than 5 years or otherwise
does not exceed the length of the period of service before the break.
<PAGE> 4
4
Non-Officers
hourly employee, if any, will be based on the average actual hours worked (and
the relevant hourly rate) for the previous 12 paid weeks, with continuation for
4 or 9 days using a daily rate based on 1/5 of the average weekly rate. If an
employee was previously a salaried employee and has been an hourly employee for
less than 12 weeks before any Severance Pay is payable, a maximum of 40 hours
(at the later hourly rate) will be credited for each week while on salaried
status, when determining the amount of the Severance Pay.
For salaried or hourly employees, if Severance Pay or
transition pay was provided with respect to a previous termination of service
(whether as contemplated herein or otherwise), a special rule applies if they
return to service with the Bank, and have a later termination of service. If the
subsequent termination of service occurs within 2 years of the end of the
Severance or transition pay period, if any, that applied with respect to the
first termination of service, any period of Severance Pay that might otherwise
be provided will be shortened by the length of the earlier period of Severance
or transition pay. If Severance Pay is payable with respect to the second
termination of service, it will not, however, be for a length shorter than the
days or weeks of Severance Pay that would, if awarded, apply based solely on the
employee's status, and the Period of Service newly credited to the employee
after the return to service.
No additional vacation pay shall accrue during the period of
Severance Pay. Any pay in lieu of vacation for the year of separation from
service shall be paid within 30 days of the start of the Severance Pay Period.
Severance Pay will be subject to any applicable tax withholding.
If an individual who is receiving Severance Pay commences
other employment with an employer unrelated to the Bank, then, at such time,
unless the Bank determines otherwise, the individual shall receive the balance
of his or her Severance Pay and any unused vacation pay in a single lump sum
upon receipt of written notification of the start of such other employment by
the Bank. If an individual who is receiving Severance Pay returns to active work
with the Bank, the Severance pay will cease.
The period of service of any eligible employee who was an
employee of KeyBank National Association immediately prior to the Bank's the
acquisition of former KeyBank branches in Long Island, New York, in 1999 (a
"Former KeyBank Employee") shall, solely for purposes of determining such
individual's period of Service in computing the amount of Severance Pay that may
be payable to the individual, include credit for all service with KeyBank and
its predecessors or affiliates that would have been credited under the terms of
this Program if such service had been service for the Bank. Notwithstanding
anything in the Program to the contrary, in the event a Former KeyBank Employee
terminates service with the Bank at any time during the first year after the
Bank's acquisition of the former KeyBank branches, such employee shall be
eligible to receive Severance Pay equal to the greater of (i) the amount of
severance pay, if any, determined in accordance with the applicable terms of the
Program (other than this sentence), provided such employee otherwise satisfies
the requirements for eligibility for such severance pay under the terms of the
Program, and
<PAGE> 5
5
Non-Officers
(ii) the amount of severance pay, if any, that would have been payable in
accordance with the applicable terms of the severance policy of KeyBank as
disclosed in the Dime/KeyBank Purchase Agreement. The amount of Severance Pay,
if any, payable with respect to a Former KeyBank Employee who becomes entitled
to Severance Pay after the first anniversary of the Bank's acquisition of the
former KeyBank branches shall be determined without regard to the preceding
sentence and solely in accordance with the then applicable terms of the Program
or other severance pay program, if any, maintained by the Bank.
ADDITIONAL SEVERANCE BENEFITS RELATED TO CHANGE IN CONTROL
If, prior to January 1, 2002, a Change in Control (as defined
below) occurs, and subsequent to the Change in Control but prior to January 1,
2002, the employment of an employee who is otherwise eligible for severance
benefits under this Program is involuntarily terminated by the Bank, such
employee shall be entitled, in addition to the severance benefits described
above, to an additional Change in Control Severance Benefit. The Change in
Control Severance Benefit of an employee shall equal 25% of the total severance
benefits that the employee is otherwise entitled to under this Program, and
shall be paid in one lump sum within 30 days of the employee's termination of
employment.
The Change in Control Severance Benefit will not be paid to
any employee who, upon his or her termination of employment, is entitled to
severance benefits under an individual agreement with the Bank. The Change in
Control Severance Benefit also will not be paid to any employee who, in
connection with an agreement between the Bank and another employer under which
the other employer will perform work previously performed by the Bank, receives
an offer of similar, ongoing employment from the other employer whereby the
employee need not experience any material period of unemployment.
For purposes of determining whether an employee is entitled to
a Change in Control Severance Benefit, a "Change in Control" shall be deemed to
have occurred if the event set forth in any one of the following paragraphs
shall have occurred:
(I) any Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company (not including in the
securities beneficially owned by such Person any securities acquired
directly from the Company or its Affiliates) representing 35% or more
of the combined voting power of the Company's then outstanding
securities; or
(II) the following individuals cease for any reason to constitute a
majority of the number of directors then serving as directors of the
Company: individuals who, on July 24, 1997, constitute the Board of
Directors of the Company and any new director (other than a director
whose initial assumption of office is in connection with the settlement
of an actual or threatened election contest, including but not limited
to a consent solicitation, relating to the
<PAGE> 6
6
Non-Officers
election of directors of the Company) whose appointment or election by
the Board of Directors of the Company or nomination for election by the
Company's stockholders was approved or recommended by a vote of at
least two-thirds (2/3) of the directors then still in office who either
were directors on July 24, 1997 or whose appointment, election or
nomination for election was previously so approved or recommended; or
(III) there is consummated a merger or consolidation of the Company
or any direct or indirect subsidiary of the Company with any other
corporation or entity, other than (i) a merger or consolidation which
would result in the voting securities of the Company outstanding
immediately prior to such merger or consolidation continuing to
represent (either by remaining outstanding or by being converted into
voting securities of the surviving entity or any Parent thereof), in
combination with the ownership of any trustee or other fiduciary
holding securities under an employee benefit plan of the Company or any
subsidiary of the Company, at least 65% of the combined voting power of
the securities of the Company, such surviving entity or any Parent
thereof outstanding immediately after such merger or consolidation or
(ii) a merger or consolidation effected solely to implement a
recapitalization of the Company or the Savings Bank (or similar
transaction) in which no Person is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Company or the Savings
Bank (not including in the securities beneficially owned by such Person
any securities acquired directly from the Company or its Affiliates)
representing 35% or more of the combined voting power of the Company's
or the Savings Bank's then outstanding securities;
(IV) the stockholders of the Company or the Savings Bank approve a
plan of complete liquidation or dissolution of the Company or the
Savings Bank, respectively, or there is consummated a sale or
disposition by the Company or any of its subsidiaries of any assets
which individually or as part of a series of related transactions
constitute all or substantially all of the Company's consolidated
assets (provided that, for these purposes, a sale of all or
substantially all of the voting securities of the Savings Bank or a
Parent of the Savings Bank shall be deemed to constitute a sale of
substantially all of the Company's consolidated assets), other than any
such sale or disposition to an entity at least 65% of the combined
voting power of the voting securities of which are owned by
stockholders of the Company in substantially the same proportions as
their ownership of the voting securities of the Company immediately
prior to such sale or disposition; or
(V) the execution of a binding agreement that if consummated would
result in a Change in Control of a type specified in clause (I) or
(III) above (an "Acquisition Agreement") or of a binding agreement for
the sale or disposition of assets that, if consummated, would result in
a Change in Control of a type specified in clause (IV) above (an "Asset
Sale Agreement") or the adoption by the Board of Directors of the
Company or the Savings Bank of a plan of complete liquidation or
dissolution of the Company or the Savings Bank that, if consummated,
would result in a Change in Control of a type specified in clause (IV)
(a "Plan
<PAGE> 7
7
Non-Officers
of Liquidation"), provided however, that a Change in Control of the
type specified in this clause (V) shall not be deemed to exist or have
occurred as a result of the execution of such Acquisition Agreement or
Asset Sale Agreement, or the adoption of such a Plan of Liquidation,
from and after the Abandonment Date if the employee's employment has
not been terminated on or prior to the Abandonment Date. As used in
this Section, the term "Abandonment Date" shall mean the date on which
(A) an Acquisition Agreement, Asset Sale Agreement or Plan of
Liquidation is terminated (pursuant to its terms or otherwise) without
having been consummated, (B) the parties to an Acquisition Agreement or
Asset Sale Agreement abandon the transactions contemplated thereby, (C)
the Savings Bank or the Company abandons a Plan of Liquidation or (D) a
court or regulatory body having competent jurisdiction enjoins or
issues a cease and desist or stop order with respect to or otherwise
prevents the consummation of, or a regulatory body notifies the Savings
Bank or the Company that it will not approve, an Acquisition Agreement,
Asset Sale Agreement or Plan of Liquidation or the transactions
contemplated thereby and such injunction, order or notice has become
final and not subject to appeal.
As used in connection with the foregoing definition of Change
in Control, "Affiliate" shall have the meaning set forth in Rule 12b-2
promulgated under Section 12 of the Exchange Act; "Beneficial Owner" shall have
the meaning set forth in Rule 13d-3 under the Exchange Act; "Exchange Act" shall
mean the Securities Exchange Act of 1934, as amended from time to time; "Parent"
shall mean any entity that becomes the Beneficial Owner of at least 80% of the
voting power of the outstanding voting securities of the Company or of an entity
that survives any merger or consolidation of the Company or any direct or
indirect subsidiary of the Company; and "Person" shall have the meaning given in
Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and
14(d) thereof, except that such term shall not include (i) the Company or any of
its subsidiaries, a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any of its Affiliates, an underwriter
temporarily holding securities pursuant to an offering of such securities, or a
corporation or entity owned, directly or indirectly, by the stockholders of the
Company in substantially the same proportions as their ownership of stock of the
Company.
OTHER INFORMATION
PLAN NAME. The official name of the Program is the Severance Pay
Program for Employees of Dime Bancorp, Inc. and Participating Subsidiaries.
TYPE OF PLAN. The Program is a welfare benefit severance pay program.
PLAN YEAR. The Program's financial records are maintained on a calendar
year basis.
<PAGE> 8
8
PLAN NUMBER. The Program has been assigned the number: 510.
PLAN SPONSOR. The Program is sponsored by Dime Bancorp, Inc. (Employer
Identification Number: 11-3197414). The Dime Savings Bank of New York, FSB
(Employer Identification Number: 11-0685740) is a participating employer under
the Program. Their address is 589 Fifth Avenue, New York, New York 10017. A
complete list of employers sponsoring the Program is available from the Plan
Administrator, upon written request, and is available for examination at the
office of the Plan Administrator.
PLAN ADMINISTRATOR. The Program is administered by the Chief Human
Resources Officer of The Dime Savings Bank of New York, FSB or such other
employee or officer of the Bank as may be designated by the Benefits Committee
of Dime Bancorp, Inc. The mailing address and telephone number of the Plan
Administrator is:
Chief Human Resources Officer
The Dime Savings Bank of New York, FSB
589 Fifth Avenue
New York, New York 10017
(212) 326-6122
SERVICE OF LEGAL PROCESS. Legal process may be served on the General
Counsel of Dime Bancorp, Inc. at the above address. In addition, legal process
may be served on the Plan Administrator.
SOURCE OF PAYMENTS. Payments under the Program are made by each
employer sponsoring the Program. Payments under the Program to an employee of
the Bank are the responsibility of the last employer sponsoring the Program that
employed that employee, provided that the Savings Bank shall be jointly and
severally liable for amounts payable under the Program with respect to
terminations of employment by the Company, or by other participating affiliates
of the Company while such participating affiliates are subsidiaries of the
Company or the Bank.
EMPLOYMENT RIGHTS NOT IMPLIED. Participation or coverage under the
Program does not give anyone the right to be retained in the employ of the Bank,
nor does it guarantee anyone the right or claim to any benefit.
INTERPRETATION AUTHORITY. Notwithstanding anything to the contrary
contained herein, the Committee under the Umbrella Trust Agreement among Dime
Bancorp, Inc., The Dime Savings Bank of New York, FSB and HSBC Bank USA as
Trustee with respect to the Designated Arrangements of The Dime Savings Bank of
New York, FSB and Related Entities (the "Umbrella Trust" and the "Umbrella Trust
Committee") and the trustee of the Umbrella Trust (the "Trustee") shall have the
authority to interpret, on behalf of the Bank, the provisions of this Program,
to the extent that interpretive authority is provided to the Umbrella Trust
Committee and/or the Trustee, as applicable,
<PAGE> 9
9
under the Umbrella Trust. The decisions of the Umbrella Trust Committee, the
Trustee and their delegatee(s) shall govern the Bank's interpretation of this
Program and any amendments thereto, notwithstanding any authority otherwise
provided to another individual, group of individuals or entity herein,
including, but not limited to, the authority to determine the eligibility for,
amount, form and timing of payments hereunder.
AMENDMENT OR TERMINATION OF THE PROGRAM. Except as provided below, the
Company. reserves the right to amend, suspend or terminate the Program at any
time through the action of its Board of Directors, the Compensation Committee of
its Board of Directors, or of its Benefits Committee, or through action of any
duly appointed delegatee of such Board of Directors, Compensation Committee or
Benefits Committee. In addition, except as provided below, each participating
employer reserves the right to amend, suspend or terminate the Program and its
terms, to the extent they apply to such participating employer, at any time,
through the action of its Board of Directors, Compensation Committee of its
Board of Directors, or Benefits Committee or other duly authorized delegatee of
its Board of Directors, Compensation Committee or Benefits Committee.
Notwithstanding the foregoing, in the event of a Change in Control or an
Irrevocable Election (as defined in the Umbrella Trust) occurring on or after
May 18, 2000 and prior to January 1, 2002, the Program may not be amended prior
to January 1, 2002 to reduce or eliminate any benefits that would be provided
hereunder pursuant to the terms of the Program as amended effective May 18,
2000. Notwithstanding the foregoing, the provisions of the Program relating to
periods after an Irrevocable Election shall no longer apply in the event the
Irrevocable Election is revoked or canceled pursuant to the terms of the
Umbrella Trust, and the provisions of the Program in effect prior to an
Irrevocable Election shall again apply unless and to the extent that, prior to
the revocation or cancellation of such Irrevocable Election, another Irrevocable
Election or a Change in Control has occurred, with respect to which Plan
provisions relating thereto will continue to separately apply. The terms "Change
in Control" and "Irrevocable Election" shall have the same meaning as set forth
in the Umbrella Trust.
CLAIMS PROCEDURES. The Bank determines the right of any person to a
benefit under the Program. However, failure to execute any forms required or to
furnish information requested by the Plan Administrator within a reasonable
period of time may result in delay or a loss of payments. In all events,
eligibility for benefits under the Program is determined in the discretion of
the Bank.
If you do not receive a benefit to which you believe you are
entitled, you may file a written claim with the Plan Administrator. Your claim
will be processed within 90 days (in special circumstances this period may be
extended by written notice to you). If your claim is wholly or partially denied,
you will receive a written explanation of the reason for the denial, and a
request for whatever additional information that may be necessary to consider
the claim further.
If you do not agree with the decision of the Plan
Administrator, you or your authorized representative may review pertinent
documents and appeal in writing to the Benefits Committee of Dime Bancorp, Inc.
(which can be contacted through the office of the Plan
<PAGE> 10
10
Administrator) within 60 days after you receive the decision. If, within the
time frame specified above for claim processing, a notification of acceptance or
denial has not been received, you may request a review as if your claim had been
denied. The Benefits Committee will review the decision after receiving your
appeal request, and will respond to you in writing within 60 days (unless
special circumstances require a reasonable extension of the 60-day period)
specifying the reason for its decision.
Except as provided above with respect to the interpretive
authority of the Umbrella Trust Committee and the Trustee, the decision of the
Bank, the Plan Administrator and the Benefits Committee, including any
discretionary decision, shall be final, binding and conclusive as to any fact or
interpretation relating to the Program. After a Change in Control described in
any clauses (I)-(IV) of the definition of Change in Control above, or any
Irrevocable Election (as defined in the Umbrella Trust), (i) claims for benefits
hereunder by a Participant under the Umbrella Trust who was employed by the
Company or the Savings Bank prior to such Change in Control or Irrevocable
Election, may also be filed with the Trustee, and (ii) claims for benefits
hereunder by a Participant under the Umbrella Trust who was employed by a
participating affiliate of the Company prior to such Change in Control or
Irrevocable Election, may also be filed with the Trustee if the claim relates to
a termination of employment while such affiliate was a subsidiary of the Company
or the Savings Bank.
YOUR LEGAL RIGHTS. You have certain rights under the Program that are
protected under the Employee Retirement Income Security Act of 1974 ("ERISA").
ERISA provides that you are entitled to:
(1) Examine, without charge, at the office of the Plan
Administrator and at other specified locations, all Program
documents, and copies of all documents filed by the Program
with the U.S. Department of Labor, such as detailed annual
reports and plan descriptions.
(2) Obtain copies of all Program documents and other Program
information upon written request to the plan administrator.
The administrator may make a reasonable charge for these
copies.
(3) Receive a summary of the Program's annual financial report.
The plan administrator is required by law to furnish each
eligible employee with a copy of this summary annual report.
In addition to creating rights for participants, ERISA imposes
duties upon the individuals who are responsible for the operation of the
Program. The individuals who operate the Program, called "fiduciaries" of the
Program, have a duty to do so prudently and in the interest of you and other
Program participants and beneficiaries. No one, including the Bank or any other
person, may fire you or otherwise discriminate against you in any way to prevent
you from obtaining your benefit or exercising your rights under ERISA.
<PAGE> 11
11
If your claim for a benefit is denied in whole or in part, you
must receive a written explanation of the reason for the denial. You have the
right to have the plan review and reconsider your claim. Under ERISA, there are
steps you can take to enforce the above rights. For instance, if you request
materials from the plan and do not receive them within 30 days, you may file
suit in a federal court. In such a case, the court may require the administrator
to provide the materials and pay you up to $100 a day until you receive the
materials, unless the materials were not sent because of reasons beyond the
control of the administrator. If your claim for a benefit is denied or ignored,
in whole or in part, you may file suit in a state or federal court.
If it should happen that plan fiduciaries misuse the Program's
money, or if you are discriminated against for asserting your rights, you may
seek assistance from the U.S. Department of Labor, or you may file suit in a
federal court. The court will decide who should pay court costs and legal fees.
If you are successful, the court may order the person you have sued to pay these
costs and fees. If you lose, the court may order you to pay these costs and
fees, for example, if it finds your claim is frivolous.
If you have any questions about the Program, you should
contact the Plan Administrator. If you have questions about this statement or
about your rights under ERISA, you should contact the nearest office of the
Pension and Welfare Benefits Administration, U.S. Department of Labor, listed in
your telephone directory or the Division of Technical Assistance and Inquiries,
Pension and Welfare Benefits Administration, U.S. Department of Labor, 200
Constitution Avenue, N.W., Washington, D.C. 20210.
<PAGE> 12
Officers with Title
Vice President or Lower
SEVERANCE PAY PROGRAM FOR EMPLOYEES OF
DIME BANCORP, INC. AND PARTICIPATING SUBSIDIARIES
GENERAL
The Severance Pay Program (the "Program") is intended to
compensate certain regular employees of Dime Bancorp, Inc., (the "Company") The
Dime Savings Bank of New York, FSB (the "Savings Bank") and other participating
affiliates of the Company (individually and collectively, the "Bank"), whose
termination of service is initiated by the Bank, so as to cushion the impact of
such termination of service and provide reasonable assistance during their job
search. This document describes the terms of the Program as it applies to
officers with the title of Vice President or lower, and constitutes a Summary
Plan Description.
NOTE REGARDING NORTH AMERICAN MORTGAGE COMPANY EMPLOYEES: Employees of
North American Mortgage Company and its subsidiaries ("NAMC") are not
covered by this Program (and, with respect to those employees, NAMC is
not deemed part of the "Bank" and is not a participating employer under
the Program), unless they were employed by the Savings Bank or Dime
Mortgage, Inc. immediately prior to November 1, 1997, and became a NAMC
employee on November 1, 1997.* To the extent any NAMC employee is
covered by this Program, if such an employee receives severance or
transition pay benefits under any other plan or program of NAMC
(including but not limited to the Severance Pay Plan of North American
Mortgage Company or the Senior Executive Severance Pay Plan of North
American Mortgage Company), the benefits under this Program will be
offset by any of such other benefits, in the manner determined by the
Plan Administrator.
- ---------------------------
* In all instances, if an individual was an employee of NAMC immediately
prior to October 15, 1997, he or she will not be eligible for this
Program. NAMC employees described above who are eligible for the
Program will only be eligible until a severance from service following
initial employment by NAMC. If they later return to service with NAMC,
they will not be eligible for this Program with respect to any
subsequent termination from service with NAMC. For purposes of the
Program, an individual will be deemed solely an employee of, and
employed by, the employer who is ultimately responsible for the payment
of the individual's salary or wages, as determined by the Plan
Administrator.
<PAGE> 13
2
Officers with Title
Vice President or Lower
ELIGIBILITY
Except as provided below, Severance Pay will be paid to an
officer of the Bank in a salary grade between 7 and 21 whose service is being
terminated, at the initiation of the Bank, for one of the following reasons:
- Reduction in the Bank's workforce
- Elimination of the employee's department or position
- Department relocation to a location more than a reasonable
commuting distance (as determined by the Plan Administrator)
from the employee's home, consolidation of facilities or the
closing of an office (other than the sale of a branch of the
Bank)
Severance Pay will not, however, be paid to an employee whose
service is being terminated for any of the following reasons:
- Voluntary resignation by the employee (not initiated by the
bank)
- Illness
- Excessive absenteeism/tardiness
- Death
- Failure to report to work
- Failure to return to work after a leave of absence
- Unsatisfactory job performance
- Refusal or unwillingness to perform work
- Misconduct
- Violation of Bank policies and procedures
- Insubordination
- Theft or suspected dishonesty
- Sale of a branch office of the Bank
In addition, Severance Pay will not be paid to any employee who, upon his or her
termination of employment, is entitled to severance benefits under an individual
agreement with the Bank (except to the extent that such individual agreement
provides for benefits under this Program). Severance Pay also will not be paid
to any employee who, in connection with an agreement between the Bank and
another employer under which the other employer will perform work previously
performed by the Bank, receives an offer of similar, ongoing employment from the
other employer whereby the employee need not experience any material period of
unemployment.
AMOUNT AND TIMING OF SEVERANCE PAY
<PAGE> 14
3
Officers with Title
Vice President or Lower
The amount of Severance Pay is based on the eligible
employee's regular weekly salary (before deduction for pre-tax contributions
under the Dime Bancorp, Inc. Flexible Benefits Plan or the Retirement 401(k)
Investment Plan of Dime Bancorp, Inc. or any other similar plan or program
providing for pre-tax contributions), but exclusive of shift differential pay,
overtime, bonuses, commissions, incentive payments, expense allowances, fringe
benefits and any other contributions to any pension, insurance, welfare or other
employee benefit plan.
For an eligible salaried employee, Severance Pay is in the
form of bi-weekly pay continuance for the following number of days or weeks,
based on the number of complete years or months of Service as a salaried
employee of the Bank completed by the eligible individual prior to the start of
any Severance Pay:
Period of Service Days/Weeks of Severance Pay
----------------- ---------------------------
Less than 6 months 7 days
6 but less than 12 months 14 days
1 full year 4 weeks
2 full years 6 weeks
3 full years 9 weeks
4 full years 12 weeks
5 full years 15 weeks
6 full years 18 weeks
7 full years 21 weeks
8 full years 24 weeks
9 full years 27 weeks
10 full years 30 weeks
11 full years 33 weeks
12 full years 36 weeks
13 or more full years 39 weeks (maximum)
For these purposes, years and months of Service mean full years or months of
service as a salaried employee of the Bank. In the event of a break in the
service of an employee, prior years or months of service will be counted in a
later determination of the Period of Service as long as the length of the break
in service is less than 5 years or otherwise does not exceed the length of the
period of service before the break.
A different rule applies for hourly employees. For purposes of
determining Severance Pay, an eligible hourly employee will be credited with 1
month of Service for each 2 full-month period
<PAGE> 15
4
Officers with Title
Vice President or Lower
worked as an hourly employee.* After the eligible hourly employee's Period of
Service is thereby determined, the chart set forth above will, then be applied.
The amount of pay continuation for an eligible hourly employee, if any, will be
based on the average actual hours worked (and the relevant hourly rate) for the
previous 12 paid weeks, with continuation for 7 or 14 days using a daily rate
based on 1/5 of the average weekly rate. If an employee was previously a
salaried employee and has been an hourly employee for less than 12 weeks before
any Severance Pay is payable, a maximum of 40 hours (at the later hourly rate)
will be credited for each week while on salaried status, when determining the
amount of the Severance Pay.
For salaried or hourly employees, if Severance Pay or
transition pay was provided with respect to a previous termination of service
(whether as contemplated herein or otherwise), a special rule applies if they
return to service with the Bank, and have a later termination of service. If the
subsequent termination of service occurs within 2 years of the end of the
Severance or transition pay period, if any, that applied with respect to the
first termination of service, any period of Severance Pay that might otherwise
be provided will be shortened by the length of the earlier period of Severance
or transition pay. If Severance Pay is payable with respect to the second
termination of service, it will not, however, be for a length shorter than the
days or weeks of Severance Pay that would, if awarded, apply based solely on the
employee's status, and the Period of Service newly credited to the employee
after the return to service.
No additional vacation pay shall accrue during the period of
Severance Pay. Any pay in lieu of vacation for the year of separation from
service shall be paid within 30 days of the start of the Severance Pay period.
Severance Pay will be subject to any applicable tax withholding.
If an individual who is receiving Severance Pay commences
other employment with an employer unrelated to the Bank, then, at such time,
unless the Bank determines otherwise, the individual shall receive the balance
of his or her Severance Pay and any unused vacation pay in a single lump sum
upon receipt of written notification of the start of such other employment by
the Bank. If an individual who is receiving Severance Pay returns to active work
with the Bank, the Severance pay will cease.
The period of service of any eligible employee who was an
employee of KeyBank National Association immediately prior to the Bank's the
acquisition of former KeyBank branches in Long Island, New York, in 1999 (a
"Former KeyBank Employee") shall, solely for purposes of determining such
individual's period of Service in computing the amount of Severance Pay that may
- ---------------------------
* Like the rule for salaried employees, if there is a break in the
service of an hourly employee, prior years or months of service will be
counted in a later determination of the Period of Service as long as
the length of the break in service is less than 5 years or otherwise
does not exceed the length of the period of service before the break.
<PAGE> 16
5
Officers with Title
Vice President or Lower
be payable to the individual, include credit for all service with KeyBank and
its predecessors or affiliates that would have been credited under the terms of
this Program if such service had been service for the Bank. Notwithstanding
anything in the Program to the contrary, in the event a Former KeyBank Employee
terminates service with the Bank at any time during the first year after the
Bank's acquisition of the former KeyBank branches, such employee shall be
eligible to receive Severance Pay equal to the greater of (i) the amount of
severance pay, if any, determined in accordance with the applicable terms of the
Program (other than this sentence), provided such employee otherwise satisfies
the requirements for eligibility for such severance pay under the terms of the
Program, and (ii) the amount of severance pay, if any, that would have been
payable in accordance with the applicable terms of the severance policy of
KeyBank as disclosed in the Dime/KeyBank Purchase Agreement. The amount of
Severance Pay, if any, payable with respect to a Former KeyBank Employee who
becomes entitled to Severance Pay after the first anniversary of the Bank's
acquisition of the former KeyBank branches shall be determined without regard to
the preceding sentence and solely in accordance with the then applicable terms
of the Program or other severance pay program, if any, maintained by the Bank.
ADDITIONAL SEVERANCE BENEFITS RELATED TO CHANGE IN CONTROL
If, prior to January 1, 2002, a Change in Control (as defined
below) occurs, and subsequent to the Change in Control but prior to January 1,
2002, the employment of an employee who is otherwise eligible for severance
benefits under this Program is involuntarily terminated by the Bank, such
employee shall be entitled, in addition to the severance benefits described
above, to an additional Change in Control Severance Benefit. The Change in
Control Severance Benefit of an employee shall equal 25% of the total severance
benefits that the employee is otherwise entitled to under this Program, and
shall be paid in one lump sum within 30 days of the employee's termination of
employment.
The Change in Control Severance Benefit will not be paid to
any employee who, upon his or her termination of employment, is entitled to
severance benefits under an individual agreement with the Bank. The Change in
Control Severance Benefit also will not be paid to any employee who, in
connection with an agreement between the Bank and another employer under which
the other employer will perform work previously performed by the Bank, receives
an offer of similar, ongoing employment from the other employer whereby the
employee need not experience any material period of unemployment.
For purposes of determining whether an employee is entitled to
a Change in Control Severance Benefit, a "Change in Control" shall be deemed to
have occurred if the event set forth in any one of the following paragraphs
shall have occurred:
<PAGE> 17
6
Officers with Title
Vice President or Lower
(I) any Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company (not including in the
securities beneficially owned by such Person any securities acquired
directly from the Company or its Affiliates) representing 35% or more
of the combined voting power of the Company's then outstanding
securities; or
(II) the following individuals cease for any reason to constitute a
majority of the number of directors then serving as directors of the
Company: individuals who, on July 24, 1997, constitute the Board of
Directors of the Company and any new director (other than a director
whose initial assumption of office is in connection with the settlement
of an actual or threatened election contest, including but not limited
to a consent solicitation, relating to the election of directors of the
Company) whose appointment or election by the Board of Directors of the
Company or nomination for election by the Company's stockholders was
approved or recommended by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors on July 24,
1997 or whose appointment, election or nomination for election was
previously so approved or recommended; or
(III) there is consummated a merger or consolidation of the Company
or any direct or indirect subsidiary of the Company with any other
corporation or entity, other than (i) a merger or consolidation which
would result in the voting securities of the Company outstanding
immediately prior to such merger or consolidation continuing to
represent (either by remaining outstanding or by being converted into
voting securities of the surviving entity or any Parent thereof), in
combination with the ownership of any trustee or other fiduciary
holding securities under an employee benefit plan of the Company or any
subsidiary of the Company, at least 65% of the combined voting power of
the securities of the Company, such surviving entity or any Parent
thereof outstanding immediately after such merger or consolidation or
(ii) a merger or consolidation effected solely to implement a
recapitalization of the Company or the Savings Bank (or similar
transaction) in which no Person is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Company or the Savings
Bank (not including in the securities beneficially owned by such Person
any securities acquired directly from the Company or its Affiliates)
representing 35% or more of the combined voting power of the Company's
or the Savings Bank's then outstanding securities;
(IV) the stockholders of the Company or the Savings Bank approve a
plan of complete liquidation or dissolution of the Company or the
Savings Bank, respectively, or there is consummated a sale or
disposition by the Company or any of its subsidiaries of any assets
which individually or as part of a series of related transactions
constitute all or substantially all of the Company's consolidated
assets (provided that, for these purposes, a sale of all or
substantially all of the voting securities of the Savings Bank or a
Parent of the Savings Bank shall be deemed to constitute a sale of
substantially all of the Company's consolidated assets), other than any
such sale or disposition to an entity at least 65% of the combined
voting power
<PAGE> 18
7
Officers with Title
Vice President or Lower
of the voting securities of which are owned by stockholders of the
Company in substantially the same proportions as their ownership of the
voting securities of the Company immediately prior to such sale or
disposition; or
(V) the execution of a binding agreement that if consummated would
result in a Change in Control of a type specified in clause (I) or
(III) above (an "Acquisition Agreement") or of a binding agreement for
the sale or disposition of assets that, if consummated, would result in
a Change in Control of a type specified in clause (IV) above (an "Asset
Sale Agreement") or the adoption by the Board of Directors of the
Company or the Savings Bank of a plan of complete liquidation or
dissolution of the Company or the Savings Bank that, if consummated,
would result in a Change in Control of a type specified in clause (IV)
(a "Plan of Liquidation"), provided however, that a Change in Control
of the type specified in this clause (V) shall not be deemed to exist
or have occurred as a result of the execution of such Acquisition
Agreement or Asset Sale Agreement, or the adoption of such a Plan of
Liquidation, from and after the Abandonment Date if the employee's
employment has not been terminated on or prior to the Abandonment Date.
As used in this Section, the term "Abandonment Date" shall mean the
date on which (A) an Acquisition Agreement, Asset Sale Agreement or
Plan of Liquidation is terminated (pursuant to its terms or otherwise)
without having been consummated, (B) the parties to an Acquisition
Agreement or Asset Sale Agreement abandon the transactions contemplated
thereby, (C) the Savings Bank or the Company abandons a Plan of
Liquidation or (D) a court or regulatory body having competent
jurisdiction enjoins or issues a cease and desist or stop order with
respect to or otherwise prevents the consummation of, or a regulatory
body notifies the Savings Bank or the Company that it will not approve,
an Acquisition Agreement, Asset Sale Agreement or Plan of Liquidation
or the transactions contemplated thereby and such injunction, order or
notice has become final and not subject to appeal.
As used in connection with the foregoing definition of Change
in Control, "Affiliate" shall have the meaning set forth in Rule 12b-2
promulgated under Section 12 of the Exchange Act; "Beneficial Owner" shall have
the meaning set forth in Rule 13d-3 under the Exchange Act; "Exchange Act" shall
mean the Securities Exchange Act of 1934, as amended from time to time; "Parent"
shall mean any entity that becomes the Beneficial Owner of at least 80% of the
voting power of the outstanding voting securities of the Company or of an entity
that survives any merger or consolidation of the Company or any direct or
indirect subsidiary of the Company; and "Person" shall have the meaning given in
Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and
14(d) thereof, except that such term shall not include (i) the Company or any of
its subsidiaries, a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any of its Affiliates, an underwriter
temporarily holding securities pursuant to an offering of such securities, or a
corporation or entity owned, directly or indirectly, by the
<PAGE> 19
8
Officers with Title
Vice President or Lower
stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company.
OTHER INFORMATION
PLAN NAME. The official name of the Program is the Severance Pay
Program for Employees of Dime Bancorp, Inc. and Participating Subsidiaries.
TYPE OF PLAN. The Program is a welfare benefit severance pay program.
PLAN YEAR. The Program's financial records are maintained on a calendar
year basis.
PLAN NUMBER. The Program has been assigned the number: 510.
PLAN SPONSOR. The Program is sponsored by Dime Bancorp, Inc. (Employer
Identification Number: 11-3197414). The Dime Savings Bank of New York, FSB
(Employer Identification Number: 11-0685740) is a participating employer under
the Program. Their address is 589 Fifth Avenue, New York, New York 10017. A
complete list of employers sponsoring the Program is available from the Plan
Administrator, upon written request, and is available for examination at the
office of the Plan Administrator.
PLAN ADMINISTRATOR. The Program is administered by the Chief Human
Resources Officer of The Dime Savings Bank of New York, FSB or such other
employee or officer of the Bank as may be designated by the Benefits Committee
of Dime Bancorp, Inc. The mailing address and telephone number of the Plan
Administrator is:
Chief Human Resources Officer
The Dime Savings Bank of New York, FSB
589 Fifth Avenue
New York, New York 10017
(212) 326-6122
SERVICE OF LEGAL PROCESS. Legal process may be served on the General
Counsel of Dime Bancorp, Inc. at the above address. In addition, legal process
may be served on the Plan Administrator.
SOURCE OF PAYMENTS. Payments under the Program are made by each
employer sponsoring the Program. Payments under the Program to an employee of
the Bank are the responsibility of the last employer sponsoring the Program that
employed that employee, provided that the Savings Bank shall be jointly and
severally liable for amounts payable under the Program with respect to
<PAGE> 20
9
Officers with Title
Vice President or Lower
terminations of employment by the Company, or by other participating affiliates
of the Company while such participating affiliates are subsidiaries of the
Company or the Bank.
EMPLOYMENT RIGHTS NOT IMPLIED. Participation or coverage under the
Program does not give anyone the right to be retained in the employ of the Bank,
nor does it guarantee anyone the right or claim to any benefit.
INTERPRETATION AUTHORITY. Notwithstanding anything to the contrary
contained herein, the Committee under the Umbrella Trust Agreement among Dime
Bancorp, Inc., The Dime Savings Bank of New York, FSB and HSBC Bank USA as
Trustee with respect to the Designated Arrangements of The Dime Savings Bank of
New York, FSB and Related Entities (the "Umbrella Trust" and the "Umbrella Trust
Committee") and the trustee of the Umbrella Trust (the "Trustee") shall have the
authority to interpret, on behalf of the Bank, to the extent that interpretive
authority is provided to the Umbrella Trust Committee and/or the Trustee, as
applicable, under the Umbrella Trust. The decisions of the Umbrella Trust
Committee, the Trustee and their delegatee(s) shall govern the Bank's
interpretation of this Program and any amendments thereto, notwithstanding any
authority otherwise provided to another individual, group of individuals or
entity herein, including, but not limited to, the authority to determine the
eligibility for, amount, form and timing of payments hereunder.
AMENDMENT OR TERMINATION OF THE PROGRAM. Except as provided below, the
Company. reserves the right to amend, suspend or terminate the Program at any
time through the action of its Board of Directors, the Compensation Committee of
its Board of Directors, or of its Benefits Committee, or through action of any
duly appointed delegatee of such Board of Directors, Compensation Committee or
Benefits Committee. In addition, except as provided below, each participating
employer reserves the right to amend, suspend or terminate the Program and its
terms, to the extent they apply to such participating employer, at any time,
through the action of its Board of Directors, Compensation Committee of its
Board of Directors, or Benefits Committee or other duly authorized delegatee of
its Board of Directors, Compensation Committee or Benefits Committee.
Notwithstanding the foregoing, in the event of a Change in Control or an
Irrevocable Election (as defined in the Umbrella Trust) occurring on or after
May 18, 2000 and prior to January 1, 2002, the Program may not be amended prior
to January 1, 2002 to reduce or eliminate any benefits that would be provided
hereunder pursuant to the terms of the Program as amended effective May 18,
2000. Notwithstanding the foregoing, the provisions of the Program relating to
periods after an Irrevocable Election shall no longer apply in the event the
Irrevocable Election is revoked or canceled pursuant to the terms of the
Umbrella Trust, and the provisions of the Program in effect prior to an
Irrevocable Election shall again apply unless and to the extent that, prior to
the revocation or cancellation of such Irrevocable Election, another Irrevocable
Election or a Change in Control has occurred, with respect to which Plan
provisions relating thereto will continue to separately apply. The terms "Change
in Control" and "Irrevocable Election" shall have the same meaning as set forth
in the Umbrella Trust.
<PAGE> 21
10
Officers with Title
Vice President or Lower
CLAIMS PROCEDURES. The Bank determines the right of any person to a
benefit under the Program. However, failure to execute any forms required or to
furnish information requested by the Plan Administrator within a reasonable
period of time may result in delay or a loss of payments. In all events,
eligibility for benefits under the Program is determined in the discretion of
the Bank.
If you do not receive a benefit to which you believe you are
entitled, you may file a written claim with the Plan Administrator. Your claim
will be processed within 90 days (in special circumstances this period may be
extended by written notice to you). If your claim is wholly or partially denied,
you will receive a written explanation of the reason for the denial, and a
request for whatever additional information that may be necessary to consider
the claim further.
If you do not agree with the decision of the Plan
Administrator, you or your authorized representative may review pertinent
documents and appeal in writing to the Benefits Committee of Dime Bancorp, Inc.
(which can be contacted through the office of the Plan Administrator) within 60
days after you receive the decision. If, within the time frame specified above
for claim processing, a notification of acceptance or denial has not been
received, you may request a review as if your claim had been denied. The
Benefits Committee will review the decision after receiving your appeal request,
and will respond to you in writing within 60 days (unless special circumstances
require a reasonable extension of the 60-day period) specifying the reason for
its decision.
Except as provided above with respect to the interpretive
authority of the Umbrella Trust Committee and the Trustee, the decision of the
Bank, the Plan Administrator and the Benefits Committee, including any
discretionary decision, shall be final, binding and conclusive as to any fact or
interpretation relating to the Program. After a Change in Control described in
any clauses (I)-(IV) of the definition of Change in Control above, or any
Irrevocable Election (as defined in the Umbrella Trust) (i) claims for benefits
hereunder by a Participant under the Umbrella Trust who was employed by the
Company or the Savings Bank prior to such Change in Control or Irrevocable
Election, may also be filed with the Trustee, and (ii) claims for benefits
hereunder by a Participant under the Umbrella Trust who was employed by a
participating affiliate of the Company prior to such Change in Control or
Irrevocable Election, may also be filed with the Trustee if the claim relates to
a termination of employment while such affiliate was a subsidiary of the Company
or the Savings Bank.
YOUR LEGAL RIGHTS. You have certain rights under the Program that are
protected under the Employee Retirement Income Security Act of 1974 ("ERISA").
ERISA provides that you are entitled to:
(1) Examine, without charge, at the office of the Plan
Administrator and at other specified locations, all Program
documents, and copies of all documents filed by the Program
<PAGE> 22
11
Officers with Title
Vice President or Lower
with the U.S. Department of Labor, such as detailed annual
reports and plan descriptions.
(2) Obtain copies of all Program documents and other Program
information upon written request to the plan administrator.
The administrator may make a reasonable charge for these
copies.
(3) Receive a summary of the Program's annual financial report.
The plan administrator is required by law to furnish each
eligible employee with a copy of this summary annual report.
In addition to creating rights for participants, ERISA imposes
duties upon the individuals who are responsible for the operation of the
Program. The individuals who operate the Program, called "fiduciaries" of the
Program, have a duty to do so prudently and in the interest of you and other
Program participants and beneficiaries. No one, including the Bank or any other
person, may fire you or otherwise discriminate against you in any way to prevent
you from obtaining your benefit or exercising your rights under ERISA.
If your claim for a benefit is denied in whole or in part, you
must receive a written explanation of the reason for the denial. You have the
right to have the plan review and reconsider your claim. Under ERISA, there are
steps you can take to enforce the above rights. For instance, if you request
materials from the plan and do not receive them within 30 days, you may file
suit in a federal court. In such a case, the court may require the administrator
to provide the materials and pay you up to $100 a day until you receive the
materials, unless the materials were not sent because of reasons beyond the
control of the administrator. If your claim for a benefit is denied or ignored,
in whole or in part, you may file suit in a state or federal court.
If it should happen that plan fiduciaries misuse the Program's
money, or if you are discriminated against for asserting your rights, you may
seek assistance from the U.S. Department of Labor, or you may file suit in a
federal court. The court will decide who should pay court costs and legal fees.
If you are successful, the court may order the person you have sued to pay these
costs and fees. If you lose, the court may order you to pay these costs and
fees, for example, if it finds your claim is frivolous.
If you have any questions about the Program, you should
contact the Plan Administrator. If you have questions about this statement or
about your rights under ERISA, you should contact the nearest office of the
Pension and Welfare Benefits Administration, U.S. Department of Labor, listed in
your telephone directory or the Division of Technical Assistance and Inquiries,
Pension and Welfare Benefits Administration, U.S. Department of Labor, 200
Constitution Avenue, N.W., Washington, D.C. 20210.
<PAGE> 23
Senior Vice Presidents
Salary Grades 22 - 25
SEVERANCE PAY PROGRAM FOR EMPLOYEES OF
DIME BANCORP, INC. AND PARTICIPATING SUBSIDIARIES
GENERAL
The Severance Pay Program (the "Program") is intended to
compensate certain regular employees of Dime Bancorp, Inc. (the "Company"), The
Dime Savings Bank of New York, FSB (the "Savings Bank") and other participating
affiliates of the Company (individually and collectively, the "Bank"), whose
termination of service is initiated by the Bank, so as to cushion the impact of
such termination of service and provide reasonable assistance during their job
search. This document describes the terms of the Program as it applies to Senior
Vice Presidents in salary grades 22 - 25, and constitutes a Summary Plan
Description.
NOTE REGARDING NORTH AMERICAN MORTGAGE COMPANY EMPLOYEES: Employees of
North American Mortgage Company and its subsidiaries ("NAMC") are not
covered by this Program (and, with respect to those employees, NAMC is
not deemed part of the "Bank" and is not a participating employer under
the Program), unless they were employed by the Savings Bank or Dime
Mortgage, Inc. immediately prior to November 1, 1997, and became a NAMC
employee on November 1, 1997.* To the extent any NAMC employee is
covered by this Program, if such an employee receives severance or
transition pay benefits under any other plan or program of NAMC
(including but not limited to the Severance Pay Plan of North American
Mortgage Company or the Senior Executive Severance Pay Plan of North
American Mortgage Company), the benefits under this Program will be
offset by any of such other benefits, in the manner determined by the
Plan Administrator.
- ---------------------------
* In all instances, if an individual employed by NAMC was an employee of
NAMC immediately prior to October 15, 1997, he or she will not be
eligible for this Program. NAMC employees described above who are
eligible for the Program will only be eligible until a severance from
service following initial employment by NAMC. If they later return to
service with NAMC, they will not be eligible for this Program with
respect to any subsequent termination from service with NAMC. For
purposes of the Program, an individual will be deemed solely an
employee of, and employed by, the employer who is ultimately
responsible for the payment of the individual's salary or wages, as
determined by the Plan Administrator.
<PAGE> 24
2
Senior Vice Presidents
Salary Grades 22 - 25
ELIGIBILITY
Except as provided below, Severance Pay will be paid to an
officer of the Bank in a salary grade between 22 and 25 whose service is being
terminated, at the initiation of the Bank, for one of the following reasons:
- Reduction in the Bank's workforce
- Elimination of the employee's department or position
- Department relocation to a location more than a reasonable
commuting distance (as determined by the Plan Administrator)
from the employee's home, consolidation of facilities or the
closing of an office (other than the sale of a branch of the
Bank)
Severance Pay will not, however, be paid to an employee whose
service is being terminated for any of the following reasons:
- Voluntary resignation by the employee (not initiated by the
bank)
- Illness
- Excessive absenteeism/tardiness
- Death
- Failure to report to work
- Failure to return to work after a leave of absence
- Unsatisfactory job performance
- Refusal or unwillingness to perform work
- Misconduct
- Violation of Bank policies and procedures
- Insubordination
- Theft or suspected dishonesty
- Sale of a branch office of the Bank
In addition, Severance Pay will not be paid to any employee who, upon his or her
termination of employment, is entitled to severance benefits under an individual
agreement with the Bank (except to the extent that such individual agreement
provides for benefits under this Program). Severance Pay also will not be paid
to any employee who, in connection with an agreement between the Bank and
another employer under which the other employer will perform work previously
performed by the Bank, receives an offer of similar, ongoing employment from the
other employer whereby the employee need not experience any material period of
unemployment.
AMOUNT AND TIMING OF SEVERANCE PAY
<PAGE> 25
3
Senior Vice Presidents
Salary Grades 22 - 25
The amount of Severance Pay is based on the eligible
employee's regular weekly salary (before deduction for pre-tax contributions
under the Dime Bancorp, Inc. Flexible Benefits Plan or the Retirement 401(k)
Investment Plan of Dime Bancorp, Inc. or any other similar plan or program
providing for pre-tax contributions), but exclusive of shift differential pay,
overtime, bonuses, commissions, incentive payments, expense allowances, fringe
benefits and any other contributions to any pension, insurance, welfare or other
employee benefit plan. If an employee is on a disability leave when the Bank
initiates the termination of service, Severance Pay, if any, will normally
commence after the earlier of (i) the date the employee is able to return to
work, as determined by a physician, or (ii) the end of the period of short term
disability leave.
For an eligible salaried employee, Severance Pay is in the
form of bi-weekly pay continuance for the following number of days or weeks,
based on the number of complete years or months of Service as a salaried
employee of the Bank completed by the eligible individual prior to the start of
any Severance Pay:
Period of Service Days/Weeks of Severance Pay
----------------- ---------------------------
Less than 6 months 7 days
6 but less than 12 months 14 days
1 full year 10 weeks
2 full years 12 weeks
3 full years 16 weeks
4 full years 20 weeks
5 full years 24 weeks
6 full years 26 weeks
7 full years 28 weeks
8 full years 32 weeks
9 full years 36 weeks
10 full years 40 weeks
11 full years 44 weeks
12 full years 48 weeks
13 or more full years 52 weeks (maximum)
For these purposes, years and months of Service mean full years or months of
service as a salaried employee of the Bank. In the event of a break in the
service of an employee, prior years or months of service will be counted in a
later determination of the period of Service as long as the length of the break
in service is less than 5 years or otherwise does not exceed the length of the
period of salaried service before the break.
<PAGE> 26
4
Senior Vice Presidents
Salary Grades 22 - 25
A different rule applies for hourly employees. For purposes of
determining Severance Pay, an eligible hourly employee will be credited with 1
month of Service for each 2 full-month period worked as an hourly employee.*
After the eligible hourly employee's Period of Service is thereby determined,
the chart set forth above will then be applied. The amount of pay continuation
for an eligible hourly employee, if any, will be based on the average actual
hours worked (and the relevant hourly rate) for the previous 12 paid weeks, with
continuation for 7 or 14 days using a daily rate based on 1/5 of the average
weekly rate. If an employee was previously a salaried employee and has been an
hourly employee for less than 12 weeks before any Severance Pay is payable, a
maximum of 40 hours (at the later hourly rate) will be credited for each week
while on salaried status, when determining the amount of the Severance Pay.
For salaried or hourly employees, if Severance Pay or
transition pay was provided with respect to a previous termination of service
(whether as contemplated herein or otherwise), a special rule applies if they
return to service with the Bank, and have a later termination of service. If the
subsequent termination of service occurs within 2 years of the end of the
Severance or transition pay period, if any, that applied with respect to the
first termination of service, any period of Severance Pay that might otherwise
be provided will be shortened by the length of the earlier period of Severance
or transition pay. If Severance Pay is payable with respect to the second
termination of service, it will not, however, be for a length shorter than the
days or weeks of Severance Pay that would, if awarded, apply based solely on the
employee's status, and the Period of Service newly credited to the employee
after the return to service.
No additional vacation pay shall accrue during the period of
Severance Pay. Any pay in lieu of vacation for the year of separation from
service shall be paid within 30 days of the start of the Severance Pay period.
Severance Pay will be subject to any applicable tax withholding.
If an individual who is receiving Severance Pay commences
other employment with an employer unrelated to the Bank, then, at such time,
unless the Bank determines otherwise, the individual shall receive the balance
of his or her Severance Pay and any unused vacation pay in a single lump sum
upon receipt of written notification of the start of such other employment by
the Bank. If an individual who is receiving Severance Pay returns to active work
with the Bank, the Severance pay will cease.
The period of service of any eligible employee who was an
employee of KeyBank National Association immediately prior to the Bank's the
acquisition of former KeyBank branches in
- ---------------------------
* Like the rule for salaried employees, if there is a break in the
service of an hourly employee, prior years or months of service will be
counted in a later determination of the Period of Service as long as
the length of the break in service is less than 5 years or otherwise
does not exceed the length of the period of service before the break.
<PAGE> 27
5
Senior Vice Presidents
Salary Grades 22 - 25
Long Island, New York, in 1999 (a "Former KeyBank Employee") shall, solely for
purposes of determining such individual's period of Service in computing the
amount of Severance Pay that may be payable to the individual, include credit
for all service with KeyBank and its predecessors or affiliates that would have
been credited under the terms of this Program if such service had been service
for the Bank. Notwithstanding anything in the Program to the contrary, in the
event a Former KeyBank Employee terminates service with the Bank at any time
during the first year after the Bank's acquisition of the former KeyBank
branches, such employee shall be eligible to receive Severance Pay equal to the
greater of (i) the amount of severance pay, if any, determined in accordance
with the applicable terms of the Program (other than this sentence), provided
such employee otherwise satisfies the requirements for eligibility for such
severance pay under the terms of the Program, and (ii) the amount of severance
pay, if any, that would have been payable in accordance with the applicable
terms of the severance policy of KeyBank as disclosed in the Dime/KeyBank
Purchase Agreement. The amount of Severance Pay, if any, payable with respect to
a Former KeyBank Employee who becomes entitled to Severance Pay after the first
anniversary of the Bank's acquisition of the former KeyBank branches shall be
determined without regard to the preceding sentence and solely in accordance
with the then applicable terms of the Program or other severance pay program, if
any, maintained by the Bank.
ADDITIONAL SEVERANCE BENEFITS RELATED TO CHANGE IN CONTROL
If, prior to January 1, 2002, a Change in Control (as defined
below) occurs, and subsequent to the Change in Control but prior to January 1,
2002, the employment of an employee who is otherwise eligible for severance
benefits under this Program is involuntarily terminated by the Bank, such
employee shall be entitled, in addition to the severance benefits described
above, to an additional Change in Control Severance Benefit. The Change in
Control Severance Benefit of an employee shall equal 25% of the total severance
benefits that the employee is otherwise entitled to under this Program, and
shall be paid in one lump sum within 30 days of the employee's termination of
employment.
The Change in Control Severance Benefit will not be paid to
any employee who, upon his or her termination of employment, is entitled to
severance benefits under an individual agreement with the Bank. The Change in
Control Severance Benefit also will not be paid to any employee who, in
connection with an agreement between the Bank and another employer under which
the other employer will perform work previously performed by the Bank, receives
an offer of similar, ongoing employment from the other employer whereby the
employee need not experience any material period of unemployment.
For purposes of determining whether an employee is entitled to
a Change in Control Severance Benefit, a "Change in Control" shall be deemed to
have occurred if the event set forth in any one of the following paragraphs
shall have occurred:
<PAGE> 28
6
Senior Vice Presidents
Salary Grades 22 - 25
(I) any Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company (not including in the
securities beneficially owned by such Person any securities acquired
directly from the Company or its Affiliates) representing 35% or more
of the combined voting power of the Company's then outstanding
securities; or
(II) the following individuals cease for any reason to constitute a
majority of the number of directors then serving as directors of the
Company: individuals who, on July 24, 1997, constitute the Board of
Directors of the Company and any new director (other than a director
whose initial assumption of office is in connection with the settlement
of an actual or threatened election contest, including but not limited
to a consent solicitation, relating to the election of directors of the
Company) whose appointment or election by the Board of Directors of the
Company or nomination for election by the Company's stockholders was
approved or recommended by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors on July 24,
1997 or whose appointment, election or nomination for election was
previously so approved or recommended; or
(III) there is consummated a merger or consolidation of the Company
or any direct or indirect subsidiary of the Company with any other
corporation or entity, other than (i) a merger or consolidation which
would result in the voting securities of the Company outstanding
immediately prior to such merger or consolidation continuing to
represent (either by remaining outstanding or by being converted into
voting securities of the surviving entity or any Parent thereof), in
combination with the ownership of any trustee or other fiduciary
holding securities under an employee benefit plan of the Company or any
subsidiary of the Company, at least 65% of the combined voting power of
the securities of the Company, such surviving entity or any Parent
thereof outstanding immediately after such merger or consolidation or
(ii) a merger or consolidation effected solely to implement a
recapitalization of the Company or the Savings Bank (or similar
transaction) in which no Person is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Company or the Savings
Bank (not including in the securities beneficially owned by such Person
any securities acquired directly from the Company or its Affiliates)
representing 35% or more of the combined voting power of the Company's
or the Savings Bank's then outstanding securities;
(IV) the stockholders of the Company or the Savings Bank approve a
plan of complete liquidation or dissolution of the Company or the
Savings Bank, respectively, or there is consummated a sale or
disposition by the Company or any of its subsidiaries of any assets
which individually or as part of a series of related transactions
constitute all or substantially all of the Company's consolidated
assets (provided that, for these purposes, a sale of all or
substantially all of the voting securities of the Savings Bank or a
Parent of the Savings Bank shall be deemed to constitute a sale of
substantially all of the Company's consolidated assets), other than any
such sale or disposition to an entity at least 65% of the combined
voting power
<PAGE> 29
7
Senior Vice Presidents
Salary Grades 22 - 25
of the voting securities of which are owned by stockholders of the
Company in substantially the same proportions as their ownership of the
voting securities of the Company immediately prior to such sale or
disposition; or
(V) the execution of a binding agreement that if consummated would
result in a Change in Control of a type specified in clause (I) or
(III) above (an "Acquisition Agreement") or of a binding agreement for
the sale or disposition of assets that, if consummated, would result in
a Change in Control of a type specified in clause (IV) above (an "Asset
Sale Agreement") or the adoption by the Board of Directors of the
Company or the Savings Bank of a plan of complete liquidation or
dissolution of the Company or the Savings Bank that, if consummated,
would result in a Change in Control of a type specified in clause (IV)
(a "Plan of Liquidation"), provided however, that a Change in Control
of the type specified in this clause (V) shall not be deemed to exist
or have occurred as a result of the execution of such Acquisition
Agreement or Asset Sale Agreement, or the adoption of such a Plan of
Liquidation, from and after the Abandonment Date if the employee's
employment has not been terminated on or prior to the Abandonment Date.
As used in this Section, the term "Abandonment Date" shall mean the
date on which (A) an Acquisition Agreement, Asset Sale Agreement or
Plan of Liquidation is terminated (pursuant to its terms or otherwise)
without having been consummated, (B) the parties to an Acquisition
Agreement or Asset Sale Agreement abandon the transactions contemplated
thereby, (C) the Savings Bank or the Company abandons a Plan of
Liquidation or (D) a court or regulatory body having competent
jurisdiction enjoins or issues a cease and desist or stop order with
respect to or otherwise prevents the consummation of, or a regulatory
body notifies the Savings Bank or the Company that it will not approve,
an Acquisition Agreement, Asset Sale Agreement or Plan of Liquidation
or the transactions contemplated thereby and such injunction, order or
notice has become final and not subject to appeal.
As used in connection with the foregoing definition of Change
in Control, "Affiliate" shall have the meaning set forth in Rule 12b-2
promulgated under Section 12 of the Exchange Act; "Beneficial Owner" shall have
the meaning set forth in Rule 13d-3 under the Exchange Act; "Exchange Act" shall
mean the Securities Exchange Act of 1934, as amended from time to time; "Parent"
shall mean any entity that becomes the Beneficial Owner of at least 80% of the
voting power of the outstanding voting securities of the Company or of an entity
that survives any merger or consolidation of the Company or any direct or
indirect subsidiary of the Company; and "Person" shall have the meaning given in
Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and
14(d) thereof, except that such term shall not include (i) the Company or any of
its subsidiaries, a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any of its Affiliates, an underwriter
temporarily holding securities pursuant to an offering of such securities, or a
corporation or entity owned, directly or indirectly, by the
<PAGE> 30
8
Senior Vice Presidents
Salary Grades 22 - 25
stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company.
OTHER INFORMATION
PLAN NAME. The official name of the Program is the Severance Pay
Program for Employees of Dime Bancorp, Inc. and Participating Subsidiaries.
TYPE OF PLAN. The Program is a welfare benefit severance pay program.
PLAN YEAR. The Program's financial records are maintained on a calendar
year basis.
PLAN NUMBER. The Program has been assigned the number: 510.
PLAN SPONSOR. The Program is sponsored by Dime Bancorp, Inc. (Employer
Identification Number: 11-3197414). The Dime Savings Bank of New York, FSB
(Employer Identification Number: 11-0685740) is a participating employer under
the Program. Their address is 589 Fifth Avenue, New York, New York 10017. A
complete list of employers sponsoring the Program is available from the Plan
Administrator, upon written request, and is available for examination at the
office of the Plan Administrator.
PLAN ADMINISTRATOR. The Program is administered by the Chief Human
Resources Officer of The Dime Savings Bank of New York, FSB or such other
employee or officer of the Bank as may be designated by the Benefits Committee
of Dime Bancorp, Inc. The mailing address and telephone number of the Plan
Administrator is:
Chief Human Resources Officer
The Dime Savings Bank of New York, FSB
589 Fifth Avenue
New York, New York 10017
(212) 326-6122
SERVICE OF LEGAL PROCESS. Legal process may be served on the General
Counsel of Dime Bancorp, Inc. at the above address. In addition, legal process
may be served on the Plan Administrator.
SOURCE OF PAYMENTS. Payments under the Program are made by each
employer sponsoring the Program. Payments under the Program to an employee of
the Bank are the responsibility of the last employer sponsoring the Program that
employed that employee, provided that the Savings Bank shall be jointly and
severally liable for amounts payable under the Program with respect to
<PAGE> 31
9
Senior Vice Presidents
Salary Grades 22 - 25
terminations of employment by the Company, or by other participating affiliates
of the Company while such participating affiliates are subsidiaries of the
Company or the Bank.
EMPLOYMENT RIGHTS NOT IMPLIED. Participation or coverage under the
Program does not give anyone the right to be retained in the employ of the Bank,
nor does it guarantee anyone the right or claim to any benefit.
INTERPRETATION AUTHORITY. Notwithstanding anything to the contrary
contained herein, the Committee under the Umbrella Trust Agreement among Dime
Bancorp, Inc., The Dime Savings Bank of New York, FSB and HSBC Bank USA as
Trustee with respect to the Designated Arrangements of The Dime Savings Bank of
New York, FSB and Related Entities (the "Umbrella Trust" and the "Umbrella Trust
Committee") and the trustee of the Umbrella Trust (the "Trustee") shall have the
authority to interpret, on behalf of the Bank, the provisions of this Program,
to the extent that interpretive authority is provided to the Umbrella Trust
Committee and/or the Trustee, as applicable, under the Umbrella Trust. The
decisions of the Umbrella Trust Committee, the Trustee and their delegatee(s)
shall govern the Bank's interpretation of this Program and any amendments
thereto, notwithstanding any authority otherwise provided to another individual,
group of individuals or entity herein, including, but not limited to, the
authority to determine the eligibility for, amount, form and timing of payments
hereunder.
AMENDMENT OR TERMINATION OF THE PROGRAM. Except as provided below, the
Company. reserves the right to amend, suspend or terminate the Program at any
time through the action of its Board of Directors, the Compensation Committee of
its Board of Directors, or of its Benefits Committee, or through action of any
duly appointed delegatee of such Board of Directors, Compensation Committee or
Benefits Committee. In addition, except as provided below, each participating
employer reserves the right to amend, suspend or terminate the Program and its
terms, to the extent they apply to such participating employer, at any time,
through the action of its Board of Directors, Compensation Committee of its
Board of Directors, or Benefits Committee or other duly authorized delegatee of
its Board of Directors, Compensation Committee or Benefits Committee.
Notwithstanding the foregoing, in the event of a Change in Control or an
Irrevocable Election (as defined in the Umbrella Trust) occurring on or after
May 18, 2000 and prior to January 1, 2002, the Program may not be amended prior
to January 1, 2002 to reduce or eliminate any benefits that would be provided
hereunder pursuant to the terms of the Program as amended effective May 18,
2000. Notwithstanding the foregoing, the provisions of the Program relating to
periods after an Irrevocable Election shall no longer apply in the event the
Irrevocable Election is revoked or canceled pursuant to the terms of the
Umbrella Trust, and the provisions of the Program in effect prior to an
Irrevocable Election shall again apply unless and to the extent that, prior to
the revocation or cancellation of such Irrevocable Election, another Irrevocable
Election or a Change in Control has occurred, with respect to which Plan
provisions relating thereto will continue to separately apply.
<PAGE> 32
10
Senior Vice Presidents
Salary Grades 22 - 25
The terms "Change in Control" and "Irrevocable Election" shall have the same
meaning as set forth in the Umbrella Trust.
CLAIMS PROCEDURES. The Bank determines the right of any person to a
benefit under the Program. However, failure to execute any forms required or to
furnish information requested by the Plan Administrator within a reasonable
period of time may result in delay or a loss of payments. In all events,
eligibility for benefits under the Program is determined in the discretion of
the Bank.
If you do not receive a benefit to which you believe you are
entitled, you may file a written claim with the Plan Administrator. Your claim
will be processed within 90 days (in special circumstances this period may be
extended by written notice to you). If your claim is wholly or partially denied,
you will receive a written explanation of the reason for the denial, and a
request for whatever additional information that may be necessary to consider
the claim further.
If you do not agree with the decision of the Plan
Administrator, you or your authorized representative may review pertinent
documents and appeal in writing to the Benefits Committee of Dime Bancorp, Inc.
(which can be contacted through the office of the Plan Administrator) within 60
days after you receive the decision. If, within the time frame specified above
for claim processing, a notification of acceptance or denial has not been
received, you may request a review as if your claim had been denied. The
Benefits Committee will review the decision after receiving your appeal request,
and will respond to you in writing within 60 days (unless special circumstances
require a reasonable extension of the 60-day period) specifying the reason for
its decision.
Except as provided above with respect to the interpretive
authority of the Umbrella Trust Committee and the Trustee, the decision of the
Bank, the Plan Administrator and the Benefits Committee, including any
discretionary decision, shall be final, binding and conclusive as to any fact or
interpretation relating to the Program. After a Change in Control described in
any clauses (I)-(IV) of the definition of Change in Control above, or any
Irrevocable Election (as defined in the Umbrella Trust) (i) claims for benefits
hereunder by a Participant under the Umbrella Trust who was employed by the
Company or the Savings Bank prior to such Change in Control or Irrevocable
Election, may also be filed with the Trustee, and (ii) claims for benefits
hereunder by a Participant under the Umbrella Trust who was employed by a
participating affiliate of the Company prior to such Change in Control or
Irrevocable Election, may also be filed with the Trustee if the claim relates to
a termination of employment while such affiliate was a subsidiary of the Company
or the Savings Bank.
YOUR LEGAL RIGHTS. You have certain rights under the Program that are
protected under the Employee Retirement Income Security Act of 1974 ("ERISA").
ERISA provides that you are entitled to:
<PAGE> 33
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Senior Vice Presidents
Salary Grades 22 - 25
(1) Examine, without charge, at the office of the Plan
Administrator and at other specified locations, all Program
documents, and copies of all documents filed by the Program
with the U.S. Department of Labor, such as detailed annual
reports and plan descriptions.
(2) Obtain copies of all Program documents and other Program
information upon written request to the plan administrator.
The administrator may make a reasonable charge for these
copies.
(3) Receive a summary of the Program's annual financial report.
The plan administrator is required by law to furnish each
eligible employee with a copy of this summary annual report.
In addition to creating rights for participants, ERISA imposes
duties upon the individuals who are responsible for the operation of the
Program. The individuals who operate the Program, called "fiduciaries" of the
Program, have a duty to do so prudently and in the interest of you and other
Program participants and beneficiaries. No one, including the Bank or any other
person, may fire you or otherwise discriminate against you in any way to prevent
you from obtaining your benefit or exercising your rights under ERISA.
If your claim for a benefit is denied in whole or in part, you
must receive a written explanation of the reason for the denial. You have the
right to have the plan review and reconsider your claim. Under ERISA, there are
steps you can take to enforce the above rights. For instance, if you request
materials from the plan and do not receive them within 30 days, you may file
suit in a federal court. In such a case, the court may require the administrator
to provide the materials and pay you up to $100 a day until you receive the
materials, unless the materials were not sent because of reasons beyond the
control of the administrator. If your claim for a benefit is denied or ignored,
in whole or in part, you may file suit in a state or federal court.
If it should happen that plan fiduciaries misuse the Program's
money, or if you are discriminated against for asserting your rights, you may
seek assistance from the U.S. Department of Labor, or you may file suit in a
federal court. The court will decide who should pay court costs and legal fees.
If you are successful, the court may order the person you have sued to pay these
costs and fees. If you lose, the court may order you to pay these costs and
fees, for example, if it finds your claim is frivolous.
If you have any questions about the Program, you should
contact the Plan Administrator. If you have questions about this statement or
about your rights under ERISA, you should contact the nearest office of the
Pension and Welfare Benefits Administration, U.S. Department of Labor, listed in
your telephone directory or the Division of Technical Assistance and
<PAGE> 34
12
Senior Vice Presidents
Salary Grades 22 - 25
Inquiries, Pension and Welfare Benefits Administration, U.S. Department of
Labor, 200 Constitution Avenue, N.W., Washington, D.C. 20210.
<PAGE> 1
SENIOR EXECUTIVE SEVERANCE PAY PLAN
OF NORTH AMERICAN MORTGAGE COMPANY
Introduction
North American Mortgage Company, a Delaware corporation (the
"Company"), has had in effect a practice of paying severance pay to senior
executives in the event of specific types of Terminations (as hereinafter
defined) on a case-by-case basis. This practice has not heretofore been set
forth in any written document. For the benefit of Named Executives, in order to
establish the prospective terms of the Company's severance Policy with respect
to such executives, the company hereby adopts, effective as of October 13, 1994,
the Senior Executive Severance Pay Plan of North American Mortgage Company (the
"Plan").
Section 1. Definitions
1.1. "Average Bonus" means the average of the sum of the last three
annual bonuses earned by a Named Executive (regardless of whether payment is
deferred by the Named Executive or paid by the Employer in a subsequent year),
or, if the Named Executive has been employed by the Employer for less than three
annual bonus periods, the average of the sum of all annual bonuses paid to the
Named Executive by the Employer; provided, however, that for any partial year of
employment a bonus earned by an Executive for such partial year will be
annualized for purposes of the Plan (unless such bonus represents a payment that
will not be made more often than once per year).
1.2. "Board" means the Board of Directors of the Company.
1.3. "Cause" means (a) refusal to perform or gross neglect by the
Named Executive of responsibilities of the employment position; (b) misconduct
on the part of the Named Executive that is materially detrimental to or has a
material adverse effect on the Company; (c) Named Executive's conviction or plea
of nolo contendere to a misdemeanor involving embezzlement or fraud or other
offense involving the money or property of the Company; (d) the commission by
the Named Executive of one or more acts which constitute an indictable crime
under United States federal, state, or local law.
1.4. "Change of Control" means (i) the sale of all the outstanding
common stock of the Company; (ii) the approval by the shareholders of the
Company of the merger of consolidation of the Company with any other
corporation; (iii) the sale of all or substantially all of the assets of the
Company; or (iv) the liquidation or dissolution of the Company (other than, in
each of (i) through (iv) above, a sale to or merger or consolidation with, or a
liquidation or dissolution which results in the stock or assets of the Company
being held by an affiliate of the Company or in which the stockholders of the
Company immediately prior to such event own at least 65 percent of the resulting
entity and
1
<PAGE> 2
no other Stockholder or group of stockholders of the entity involved in such
transaction (other than the Company) owns more than fifteen percent of the
resulting entity).
1.5. "Code" means the Internal Revenue Code of 1986, as amended.
1.6. "Committee" means the Committee appointed by the Board, or in
lieu of such Committee, the Board's designee.
1.7. "Company" means North American Mortgage Company, a corporation
incorporated under the laws of the State of Delaware.
1.8. "Comparable Position" means a position with at least the same
level of Compensation, responsibilities, substantially the same benefits, and in
the same immediate geographic area as a Named Executive's present position.
1.9. "Compensation" means the amount per annum that a Named
Executive was paid or provided by the Company as salary or wage, including
deferred compensation, (excluding all bonuses, commissions, overtime, and other
forms of special or incentive remuneration) immediately preceding the
Termination. [Amended 2/4/97]
1.10. "Employer" means the Company and any of its subsidiaries.
1.11. "Named Executive" means any employee actively performing
services for the Employer on the date of Notice of Termination or the date of
Termination who holds the title of President, Chief Executive Officer, Senior
Vice President or Executive Vice President.
1.12. "Notice of Termination" means a written or oral notice that
employment will be terminated, provided to the Named Executive by the Company or
its representative at least two weeks prior to the date of Termination;
provided, however, that a Termination will be deemed to occur without two weeks'
notice so long as Section 3.1 hereof is complied with.
1.13. "Parachute Payment" means any payment deemed to constitute a
"parachute payment" as defined in Section 280G of the Code.
1.14. "Plan" means this senior Executive Severance Pay Plan of North
American Mortgage Company, as set forth in this document, and as it may be
amended from time to time.
1.15. "Release" means a written release, in form and substance
satisfactory to the Committee, in its sole discretion, executed by a Named
Executive who has been granted Severance Pay, releasing and discharging the
Company, the Committee and any other persons from and against any claim,
liability or obligation in respect of or arising out to the Named Executive's
employment or Termination.
2
<PAGE> 3
1.16. "Severance Pay" means the amounts, if any, payable under
Section 3.1 of this Plan to a Named Executive upon Termination.
1.17. "Severance Percentage" means the percentage of a Named
Executive's Compensation set forth on Exhibit A hereto.
1.18. "Termination" Except as otherwise provided under a Termination
Agreement, "Termination" means a Named Executive's involuntary termination of
employment with the Employer without Cause; provided, however, that Termination
shall not include any termination of employment by reason of death, disability
or retirement of the Named Executive.
1.19. "Termination Agreement" means that agreement by and between
the Company and a Named Executive which provides for certain benefits upon the
occurrence of certain terminations within one year following a Change of
Control.
1.20. "Severance Period" means that number of months equal to twelve
multiplied by the Severance Percentage.
Section 2. Eligibility
2.1. A Named Executive must have a minimum of ninety days of
Service prior to the earlier of the date of Termination or the date Notice of
Termination is issued to such Named Executive to be eligible to receive benefits
under this Plan and must in fact not be employed by any Employer or any
successor to any Employer (whether by merger, stock sale or the purchase of
assets of any Employer or any business unit thereof). Notwithstanding anything
to the contrary herein, no Named Executive shall be entitled to receive benefits
under this Plan if the Named Executive has been offered a Comparable Position
with any Employer or any successor to any Employer (whether by merger, stock
sale, or the purchase of the assets of any Employer or any business unit
thereof).
Section 3. Benefits
3.1. (a) As soon as practicable after the date of Termination, a
Named Executive eligible to receive benefits under this Plan shall receive
Severance Pay in a lump sum amount equal to the Severance Percentage, multiplied
by the sum of (i) such Named Executive's Compensation, plus (ii) such Named
Executive's Average Bonus.
(b) In addition to the amounts payable under Section 3.1(a)
above, as soon as practicable after the date of Termination, if the Company
failed to issue a Notice of Termination to the Named Executive, in lieu of such
Notice of Termination, the Named Executive shall receive a lump sum amount equal
to 2/52 of Severance Pay.
3
<PAGE> 4
3.2. Notwithstanding anything to the contrary in this Plan, under
no circumstances may the aggregate Severance Pay granted to any Named Executive
upon a Termination be paid unless the Committee has received a Release. If
payments made pursuant to this Plan, when aggregated with any other payments
made to you, are considered Parachute Payments which would result in a loss of
deduction to the Employer under Section 280G of the Code, then payments under
this Plan shall be limited to the greatest amount which may be paid to you under
Section 280G of the Code without causing any loss of deduction to the Employer
under that Section. The limitations imposed by the foregoing sentence shall be
computed by Ernst & Young, or in the event they decline, another "big six"
accounting firm chosen by the Employer and reasonably acceptable to the Named
Executive, and any expenses relating to such computation shall be borne by the
Employer.
3.3. The Named Executive shall be entitled to medical benefits and
life insurance benefits under the same terms as if the Named Executive continued
employment with the Employer for the twelve month period following Termination;
provided, however, that to the extent the Named Executive is entitled to receive
such benefits from the Company under any other plan or agreement, there shall be
no duplication of such benefits.
3.4. No Severance Pay or benefits shall by provided (or payments or
benefits shall cease) if, between the date of Notice of Termination and the date
of Termination, the Named Executive:
(a) is found by the Company at any time to have engaged
in an act or acts of willful malfeasance or nonfeasance of his
duties; or
(b) fails to perform any services requested of him by his
employer, supervisor, or superior; or
(c) demonstrates a deterioration in performance or
misconduct which warrants termination of his employment; or
(d) is offered or reassigned to a Comparable Position, or
refuses to interview for any position with any Employer or any
successor to any Employer (whether by merger, stock sale, or
the purchase of the assets of any Employer or any business
unit thereof).
3.5. Any benefits provided pursuant to this Plan may be reduced by
any amounts owed to the Employer by the Named Executive and any and all
withholdings required by law or authorized by the Named Executive.
Section 4. Administration of Plan
4.1. The Committee shall be the plan administrator. In addition to
any other powers granted to the Committee under the Plan, the Committee shall
have the exclusive right, power and
4
<PAGE> 5
authority to interpret, in its sole discretion, any and all of the provisions of
the Plan; to establish claims and appeals procedures; and to consider and decide
conclusively any questions (whether of fact or otherwise) arising in connection
with the administration of the Plan or any claim for severance pay arising under
the Plan, including, without limitation, the determination of a termination for
cause. Any decision or action of the Committee shall be final, conclusive and
binding on all interested parties.
4.2. The Company shall indemnify any individual who is an employee,
officer or director of the Company, or his or her heirs and legal
representatives, against all liability and reasonable expense (including
reasonable counsel fees, amounts paid in settlement and amounts of judgments,
fines or penalties) incurred or imposed upon him or her in connection with any
claim, action, suit or proceeding, whether civil, criminal, administrative or
investigative, in connection with his or her duties with respect to this Plan,
provided that such act or omission does not constitute gross negligence or
willful misconduct.
5.1. The Board reserves the right, upon unanimous written consent
or a majority vote of the directors present, in person or by telephone, at a
meeting of the Board, to modify, amend or terminate the Plan in whole or part,
without notice at any time, and benefits hereunder, whether in an individual
case or more generally, may be altered, reduced, or eliminated by the Board. All
modifications of or amendments to the Plan shall be in writing.
5.2. Neither the establishment of the Plan nor any action of the
Company, the Committee, or a fiduciary shall be held or construed to confer upon
any person any legal right to continue employment with the Company. The Company
expressly reserves the right to discharge any employee whenever the interest of
the Company, in its sole judgment, may so require, without any liability on the
part of the Company, the Committee, or any fiduciary.
5.3. Benefits payable under the Plan shall be paid out of the
general assets of the Company, and are not required to be funded in any manner,
although the Company may set aside amounts in respect of, or fund, benefits
payable hereunder. Benefits payable to a Named Executive will represent an
unsecured claim by such Named Executive against the general assets of the
Company.
5.4. Except to the extent required by law, benefits payable under
the Plan shall not be subject to assignment, alienation, transfer, pledge, levy,
attachment or other legal process, encumbrance, commutation or anticipation by
the Named Executive and any attempt to do so shall be void.
5.5. This Plan shall be interpreted and applied in accordance with
the laws of the State of Delaware (without reference to rules relating to
conflicts of laws), except to the extent superseded by applicable federal law.
5
<PAGE> 6
NORTH AMERICAN MORTGAGE COMPANY
SENIOR EXECUTIVE SEVERANCE PAY PLAN
EXHIBIT A
SEVERANCE PERCENTAGE
Chief Executive Officer 100%
Chief Operating Officer 100%
Executive Vice Presidents 75%
Senior Vice Presidents 50%
6
<PAGE> 7
AMENDMENTS TO THE
SENIOR EXECUTIVE SEVERANCE PAY PLAN OF
NORTH AMERICAN MORTGAGE COMPANY
Effective as of May 18, 2000, the Senior Executive Severance Pay
Plan of North American Mortgage Company (the "Plan") is amended to
provide as follows:
1. Section 1.2 of the Plan is deleted in its entirety and replaced with the
following:
"1.2 'Board' means the Board of Directors of Dime."
2. Section 1.6 of the Plan is deleted in its entirety and replaced with the
following:
"1.6 'Committee' means the Benefits Committee of Dime."
3. The following new Sections 1.10 and 1.11 are added to the Plan and the
existing Sections 1.10 through 1.20 are renumbered as Sections 1.12 through
1.22:
"1.10 'Dime' means Dime Bancorp, Inc."
"1.11 'Dime Savings' means The Dime Savings Bank of New
York, FSB."
4. The following new Section 3.6 is added to the Plan:
"3.6. Notwithstanding anything to the contrary contained
herein, Severance Pay will not be payable hereunder to any Named
Executive who, upon his or her Termination, is entitled to
severance benefits under an individual agreement with the
Employer, Dime or Dime Savings (except to the extent that such
individual agreement provides for benefits under this Plan)."
5. The following new Section 3.7 is added to the Plan:
"3.7. If, prior to January 1, 2002, a Dime Change in
Control (as defined below) occurs, and subsequent to the Dime
Change in Control but prior to January 1, 2002, the employment of
a Named Executive who is otherwise eligible for benefits under
Section 3.1 is terminated, such Named Executive shall be entitled,
in addition to the severance benefits described in Section 3.1, to
an
<PAGE> 8
additional Dime Change in Control Severance Benefit. The Dime
Change in Control Severance Benefit of a Named Executive shall
equal 25% of the total severance benefits that the Named Executive
is otherwise entitled to under Section 3.1, and shall be paid in
one lump sum within 30 days of the date of Termination.
The Dime Change in Control Severance Benefit will
not be payable to any Named Executive who, upon his or her
Termination, is entitled to severance benefits under an individual
agreement with the Employer, Dime or Dime Savings (except to the
extent that such individual agreement provides for benefits under
this Plan). Dime Change in Control Severance Benefits also are
subject to all of the limitations contained in Sections 3.2, 3.3,
3.4 and 3.5.
For purposes of determining whether a Named
Executive is entitled to a Dime Change in Control Severance
Benefit, a 'Dime Change in Control' shall be deemed to have
occurred if the event set forth in any one of the following
paragraphs shall have occurred:
(I) any Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of Dime (not including in the securities
beneficially owned by such Person any securities acquired directly
from Dime or its Affiliates) representing 35% or more of the
combined voting power of Dime's then outstanding securities; or
(II) the following individuals cease for any reason to
constitute a majority of the number of directors then serving as
directors of Dime: individuals who, on July 24, 1997, constitute
the Board of Directors of Dime and any new director (other than a
director whose initial assumption of office is in connection with
the settlement of an actual or threatened election contest,
including but not limited to a consent solicitation, relating to
the election of directors of Dime) whose appointment or election
by the Board of Directors of Dime or nomination for election by
Dime's stockholders was approved or recommended by a vote of at
least two-thirds (2/3) of the directors then still in office who
either were directors on July 24, 1997 or whose appointment,
election or nomination for election was previously so approved or
recommended; or
2
<PAGE> 9
(III) there is consummated a merger or consolidation of Dime or
any direct or indirect subsidiary of Dime with any other
corporation or entity, other than (i) a merger or consolidation
which would result in the voting securities of Dime outstanding
immediately prior to such merger or consolidation continuing to
represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity or any Parent
thereof), in combination with the ownership of any trustee or
other fiduciary holding securities under an employee benefit plan
of Dime or any subsidiary of Dime, at least 65% of the combined
voting power of the securities of Dime, such surviving entity or
any Parent thereof outstanding immediately after such merger or
consolidation or (ii) a merger or consolidation effected solely to
implement a recapitalization of Dime or Dime Savings (or similar
transaction) in which no Person is or becomes the Beneficial
Owner, directly or indirectly, of securities of Dime or Dime
Savings (not including in the securities beneficially owned by
such Person any securities acquired directly from Dime or its
Affiliates) representing 35% or more of the combined voting power
of Dime's or Dime Savings's then outstanding securities;
(IV) the stockholders of Dime or Dime Savings approve a plan of
complete liquidation or dissolution of Dime or Dime Savings,
respectively, or there is consummated a sale or disposition by
Dime or any of its subsidiaries of any assets which individually
or as part of a series of related transactions constitute all or
substantially all of Dime's consolidated assets (provided that,
for these purposes, a sale of all or substantially all of the
voting securities of Dime Savings or a Parent of Dime Savings
shall be deemed to constitute a sale of substantially all of
Dime's consolidated assets), other than any such sale or
disposition to an entity at least 65% of the combined voting power
of the voting securities of which are owned by stockholders of
Dime in substantially the same proportions as their ownership of
the voting securities of Dime immediately prior to such sale or
disposition; or
(V) the execution of a binding agreement that if consummated
would result in a Dime Change in Control of a type specified in
clause (I) or (III) above (an "Acquisition Agreement") or of a
binding agreement for the sale or disposition of assets that, if
consummated, would result in a Dime Change in Control of a type
specified in clause (IV) above (an "Asset Sale Agreement") or the
adoption by the Board of Directors of Dime or Dime Savings of a
3
<PAGE> 10
plan of complete liquidation or dissolution of Dime or Dime
Savings that, if consummated, would result in a Dime Change in
Control of a type specified in clause (IV) (a "Plan of
Liquidation"), provided however, that a Dime Change in Control of
the type specified in this clause (V) shall not be deemed to exist
or have occurred as a result of the execution of such Acquisition
Agreement or Asset Sale Agreement, or the adoption of such a Plan
of Liquidation, from and after the Abandonment Date if the Named
Executive's employment has not been terminated on or prior to the
Abandonment Date. As used in this Section, the term "Abandonment
Date" shall mean the date on which (A) an Acquisition Agreement,
Asset Sale Agreement or Plan of Liquidation is terminated
(pursuant to its terms or otherwise) without having been
consummated, (B) the parties to an Acquisition Agreement or Asset
Sale Agreement abandon the transactions contemplated thereby, (C)
Dime Savings or Dime abandons a Plan of Liquidation or (D) a court
or regulatory body having competent jurisdiction enjoins or issues
a cease and desist or stop order with respect to or otherwise
prevents the consummation of, or a regulatory body notifies Dime
Savings or Dime that it will not approve, an Acquisition
Agreement, Asset Sale Agreement or Plan of Liquidation or the
transactions contemplated thereby and such injunction, order or
notice has become final and not subject to appeal.
As used in connection with the foregoing definition of Dime Change
in Control, "Affiliate" shall have the meaning set forth in Rule
12b-2 promulgated under Section 12 of the Exchange Act;
"Beneficial Owner" shall have the meaning set forth in Rule 13d-3
under the Exchange Act; "Exchange Act" shall mean the Securities
Exchange Act of 1934, as amended from time to time; "Parent" shall
mean any entity that becomes the Beneficial Owner of at least 80%
of the voting power of the outstanding voting securities of Dime
or of an entity that survives any merger or consolidation of Dime
or any direct or indirect subsidiary of Dime; and "Person" shall
have the meaning given in Section 3(a)(9) of the Exchange Act, as
modified and used in Sections 13(d) and 14(d) thereof, except that
such term shall not include (i) Dime or any of its subsidiaries, a
trustee or other fiduciary holding securities under an employee
benefit plan of Dime or any of its Affiliates, an underwriter
temporarily holding securities pursuant to an offering of such
securities, or a corporation or entity owned, directly or
4
<PAGE> 11
indirectly, by the stockholders of Dime in substantially the same
proportions as their ownership of stock of Dime."
6. Section 4.1 of the Plan is deleted in its entirety and replaced with the
following:
"4.1. The Plan Administrator is the Chief Human Resources
Officer of Dime Savings, or such other employee or officer as may
be designated by the Committee. The Plan Administrator shall have
the right, power and authority to interpret any and all of the
provisions of the Plan and to consider and decide conclusively any
questions (whether of fact or otherwise) arising in connection
with the administration of the Plan.
Notwithstanding anything to the contrary contained
herein, the Committee under the Umbrella Trust Agreement among
Dime Bancorp, Inc., The Dime Savings Bank of New York, FSB and
HSBC Bank USA, as Trustee with respect to the Designated
Arrangements of The Dime Savings Bank of New York, FSB and Related
Entities (the "Umbrella Trust" and the "Umbrella Trust Committee")
and the trustee of the Umbrella Trust (the "Trustee") shall have
the authority to interpret, on behalf of Dime (and as applicable,
Dime Savings), the provisions of the Plan to the extent that
interpretive authority is provided to the Umbrella Trust Committee
and/or the Trustee, as applicable, under the Umbrella Trust. The
decisions of the Umbrella Trust Committee, the Trustee and their
delegatee(s) shall govern Dime's (and as applicable, the Dime
Savings's) interpretation of the Plan and any amendments thereto,
notwithstanding any authority otherwise provided to another
individual, group of individuals or entity herein, including, but
not limited to, the authority to determine the eligibility for,
amount, form and timing of payments hereunder."
7. Section 4.2 of the Plan is deleted in its entirety and replaced with the
following:
"4.2. The Company shall indemnify any individual who is an
employee, officer or director of the Company, Dime or Dime
Savings, or his or her heirs and legal representatives, against
all liability and reasonable expense (including reasonable counsel
fees, amounts paid in settlement and amounts of judgments, fines
or penalties) incurred or imposed upon him or her in connection
with any claim, action, suit or proceeding, whether civil,
criminal, administrative or investigative, in connection with his
or her duties
5
<PAGE> 12
with respect to this Plan, provided that such act or omission does
not constitute gross negligence or willful misconduct."
8. The following new Section 4.3 shall be added to the Plan:
"4.3. Dime determines the right of any person to a benefit
under the Plan. However, failure to execute any forms required or
to furnish information requested by the Plan Administrator within
a reasonable period of time may result in delay or a loss of
payments. In all events, eligibility for benefits under the Plan
is determined in the discretion of Dime.
If a Named Executive does not receive a benefit to
which the Named Executive believes him or herself to be entitled
to, the Named Executive may file a written claim with the Plan
Administrator or a designated agent. The claim will be processed
within 90 days (in special circumstances this period may be
extended by written notice to the Named Executive). If the claim
is wholly or partially denied, the Named Executive will receive a
written explanation of the reason for the denial, and a request
for whatever additional information that may be necessary to
consider the claim further.
If the Named Executive does not agree with the
decision of the Plan Administrator, the Named Executive or his or
her authorized representative may review pertinent documents and
appeal in writing to the Committee within 60 days after the Named
Executive receives the decision. If, within the time frame
specified above for claim processing, a notification of acceptance
or denial has not been received, the Named Executive may request a
review as if the claim had been denied. The Committee will review
the decision after receiving the appeal request, and will respond
to the Named Executive in writing within 60 days (unless special
circumstances require a reasonable extension of the 60-day period)
specifying the reason for its decision.
Except as provided above with respect to the
interpretive authority of the Umbrella Trust Committee, the
decision of Dime, the Plan Administrator and the Committee,
including any discretionary decision, shall be final, binding and
conclusive as to any fact or interpretation relating to the Plan.
After a Change in Control described in any of clauses (I)-(IV) of
the definition of Change in Control above, or any Irrevocable
6
<PAGE> 13
Election (as defined in the Umbrella Trust), claims for benefits
hereunder by a Participant under the Umbrella Trust who was
employed by the Company prior to such Change in Control or
Irrevocable Election may also be filed with the Trustee if the
claim relates to periods during which Dime Savings is jointly and
severally liable in accordance with Section 5.6 hereof."
9. The following provision is added to the end of Section 5.1 of the Plan:
"Notwithstanding the foregoing, in the event of a Dime Change in
Control or an Irrevocable Election (as defined in the Umbrella
Trust), occurring on or after May 18, 2000 and prior to January 1,
2002, the Plan may not be amended prior to January 1, 2002 to
reduce or eliminate any benefits that would be provided hereunder
pursuant to the terms of the Plan as amended effective May 18,
2000. Notwithstanding the foregoing, the provisions of the Plan
relating to periods after an Irrevocable Election (as defined in
the Umbrella Trust) shall no longer apply in the event the
Irrevocable Election (as defined in the Umbrella Trust) is revoked
or canceled pursuant to the terms of the Umbrella Trust, and the
provisions of the Plan in effect prior to an Irrevocable Election
(as defined in the Umbrella Trust) shall again apply unless and to
the extent that, prior to the revocation or cancellation of such
Irrevocable Election (as defined in the Umbrella Trust), another
Irrevocable Election (as defined in the Umbrella Trust) or a
Change in Control has occurred, with respect to which Plan
provisions relating thereto will continue to separately apply."
10. Section 5.2 of the Plan is deleted in its entirety and replaced with the
following:
"5.2. Neither the establishment of the Plan nor any action
of the Company, Dime, Dime Savings, the Plan Administrator, the
Committee, or a fiduciary shall be held or construed to confer
upon any person any legal right to continue employment with the
Employer. The Employer expressly reserves the right to discharge
any employee whenever the interest of the Employer, in its sole
judgment, may so require, without any liability on the part of the
Company, Dime, Dime Savings, the Plan Administrator, the Committee
or any fiduciary."
11. The following new Section 5.6 is added to the Plan:
7
<PAGE> 14
"5.6. Joint and Several Liability of Dime Savings. With
respect to benefits payable hereunder in connection with
terminations of employment while the Company is a subsidiary of
Dime Savings, Dime Savings shall be jointly and severally liable
with the Company."
8
<PAGE> 1
SEVERANCE PAY PLAN
OF NORTH AMERICAN MORTGAGE COMPANY
Introduction
North American Mortgage Company, a Delaware corporation (the
"Company"), has had in effect a long standing severance pay policy under which
it provides assistance to Employees (as hereinafter defined) in the event of
specific types of Terminations (as hereinafter defined). The Company's severance
pay policy has not heretofore been set forth in any written document. For the
benefit of Employees, in order to clarify the provisions of the Company's long
standing severance policy, the Company hereby adopts, effective as of October
13, 1994, the Severance Pay Plan of North American Mortgage company (the "Plan")
Section 1. Definitions
1.1. "Board" means the Board of Directors of the Company.
1.2. "Cause" means (a) refusal to perform or neglect by the
Employee of responsibilities of the employment position; (b) an act or acts of
malfeasance or nonfeasance of duties on the part of the Employee; (c) a
deterioration in the Employee's performance of employment duties; (d) misconduct
on the part of the Employee that is detrimental to or has an adverse effect on
the Company; (e) the Employee's conviction or plea of nolo contendere to a
misdemeanor involving embezzlement or fraud or other offense involving the money
or property of the Company; (f) the commission by the Employee of one or more
acts which constitute an indictable crime under United States federal, state or
local law.
1.3. Committee" means the Committee appointed by the Board, or in
lieu of such Committee, the Board's designee.
1.4. "Company" means North American Mortgage Company a corporation
incorporated under the laws of the State of Delaware.
1.5. "Comparable Position" means a position with at least the same
level of Compensation, responsibilities, substantially the same benefits and in
the same immediate geographic area as an Employee's present position.
1.6. "Compensation" means the amount per annum that an Employee was
paid or provided by the company as salary or wages (excluding all bonuses,
commissions, overtime, and other forms of special or incentive remuneration)
immediately preceding the Termination.
1
<PAGE> 2
1.7. "Employee" means any individual who is scheduled to work at
least (20) hours per week and classified as a regular full-time (or regular
part-time) employee of the Employer in accordance with the Employer's
classifications then in effect; provided, however, that, for purposes of this
Plan, a individual shall not be considered an Employee unless such person is
actively performing services for the Employer on the date of Notice of
Termination or the date of Termination.
1.8. "Employer" means the Company and any of its subsidiaries.
1.9. "Notice of Termination" means a written or oral notice that
employment will be terminated, provided to the Employee by the Company or its
representative at least two weeks prior to the date of Termination; provided,
however, that a Termination will be deemed to occur without two weeks' notice so
long as Section 3.1 hereof is complied with.
1.10. "Plan" means this Severance Pay Plan of North American
Mortgage Company, as set forth in this document, ans as it may be amended from
time to time.
1.11. "Release" means a written release, in form and substance
satisfactory to the Committee, in its sole discretion, executed by an Employee
who has been granted Severance Pay, releasing and discharging the Company, the
Committee and any other persons from and against any claim, liability or
obligation in respect of or arising out of the Employee's employment or
Termination.
1.12. "Severance Pay" means the amounts, if any, determined in
accordance with Schedule A (attached hereto), which becomes payable under
Section 3.1 of this Plan to an Employee upon Termination.
1.13. "Service" means an Employee's last continuous period of active
employment as an Employee of an Employer.
1.14. "Termination" means an Employee's involuntary termination of
employment with the Company without Cause; provided, however, that Termination
shall not include any termination of employment by reason of death, disability
or retirement of the Employee.
1.15. "Year of Service" shall mean a period of twelve (12) months of
Service.
1.16. Whenever used herein, words in the masculine form shall be
deemed to refer to females as well as males.
Section 2. Eligibility
2.1. An Employee must have a minimum of one year of service prior
to the earlier of the date of Termination or the date Notice of Termination is
issued to such Employee to be eligible to
2
<PAGE> 3
receive benefits under this Plan and must in fact not be employed by any
Employer or any successor to any Employer (whether by merger, stock sale or the
purchase of assets of any Employer or any business unit thereof).
Notwithstanding anything to the contrary herein, no Employee shall be entitled
to receive benefits under this Plan if the Employee has been offered a
Comparable Position with any employer or any successor to any Employer (whether
by merger, stock sale, or the purchase of the assets of any Employer or any
business unit thereof).
Section 3. Benefits
3.1. (a) As soon as practicable after the date of Termination, an
Employee eligible to receive benefits under this Plan, shall receive Severance
Pay in an amount based upon the Employee's whole years of Service as of the date
of Termination which amount shall be paid in substantially equal installments in
accordance with the Employer's payroll practices applicable to the Employee. In
the event of an Employee's death after the commencement of payments under this
Section 3.1(a) any remaining installments payable hereunder shall be paid to
such Employee's estate in a lump sum.
(b) In addition to the amounts payable under Section 3.1(a) above,
as soon as practicable after the date of Termination, if the Company failed to
issue a Notice of Termination to the Employee, in lieu of such Notice of
Termination, the Employee shall receive a lump sum amount equal to 2/52 of
Severance Pay.
3.2. Notwithstanding anything to the contrary in this Plan, if the
Company has requested that a Release be executed by an Employee prior to the
payment of Severance Pay, under no circumstances may the aggregate Severance Pay
granted to any Employee upon a Termination be paid unless the Committee has
received such Release.
3.3. For the period of time between the date of Termination and the
date that the Employee receives the full amount of Severance Pay that he is
entitled to under this Plan, the Employee shall be entitled to medical benefits
and life insurance benefits under the same terms as if the Employee continued
employment with the Company.
3.4. No Severance Pay or benefits shall be provided (or payments or
benefits shall cease) if, between the date of Notice of Termination and the date
of Termination, the Employee:
(a) is found by the Company at any time to have engaged in an act
or acts or willful malfeasance or nonfeasance of his duties; or
(b) fails to perform any services requested of him by his
employer, supervisor, or superior; or
(c) demonstrates a deterioration in performance or misconduct,
which warrants termination of his employment; or
3
<PAGE> 4
(d) is offered or reassigned to a Comparable Position, or refuses
to interview for any position with any Employer or any successor to any
Employer (whether by merger, stock sale, or the purchase of the assets
of any Employer or any business unit thereof).
3.5. Any benefits provide pursuant to this Plan may be reduced by
any amounts owed to the Employer by the Employee and any and all withholdings
required by law or authorized by the Employee.
Section 4. Administration of the Plan
4.1. The Committee shall be the plan administrator. In addition to
any other powers granted to the Committee under the Plan, the Committee shall
have the exclusive right, power and authority to interpret, in its sole
discretion, any and all of the provisions of the Plan; to establish claims and
appeals procedures; and to consider and decide conclusively any questions
(whether of fact or otherwise) arising in connection with the administration of
the Plan or any claim for severance pay arising under the Plan, including,
without limitation, the determination of a termination for cause. Any decision
or action of the Committee shall be final, conclusive and binding on all
interested parties.
4.2. The Company shall indemnify any individual who is an employee,
officer or director of the Company, or his or her heirs and legal
representatives, against all liability and reasonable expense (including
reasonable counsel fees, amounts paid in settlement and amounts of judgments,
fines or penalties) incurred or imposed upon him or her in connection with any
claim, action, suit or proceeding, whether civil, criminal, administrative or
investigative, in connection with his or her duties with respect to this Plan,
provided that such act or omission does not constitute gross negligence or
willful misconduct.
Section 5. Miscellaneous
5.1. The Board reserves the right, upon unanimous written consent
or a majority vote of the directors present, in person or by telephone, at a
meeting of the Board, to modify, amend or terminate the Plan in whole or part,
without notice at any time, and benefits hereunder, whether in an individual
case or more generally, may be altered, reduced, or eliminated by the Board. All
modifications of or amendments to the Plan shall be in writing.
5.2. Neither the establishment of the Plan nor any action of the
Company, the Committee, or a fiduciary shall be held or construed to confer upon
any person any legal right to continue employment with the Company. The Company
expressly reserves the right to discharge any employee whenever the interest of
the Company, in its sole judgment, may so require, without any liability on the
part of the Company, the Committee, or any fiduciary.
5.3. Benefits payable under the Plan shall be paid out of the
general assets of the Company,
4
<PAGE> 5
and are not required to be funded in any manner, although the Company may set
aside amounts in respect of, or fund, benefits payable hereunder. Benefits
payable to an Employee will represent an unsecured claim by such Employee
against the general assets of the Company.
5.4. Except to the extent required by law, benefits payable under
the Plan shall not be subject to assignment, alienation, transfer, pledge, levy,
attachment or other legal process, encumbrance, commutation or anticipation by
the Employee and any attempt to do so shall be void.
5.5. This Plan shall be interpreted and applied in accordance with
the laws of the State of Delaware (without reference to rules relating to
conflicts of laws), except to the extent superseded by applicable federal law.
5
<PAGE> 6
SCHEDULE A
<TABLE>
<CAPTION>
FULL YEARS OF SERVICE WEEKS/MONTHS OF SEVERANCE
--------------------- -------------------------
<S> <C> <C>
Employees 1-2 2 weeks
Other than
Vice President
2+ 2 weeks plus one week for
every full year in excess
of 2
Vice Presidents 1-4 3 months
5+ 6 months
</TABLE>
6
<PAGE> 7
AMENDMENTS TO THE
SEVERANCE PAY PLAN OF
NORTH AMERICAN MORTGAGE COMPANY
Effective as of May 18, 2000, the Severance Pay Plan of North
American Mortgage Company (the "Plan") is amended to provide as follows:
1. Section 1.1 of the Plan is deleted in its entirety and replaced with
the following:
"1.1. 'Board' means the Board of Directors of
Dime."
2. Section 1.3 of the Plan is deleted in its entirety and replaced with
the following:
"1.3. 'Committee' means the Benefits Committee of
Dime."
3. The following new Sections 1.7 and 1.8 are added to the Plan and the
existing Sections 1.7 through 1.16 are renumbered as Sections 1.9 through 1.18:
"1.7. 'Dime' means Dime Bancorp, Inc."
"1.8. 'Dime Savings' means The Dime Savings Bank
of New York, FSB."
4. The following new Section 3.6 is added to the Plan:
"3.6. Notwithstanding anything to the contrary
contained herein, Severance Pay will not be payable hereunder
to any Employee who, upon his or her Termination, is entitled
to severance benefits under an individual agreement with the
Employer, Dime or Dime Savings (except to the extent that such
individual agreement provides for benefits under this Plan)."
5. The following new Section 3.7 is added to the Plan:
"3.7. If, prior to January 1, 2002, a Change in
Control (as defined below) occurs, and subsequent to the
Change in Control but prior to January 1, 2002, the employment
of an Employee who is otherwise eligible for benefits under
Section 3.1 is terminated,
1
<PAGE> 8
such Employee shall be entitled, in addition to the severance
benefits described in Section 3.1, to an additional Change in
Control Severance Benefit. The Change in Control Severance
Benefit of an Employee shall equal 25% of the total severance
benefits that the Employee is otherwise entitled to under
Section 3.1, and shall be paid in one lump sum within 30 days
of the date of Termination.
The Change in Control Severance Benefit will
not be payable to any Employee who, upon his or her
Termination, is entitled to severance benefits under an
individual agreement with the Employer, Dime or Dime Savings
(except to the extent that such individual agreement provides
for benefits under this Plan). Change in Control Severance
Benefits also are subject to all of the limitations contained
in Sections 3.2, 3.3, 3.4 and 3.5.
For purposes of determining whether an
Employee is entitled to a Change in Control Severance Benefit,
a 'Change in Control' shall be deemed to have occurred if the
event set forth in any one of the following paragraphs shall
have occurred:
(I) any Person is or becomes the Beneficial Owner,
directly or indirectly, of securities of Dime (not including
in the securities beneficially owned by such Person any
securities acquired directly from Dime or its Affiliates)
representing 35% or more of the combined voting power of
Dime's then outstanding securities; or
(II) the following individuals cease for any reason to
constitute a majority of the number of directors then serving
as directors of Dime: individuals who, on July 24, 1997,
constitute the Board of Directors of Dime and any new director
(other than a director whose initial assumption of office is
in connection with the settlement of an actual or threatened
election contest, including but not limited to a consent
solicitation, relating to the election of directors of Dime)
whose appointment or election by the Board of Directors of
Dime or nomination for election by Dime's stockholders was
approved or recommended by a vote of at least two-thirds (2/3)
of the directors then still in office who either were
directors on July 24, 1997 or whose appointment, election or
nomination for election was previously so approved or
recommended; or
2
<PAGE> 9
(III) there is consummated a merger or consolidation of
Dime or any direct or indirect subsidiary of Dime with any
other corporation or entity, other than (i) a merger or
consolidation which would result in the voting securities of
Dime outstanding immediately prior to such merger or
consolidation continuing to represent (either by remaining
outstanding or by being converted into voting securities of
the surviving entity or any Parent thereof), in combination
with the ownership of any trustee or other fiduciary holding
securities under an employee benefit plan of Dime or any
subsidiary of Dime, at least 65% of the combined voting power
of the securities of Dime, such surviving entity or any Parent
thereof outstanding immediately after such merger or
consolidation or (ii) a merger or consolidation effected
solely to implement a recapitalization of Dime or Dime Savings
(or similar transaction) in which no Person is or becomes the
Beneficial Owner, directly or indirectly, of securities of
Dime or Dime Savings (not including in the securities
beneficially owned by such Person any securities acquired
directly from Dime or its Affiliates) representing 35% or more
of the combined voting power of Dime's or Dime Savings's then
outstanding securities;
(IV) the stockholders of Dime or Dime Savings approve a
plan of complete liquidation or dissolution of Dime or Dime
Savings, respectively, or there is consummated a sale or
disposition by Dime or any of its subsidiaries of any assets
which individually or as part of a series of related
transactions constitute all or substantially all of Dime's
consolidated assets (provided that, for these purposes, a sale
of all or substantially all of the voting securities of Dime
Savings or a Parent of Dime Savings shall be deemed to
constitute a sale of substantially all of Dime's consolidated
assets), other than any such sale or disposition to an entity
at least 65% of the combined voting power of the voting
securities of which are owned by stockholders of Dime in
substantially the same proportions as their ownership of the
voting securities of Dime immediately prior to such sale or
disposition; or
(V) the execution of a binding agreement that if
consummated would result in a Change in Control of a type
specified in clause (I) or (III) above (an "Acquisition
Agreement") or of a binding agreement for the sale or
disposition of assets that, if consummated, would result in a
Change in Control of a type specified in clause (IV) above (an
"Asset Sale Agreement") or the adoption by the Board of
Directors of Dime or Dime Savings of a plan of complete
3
<PAGE> 10
liquidation or dissolution of Dime or Dime Savings that, if
consummated, would result in a Change in Control of a type
specified in clause (IV) (a "Plan of Liquidation"), provided
however, that a Change in Control of the type specified in
this clause (V) shall not be deemed to exist or have occurred
as a result of the execution of such Acquisition Agreement or
Asset Sale Agreement, or the adoption of such a Plan of
Liquidation, from and after the Abandonment Date if the
employee's employment has not been terminated on or prior to
the Abandonment Date. As used in this Section, the term
"Abandonment Date" shall mean the date on which (A) an
Acquisition Agreement, Asset Sale Agreement or Plan of
Liquidation is terminated (pursuant to its terms or otherwise)
without having been consummated, (B) the parties to an
Acquisition Agreement or Asset Sale Agreement abandon the
transactions contemplated thereby, (C) Dime Savings or Dime
abandons a Plan of Liquidation or (D) a court or regulatory
body having competent jurisdiction enjoins or issues a cease
and desist or stop order with respect to or otherwise prevents
the consummation of, or a regulatory body notifies Dime
Savings or Dime that it will not approve, an Acquisition
Agreement, Asset Sale Agreement or Plan of Liquidation or the
transactions contemplated thereby and such injunction, order
or notice has become final and not subject to appeal.
As used in connection with the foregoing definition of Change
in Control, "Affiliate" shall have the meaning set forth in
Rule 12b-2 promulgated under Section 12 of the Exchange Act;
"Beneficial Owner" shall have the meaning set forth in Rule
13d-3 under the Exchange Act; "Exchange Act" shall mean the
Securities Exchange Act of 1934, as amended from time to time;
"Parent" shall mean any entity that becomes the Beneficial
Owner of at least 80% of the voting power of the outstanding
voting securities of Dime or of an entity that survives any
merger or consolidation of Dime or any direct or indirect
subsidiary of Dime; and "Person" shall have the meaning given
in Section 3(a)(9) of the Exchange Act, as modified and used
in Sections 13(d) and 14(d) thereof, except that such term
shall not include (i) Dime or any of its subsidiaries, a
trustee or other fiduciary holding securities under an
employee benefit plan of Dime or any of its Affiliates, an
underwriter temporarily holding securities pursuant to an
offering of such securities, or a corporation or entity owned,
directly or indirectly, by the stockholders of Dime in
substantially the same proportions as their ownership of stock
of Dime."
4
<PAGE> 11
6. Section 4.1 of the Plan is deleted in its entirety and replaced with
the following:
"4.1. The Plan Administrator is the Chief Human
Resources Officer of Dime Savings, or such other employee or
officer as may be designated by the Committee. The Plan
Administrator shall have the right, power and authority to
interpret any and all of the provisions of the Plan and to
consider and decide conclusively any questions (whether of
fact or otherwise) arising in connection with the
administration of the Plan.
Notwithstanding anything to the contrary contained
herein, the Committee under the Umbrella Trust Agreement among
Dime Bancorp, Inc., The Dime Savings Bank of New York, FSB and
HSBC Bank USA, as Trustee with respect to the Designated
Arrangements of The Dime Savings Bank of New York, FSB and
Related Entities (the "Umbrella Trust" and the "Umbrella Trust
Committee") and the trustee of the Umbrella Trust (the
"Trustee") shall have the authority to interpret, on behalf of
Dime (and as applicable, Dime Savings), the provisions of the
Plan to the extent that interpretive authority is provided to
the Umbrella Trust Committee and/or the Trustee, as
applicable, under the Umbrella Trust. The decisions of the
Umbrella Trust Committee, the Trustee and their delegatee(s)
shall govern Dime's (and as applicable, the Dime Savings's)
interpretation of the Plan and any amendments thereto,
notwithstanding any authority otherwise provided to another
individual, group of individuals or entity herein, including,
but not limited to, the authority to determine the eligibility
for, amount, form and timing of payments hereunder."
7. Section 4.2 of the Plan is deleted in its entirety and replaced with
the following:
"4.2. The Company shall indemnify any individual
who is an employee, officer or director of the Company, Dime
or Dime Savings, or his or her heirs and legal
representatives, against all liability and reasonable expense
(including reasonable counsel fees, amounts paid in settlement
and amounts of judgments, fines or penalties) incurred or
imposed upon him or her in connection with any claim, action,
suit or proceeding, whether civil, criminal, administrative or
investigative, in connection with his or her duties with
respect to this Plan, provided that such act or omission does
not constitute gross negligence or willful misconduct."
5
<PAGE> 12
8. The following new Section 4.3 shall be added to the Plan:
"4.3. Dime determines the right of any person to a
benefit under the Plan. However, failure to execute any forms
required or to furnish information requested by the Plan
Administrator within a reasonable period of time may result in
delay or a loss of payments. In all events, eligibility for
benefits under the Plan is determined in the discretion of
Dime.
If an Employee does not receive a benefit to
which the Employee believes him or herself to be entitled to,
the Employee may file a written claim with the Plan
Administrator or a designated agent. The claim will be
processed within 90 days (in special circumstances this period
may be extended by written notice to the Employee). If the
claim is wholly or partially denied, the Employee will receive
a written explanation of the reason for the denial, and a
request for whatever additional information that may be
necessary to consider the claim further.
If the Employee does not agree with the
decision of the Plan Administrator, the Employee or his or her
authorized representative may review pertinent documents and
appeal in writing to the Committee within 60 days after the
Employee receives the decision. If, within the time frame
specified above for claim processing, a notification of
acceptance or denial has not been received, the Employee may
request a review as if the claim had been denied. The
Committee will review the decision after receiving the appeal
request, and will respond to the Employee in writing within 60
days (unless special circumstances require a reasonable
extension of the 60-day period) specifying the reason for its
decision.
Except as provided above with respect to the
interpretive authority of the Umbrella Trust Committee, the
decision of Dime, the Plan Administrator and the Committee,
including any discretionary decision, shall be final, binding
and conclusive as to any fact or interpretation relating to
the Plan. After a Change in Control described in any of
clauses (I)-(IV) of the definition of Change in Control above,
or any Irrevocable Election (as defined in the Umbrella
Trust), claims for benefits hereunder by a Participant under
the Umbrella Trust who was employed by the Company prior to
such Change in Control or Irrevocable Election may also be
filed with the Trustee if the claim
6
<PAGE> 13
relates to periods during which Dime Savings is jointly and
severally liable in accordance with Section 5.6 hereof."
9. The following provision is added to the end of Section 5.1 of the Plan:
"Notwithstanding the foregoing, in the event of a Change in
Control or an Irrevocable Election (as defined in the Umbrella
Trust), occurring on or after May 18, 2000 and prior to
January 1, 2002, the Plan may not be amended prior to January
1, 2002 to reduce or eliminate any benefits that would be
provided hereunder pursuant to the terms of the Plan as
amended effective May 18, 2000. Notwithstanding the foregoing,
the provisions of the Plan relating to periods after an
Irrevocable Election (as defined in the Umbrella Trust) shall
no longer apply in the event the Irrevocable Election (as
defined in the Umbrella Trust) is revoked or canceled pursuant
to the terms of the Umbrella Trust, and the provisions of the
Plan in effect prior to an Irrevocable Election (as defined in
the Umbrella Trust) shall again apply unless and to the extent
that, prior to the revocation or cancellation of such
Irrevocable Election (as defined in the Umbrella Trust),
another Irrevocable Election (as defined in the Umbrella
Trust) or a Change in Control has occurred, with respect to
which Plan provisions relating thereto will continue to
separately apply."
10. Section 5.2 of the Plan is deleted in its entirety and replaced with
the following:
"5.2. Neither the establishment of the Plan nor
any action of the Company, Dime, Dime Savings, the Plan
Administrator, the Committee, or a fiduciary shall be held or
construed to confer upon any person any legal right to
continue employment with the Employer. The Employer expressly
reserves the right to discharge any employee whenever the
interest of the Employer, in its sole judgment, may so
require, without any liability on the part of the Company,
Dime, Dime Savings, the Plan Administrator, the Committee or
any fiduciary."
11. The following new Section 5.6 is added to the Plan:
"5.6. Joint and Several Liability of Dime Savings.
With respect to benefits payable hereunder in connection with
terminations of employment while the Company is a subsidiary
of Dime Savings, Dime Savings shall be jointly and severally
liable with the Company."
7
<PAGE> 1
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of January 30, 1998 between THE DIME
SAVINGS BANK OF NEW YORK, FSB (the "Bank"), a federal stock savings bank having
its principal executive offices at 589 Fifth Avenue, New York, New York 10017,
and James E. Kelly (the "Officer").
-----------
A. The Bank is desirous of employing the Officer upon the terms and
conditions set forth in this Agreement.
B. The Officer is desirous of being employed by the Bank upon the terms
and conditions set forth in this Agreement.
------------
Therefore, the Bank and the Officer, intending to be legally bound, agree
as follows:
1. Employment. Subject to the terms and conditions of this
Agreement, the Bank hereby employs the Officer, and the Officer hereby accepts
such employment.
2. Term of Employment. (a) The initial term of the Officer's
employment under this Agreement shall be deemed to have commenced on the date
of this Agreement and shall continue until March 1, 2001. This Agreement shall
be renewed automatically for one additional year on March 1, 1999, and on each
March 1 thereafter, unless (x) the Officer or the Bank gives contrary written
notice to the other, at least 10 days prior to any such renewal date, or (y)
this Agreement has been otherwise terminated in accordance with its provisions.
During each calendar year of the term of this Agreement beginning with 1999
(unless notice of non-renewal of
<PAGE> 2
this Agreement shall have previously been given by the Bank or the Officer
pursuant to the immediately preceding sentence), the Board of Directors of the
Bank (or a duly authorized committee of the Board or subcommittee of such
committee) shall, no later than the last day in each such year on which the
Bank may give the Officer notice of non-renewal pursuant to the immediately
preceding sentence, review and determine whether the Bank shall give the
Officer such notice of non-renewal with respect to the March 1 renewal date in
such year; provided, however, that nothing in this sentence shall be construed
as limiting the Bank's ability to give notice of non-renewal pursuant to the
immediately preceding sentence at any other time. A determination by the Board
of Directors of the Bank (or a duly authorized committee of the Board or
subcommittee of such committee) in any year that the Bank shall not give notice
of non-renewal with respect to the March 1 renewal date in such year shall be
deemed to be the Board's approval of the renewal of this Agreement on such
renewal date. Except as otherwise provided in Section 11(c)(iv) of this
Agreement, neither the giving of notice of non-renewal pursuant to clause (x)
of the second sentence of this Section 2(a), nor the subsequent expiration of
the Term of this Agreement as a result of the giving of such notice, shall be
deemed to be a termination of the Officer's employment under this Agreement.
(As used in this Agreement, (i) "Term" shall mean the initial term and any
renewal term of this Agreement and (ii) "remaining Term" shall mean the balance
of the Term in effect at a specified time without regard to potential future
renewals under the renewal provision of this Section 2(a).)
(b) The Officer's employment may be terminated during the Term of
this Agreement by the Bank or the Officer in the manner specified in this
Agreement. Any such termination of employment shall result in a termination of
this Agreement on the Effective Date of
2
<PAGE> 3
Termination (as defined in Section 13); provided that, notwithstanding anything
to the contrary in the foregoing, any right of the Officer to any payments or
benefits as a result of a termination of the Officer's employment (as provided
in this Agreement) shall survive the termination of this Agreement.
3. Office. During the Term, the Officer shall serve as an officer
of the Bank. In addition, during the Term, the Officer shall serve, for the
period for which the Officer may from time to time be elected, as an officer or
director of any subsidiary or affiliate of the Bank.
4. Duties. The Officer initially shall serve as General Counsel of
the Bank; provided, that the Officer shall hold comparable or additional
positions, and perform comparable or additional duties, as may from time to
time be assigned to the Officer. During the Term (except for periods of illness
and vacation), substantially all of the Officer's business time, attention,
skill and efforts shall be devoted to the performance of the Officer's duties
under this Agreement.
5. Compensation. (a) The annual salary of the Officer during the
Term shall be fixed by the Board of Directors of the Bank (or a duly authorized
committee of the Board or subcommittee of such committee) and shall be payable
in installments in accordance with the prevailing general payroll practice of
the Bank as it may exist from time to time. The initial annual salary of the
Officer during the Term shall be the Officer's annual salary on the date of
this Agreement. The Board of Directors of the Bank (or a duly authorized
committee of the Board or subcommittee of such committee) may increase or
decrease the Officer's annual salary from time to time; provided that, except
for decreases that are applied generally to officers of comparable rank, such
annual salary shall not be decreased by more than 25% in any one calendar year.
As
3
<PAGE> 4
used in this Agreement, "annual salary" shall mean, at any time, the annual
rate of salary then payable to the Officer pursuant to this Section 5(a)
(before deduction of any amounts deferred under any deferred compensation plan
of the Bank, any voluntary contributions to the Retirement 401(k) Investment
Plan of Dime Bancorp, Inc. (the "Company"), or any other similar qualified plan
or any other deductions from income) and shall be exclusive of bonuses,
incentive compensation or other compensation or benefits paid to or accrued for
the Officer other than pursuant to this Section 5(a).
(b) The Officer shall not have or acquire by virtue of this
Agreement any rights to participate in, or receive benefits with respect to,
any compensation or benefit plan or program of the Bank, except (i) that while
employed by the Bank the Officer may participate in such plans or programs to
the extent provided in such plans and programs and on the same basis as if the
Officer's employment were not subject to the terms and conditions of this
Agreement, or (ii) as otherwise specifically provided in this Agreement. The
Officer shall participate in the Company's Supplemental Executive Retirement
Plan (the "SERP") with a "Pension Goal" under such Plan of not less than 50% of
"Average Compensation" (with each such term as defined in the SERP), subject to
the vesting provisions under the SERP, or, solely as applicable, Section
11(g)(i).
(c) Notwithstanding anything to the contrary in the foregoing
provisions, the payment of any amounts that would otherwise be payable to the
Officer but which would be in excess of the amount which the Company or the
Bank could deduct for federal income tax purposes if then paid, on account of
the operation of Section 162(m) of the Internal Revenue Code of 1986, as
amended (the "Code"), shall be deferred to the extent such deferral is required
pursuant to a policy adopted by the Compensation Committee or the Board of
Directors of the
4
<PAGE> 5
Company or the Bank and, to the extent so deferred, shall be payable pursuant
to the relevant terms of the Dime Bancorp, Inc. Voluntary Deferred Compensation
Plan.
6. Disability. (a) The Bank may terminate the Officer's employment
under this Agreement for "permanent disability" if (i) the Officer shall become
physically or mentally disabled or incapacitated to the extent that the Officer
has been absent from the Officer's duties with the Bank on account of such
disabilities or incapacitation as determined in a manner consistent with the
policy which applies generally to employees of the Bank on a full-time basis
for a period of six consecutive months, and (ii) within 30 days after written
notice of proposed termination for permanent disability is given by the Bank to
the Officer, the Officer shall not have returned to full-time performance of
the Officer's duties.
(b) In the event of termination for "permanent disability," the
Bank shall continue to pay the Officer an amount equal to the Officer's then
annual salary pursuant to Section 5(a) (less any benefits that would have been
payable to the Officer had the Officer elected the maximum available amount of
disability insurance coverage available from the Bank) for a period commencing
on the Effective Date of Termination and ending on the first anniversary
thereof (or the end of the remaining Term in effect immediately prior to the
Effective Date of Termination, if earlier). Notwithstanding the first sentence
of this Section 6(b), any such payment shall terminate upon the earliest to
occur of (A) the date the Officer returns to full-time employment with the
Bank; (B) the Officer's full-time employment by another employer; or (C) the
Officer's death. In the event of termination for "permanent disability," the
Bank also shall continue to provide until the end of the remaining Term in
effect immediately prior to the Effective Date of Termination (or the Officer's
earlier death) all life, medical and dental insurance coverage as is otherwise
5
<PAGE> 6
maintained by the Bank for full-time employees, provided that the Officer shall
continue to pay all amounts in respect of such coverage that an employee
receiving the same level of coverage is or would be required to pay. In the
event of a termination of the Officer's employment for "permanent disability"
at any time during the remaining Term in effect at the time of a Change in
Control (as defined in Section 11(a)), the provisions of Section 11 shall apply
in lieu of the provisions of this Section 6(b).
(c) There shall be no reduction in the compensation payable to the
Officer or the Officer's other rights under this Agreement during any period
when the Officer is incapable of performing some or all of the Officer's duties
by reason of temporary or partial disability.
7. Death. In the event of the Officer's death during the Term,
this Agreement and all of the Bank's obligations under this Agreement shall
terminate.
8. Termination by the Bank. (a) The Bank may terminate the
Officer's employment under this Agreement at any time by giving the Officer
written notice of such termination, provided that, except where termination is
for "cause" (as defined in Section 8(b)(ii)), such notice shall be provided at
least 30 days prior to the Effective Date of Termination. In the event of a
termination of the Officer's employment by the Bank, other than a termination
for "cause" (as defined in Section 8(b)(ii)), the Bank shall (subject to the
provisions of Section 8(c)) continue from the Effective Date of Termination
through the end of the Severance Period (as defined in Section 8(b)(i)) to (1)
pay the Officer's annual salary in effect immediately prior to the Effective
Date of Termination to the Officer and (2) maintain (for the Officer, and
during such period but prior to the Officer's death, for the Officer's spouse
and dependents, as applicable) all life, medical and dental insurance coverage
as is otherwise maintained by the Bank for full-time
6
<PAGE> 7
employees, provided that the Officer shall continue to pay any amounts in
respect of such coverage that an employee receiving the same level of coverage
is or would be required to pay. In the event of a termination of the Officer's
employment by the Bank at any time during the remaining Term in effect at the
time of a Change in Control, the provisions of Section 11 shall apply in lieu
of the provisions of the immediately preceding sentence of this Section 8(a).
(b)(i) As used in Section 8(a) above, the term "Severance Period"
shall mean the period of time equal to the Length of Service Factor multiplied
by the Age Multiplier. The Length of Service Factor shall be (i) six months if
the Officer has been employed by the Bank for a total of two years or less or
(ii) 12 months if the Officer has been employed by the Bank for a total of over
two years. The Age Multiplier shall be (A) 1.0 if the Officer is under age 50,
(B) 1.25 if the Officer is age 50 or over but below age 55, (C) 1.375 if the
Officer is age 55 or over but below age 60 and (D) 1.5 if the Officer is age 60
or over. In calculating the Length of Service Factor and the Age Multiplier,
the length of the Officer's employment by the Bank and the Officer's age shall
be the Officer's length of employment and age (as the case may be) at the time
notice of termination of the Officer's employment is given by the Bank.
(ii) The Officer shall have no right to receive compensation or
other benefits under this Agreement for any period after the Effective Date of
Termination if the Officer's employment is terminated for cause. As used in
this Agreement, "cause" shall mean the Officer's personal dishonesty,
incompetence, willful misconduct, breach of fiduciary duty involving personal
profit, intentional failure to perform assigned duties, willful violation of
any law, rule or regulation (other than traffic violations or similar offenses)
or final cease and desist order or material breach of any provision of this
Agreement.
7
<PAGE> 8
(c)(i) Notwithstanding any other provision of this Section 8 or of
Section 11, if at the Effective Date of Termination any statute, regulation,
order, agreement, or regulatory interpretation thereof that is valid and
binding upon the Bank (a "Regulatory Restriction") shall restrict, prohibit or
limit the amount of any payment or the provision of any benefit that the Bank
would otherwise be liable for under this Section 8 or under Section 11, then
the amount that the Bank shall pay to the Officer hereunder shall not exceed
the maximum amount permissible under such Regulatory Restriction; provided,
that if such Regulatory Restriction shall subsequently be rescinded,
superseded, amended or otherwise determined not to restrict, limit or prohibit
payment by the Bank of amounts otherwise due the Officer hereunder, then the
Bank shall promptly thereafter pay to such Officer any amounts (or the value of
any benefit) previously withheld from such Officer as a result of such
Regulatory Restriction.
(ii) Notwithstanding any other provision of this Section 8 or of
Section 11, in the event that any amount otherwise payable hereunder, other
than on account of events described in Sections 11(c)(i) or 11(c)(ii) following
a Change in Control (as hereinafter defined), would be deemed to constitute a
parachute payment (a "Parachute Payment") within the meaning of Section 280G of
the Code, and if any such Parachute Payment, when added to any other payments
which are deemed to constitute Parachute Payments, would otherwise result in
the imposition of an excise tax under Section 4999 of the Code, the amounts
payable hereunder (other than amounts payable under the SERP or otherwise
payable on account of events described in Sections 11(c)(i) or 11(c)(ii)
following a Change in Control) shall be reduced by the smallest amount
necessary to avoid the imposition of such excise tax. Any such limitation shall
be applied to such compensation and benefit amounts, and in such order, as the
Bank shall determine in its sole
8
<PAGE> 9
discretion. References to the Code in this Agreement shall be to the Code as
presently in effect or to the corresponding provisions of any succeeding law.
9. Voluntary Termination by the Officer. The Officer shall have the
right to terminate the Officer's employment under this Agreement at any time
upon at least 30 but not more than 60 days' prior written notice to the Bank. If
this Agreement is terminated pursuant to the immediately preceding sentence, all
of the Bank's obligations under this Agreement shall terminate and the Officer
shall not be entitled to any compensation or benefits after the Effective Date
of Termination, except to the extent provided in Section 11.
10. Additional Termination and Suspension Provisions. (a) If the
Officer is removed and/or permanently prohibited from participating in the
conduct of the Bank's affairs by an order issued under Section 8(e)(3) or
(g)(1) of the Federal Deposit Insurance Act (12 U.S.C. 1818(e)(3) or (g)(1)),
all obligations of the Bank under this Agreement shall terminate as of the
effective date of the order, but vested rights of the parties shall not be
affected.
(b) If the Bank is in default (as defined in Section 3(x)(1) of
the Federal Deposit Insurance Act), all obligations under this Agreement shall
terminate as of the date of default, but this paragraph shall not affect any
vested rights of the parties.
(c) All obligations under this Agreement shall be terminated,
except to the extent determined that continuation of this Agreement is
necessary for the continued operation of the Bank, (i) by the Director of
Thrift Supervision or his or her designee (the "Director"), at the time the
Federal Deposit Insurance Corporation enters into an agreement to provide
assistance to or on behalf of the Bank under the authority contained in Section
13(c) of the Federal Deposit Insurance Act; or (ii) by the Director, at the
time the Director approves a supervisory merger to
9
<PAGE> 10
resolve problems related to operation of the Bank or when the Bank is
determined by the Director to be in an unsafe or unsound condition. Any rights
of the parties that have already vested, however, shall not be affected by such
action.
(d) If the Officer is suspended and/or temporarily prohibited from
participating in the conduct of the Bank's affairs by a notice served under
Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act (12 U.S.C.
1818(e)(3) and (g)(1)), the Bank's obligations under this Agreement shall be
suspended as of the date of service unless stayed by appropriate proceedings.
If the charges in the notice are dismissed, the Bank may in its discretion (a)
pay the Officer all or part of the compensation withheld while its contract
obligations were suspended and (b) reinstate (in whole or in part) any of its
obligations which were suspended.
(e) The provisions of paragraphs (a) through (d) of this Section
10 are required to be set forth in this Agreement by regulations applicable to
the Bank on the date of this Agreement. If any such regulation shall hereafter
be amended or modified, or if any new regulation applicable to the Bank and
effective after the date of this Agreement shall require the inclusion in this
Agreement of a provision not presently included in this Agreement, then the
foregoing provisions of paragraphs (a) through (d) of this Section 10 shall be
deemed amended to the extent necessary to give effect in this Agreement to any
such amended, modified or new regulation.
11. Change in Control. (a) As used in this Agreement, a "Change
in Control" shall be deemed to have occurred if the event set forth in any one
of the following paragraphs shall have occurred:
10
<PAGE> 11
(I) any Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company (not including in the securities
beneficially owned by such Person any securities acquired directly from
the Company or its Affiliates) representing 35% or more of the combined
voting power of the Company's then outstanding securities; or
(II) the following individuals cease for any reason to
constitute a majority of the number of directors then serving as
directors of the Company: individuals who, on July 24, 1997, constitute
the Board of Directors of the Company and any new director (other than a
director whose initial assumption of office is in connection with the
settlement of an actual or threatened election contest, including but not
limited to a consent solicitation, relating to the election of directors
of the Company) whose appointment or election by the Board of Directors
of the Company or nomination for election by the Company's stockholders
was approved or recommended by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors on July 24, 1997
or whose appointment, election or nomination for election was previously
so approved or recommended; or
(III) there is consummated a merger or consolidation of the
Company or any direct or indirect subsidiary of the Company with any
other corporation or entity, other than (i) a merger or consolidation
which would result in the voting securities of the Company outstanding
immediately prior to such merger or consolidation continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity or any Parent thereof), in combination
with the ownership of any
11
<PAGE> 12
trustee or other fiduciary holding securities under an employee benefit
plan of the Company or any subsidiary of the Company, at least 65% of the
combined voting power of the securities of the Company, such surviving
entity or any Parent thereof outstanding immediately after such merger or
consolidation or (ii) a merger or consolidation effected solely to
implement a recapitalization of the Company or the Bank (or similar
transaction) in which no Person is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Company or the Bank (not
including in the securities beneficially owned by such Person any
securities acquired directly from the Company or its Affiliates)
representing 35% or more of the combined voting power of the Company's or
the Bank's then outstanding securities;
(IV) the stockholders of the Company or the Bank approve a plan
of complete liquidation or dissolution of the Company or the Bank,
respectively, or there is consummated a sale or disposition by the
Company or any of its subsidiaries of any assets which individually or as
part of a series of related transactions constitute all or substantially
all of the Company's consolidated assets (provided that, for these
purposes, a sale of all or substantially all of the voting securities of
the Bank or a Parent of the Bank shall be deemed to constitute a sale of
substantially all of the Company's consolidated assets), other than any
such sale or disposition to an entity at least 65% of the combined voting
power of the voting securities of which are owned by stockholders of the
Company in substantially the same proportions as their ownership of the
voting securities of the Company immediately prior to such sale or
disposition; or
12
<PAGE> 13
(V) the execution of a binding agreement that if consummated
would result in a Change in Control of a type specified in clause (I) or
(III) of this Section 11(a) (an "Acquisition Agreement") or of a binding
agreement for the sale or disposition of assets that, if consummated,
would result in a Change in Control of a type specified in clause (IV) of
this Section 11(a) (an "Asset Sale Agreement") or the adoption by the
Board of Directors of the Company or the Bank of a plan of complete
liquidation or dissolution of the Company or the Bank that, if
consummated, would result in a Change in Control of a type specified in
clause (IV) of this Section 11(a) (a "Plan of Liquidation"), provided
however, that a Change in Control of the type specified in this clause
(V) shall not be deemed to exist or have occurred as a result of the
execution of such Acquisition Agreement or Asset Sale Agreement, or the
adoption of such a Plan of Liquidation, from and after the Abandonment
Date if the Effective Date of Termination of the Officer's employment has
not occurred on or prior to the Abandonment Date. As used in this
Section, the term "Abandonment Date" shall mean the date on which (A) an
Acquisition Agreement, Asset Sale Agreement or Plan of Liquidation is
terminated (pursuant to its terms or otherwise) without having been
consummated, (B) the parties to an Acquisition Agreement or Asset Sale
Agreement abandon the transactions contemplated thereby, (C) the Bank or
the Company abandons a Plan of Liquidation or (D) a court or regulatory
body having competent jurisdiction enjoins or issues a cease and desist
or stop order with respect to or otherwise prevents the consummation of,
or a regulatory body notifies the Bank or the Company that it will not
approve, an Acquisition Agreement, Asset Sale
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<PAGE> 14
Agreement or Plan of Liquidation or the transactions contemplated thereby
and such injunction, order or notice has become final and not subject to
appeal.
As used in connection with the foregoing definition of Change in
Control, "Affiliate" shall have the meaning set forth in Rule 12b-2 promulgated
under Section 12 of the Exchange Act; "Beneficial Owner" shall have the meaning
set forth in Rule 13d-3 under the Exchange Act; "Exchange Act" shall mean the
Securities Exchange Act of 1934, as amended from time to time; "Parent" shall
mean any entity that becomes the Beneficial Owner of at least 80% of the voting
power of the outstanding voting securities of the Company or of an entity that
survives any merger or consolidation of the Company or any direct or indirect
subsidiary of the Company; and "Person" shall have the meaning given in Section
3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d)
thereof, except that such term shall not include (i) the Company or any of its
subsidiaries, (ii) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any of its Affiliates, (iii) an
underwriter temporarily holding securities pursuant to an offering of such
securities, or (iv) a corporation or entity owned, directly or indirectly, by
the stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company.
(b) If the Bank or the Company shall relocate its principal
executive offices after a Change in Control, and if the Officer shall, as a
result, change the Officer's principal residence, the Bank shall (i) promptly
pay (or reimburse the Officer for) all reasonable moving expenses incurred by
the Officer as a result of such change in the Officer's principal residence,
and (ii) indemnify the Officer against, and reimburse the Officer for, any loss
incurred as the result of the sale of the Officer's principal residence (which
loss shall be computed for the purpose of this Agreement as
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<PAGE> 15
the difference between the actual sales price (net of closing costs and
brokerage fees) of such residence and the fair market value of such residence
(computed as of the time the Bank or the Company relocates its principal
executive offices) as determined by an independent real estate appraiser
designated and paid by the Bank or the Company and acceptable to the Officer),
provided that such sale of the Officer's principal residence occurs within six
months after the Bank or the Company relocates its principal executive offices.
(c) (i) If a Change in Control shall occur, the Officer shall be
entitled to the compensation and benefits provided in paragraphs (d), (e), (f)
and (g) of this Section 11 upon the subsequent termination of the Officer's
employment, at any time during the remaining Term in effect at the time of the
Change in Control, by the Bank (including, without limitation, a termination
for permanent disability), other than a termination for cause, provided that
the rights to any such compensation and benefits shall be subject to the
limitations and provisions set forth in Section 8(c).
(ii) If (A) a Change in Control shall occur, and thereafter the
Bank (notwithstanding its right to do so under Section 4 or Section 5) either
(B) makes a material change in the Officer's functions, duties or
responsibilities, which change would cause the Officer's position with the Bank
to become one of lesser responsibility, importance or scope from that in effect
immediately prior to the time of the Change in Control, or (C) reduces the
Officer's annual salary to a level below that in effect immediately prior to
the Change in Control (an event specified in clause (B) or (C) is hereafter
referred to as a "Material Change"), the Officer shall be entitled to the
compensation and benefits provided in paragraphs (d), (e), (f) and (g) of this
Section 11 (subject to the limitations and provisions set forth in Section
8(c)) upon the subsequent
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<PAGE> 16
termination of the Officer's employment, at any time during the remaining Term
in effect at the time of the Change in Control, by the Officer.
(iii) If the Officer's employment is terminated by the Bank or by
reason of the Officer's permanent disability during the Term but after the
expiration of the remaining Term in effect at the time of the Change in
Control, then the provisions of Section 6 or 8 (as the case may be) shall apply
in lieu of the provisions of paragraphs (d), (e), (f) and (g) of this Section
11. If the Officer's employment is terminated by the Officer during the Term
but after the expiration of the remaining Term in effect at the time of the
Change in Control (or if the Officer's employment is terminated by the Officer
during the remaining Term in effect at the time of the Change in Control and no
Material Change shall have occurred), then the provisions of Section 9 shall
apply in lieu of the provisions of paragraphs (d), (e), (f) and (g) of this
Section 11.
(iv) Only for purposes of determining whether there has been a
termination of the Officer's employment during the remaining Term in effect at
the time of a Change in Control (as specified in paragraphs (c)(i) and (c)(ii)
of this Section 11, as the case may be) so as to entitle the Officer to the
compensation and benefits provided in paragraphs (d), (e), (f) and (g) of this
Section 11, a termination of the Officer's employment following such a Change
in Control shall be deemed to have occurred on such date during the remaining
Term that (A) notice of termination is given by the Bank or the Officer to the
other (regardless of the Effective Date of Termination specified in such
notice) or (B) notice of non-renewal pursuant to Section 2(a) is given by the
Bank to the Officer (regardless of the date on which the Term expires). In the
event that notice of non-renewal pursuant to Section 2(a) is given by the Bank
to the Officer during the remaining Term in effect at the time of a Change in
Control, the termination of employment in connection
16
<PAGE> 17
with such notice of non-renewal shall, for purposes of Sections 8(c) and 11(h),
be treated as a termination of employment described by paragraph (c)(i) of this
Section 11. Notwithstanding the immediately preceding sentences, the Officer
shall continue to be employed by the Bank pursuant to this Agreement until (1)
the Effective Date of Termination specified in the notice of termination or (2)
the end of the remaining Term in effect when notice of non-renewal is given
pursuant to Section 2 of this Agreement.
(d)(i) Upon the occurrence of a Change in Control followed by any
termination of the Officer's employment pursuant to Section 11(c)(i) or
(c)(ii), to the extent not otherwise limited pursuant to Section 8(c), the Bank
shall pay the Officer, as a severance payment for services previously rendered
to the Bank, a lump sum equal to three times the Officer's Annual Compensation,
as in effect immediately prior to the Effective Date of Termination (without
regard to any decrease in the Officer's Annual Compensation made after the
Change in Control). As used in this Section 11(d)(i), the term "Annual
Compensation" shall mean, at any time, an amount equal to the sum of (A) the
Officer's annual salary (as defined in Section 5(a)) at such time, plus (B)
100% of the target bonus or other cash incentive that the Officer is eligible
to earn in such year pursuant to each plan or program (whether or not such plan
or program has been formalized or is in written form) of the Bank in effect for
such year that provides for bonuses or other cash incentives, or if no such
plan or program has been adopted with respect to such year, 100% of the target
bonus or other cash incentive that the Officer was eligible to earn in the most
recent year in which such a plan or program was in effect.
(ii) Upon the occurrence of a Change in Control followed by any
termination of the Officer's employment pursuant to Section 11(c)(i) or
(c)(ii), to the extent not otherwise
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<PAGE> 18
limited pursuant to Section 8(c): (A) each Non-Accelerated Stock Option held by
the Officer shall (to the extent permitted by the plan under which such
Non-Accelerated Stock Option was granted), notwithstanding anything to the
contrary in the grant letter or option agreement related to such
Non-Accelerated Stock Option and regardless of the actual Effective Date of
Termination, vest and become exercisable in accordance with the provisions of,
and remain exercisable for the term specified in, such grant letter or option
agreement as if there had been no termination of the Officer's employment and
the Officer remained in the employment of the Bank for the entire term of such
Non-Accelerated Stock Option and (B) each Vested Stock Option held by the
Officer shall (to the extent permitted by the plan under which such Vested
Stock Option was granted), notwithstanding anything to the contrary in the
grant letter or option agreement related to such Vested Stock Option and
regardless of the actual Effective Date of Termination, remain exercisable for
the term specified in such grant letter or option agreement as if there had
been no termination of the Officer's employment and the Officer remained in the
employment of the Bank for the entire term of such Vested Stock Option. As used
in this Section 11(d)(ii), the term (I) "Non-Accelerated Stock Option" shall
mean any stock option (including any tandem stock appreciation right)
previously or hereafter granted to the Officer under a stock incentive or stock
option plan of the Company that has not, pursuant to the provisions of such
stock incentive or stock option plan or the grant letter or option agreement
pursuant to which such stock option was granted to the Officer, vested and
become exercisable prior to the Effective Date of Termination and (II) "Vested
Stock Option" shall mean any stock option (including any tandem stock
appreciation right) previously or hereafter granted to the Officer under a
stock incentive or
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<PAGE> 19
stock option plan of the Company that vests and becomes exercisable prior to
the Effective Date of Termination.
(e) Any payment pursuant to Section 11(d)(i) or 11(g)(ii) shall be
made to the Officer within 30 days after the Effective Date of Termination.
(f) Upon the occurrence of a Change in Control followed by any
termination of the Officer's employment pursuant to Section 11(c)(i) or
(c)(ii), to the extent not otherwise limited pursuant to Section 8(c), the Bank
shall cause to be continued until the end of the remaining Term in effect
immediately prior to the giving of notice of termination or non-renewal (or the
Officer's earlier death) life, disability, medical and dental insurance
coverage as is otherwise maintained by the Bank for full-time employees,
provided that the Officer shall continue to pay all amounts in respect of such
coverage that an employee receiving the same level of coverage is or would be
required to pay.
(g)(i)(A) On and after any Change in Control, to the extent not
otherwise limited pursuant to Section 8(c)(i), the Officer shall be eligible to
be paid, under the SERP, a SERP benefit, to the extent vested (and subject to
additional vesting in accordance with the terms of the SERP as such plan
provided immediately prior to the Change in Control, or if it results in a
greater vested percentage, with vesting determined otherwise pursuant to this
Section 11(g)(i)), that is not less than a benefit calculated based upon the
amount of the Officer's "Pension Goal" and "Average Compensation" and the
otherwise applicable terms of the SERP, each as determined immediately prior to
the Change in Control. The rights of the Officer and the obligations of the
Bank with respect to the benefits described under this Section 11(g)(i)(A)
shall survive the termination of this Agreement.
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<PAGE> 20
(B) In the event of termination of the Officer's employment
pursuant to Section 11(c)(i) or (c)(ii), to the extent not otherwise limited
pursuant to Section 8(c), notwithstanding any vesting provisions that would in
other circumstances require further service under the SERP, the Officer shall
be fully vested in the Officer's SERP benefit, which shall otherwise be payable
in accordance with the terms of the SERP and, as applicable, Section
11(g)(i)(A).
(ii) In the event of termination of the Officer's employment
pursuant to Section 11(c)(i) or (c)(ii), to the extent not otherwise limited
pursuant to Section 8(c), the Officer shall be entitled to receive in a lump
sum payment an amount equal to any amounts forfeited by the Officer under the
Company's qualified defined contribution plan(s) and under the Bank's Benefit
Restoration Plan (solely to the extent such Benefit Restoration Plan
supplements benefits under a defined contribution plan) as in effect
immediately prior to the Change in Control (or, if more favorable to the
Officer, as in effect immediately prior to the Effective Date of Termination).
(h)(i) If, on account of events described in Sections 11(c)(i) or
11(c)(ii) following a Change in Control, any payment or other benefit paid or
to be paid or any property transferred or to be transferred (collectively, a
"Severance Payment") with respect to one or more calendar years by or on behalf
of the Bank (or any affiliate of the Bank) to the Officer pursuant to this
Agreement in connection with such Change in Control shall constitute an "excess
parachute payment" within the meaning of Section 280G(b) of the Code subject to
the tax imposed by Section 4999 of the Code (the "Excise Tax"), then the Bank
shall pay to the Officer an additional amount (the "Gross Up Payment") such
that the amount paid or transferred to the Officer, after deduction of any
Excise Tax on the Severance Payment, and any federal, state and local income
20
<PAGE> 21
tax, employment tax and Excise Tax upon the Gross Up Payment, shall be equal to
the Severance Payment. In addition, if, absent a Change in Control or in other
circumstances following a Change in Control, notwithstanding the reductions
mandated by Section 8(c), the SERP benefits otherwise payable to the Officer
shall constitute an "excess parachute payment" within the meaning of Section
280G(b) of the Code subject to the Excise Tax, then the Bank shall pay to the
Officer one or more Gross Up Payments such that the amount of such Gross Up
Payments, when combined with such SERP benefits, after deduction of any Excise
Tax on the SERP benefits, and any federal, state and local income tax,
employment tax and Excise Tax upon the Gross Up Payments, shall be equal to
such SERP benefits.
(ii) For purposes of determining under Section 11(h)(i) whether
any portion of a Severance Payment or SERP benefit will be subject to the
Excise Tax and the amount of such Excise Tax, (A) the Severance Payment or SERP
benefit and payment provided for in Section 11(h)(i) shall be treated as
"parachute payments" within the meaning of Section 280G(b)(2) of the Code, and
all "excess parachute payments" within the meaning of Section 280(G)(b)(1) of
the Code shall be treated as subject to the Excise Tax, unless and to the
extent that tax counsel selected by the Bank's independent auditors and
acceptable to the Officer is of the opinion that the Severance Payment or SERP
benefit (in whole or in part) does not constitute a "parachute payment" or such
"excess parachute payment" (in whole or in part) represents reasonable
compensation for services actually rendered within the meaning of Section
280G(b)(4) of the Code in excess of the allocable base amount within the
meaning of Section 280G(b)(3) of the Code, or the Severance Payment or SERP
benefit is otherwise not subject to the Excise Tax, (B) the amount of the
Severance Payment or SERP benefit that is treated as subject to the Excise Tax
21
<PAGE> 22
shall be equal to the lesser of (X) the total amount of the Severance Payment
or SERP benefit, as applicable, and (Y) the amount of "excess parachute
payments" within the meaning of Section 280G(b)(1) of the Code (after applying
clause (A) above), (C) any Gross Up Payment pursuant to Section 11(h)(i) shall
be treated as subject to the Excise Tax in its entirety and (D) the value of
any non-cash benefits or any deferred payment or benefit shall be determined by
the Bank's independent auditors in accordance with the principles of Sections
280G(d)(3) and (4) of the Code.
(iii) If in circumstances described in Section 11(h)(i), by reason
of the filing by the Officer of an amended tax return, an audit by the Internal
Revenue Service or other taxing authority, or a final determination by a court
of competent jurisdiction, it is determined that "excess parachute payments"
exceeding those previously reported in the Officer's tax returns were received
by the Officer and as a result an additional Excise Tax (the "Additional Excise
Tax") shall become due, the Bank shall pay the Officer an additional amount
(the "Subsequent Gross Up Payment") such that the amount paid or transferred to
the Officer, after deduction of (A) any Additional Excise Tax and (B) on an
after tax basis, any interest, additions and penalties with respect to the
Additional Excise Tax and (C) any federal, state and local income tax,
employment tax and Excise Tax upon the Subsequent Gross up Payment and (D) the
payments provided for in Section 11(h)(i), shall be equal to the Severance
Payment or SERP benefits, as appropriate.
(iv) Any Gross Up Payment required hereunder shall be made at least
ten days prior to the due date (without regard to extensions) of the Officer's
federal income tax return for the year with respect to which the "excess
parachute payment" is deemed made under the Code. Any Subsequent Gross Up
Payment required hereunder shall be made to the Officer within 30
22
<PAGE> 23
days after the amount thereof is determined. Notwithstanding the two
immediately preceding sentences, the Bank shall pay any federal, state and
local tax or taxes and employment taxes required to be withheld from the
Officer's wages (within the meaning of Section 3121 and 3402 of the Code) with
respect to the "excess parachute payment" and any such tax or taxes paid by the
Company or the Bank to the Internal Revenue Service or state or local taxing
authority shall constitute payment to the Officer.
(v) If the Excise Tax is finally determined (whether by the filing
of an amended tax return by the Officer by audit of the Internal Revenue
Service or other taxing authority, or by a final determination of a court of
competent jurisdiction) to be less than the amount paid to or on behalf of the
Officer under the provisions of Sections 11(h)(i)-(iv) and the overpayment is
refunded to the Officer, the Officer shall repay to the Bank, promptly
following the receipt of the refund, the portion of the Gross Up Payment
(and/or Subsequent Gross Up Payment) attributable to such reduction of the
Excise Tax (plus the portion attributable to federal, state and local income
tax and employment taxes imposed on the portion being repaid by the Officer but
only to the extent that the repayment may result in a tax benefit to the
Officer under Section 1341 of the Code and similar provisions of applicable
state and local law).
(vi) The provisions of this Section 11(h) shall inure to the
benefit of the Officer during the Term of this Agreement regardless of whether
or not the Officer's employment is terminated, and if the Officer's employment
is terminated, the rights and obligations of the Officer and the Bank under
this Section 11(h) shall survive the termination of this Agreement.
12. Post-Termination Obligations of the Officer. (a) Upon any
termination of the Officer's employment during the Term of this Agreement or
upon termination of the Officer's
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<PAGE> 24
employment after the expiration of the Term of this Agreement or upon
retirement, the Officer agrees (i) not to make any disclosure in violation of
Section 12(b), (ii) to return to the Bank all material documents relating to
the business of the Bank that are in the Officer's possession or under the
Officer's control, and (iii) except if the termination or retirement occurs
after a Change in Control, not to solicit (directly or indirectly), for one
year following the Effective Date of Termination (or date of termination after
the expiration of the Term) or retirement, the employment of any person who is
an employee of the Bank on the Effective Date of Termination (or date of
termination after the expiration of the Term) or retirement or who, within six
months prior to the Effective Date of Termination (or date of termination after
the expiration of the Term) or retirement, was an employee of the Bank, unless
the Officer receives written permission from the Bank to engage in the
activities proscribed by this Section 12(a) or by Section 12(b) or to be
relieved of any obligation under Section 12(a)(ii).
(b) The Officer recognizes and acknowledges that the confidential
business activities and plans for business activities of the Bank and its
subsidiaries and affiliates, as they may exist from time to time, are valuable,
special and unique assets of the Bank. The Officer shall not, during or at any
time after the Officer's employment, disclose any knowledge of the past,
present or planned business activities of the Bank or its subsidiaries or
affiliates that are of a confidential nature (collectively, the "Bank's
Confidential Activities") to any person, firm, corporation, bank, thrift
institution or other entity for any reason or purposes whatsoever.
Notwithstanding anything in this Section 12(b) to the contrary, the Officer (i)
may disclose any knowledge of banking, financial and/or economic principles,
concepts or ideas that are not derived from the Bank's Confidential Activities,
and (ii) shall not be precluded from disclosures respecting
24
<PAGE> 25
the Bank's Confidential Activities that are (A) made pursuant to compulsory
legal process or when required by an appropriate governmental agency; (B)
public knowledge or become public without the Officer's breach of this Section
12(b); (C) already known to the party to whom the Officer makes such
disclosures; or (D) approved by the Bank for disclosure.
(c) The parties, recognizing that irreparable injury will result
to the Bank, its business and property in the event of the Officer's breach or
threatened breach of Section 12(a) or (b), agree that in the event of such
breach or threatened breach by the Officer, the Bank will be entitled, in
addition to any other remedies and damages that may be available, to seek and
obtain an injunction to restrain the violation of Section 12(a) or (b) by the
Officer.
13. Notices. All notices under this Agreement shall be in writing
and shall be delivered personally or sent by registered or certified mail,
return receipt requested, (a) to the Bank, at its address set forth above (to
the attention of its Chief Executive Officer), and (b) to the Officer, at the
Officer's residence address as appearing in the records of the Bank, or to such
other address as either party may hereafter designate in writing in the manner
provided in this Section 13. All notices under this Agreement shall be deemed
given (i) upon receipt if delivered personally or (ii) two days after deposit
in a facility of the U.S. Postal Service with postage prepaid. As used in this
Agreement, the term "Effective Date of Termination" shall mean (A) the date
specified in a notice hereunder on which such Officer's employment is to
terminate, provided, however, that no such notice shall specify an Effective
Date of Termination that is prior to the date on which any such notice is given
or (B) for purposes of Section 11 only, the date on which the Term is to expire
as a result of a notice of non-renewal given by the Bank to the Officer
pursuant to Section 2 of this Agreement.
25
<PAGE> 26
14. Complete Understanding. On and after the date as of which this
Agreement is effective, this Agreement constitutes the complete understanding
between the parties with respect to the subject matter hereof and merges and
supersedes all prior oral and written agreements and understandings and all
contemporaneous oral agreements and understandings with respect to the subject
matter hereof, including without limitation any other employment agreement
heretofore executed by the Officer and the Bank or any of its subsidiaries or
affiliates. This Agreement may not be amended, terminated or rescinded except
in a writing signed by the party to be charged.
15. No Duty to Mitigate. Except as otherwise expressly provided
herein, if the Officer shall continue to receive compensation or benefits or
severance pay pursuant to this Agreement after its termination, (a) the Officer
shall have no duty to mitigate such payments by seeking or obtaining other
employment or otherwise, and (b) in the event the Officer does obtain other
employment, such payments from the Bank shall not be reduced by compensation
received from such other employment.
16. No Waiver. The failure of either party at any time to require
performance by the other party of a provision of this Agreement or to resort to
a remedy at law or in equity or otherwise shall in no way affect the right of
such party to require full performance or to resort to such remedy at any time
thereafter nor shall a waiver by either party of the breach of any provision of
this Agreement be taken or held to be a waiver of any subsequent breach of such
provision unless expressly so stated in writing. No waiver of any of the
provisions of this Agreement shall be effective unless in writing and signed by
the party to be charged.
17. Governing Law. This Agreement shall be governed by the laws
of the State of New York, without regard to conflict of laws principles applied
in the State of New York.
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<PAGE> 27
18. Headings. The headings to the Sections of this Agreement are
for convenience of reference only and shall not be given any effect in the
construction or interpretation of this Agreement.
19. Severability. If any provision of this Agreement is held by a
court or other authority having competent jurisdiction to be invalid, void or
otherwise unenforceable, in whole or in part, by reason of any applicable law,
statute or regulation or any interpretation thereof, then (a) the remainder of
the provisions of this Agreement shall remain in full force and effect and in
no way be affected, impaired or invalidated and (b) the provision so held to be
invalid, void or otherwise unenforceable shall be deemed modified in amount,
duration, scope or otherwise to the minimum extent necessary so that such
provision shall not be invalid, void or otherwise unenforceable by reason of
such law, statute, regulation or interpretation and such provision, as so
modified, shall remain in full force and effect.
20. Payment of Legal Fees. If, following a Change in Control, any
legal action or proceeding is commenced to enforce or interpret the provisions
of this Agreement, or to recover damages for its breach, all reasonable legal
fees, disbursements and court costs paid or incurred by the Officer arising out
of or resulting from such action or proceeding shall be paid or reimbursed to
the Officer by the Bank, provided the Officer shall be the prevailing party in
such action or proceeding.
21. Assumption by Company. This Agreement shall be assumable by
the Company at its election. Following any such election, the obligations of
the Bank under this Agreement shall become the obligations of the Company.
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<PAGE> 28
22. Taxes. Any payments due to the Officer pursuant to this
Agreement shall be reduced by all applicable federal, state, city or other
taxes required by law to be withheld with respect to such payments.
23. Limitation on Payments. Any payments made to the Officer
pursuant to this Agreement, or otherwise, are subject to and conditioned upon
their compliance with 12 USC Section 1828(k) and any regulations promulgated
thereunder.
THE DIME SAVINGS BANK OF NEW YORK, FSB
By: /s/ Lawrence J. Toal
-----------------------------
Lawrence J. Toal
Chief Executive Officer
Dated: February 17, 1998 /s/ James E. Kelly
--------------------- -----------------------------
James E. Kelly
28
<PAGE> 1
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of January 30, 1998 between THE DIME
SAVINGS BANK OF NEW YORK, FSB (the "Bank"), a federal stock savings bank having
its principal executive offices at 589 Fifth Avenue, New York, New York 10017,
and Gene C. Brooks (the "Officer").
-----------
A. The Bank is desirous of employing the Officer upon the terms and
conditions set forth in this Agreement.
B. The Officer is desirous of being employed by the Bank upon the terms
and conditions set forth in this Agreement.
------------
Therefore, the Bank and the Officer, intending to be legally bound, agree
as follows:
1. Employment. Subject to the terms and conditions of this
Agreement, the Bank hereby employs the Officer, and the Officer hereby accepts
such employment.
2. Term of Employment. (a) The initial term of the Officer's
employment under this Agreement shall be deemed to have commenced on the date
of this Agreement and shall continue until March 1, 2001. This Agreement shall
be renewed automatically for one additional year on March 1, 1999, and on each
March 1 thereafter, unless (x) the Officer or the Bank gives contrary written
notice to the other, at least 10 days prior to any such renewal date, or (y)
this Agreement has been otherwise terminated in accordance with its provisions.
During each calendar year of the term of this Agreement beginning with 1999
(unless notice of non-renewal
<PAGE> 2
of this Agreement shall have previously been given by the Bank or the Officer
pursuant to the immediately preceding sentence), the Board of Directors of the
Bank (or a duly authorized committee of the Board or subcommittee of such
committee) shall, no later than the last day in each such year on which the
Bank may give the Officer notice of non-renewal pursuant to the immediately
preceding sentence, review and determine whether the Bank shall give the
Officer such notice of non-renewal with respect to the March 1 renewal date in
such year; provided, however, that nothing in this sentence shall be construed
as limiting the Bank's ability to give notice of non-renewal pursuant to the
immediately preceding sentence at any other time. A determination by the Board
of Directors of the Bank (or a duly authorized committee of the Board or
subcommittee of such committee) in any year that the Bank shall not give notice
of non-renewal with respect to the March 1 renewal date in such year shall be
deemed to be the Board's approval of the renewal of this Agreement on such
renewal date. Except as otherwise provided in Section 11(c)(iv) of this
Agreement, neither the giving of notice of non-renewal pursuant to clause (x)
of the second sentence of this Section 2(a), nor the subsequent expiration of
the Term of this Agreement as a result of the giving of such notice, shall be
deemed to be a termination of the Officer's employment under this Agreement.
(As used in this Agreement, (i) "Term" shall mean the initial term and any
renewal term of this Agreement and (ii) "remaining Term" shall mean the balance
of the Term in effect at a specified time without regard to potential future
renewals under the renewal provision of this Section 2(a).)
(b) The Officer's employment may be terminated during the Term of
this Agreement by the Bank or the Officer in the manner specified in this
Agreement. Any such termination of employment shall result in a termination of
this Agreement on the Effective Date
2
<PAGE> 3
of Termination (as defined in Section 13); provided that, notwithstanding
anything to the contrary in the foregoing, any right of the Officer to any
payments or benefits as a result of a termination of the Officer's employment
(as provided in this Agreement) shall survive the termination of this
Agreement.
3. Office. During the Term, the Officer shall serve as an officer
of the Bank. In addition, during the Term, the Officer shall serve, for the
period for which the Officer may from time to time be elected, as an officer or
director of any subsidiary or affiliate of the Bank.
4. Duties. The Officer initially shall serve as Director of the
Office of the Secretary and Senior Legal Advisor of the Bank; provided, that
the Officer shall hold comparable or additional positions, and perform
comparable or additional duties, as may from time to time be assigned to the
Officer. During the Term (except for periods of illness and vacation),
substantially all of the Officer's business time, attention, skill and efforts
shall be devoted to the performance of the Officer's duties under this
Agreement.
5. Compensation. (a) The annual salary of the Officer during the
Term shall be fixed by the Board of Directors of the Bank (or a duly authorized
committee of the Board or subcommittee of such committee) and shall be payable
in installments in accordance with the prevailing general payroll practice of
the Bank as it may exist from time to time. The initial annual salary of the
Officer during the Term shall be the Officer's annual salary on the date of
this Agreement. The Board of Directors of the Bank (or a duly authorized
committee of the Board or subcommittee of such committee) may increase or
decrease the Officer's annual salary from time to time; provided that, except
for decreases that are applied generally to officers of comparable rank, such
annual salary shall not be decreased by more than 25% in any one
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<PAGE> 4
calendar year. As used in this Agreement, "annual salary" shall mean, at any
time, the annual rate of salary then payable to the Officer pursuant to this
Section 5(a) (before deduction of any amounts deferred under any deferred
compensation plan of the Bank, any voluntary contributions to the Retirement
401(k) Investment Plan of Dime Bancorp, Inc. (the "Company"), or any other
similar qualified plan or any other deductions from income) and shall be
exclusive of bonuses, incentive compensation or other compensation or benefits
paid to or accrued for the Officer other than pursuant to this Section 5(a).
(b) The Officer shall not have or acquire by virtue of this
Agreement any rights to participate in, or receive benefits with respect to,
any compensation or benefit plan or program of the Bank, except (i) that while
employed by the Bank the Officer may participate in such plans or programs to
the extent provided in such plans and programs and on the same basis as if the
Officer's employment were not subject to the terms and conditions of this
Agreement, or (ii) as otherwise specifically provided in this Agreement. The
Officer shall participate in the Company's Supplemental Executive Retirement
Plan (the "SERP") with a "Pension Goal" under such plan of not less that 50% of
"Average Compensation" (with each such term as defined in the SERP), subject to
the vesting provisions under the SERP, or, solely as applicable, Section
11(g)(i).
(c) Notwithstanding anything to the contrary in the foregoing
provisions, the payment of any amounts that would otherwise be payable to the
Officer but which would be in excess of the amount which the Company or the
Bank could deduct for federal income tax purposes if then paid, on account of
the operation of Section 162(m) of the Internal Revenue Code of 1986, as
amended (the "Code"), shall be deferred to the extent such deferral is required
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<PAGE> 5
pursuant to a policy adopted by the Compensation Committee or the Board of
Directors of the Company or the Bank and, to the extent so deferred, shall be
payable pursuant to the relevant terms of the Dime Bancorp, Inc. Voluntary
Deferred Compensation Plan; provided, however, that, if a Change in Control (as
defined in Section 11(a)) has occurred, deferral of amounts payable hereunder
to the Officer on or after the date of such Change in Control will only be
required if and to the extent such policy in effect immediately prior to the
Change in Control (without taking into consideration any changes therein made
in contemplation of the occurrence of the Change in Control) requires or would
have required such deferral.
6. Disability. (a) The Bank may terminate the Officer's employment
under this Agreement for "permanent disability" if (i) the Officer shall become
physically or mentally disabled or incapacitated to the extent that the Officer
has been absent from the Officer's duties with the Bank on account of such
disabilities or incapacitation as determined in a manner consistent with the
policy which applies generally to employees of the Bank on a full-time basis
for a period of six consecutive months, and (ii) within 30 days after written
notice of proposed termination for permanent disability is given by the Bank to
the Officer, the Officer shall not have returned to full-time performance of
the Officer's duties.
(b) In the event of termination for "permanent disability," the
Bank shall continue to pay the Officer an amount equal to the Officer's then
annual salary pursuant to Section 5(a) (less any benefits that would have been
payable to the Officer had the Officer elected the maximum available amount of
disability insurance coverage available from the Bank) for a period commencing
on the Effective Date of Termination and ending on the first anniversary
thereof (or the end of the remaining Term in effect immediately prior to the
Effective Date of
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Termination, if earlier). Notwithstanding the first sentence of this Section
6(b), any such payment shall terminate upon the earliest to occur of (A) the
date the Officer returns to full-time employment with the Bank; (B) the
Officer's full-time employment by another employer; or (C) the Officer's death.
In the event of termination for "permanent disability," the Bank also shall
continue to provide until the end of the remaining Term in effect immediately
prior to the Effective Date of Termination (or the Officer's earlier death) all
life, medical and dental insurance coverage as is otherwise maintained by the
Bank for full-time employees, provided that the Officer shall continue to pay
all amounts in respect of such coverage that an employee receiving the same
level of coverage is or would be required to pay. In the event of a termination
of the Officer's employment for "permanent disability" at any time during the
remaining Term in effect at the time of a Change in Control (as defined in
Section 11(a)), the provisions of Section 11 shall apply in lieu of the
provisions of this Section 6(b).
(c) There shall be no reduction in the compensation payable to the
Officer or the Officer's other rights under this Agreement during any period
when the Officer is incapable of performing some or all of the Officer's duties
by reason of temporary or partial disability.
7. Death. In the event of the Officer's death during the Term, this
Agreement and all of the Bank's obligations under this Agreement shall
terminate.
8. Termination by the Bank. (a) The Bank may terminate the
Officer's employment under this Agreement at any time by giving the Officer
written notice of such termination, provided that, except where termination is
for "cause" (as defined in Section 8(b)(ii)), such notice shall be provided at
least 30 days prior to the Effective Date of Termination. In the event of a
termination of the Officer's employment by the Bank, other than a termination
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<PAGE> 7
for "cause" (as defined in Section 8(b)(ii)), the Bank shall (subject to the
provisions of Section 8(c)) continue from the Effective Date of Termination
through the end of the Severance Period (as defined in Section 8(b)(i)) to (1)
pay the Officer's annual salary in effect immediately prior to the Effective
Date of Termination to the Officer and (2) maintain (for the Officer and,
during such period but prior to the Officer's death, for the Officer's spouse
and dependents, as applicable) all life, medical and dental insurance coverage
as is otherwise maintained by the Bank for full-time employees, provided that
the Officer shall continue to pay any amounts in respect of such coverage that
an employee receiving the same level of coverage is or would be required to
pay. In the event of a termination of the Officer's employment by the Bank at
any time during the remaining Term in effect at the time of a Change in
Control, the provisions of Section 11 shall apply in lieu of the provisions of
the immediately preceding sentence of this Section 8(a).
(b)(i) As used in Section 8(a) above, the term "Severance Period"
shall mean the period of time equal to the Length of Service Factor multiplied
by the Age Multiplier. The Length of Service Factor shall be (i) six months if
the Officer has been employed by the Bank for a total of two years or less or
(ii) 12 months if the Officer has been employed by the Bank for a total of over
two years. The Age Multiplier shall be (A) 1.0 if the Officer is under age 50,
(B) 1.25 if the Officer is age 50 or over but below age 55, (C) 1.375 if the
Officer is age 55 or over but below age 60 and (D) 1.5 if the Officer is age 60
or over. In calculating the Length of Service Factor and the Age Multiplier,
the length of the Officer's employment by the Bank and the Officer's age shall
be the Officer's length of employment and age (as the case may be) at the time
notice of termination of the Officer's employment is given by the Bank.
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(ii) The Officer shall have no right to receive compensation or
other benefits under this Agreement for any period after the Effective Date of
Termination if the Officer's employment is terminated for cause. As used in
this Agreement, "cause" shall mean the Officer's personal dishonesty,
incompetence, willful misconduct, breach of fiduciary duty involving personal
profit, intentional failure to perform assigned duties, willful violation of
any law, rule or regulation (other than traffic violations or similar offenses)
or final cease and desist order or material breach of any provision of this
Agreement.
(c)(i) Notwithstanding any other provision of this Section 8 or of
Section 11, if at the Effective Date of Termination any statute, regulation,
order, agreement, or regulatory interpretation thereof that is valid and
binding upon the Bank (a "Regulatory Restriction") shall restrict, prohibit or
limit the amount of any payment or the provision of any benefit that the Bank
would otherwise be liable for under this Section 8 or under Section 11, then
the amount that the Bank shall pay to the Officer hereunder shall not exceed
the maximum amount permissible under such Regulatory Restriction; provided,
that if such Regulatory Restriction shall subsequently be rescinded,
superseded, amended or otherwise determined not to restrict, limit or prohibit
payment by the Bank of amounts otherwise due the Officer hereunder, then the
Bank shall promptly thereafter pay to such Officer any amounts (or the value of
any benefit) previously withheld from such Officer as a result of such
Regulatory Restriction.
(ii) Notwithstanding any other provision of this Section 8 or of
Section 11, in the event that any amount otherwise payable hereunder, other
than on account of events described in Sections 11(c)(i) or 11(c)(ii) following
a Change in Control (as hereinafter defined), would be deemed to constitute a
parachute payment (a "Parachute Payment") within the meaning of
8
<PAGE> 9
Section 280G of the Code, and if any such Parachute Payment, when added to any
other payments which are deemed to constitute Parachute Payments, would
otherwise result in the imposition of an excise tax under Section 4999 of the
Code, the amounts payable hereunder (other than amounts payable under the SERP
or otherwise payable on account of events described in Sections 11(c)(i) or
11(c)(ii) following a Change in Control) shall be reduced by the smallest
amount necessary to avoid the imposition of such excise tax. Any such
limitation shall be applied to such compensation and benefit amounts, and in
such order, as the Bank shall determine in its sole discretion. References to
the Code in this Agreement shall be to the Code as presently in effect or to
the corresponding provisions of any succeeding law.
9. Voluntary Termination by the Officer. The Officer shall have
the right to terminate the Officer's employment under this Agreement at any
time upon at least 30 but not more than 60 days' prior written notice to the
Bank. If this Agreement is terminated pursuant to the immediately preceding
sentence, all of the Bank's obligations under this Agreement shall terminate
and the Officer shall not be entitled to any compensation or benefits after the
Effective Date of Termination, except to the extent provided in Section 11.
10. Additional Termination and Suspension Provisions. (a) If the
Officer is removed and/or permanently prohibited from participating in the
conduct of the Bank's affairs by an order issued under Section 8(e)(3) or
(g)(1) of the Federal Deposit Insurance Act (12 U.S.C. 1818(e)(3) or (g)(1)),
all obligations of the Bank under this Agreement shall terminate as of the
effective date of the order, but vested rights of the parties shall not be
affected.
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<PAGE> 10
(b) If the Bank is in default (as defined in Section 3(x)(1) of
the Federal Deposit Insurance Act), all obligations under this Agreement shall
terminate as of the date of default, but this paragraph shall not affect any
vested rights of the parties.
(c) All obligations under this Agreement shall be terminated,
except to the extent determined that continuation of this Agreement is
necessary for the continued operation of the Bank, (i) by the Director of
Thrift Supervision or his or her designee (the "Director"), at the time the
Federal Deposit Insurance Corporation enters into an agreement to provide
assistance to or on behalf of the Bank under the authority contained in Section
13(c) of the Federal Deposit Insurance Act; or (ii) by the Director, at the
time the Director approves a supervisory merger to resolve problems related to
operation of the Bank or when the Bank is determined by the Director to be in
an unsafe or unsound condition. Any rights of the parties that have already
vested, however, shall not be affected by such action.
(d) If the Officer is suspended and/or temporarily prohibited from
participating in the conduct of the Bank's affairs by a notice served under
Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act (12 U.S.C.
1818(e)(3) and (g)(1)), the Bank's obligations under this Agreement shall be
suspended as of the date of service unless stayed by appropriate proceedings.
If the charges in the notice are dismissed, the Bank may in its discretion (a)
pay the Officer all or part of the compensation withheld while its contract
obligations were suspended and (b) reinstate (in whole or in part) any of its
obligations which were suspended.
(e) The provisions of paragraphs (a) through (d) of this Section
10 are required to be set forth in this Agreement by regulations applicable to
the Bank on the date of this Agreement. If any such regulation shall hereafter
be amended or modified, or if any new
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<PAGE> 11
regulation applicable to the Bank and effective after the date of this
Agreement shall require the inclusion in this Agreement of a provision not
presently included in this Agreement, then the foregoing provisions of
paragraphs (a) through (d) of this Section 10 shall be deemed amended to the
extent necessary to give effect in this Agreement to any such amended, modified
or new regulation.
11. Change in Control. (a) As used in this Agreement, a "Change
in Control" shall be deemed to have occurred if the event set forth in any one
of the following paragraphs shall have occurred:
(I) any Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company (not including in the securities
beneficially owned by such Person any securities acquired directly from
the Company or its Affiliates) representing 35% or more of the combined
voting power of the Company's then outstanding securities; or
(II) the following individuals cease for any reason to
constitute a majority of the number of directors then serving as
directors of the Company: individuals who, on July 24, 1997, constitute
the Board of Directors of the Company and any new director (other than a
director whose initial assumption of office is in connection with the
settlement of an actual or threatened election contest, including but not
limited to a consent solicitation, relating to the election of directors
of the Company) whose appointment or election by the Board of Directors
of the Company or nomination for election by the Company's stockholders
was approved or recommended by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors on July
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24, 1997 or whose appointment, election or nomination for election was
previously so approved or recommended; or
(III) there is consummated a merger or consolidation of the
Company or any direct or indirect subsidiary of the Company with any
other corporation or entity, other than (i) a merger or consolidation
which would result in the voting securities of the Company outstanding
immediately prior to such merger or consolidation continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity or any Parent thereof), in combination
with the ownership of any trustee or other fiduciary holding securities
under an employee benefit plan of the Company or any subsidiary of the
Company, at least 65% of the combined voting power of the securities of
the Company, such surviving entity or any Parent thereof outstanding
immediately after such merger or consolidation or (ii) a merger or
consolidation effected solely to implement a recapitalization of the
Company or the Bank (or similar transaction) in which no Person is or
becomes the Beneficial Owner, directly or indirectly, of securities of
the Company or the Bank (not including in the securities beneficially
owned by such Person any securities acquired directly from the Company or
its Affiliates) representing 35% or more of the combined voting power of
the Company's or the Bank's then outstanding securities; or
(IV) the stockholders of the Company or the Bank approve a plan
of complete liquidation or dissolution of the Company or the Bank,
respectively, or there is consummated a sale or disposition by the
Company or any of its subsidiaries of any assets which individually or as
part of a series of related
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transactions constitute all or substantially all of the Company's
consolidated assets (provided that, for these purposes, a sale of all or
substantially all of the voting securities of the Bank or a Parent of the
Bank shall be deemed to constitute a sale of substantially all of the
Company's consolidated assets), other than any such sale or disposition
to an entity at least 65% of the combined voting power of the voting
securities of which are owned by stockholders of the Company in
substantially the same proportions as their ownership of the voting
securities of the Company immediately prior to such sale or disposition;
or
(V) the execution of a binding agreement that if consummated
would result in a Change in Control of a type specified in clause (I) or
(III) of this Section 11(a) (an "Acquisition Agreement") or of a binding
agreement for the sale or disposition of assets that, if consummated,
would result in a Change in Control of a type specified in clause (IV) of
this Section 11(a) (an "Asset Sale Agreement") or the adoption by the
Board of Directors of the Company or the Bank of a plan of complete
liquidation or dissolution of the Company or the Bank that, if
consummated, would result in a Change in Control of a type specified in
clause (IV) of this Section 11(a) (a "Plan of Liquidation"), provided
however, that a Change in Control of the type specified in this clause
(V) shall not be deemed to exist or have occurred as a result of the
execution of such Acquisition Agreement or Asset Sale Agreement, or the
adoption of such a Plan of Liquidation, from and after the Abandonment
Date if the Effective Date of Termination of the Officer's employment has
not occurred on or prior to the Abandonment Date. As used in this
Section, the term "Abandonment Date" shall mean the date on which (A) an
Acquisition
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Agreement, Asset Sale Agreement or Plan of Liquidation is terminated
(pursuant to its terms or otherwise) without having been consummated, (B)
the parties to an Acquisition Agreement or Asset Sale Agreement abandon
the transactions contemplated thereby, (C) the Bank or the Company
abandons a Plan of Liquidation or (D) a court or regulatory body having
competent jurisdiction enjoins or issues a cease and desist or stop order
with respect to or otherwise prevents the consummation of, or a
regulatory body notifies the Bank or the Company that it will not
approve, an Acquisition Agreement, Asset Sale Agreement or Plan of
Liquidation or the transactions contemplated thereby and such injunction,
order or notice has become final and not subject to appeal.
As used in connection with the foregoing definition of Change in
Control, "Affiliate" shall have the meaning set forth in Rule 12b-2 promulgated
under Section 12 of the Exchange Act; "Beneficial Owner" shall have the meaning
set forth in Rule 13d-3 under the Exchange Act; "Exchange Act" shall mean the
Securities Exchange Act of 1934, as amended from time to time; "Parent" shall
mean any entity that becomes the Beneficial Owner of at least 80% of the voting
power of the outstanding voting securities of the Company or of an entity that
survives any merger or consolidation of the Company or any direct or indirect
subsidiary of the Company; and "Person" shall have the meaning given in Section
3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d)
thereof, except that such term shall not include (i) the Company or any of its
subsidiaries, (ii) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any of its Affiliates, (iii) an
underwriter temporarily holding securities pursuant to an offering of such
securities, or (iv) a corporation or entity owned,
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directly or indirectly, by the stockholders of the Company in substantially the
same proportions as their ownership of stock of the Company.
(b) If the Bank or the Company shall relocate its principal
executive offices after a Change in Control, and if the Officer shall, as a
result, change the Officer's principal residence, the Bank shall (i) promptly
pay (or reimburse the Officer for) all reasonable moving expenses incurred by
the Officer as a result of such change in the Officer's principal residence,
and (ii) indemnify the Officer against, and reimburse the Officer for, any loss
incurred as the result of the sale of the Officer's principal residence (which
loss shall be computed for the purpose of this Agreement as the difference
between the actual sales price (net of closing costs and brokerage fees) of
such residence and the fair market value of such residence (computed as of the
time the Bank or the Company relocates its principal executive offices) as
determined by an independent real estate appraiser designated and paid by the
Bank or the Company and acceptable to the Officer), provided that such sale of
the Officer's principal residence occurs within six months after the Bank or
the Company relocates its principal executive offices.
(c) (i) If a Change in Control shall occur, the Officer shall be
entitled to the compensation and benefits provided in paragraphs (d), (e), (f)
and (g) of this Section 11 upon the subsequent termination of the Officer's
employment, at any time during the remaining Term in effect at the time of the
Change in Control, by the Bank (including, without limitation, a termination
for permanent disability), other than a termination for cause, provided that
the rights to any such compensation and benefits shall be subject to the
limitations and provisions set forth in Section 8(c).
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(ii) If (A) a Change in Control shall occur, and thereafter the
Bank (notwithstanding its right to do so under Section 4 or Section 5) either
(B) makes a material change in the Officer's functions, duties or
responsibilities, which change would cause the Officer's position with the Bank
to become one of lesser responsibility, importance or scope from that in effect
immediately prior to the time of the Change in Control, or (C) reduces the
Officer's annual salary to a level below that in effect immediately prior to
the Change in Control (an event specified in clause (B) or (C) is hereafter
referred to as a "Material Change"), the Officer shall be entitled to the
compensation and benefits provided in paragraphs (d), (e), (f) and (g) of this
Section 11 (subject to the limitations and provisions set forth in Section
8(c)) upon the subsequent termination of the Officer's employment, at any time
during the remaining Term in effect at the time of the Change in Control, by
the Officer.
(iii) If the Officer's employment is terminated by the Bank or by
reason of the Officer's permanent disability during the Term but after the
expiration of the remaining Term in effect at the time of the Change in
Control, then the provisions of Section 6 or 8 (as the case may be) shall apply
in lieu of the provisions of paragraphs (d), (e), (f) and (g) of this Section
11. If the Officer's employment is terminated by the Officer during the Term
but after the expiration of the remaining Term in effect at the time of the
Change in Control (or if the Officer's employment is terminated by the Officer
during the remaining Term in effect at the time of the Change in Control and no
Material Change shall have occurred), then the provisions of Section 9 shall
apply in lieu of the provisions of paragraphs (d), (e), (f) and (g) of this
Section 11.
(iv) Only for purposes of determining whether there has been a
termination of the Officer's employment during the remaining Term in effect at
the time of a Change in Control (as
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specified in paragraphs (c)(i) and (c)(ii) of this Section 11, as the case may
be) so as to entitle the Officer to the compensation and benefits provided in
paragraphs (d), (e), (f) and (g) of this Section 11, a termination of the
Officer's employment following such a Change in Control shall be deemed to have
occurred on such date during the remaining Term that (A) notice of termination
is given by the Bank or the Officer to the other (regardless of the Effective
Date of Termination specified in such notice) or (B) notice of non-renewal
pursuant to Section 2(a) is given by the Bank to the Officer (regardless of the
date on which the Term expires). In the event that notice of non-renewal
pursuant to Section 2(a) is given by the Bank to the Officer during the
remaining Term in effect at the time of a Change in Control, the termination of
employment in connection with such notice of non-renewal shall, for purposes of
Sections 8(c) and 11(h), be treated as a termination of employment described by
paragraph (c)(i) of this Section 11. Notwithstanding the immediately preceding
sentences, the Officer shall continue to be employed by the Bank pursuant to
this Agreement until (1) the Effective Date of Termination specified in the
notice of termination or (2) the end of the remaining Term in effect when
notice of non-renewal is given pursuant to Section 2 of this Agreement.
(d)(i) Upon the occurrence of a Change in Control followed by any
termination of the Officer's employment pursuant to Section 11(c)(i) or
(c)(ii), to the extent not otherwise limited pursuant to Section 8(c), the Bank
shall pay the Officer, as a severance payment for services previously rendered
to the Bank, a lump sum equal to three times the Officer's Annual Compensation,
as in effect immediately prior to the Effective Date of Termination (without
regard to any decrease in the Officer's Annual Compensation made after the
Change in Control). As used in this Section 11(d)(i), the term "Annual
Compensation" shall mean, at any time, an
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amount equal to the sum of (A) the Officer's annual salary (as defined in
Section 5(a)) at such time, plus (B) 100% of the target bonus or other cash
incentive that the Officer is eligible to earn in such year pursuant to each
plan or program (whether or not such plan or program has been formalized or is
in written form) of the Bank in effect for such year that provides for bonuses
or other cash incentives, or if no such plan or program has been adopted with
respect to such year, 100% of the target bonus or other cash incentive that the
Officer was eligible to earn in the most recent year in which such a plan or
program was in effect.
(ii) Upon the occurrence of a Change in Control followed by any
termination of the Officer's employment pursuant to Section 11(c)(i) or
(c)(ii), to the extent not otherwise limited pursuant to Section 8(c): (A) each
Non-Accelerated Stock Option held by the Officer shall (to the extent permitted
by the plan under which such Non-Accelerated Stock Option was granted),
notwithstanding anything to the contrary in the grant letter or option
agreement related to such Non-Accelerated Stock Option and regardless of the
actual Effective Date of Termination, vest and become exercisable in accordance
with the provisions of, and remain exercisable for the term specified in, such
grant letter or option agreement as if there had been no termination of the
Officer's employment and the Officer remained in the employment of the Bank for
the entire term of such Non-Accelerated Stock Option and (B) each Vested Stock
Option held by the Officer shall (to the extent permitted by the plan under
which such Vested Stock Option was granted), notwithstanding anything to the
contrary in the grant letter or option agreement related to such Vested Stock
Option and regardless of the actual Effective Date of Termination, remain
exercisable for the term specified in such grant letter or option agreement as
if there had been no termination of the Officer's employment and the Officer
remained in the employment of
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the Bank for the entire term of such Vested Stock Option. As used in this
Section 11(d)(ii), the term (I) "Non-Accelerated Stock Option" shall mean any
stock option (including any tandem stock appreciation right) previously or
hereafter granted to the Officer under a stock incentive or stock option plan
of the Company that has not, pursuant to the provisions of such stock incentive
or stock option plan or the grant letter or option agreement pursuant to which
such stock option was granted to the Officer, vested and become exercisable
prior to the Effective Date of Termination and (II) "Vested Stock Option" shall
mean any stock option (including any tandem stock appreciation right)
previously or hereafter granted to the Officer under a stock incentive or stock
option plan of the Company that vests and becomes exercisable prior to the
Effective Date of Termination.
(e) Any payment pursuant to Section 11(d)(i) or 11(g)(ii) shall be
made to the Officer within 30 days after the Effective Date of Termination.
(f) Upon the occurrence of a Change in Control followed by any
termination of the Officer's employment pursuant to Section 11(c)(i) or
(c)(ii), to the extent not otherwise limited pursuant to Section 8(c), the Bank
shall cause to be continued until the end of the remaining Term in effect
immediately prior to the giving of notice of termination or non-renewal (or the
Officer's earlier death) life, disability, medical and dental insurance
coverage as is otherwise maintained by the Bank for full-time employees,
provided that the Officer shall continue to pay all amounts in respect of such
coverage that an employee receiving the same level of coverage is or would be
required to pay.
(g)(i)(A) On and after any Change in Control, to the extent not
otherwise limited pursuant to Section 8(c)(i), the Officer shall be eligible to
be paid, under the SERP, a SERP
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benefit, to the extent vested (and subject to additional vesting in accordance
with the terms of the SERP as such plan provided immediately prior to the
Change in Control, or if it results in a greater vested percentage, with
vesting determined otherwise pursuant to this Section 11(g)(i)), that is not
less than a benefit calculated based upon the amount of the Officer's "Pension
Goal" and "Average Compensation" and the otherwise applicable terms of the
SERP, each as determined immediately prior to the Change in Control. The rights
of the Officer and the obligations of the Bank with respect to the benefits
described under this Section 11(g)(i)(A) shall survive the termination of this
Agreement.
(B) In the event of termination of the Officer's employment
pursuant to Section 11(c)(i) or (c)(ii), to the extent not otherwise limited
pursuant to Section 8(c), notwithstanding any vesting provisions that would in
other circumstances require further service under the SERP, the Officer shall
be fully vested in the Officer's SERP benefit, which shall otherwise be payable
in accordance with the terms of the SERP and, as applicable, Section
11(g)(i)(A).
(ii) In the event of termination of the Officer's employment
pursuant to Section 11(c)(i) or (c)(ii), to the extent not otherwise limited
pursuant to Section 8(c), the Officer shall be entitled to receive in a lump
sum payment an amount equal to any amounts forfeited by the Officer under the
Company's qualified defined contribution plan(s) and under the Company's
Benefit Restoration Plan (solely to the extent such Benefit Restoration Plan
supplements benefits under a defined contribution plan) as in effect
immediately prior to the Change in Control (or, if more favorable to the
Officer, as in effect immediately prior to the Effective Date of Termination).
20
<PAGE> 21
(h)(i) If, on account of events described in Sections 11(c)(i) or
11(c)(ii) following a Change in Control, any payment or other benefit paid or
to be paid or any property transferred or to be transferred (collectively, a
"Severance Payment") with respect to one or more calendar years by or on behalf
of the Bank (or any affiliate of the Bank) to the Officer pursuant to this
Agreement in connection with such Change in Control shall constitute an "excess
parachute payment" within the meaning of Section 280G(b) of the Code subject to
the tax imposed by Section 4999 of the Code (the "Excise Tax"), then the Bank
shall pay to the Officer an additional amount (the "Gross Up Payment") such
that the amount paid or transferred to the Officer, after deduction of any
Excise Tax on the Severance Payment, and any federal, state and local income
tax, employment tax and Excise Tax upon the Gross Up Payment, shall be equal to
the Severance Payment. In addition, if, absent a Change in Control or in other
circumstances following a Change in Control, notwithstanding the reductions
mandated by Section 8(c), the SERP benefits otherwise payable to the Officer
shall constitute an "excess parachute payment" within the meaning of Section
280G(b) of the Code subject to the Excise Tax, then the Bank shall pay to the
Officer one or more Gross Up Payments such that the amount of such Gross Up
Payments, when combined with such SERP benefits, after deduction of any Excise
Tax on the SERP benefits, and any federal, state and local income tax,
employment tax and Excise Tax upon the Gross Up Payments, shall be equal to
such SERP benefits.
(ii) For purposes of determining under Section 11(h)(i) whether
any portion of a Severance Payment or SERP benefit will be subject to the
Excise Tax and the amount of such Excise Tax, (A) the Severance Payment or SERP
benefit and payment provided for in Section 11(h)(i) shall be treated as
"parachute payments" within the meaning of Section 280G(b)(2) of
21
<PAGE> 22
the Code, and all "excess parachute payments" within the meaning of Section
280(G)(b)(1) of the Code shall be treated as subject to the Excise Tax, unless
and to the extent that tax counsel selected by the Bank's independent auditors
and acceptable to the Officer is of the opinion that the Severance Payment or
SERP benefit (in whole or in part) does not constitute a "parachute payment" or
such "excess parachute payment" (in whole or in part) represents reasonable
compensation for services actually rendered within the meaning of Section
280G(b)(4) of the Code in excess of the allocable base amount within the
meaning of Section 280G(b)(3) of the Code, or the Severance Payment or SERP
benefit is otherwise not subject to the Excise Tax, (B) the amount of the
Severance Payment or SERP benefit that is treated as subject to the Excise Tax
shall be equal to the lesser of (X) the total amount of the Severance Payment
or SERP benefit, as applicable, and (Y) the amount of "excess parachute
payments" within the meaning of Section 280G(b)(1) of the Code (after applying
clause (A) above), (C) any Gross Up Payment pursuant to Section 11(h)(i) shall
be treated as subject to the Excise Tax in its entirety and (D) the value of
any non-cash benefits or any deferred payment or benefit shall be determined by
the Bank's independent auditors in accordance with the principles of Sections
280G(d)(3) and (4) of the Code.
(iii) If in circumstances described in Section 11(h)(i), by reason
of the filing by the Officer of an amended tax return, an audit by the Internal
Revenue Service or other taxing authority, or a final determination by a court
of competent jurisdiction, it is determined that "excess parachute payments"
exceeding those previously reported in the Officer's tax returns were received
by the Officer and as a result an additional Excise Tax (the "Additional Excise
Tax") shall become due, the Bank shall pay the Officer an additional amount
(the "Subsequent
22
<PAGE> 23
Gross Up Payment") such that the amount paid or transferred to the Officer,
after deduction of (A) any Additional Excise Tax and (B) on an after tax basis,
any interest, additions and penalties with respect to the Additional Excise Tax
and (C) any federal, state and local income tax, employment tax and Excise Tax
upon the Subsequent Gross up Payment and (D) the payments provided for in
Section 11(h)(i), shall be equal to the Severance Payment or SERP benefits, as
appropriate.
(iv) Any Gross Up Payment required hereunder shall be made at
least ten days prior to the due date (without regard to extensions) of the
Officer's federal income tax return for the year with respect to which the
"excess parachute payment" is deemed made under the Code. Any Subsequent Gross
Up Payment required hereunder shall be made to the Officer within 30 days after
the amount thereof is determined. Notwithstanding the two immediately preceding
sentences, the Bank shall pay any federal, state and local tax or taxes and
employment taxes required to be withheld from the Officer's wages (within the
meaning of Section 3121 and 3402 of the Code) with respect to the "excess
parachute payment" and any such tax or taxes paid by the Company or the Bank to
the Internal Revenue Service or state or local taxing authority shall
constitute payment to the Officer.
(v) If the Excise Tax is finally determined (whether by the filing
of an amended tax return by the Officer by audit of the Internal Revenue
Service or other taxing authority, or by a final determination of a court of
competent jurisdiction) to be less than the amount paid to or on behalf of the
Officer under the provisions of Sections 11(h)(i)-(iv) and the overpayment is
refunded to the Officer, the Officer shall repay to the Bank, promptly
following the receipt of the refund, the portion of the Gross Up Payment
(and/or Subsequent Gross Up Payment) attributable
23
<PAGE> 24
to such reduction of the Excise Tax (plus the portion attributable to federal,
state and local income tax and employment taxes imposed on the portion being
repaid by the Officer but only to the extent that the repayment may result in a
tax benefit to the Officer under Section 1341 of the Code and similar
provisions of applicable state and local law).
(vi) The provisions of this Section 11(h) shall inure to the
benefit of the Officer during the Term of this Agreement regardless of whether
or not the Officer's employment is terminated, and if the Officer's employment
is terminated, the rights and obligations of the Officer and the Bank under
this Section 11(h) shall survive the termination of this Agreement.
12. Post-Termination Obligations of the Officer. (a) Upon any
termination of the Officer's employment during the Term of this Agreement or
upon termination of the Officer's employment after the expiration of the Term
of this Agreement or upon retirement, the Officer agrees (i) not to make any
disclosure in violation of Section 12(b), (ii) to return to the Bank all
material documents relating to the business of the Bank that are in the
Officer's possession or under the Officer's control, and (iii) except if the
termination or retirement occurs after a Change in Control, not to solicit
(directly or indirectly), for one year following the Effective Date of
Termination (or date of termination after the expiration of the Term) or
retirement, the employment of any person who is an employee of the Bank on the
Effective Date of Termination (or date of termination after the expiration of
the Term) or retirement or who, within six months prior to the Effective Date
of Termination (or date of termination after the expiration of the Term) or
retirement, was an employee of the Bank, unless the Officer receives written
permission from the Bank to engage in the activities proscribed by this Section
12(a) or by Section 12(b) or to be relieved of any obligation under Section
12(a)(ii).
24
<PAGE> 25
(b) The Officer recognizes and acknowledges that the confidential
business activities and plans for business activities of the Bank and its
subsidiaries and affiliates, as they may exist from time to time, are valuable,
special and unique assets of the Bank. The Officer shall not, during or at any
time after the Officer's employment, disclose any knowledge of the past,
present or planned business activities of the Bank or its subsidiaries or
affiliates that are of a confidential nature (collectively, the "Bank's
Confidential Activities") to any person, firm, corporation, bank, thrift
institution or other entity for any reason or purposes whatsoever.
Notwithstanding anything in this Section 12(b) to the contrary, the Officer (i)
may disclose any knowledge of banking, financial and/or economic principles,
concepts or ideas that are not derived from the Bank's Confidential Activities,
and (ii) shall not be precluded from disclosures respecting the Bank's
Confidential Activities that are (A) made pursuant to compulsory legal process
or when required by an appropriate governmental agency; (B) public knowledge or
become public without the Officer's breach of this Section 12(b); (C) already
known to the party to whom the Officer makes such disclosures; or (D) approved
by the Bank for disclosure.
(c) The parties, recognizing that irreparable injury will result
to the Bank, its business and property in the event of the Officer's breach or
threatened breach of Section 12(a) or (b), agree that in the event of such
breach or threatened breach by the Officer, the Bank will be entitled, in
addition to any other remedies and damages that may be available, to seek and
obtain an injunction to restrain the violation of Section 12(a) or (b) by the
Officer.
13. Notices. All notices under this Agreement shall be in writing
and shall be delivered personally or sent by registered or certified mail,
return receipt requested, (a) to the Bank, at its address set forth above (to
the attention of its Chief Executive Officer), and (b) to the
25
<PAGE> 26
Officer, at the Officer's residence address as appearing in the records of the
Bank, or to such other address as either party may hereafter designate in
writing in the manner provided in this Section 13. All notices under this
Agreement shall be deemed given (i) upon receipt if delivered personally or
(ii) two days after deposit in a facility of the U.S. Postal Service with
postage prepaid. As used in this Agreement, the term "Effective Date of
Termination" shall mean (A) the date specified in a notice hereunder on which
such Officer's employment is to terminate, provided, however, that no such
notice shall specify an Effective Date of Termination that is prior to the date
on which any such notice is given or (B) for purposes of Section 11 only, the
date on which the Term is to expire as a result of a notice of non-renewal
given by the Bank to the Officer pursuant to Section 2 of this Agreement.
14. Complete Understanding. On and after the date as of which this
Agreement is effective, this Agreement constitutes the complete understanding
between the parties with respect to the subject matter hereof and merges and
supersedes all prior oral and written agreements and understandings (including,
but not limited to, the Agreement between the parties that was initially signed
by the Officer on June 16, 1997 and was dated as of March 1, 1998) and all
contemporaneous oral agreements and understandings with respect to the subject
matter hereof, including without limitation any other employment agreement
heretofore executed by the Officer and the Bank or any of its subsidiaries or
affiliates. This Agreement may not be amended, terminated or rescinded except
in a writing signed by the party to be charged.
15. No Duty to Mitigate. Except as otherwise expressly provided
herein, if the Officer shall continue to receive compensation or benefits or
severance pay pursuant to this Agreement after its termination, (a) the Officer
shall have no duty to mitigate such payments by
26
<PAGE> 27
seeking or obtaining other employment or otherwise, and (b) in the event the
Officer does obtain other employment, such payments from the Bank shall not be
reduced by compensation received from such other employment.
16. No Waiver. The failure of either party at any time to require
performance by the other party of a provision of this Agreement or to resort to
a remedy at law or in equity or otherwise shall in no way affect the right of
such party to require full performance or to resort to such remedy at any time
thereafter nor shall a waiver by either party of the breach of any provision of
this Agreement be taken or held to be a waiver of any subsequent breach of such
provision unless expressly so stated in writing. No waiver of any of the
provisions of this Agreement shall be effective unless in writing and signed by
the party to be charged.
17. Governing Law. This Agreement shall be governed by the laws
of the State of New York, without regard to conflict of laws principles applied
in the State of New York.
18. Headings. The headings to the Sections of this Agreement are
for convenience of reference only and shall not be given any effect in the
construction or interpretation of this Agreement.
19. Severability. If any provision of this Agreement is held by a
court or other authority having competent jurisdiction to be invalid, void or
otherwise unenforceable, in whole or in part, by reason of any applicable law,
statute or regulation or any interpretation thereof, then (a) the remainder of
the provisions of this Agreement shall remain in full force and effect and in
no way be affected, impaired or invalidated and (b) the provision so held to be
invalid, void or otherwise
27
<PAGE> 28
unenforceable shall be deemed modified in amount, duration, scope or otherwise
to the minimum extent necessary so that such provision shall not be invalid,
void or otherwise unenforceable by reason of such law, statute, regulation or
interpretation and such provision, as so modified, shall remain in full force
and effect.
20. Payment of Legal Fees. If, following a Change in Control, any
legal action or proceeding is commenced to enforce or interpret the provisions
of this Agreement, or to recover damages for its breach, all reasonable legal
fees, disbursements and court costs paid or incurred by the Officer arising out
of or resulting from such action or proceeding shall be paid or reimbursed to
the Officer by the Bank, provided the Officer shall be the prevailing party in
such action or proceeding.
21. Assumption by Company. This Agreement shall be assumable by
the Company at its election. Following any such election, the obligations of
the Bank under this Agreement shall become the obligations of the Company.
[Remainder of Page Intentionally Left Blank]
28
<PAGE> 29
22. Taxes. Any payments due to the Officer pursuant to this
Agreement shall be reduced by all applicable federal, state, city or other
taxes required by law to be withheld with respect to such payments.
23. Limitation on Payments. Any payments made to the Officer
pursuant to this Agreement, or otherwise, are subject to and conditioned upon
their compliance with 12 USC Section 1828(k) and any regulations promulgated
thereunder.
THE DIME SAVINGS BANK OF NEW YORK, FSB
By: /s/ Lawrence J. Toal
------------------------------
Lawrence J. Toal
Chief Executive Officer
Dated: /s/ Gene C. Brooks
---------------------- ------------------------------
Gene C. Brooks
29
<PAGE> 1
AMENDMENT TO THE DIME BANCORP, INC.
VOLUNTARY DEFERRED COMPENSATION PLAN
EFFECTIVE MAY 18, 2000
The Dime Bancorp, Inc. Voluntary Deferred Compensation Plan (the "Plan")
is hereby amended effective as of the date set forth above, as follows:
1. The following sentence is added at the end of Paragraph 2 of the
Plan:
"Notwithstanding the foregoing and anything otherwise in the Plan
to the contrary, the Committee (the "Umbrella Trust Committee")
under the Umbrella Trust Agreement among Dime Bancorp, Inc., The
Dime Savings Bank of New York, FSB and HSBC Bank USA, as Trustee
with respect to the Covered Arrangements of The Dime Savings Bank
of New York, FSB and Related Entities, and any successor agreement
thereto (the "Umbrella Trust") and the trustee of the Umbrella
Trust (the "Trustee") shall have the discretionary authority to
interpret the provisions of the Plan, and any related elections
made thereunder, to the extent that interpretive authority is
provided to the Umbrella Trust Committee and/or the Trustee, as
applicable, under the Umbrella Trust. To the extent so provided
under the Umbrella Trust, the decisions of the Umbrella Trust
Committee, the Trustee and their delegatee(s) shall govern the
interpretation of the Plan and any amendments thereto,
notwithstanding any authority granted to another individual, group
of individuals or entity herein, including, but not limited to,
the authority to determine the amount, form and timing of payments
hereunder."
2. Paragraph 2 of the Plan is redesignated as Paragraph 2(a) and a
new Paragraph 2(b) is added to the Plan to read as follows:
"(b) Notwithstanding anything hereunder to the contrary, after a
Change in Control (as defined in Paragraph 13) or "Irrevocable
Election" under the Umbrella Trust, claims for benefits hereunder
and other elections by a Participant or Beneficiary under the
Umbrella Trust may be filed with the Trustee, and the timely
filing of such a claim or election shall be treated for all
purposes of the Plan as if such claim or election was timely filed
with the Committee."
3. Paragraph 8 of the Plan is amended to provide as follows:
"8. Crediting of Accounts. Each Participant's Account shall be
deemed credited at the end of each calendar month (or on such
other dates as is designated by the Committee) with the earnings
or losses that the amount in the Account would have experienced
had the Account actually been invested in the deemed
<PAGE> 2
2
investment designated by the Participant or, as appropriate, the
Committee. Notwithstanding the foregoing, in the event of a Change
in Control (as defined in Paragraph 13) or an "Irrevocable
Election" under the Umbrella Trust, each Participant's Account
shall be deemed credited no later than at the end of each calendar
month with the earnings or losses attributable to the Account
based on the deemed investment designated by the Participant or,
as appropriate, by the Committee."
4. The third and fourth textual sentences of Paragraph 10 of the Plan
are amended to provide as follows:
"The Company or, as applicable, one or more of its subsidiaries or
the Umbrella Trust, will be named owner of all such investments
and of all rights and privileges conferred by the terms of the
instruments evidencing such investments. This Plan places no
obligation upon the Company or any of its subsidiaries or the
Umbrella Trust to invest any portion of the amount in a
Participant's Account, to invest or continue to invest in any
specific asset, to liquidate any particular investment, or to
apply in any specific manner the proceeds from the sale,
liquidation or maturity of any particular investment."
5. The third textual sentence in Paragraph 12(a) of the Plan
following subclause (ii) thereof is amended to provide as follows:
"A Participant may also, subject to the provisions of Paragraph
4(b) hereunder, direct that all of the amounts then allocated to
the Participant's Accounts hereunder be distributable in a single
lump sum (or otherwise as soon as practicable) to the Participant
upon a Change in Control, or that, to the extent permitted by the
Committee and subject to the provisions of Paragraph 4(b)
hereunder, all or a portion of such amounts otherwise payable to
the Participant be distributable in the event of a Hardship (as
defined below), in which event the amount of any further scheduled
distribution shall be reduced by the amount previously distributed
on account of such event."
6. The seventh and eighth textual sentences in Paragraph 12(a) of the
Plan following subclause (ii) thereof are deleted.
7. Paragraph 22 of the Plan is amended to provide as follows:
"22. Governing Law. The Plan shall be construed, administered and
enforced according to the laws of the State of New York without
regard to the principles of the conflicts of laws thereof, except
to the extent that such laws are preempted by federal law."
<PAGE> 3
3
8. Paragraph 24 of the Plan is amended by adding the following at the
end thereof:
"Notwithstanding the foregoing, in the event of a Change in
Control (as defined in Paragraph 13) or an "Irrevocable Election"
under the Umbrella Trust, none of the Board, the Committee or any
designated delegatee of them may make any amendment to the Plan or
otherwise act in a manner that, with respect to amounts deferred
under the Plan as of the date of the Change in Control or
Irrevocable Election, and earnings thereon, (i) adversely affects
the rights of Participants to previously permitted forms of
benefit payment or any previously elected (or automatically
allowed) dates of benefit payment under Paragraph 12, (ii)
adversely affects the rights of Participants to such amounts and
earnings thereon, (iii) eliminates the protections that apply
hereunder upon a Change in Control or Irrevocable Election, or
(iv) charges Plan expenses to Participant Accounts."
9. A new Paragraph 25 is added to the Plan to read as follows:
"25. Cancellation of Irrevocable Election. The provisions
hereunder relating to periods after an "Irrevocable Election"
under the Umbrella Trust shall no longer apply in the event the
Irrevocable Election is revoked or cancelled pursuant to the terms
of the Umbrella Trust, and the provisions of the Plan in effect
prior to an Irrevocable Election shall again apply, unless and to
the extent that, prior or subsequent to the revocation or
cancellation of such Irrevocable Election, another Irrevocable
Election or a Change in Control has occurred, with respect to
which Plan provisions relating thereto will continue to separately
apply."
<PAGE> 1
AMENDMENT TO THE DIME BANCORP, INC.
VOLUNTARY DEFERRED COMPENSATION PLAN FOR DIRECTORS
EFFECTIVE MAY 18, 2000
The Dime Bancorp, Inc. Voluntary Deferred Compensation Plan for Directors
(the "Plan") is hereby amended effective as of the date set forth above, as
follows:
1. Paragraph 2 of the Plan is redesignated as Paragraph 2(a) and the
following is added at the end thereof:
"Notwithstanding the foregoing and anything otherwise in the Plan
to the contrary, the Committee (the "Director Umbrella Trust
Committee") under the Umbrella Trust Agreement among the Company,
The Dime Savings Bank of New York, FSB (the "Bank") and HSBC Bank
USA, as Trustee with respect to the Covered Arrangements for
Outside Directors of the Bank and Related Entities, and any
successor agreement thereto (the "Director Umbrella Trust") and
the trustee under the Director Umbrella Trust (the "Trustee")
shall have the discretionary authority to interpret the provisions
of the Plan, and any related elections made thereunder, to the
extent that interpretive authority is provided to the Director
Umbrella Trust Committee and/or the Trustee, as applicable, under
the Director Umbrella Trust. The decisions of the Director
Umbrella Trust Committee, the Trustee and their delegatee(s) shall
govern the interpretation of the Plan and any amendments thereto
and related elections, notwithstanding any authority granted to
another individual, group of individuals or entity herein,
including, but not limited to, the authority to determine the
amount, form and timing of payments hereunder."
2. A new Paragraph 2(b) is added to the Plan after Paragraph 2(a) (as
redesignated above) to read as follows:
"(b) Notwithstanding anything hereunder to the contrary, after a
Change in Control (as defined in Paragraph 14) or "Irrevocable
Election" under the Director Umbrella Trust, claims for benefits
hereunder and other elections by a Participant or Beneficiary
under the Director Umbrella Trust may be filed with the Trustee,
and the timely filing of such a claim or election shall be treated
for all purposes of the Plan as if such claim or election was
timely filed with the Committee."
3. The fifth textual sentence of Paragraph 7(a) of the Plan is
amended in its entirety to read as follows:
"Notwithstanding anything herein to the contrary, if, following a
Change in Control (as defined in Paragraph 14) or a Corporate
Event (as defined below), one
<PAGE> 2
2
or more of the investment options under the Plan are eliminated,
the Committee shall make available an investment option or have
all Accounts and Benefit Transfer Accounts credited with earnings
based on a single deemed investment (or, if the Committee fails to
so act, an investment option or single deemed investment, as
described in this sentence, shall automatically be made available
under the Plan) providing for a monthly investment return equal to
no less than the published fixed rate return for 30-year U.S.
Treasury securities as in effect on the last business day of each
month (or, in the event such a return on 30-year U.S. Treasury
securities is not then available, there shall be provided an
investment return as shall be determined by the Director Umbrella
Trust Committee)."
4. Paragraph 9 of the Plan is amended to provide as follows:
"9. Crediting of Accounts. Each Participant's Account and, as
applicable, Benefit Transfer Account shall be deemed credited at
the end of each calendar month (or on such other dates as is
designated by the Committee) with the earnings or losses that the
amount in the Account or Benefit Transfer Account would have
experienced had the Account or Benefit Transfer Account actually
been invested in the deemed investment designated by the
Participant or, as appropriate, the Committee. Notwithstanding the
foregoing, in the event of a Change in Control (as defined in
Paragraph 14) or an "Irrevocable Election" under the Director
Umbrella Trust, each Participant's Account or Benefit Transfer
Account shall be deemed credited no later than at the end of each
calendar month with the earnings or losses attributable to the
Account based on the deemed investment designated by the
Participant or, as appropriate, by the Committee."
5. Paragraph 10 of the Plan is redesignated as Paragraph 10(a) and a
new Paragraph 10(b) is added to the Plan to read as follows:
"(b) Adjustment of Phantom Stock and Phantom Stock Valuations.
In the event of a merger, reorganization, consolidation, sale of
substantially all assets, recapitalization, stock dividend, stock
split, spin-off, split-up, split-off, distribution of assets
(including cash) or other change in corporate structure affecting
the common stock of the Company, a substitution or adjustment, as
may be determined to be appropriate by the Committee (or, as
applicable, the Director Umbrella Trust Committee) in its sole
discretion, shall be made in the aggregate number of or type of
shares of phantom stock credited to a Participant's Account and
Benefit Transfer Account, and to the method of calculation of the
value of investments in phantom stock of the Company pursuant to
Section 8 hereof, including, but not limited to, the special
valuations in connection with actual transfers of Benefit Transfer
Account amounts out of deemed phantom stock
<PAGE> 3
3
investments, and the special phantom stock valuation in connection
with a Change in Control (as defined in Paragraph 14)."
6. The third textual sentence of Paragraph 11 is amended to provide
as follows:
"The Bank or, as applicable, one or more of the subsidiaries of
the Company or the Director Umbrella Trust will be named owner of
all such investments and of all rights and privileges conferred by
the terms of the instruments evidencing such investments."
7. The language following clause (D) of Paragraph 13(a) of the Plan
is amended in its entirety to read as follows:
"In the event that payment is to be made on the form of an
annuity, the amount of each annuity payment shall be determined
based on the methodology used to determine actuarial equivalence
under the Retirement Plan of Dime Bancorp, Inc. (the "Retirement
Plan") as of the date benefits would otherwise commence under the
Plan, unless, with respect to those Participants who participate
in the Plan (whether as current or former directors) at the time
of a Change in Control (as defined in Paragraph 14) or an
Irrevocable Election under the Director Umbrella Trust, a larger
benefit under this Plan would result from utilizing the
methodology used to determine actuarial equivalence under the
Retirement Plan immediately prior to the Change in Control or
Irrevocable Election (whichever shall apply), in which case the
methodology resulting in the larger benefit under this Plan shall
be utilized. In the event that the Committee (or, as appropriate,
the Director Umbrella Trust Committee or the Trustee), or their
delegatees, shall direct that a commercial annuity be purchased in
order to fund any payment obligations hereunder, such annuity
contract, when purchased, shall be the property of the Bank or
other purchasing subsidiary of the Company (or, as appropriate,
the Director Umbrella Trust), and the Participant will continue to
be no more than an unsecured creditor of the Bank or, as
applicable, another subsidiary of the Company, as described above.
Each Participant's Account under the Plan shall be reduced by the
amount of any distribution hereunder. To the extent otherwise
necessary to enable the transactions relating to a distribution
under this Paragraph 13 to qualify for exemption under Section
16(b) of the Act, the distribution of the Participant's Account
and/or Benefit Transfer Account under this Paragraph 13 shall
occur on the earliest date such distribution (or distributions)
may be made whereby the transactions relating to the distribution
(or distributions) qualify for exemption under Section 16(b) of
the Act, provided that, with the consent of the Participant, the
Committee may direct that any such distribution (or distributions)
be made on any earlier date."
<PAGE> 4
4
8. The language following clause (D) of Paragraph 13(b) of the Plan
is amended in its entirety to read as follows:
"In the event that payment is to be made on the form of an
annuity, the amount of each annuity payment shall be determined
based on the methodology used to determine actuarial equivalence
under the Retirement Plan as of the date benefits would otherwise
commence under the Plan, unless, with respect to those
Participants who participate in the Plan (whether as current or
former directors) at the time of a Change in Control (as defined
in Paragraph 14) or an Irrevocable Election under the Director
Umbrella Trust, a larger benefit under this Plan would result from
utilizing the methodology used to determine actuarial equivalence
under the Retirement Plan immediately prior to the Change in
Control or Irrevocable Election (whichever shall apply), in which
case the methodology resulting in the larger benefit under this
Plan shall be utilized. In the event that the Committee (or, as
appropriate, the Director Umbrella Trust Committee or the
Trustee), or their delegatees, shall direct that a commercial
annuity be purchased in order to fund any payment obligations
hereunder, such annuity contract, when purchased, shall be the
property of the Bank or other purchasing subsidiary of the Company
(or, as appropriate, the Director Umbrella Trust), and the
Participant will continue to be no more than an unsecured creditor
of the Bank or, as applicable, another subsidiary of the Company,
as described above. Each Participant's Benefit Transfer Account
under the Plan shall be reduced by the amount of any distribution
hereunder."
9. Paragraph 13(c) of the Plan is amended in its entirety to read as
follows:
"(c) Payments Upon Change in Control or Hardship. A Participant
may also direct that all of the amounts then credited to the
Participant's Account and Benefit Transfer Account be
distributable in a single lump sum (or otherwise as soon as
practicable) to the Participant upon a Change in Control of the
Company (as defined in Paragraph 14), or that, to the extent
permitted by the Committee, all or a portion of the amounts
otherwise payable to the Participant be distributable in the event
of a Hardship (as defined in Paragraph 15), in which event the
amount of any further scheduled distribution shall be reduced by
the amount previously distributed on account of such event."
10. Paragraph 22 of the Plan is amended to provide as follows:
"22. Governing Law. The Plan shall be construed, administered
and enforced according to the laws of the State of New York
without regard to the principles of the conflicts of laws thereof,
except to the extent that such laws are preempted by federal law."
<PAGE> 5
5
11. Paragraph 24 of the Plan is amended by adding the following at the
end thereof:
"In addition, notwithstanding the foregoing, in the event of a
Change in Control (as defined in Paragraph 14) or an "Irrevocable
Election" under the Director Umbrella Trust, none of the Board,
the Compensation Committee of the Board or the Benefits Committee
of the Company or any duly designated delegatee of any of them may
make any amendment to the Plan or otherwise act in a manner with
respect to amounts deferred or otherwise allocated to Accounts or
Benefit Transfer Accounts under the Plan as of the date of the
Change in Control or Irrevocable Election, and earnings thereon,
that (i) adversely affects the rights of Participants to
previously permitted forms of benefit payment or any previously
elected (or automatically allowed) dates of benefit payment under
Paragraph 13, (ii) adversely affects the rights of Participants to
such amounts and earnings thereon, or (iii) charges Plan expenses
to Participant Accounts or Benefit Transfer Accounts."
12. A new Paragraph 25 is added to the Plan to read as follows:
"25. Cancellation of Irrevocable Election. The provisions
hereunder relating to periods after an "Irrevocable Election"
under the Director Umbrella Trust shall no longer apply in the
event the Irrevocable Election is revoked or cancelled pursuant to
the terms of the Director Umbrella Trust, and the provisions of
the Plan in effect prior to an Irrevocable Election shall again
apply, unless and to the extent that, prior or subsequent to the
revocation or cancellation of such Irrevocable Election, another
Irrevocable Election or a Change in Control has occurred, with
respect to which Plan provisions relating thereto will continue to
separately apply."
<PAGE> 1
AMENDMENT
TO THE
DIME BANCORP, INC. SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
EFFECTIVE MAY 18, 2000
The Dime Bancorp, Inc. Supplemental Executive Retirement Plan (the
"Plan") is hereby amended in the following particulars.
1. The fifth textual sentence of Section 2 of the Plan is deleted
in its entirety and a new sentence is added at the end of such section to read
as follows:
"Notwithstanding any provision of the Plan to the contrary, (i)
any duty or function which may be performed by the Committee or
its designee under the Plan may instead be performed by the Board
if the Board so determines in its discretion and (ii) the
"Committee" (the "Umbrella Trust Committee") under the Umbrella
Trust Agreement, by and among the Company, The Dime Savings Bank
of New York, FSB, and HSBC Bank USA, as Trustee with respect to
the Covered Arrangements of The Dime Savings Bank of New York, FSB
and Related Entities, and any successor agreement thereto (the
"Umbrella Trust Agreement"), and the trustee under the Umbrella
Trust Agreement and their delegatee(s) shall, to the extent
provided in the Umbrella Trust Agreement, and notwithstanding the
authority of the Committee, the Board, the Company or any other
person hereunder, have discretionary authority to interpret the
Plan and any related grant letter or agreement governing
participation in the Plan and to determine and direct the payment
of benefits under the Plan."
2. The first textual sentence of Section 5 of the Plan is amended
to read as follows:
"For purposes of the Plan, a Participant's " Average Compensation"
means a Participant's average annual rate of Compensation (as
defined below) from the Company and, unless otherwise expressly
disregarded at the time a Participant's Pension Goal was initially
established, from any Parent or Subsidiary, for (x) the 36
consecutive months of the last 12" months of the Participant's
employment by the Company, a Parent or Subsidiary when the
Compensation of the Participant is the highest, (y) for such other
period as designated by the Committee (provided that, following a
Change in Control (as defined in Section 12) or an Irrevocable
Election
<PAGE> 2
2
(within the meaning of the Umbrella Trust Agreement) (an
"Irrevocable Election"), no such designation shall be made without
the consent of the Participant, or (z) during the Participant's
total period of employment by the Company, a Parent or Subsidiary,
if such period of employment is for a period that is less than the
period over which the Compensation would otherwise be measured."
3. Clause (ii) of the second textual paragraph of Section 5 of the
Plan and the proviso immediately following such clause are amended to read as
follows:
"(ii) is, except as otherwise provided by the Committee (provided
that no such provision shall be made by the Committee after
a Change in Control (as defined in Section 12) or an
Irrevocable Election, without the consent of the
Participant), the Participant's other taxable cash-based
compensation payable under the Dime Bancorp, Inc. Officer
Incentive Plan or other cash-based incentive plan or
program or individual arrangement providing for cash-based
incentive compensation, in each case with respect to the
period for which the determination is made, but excluding
any amounts paid (A) to the Participant as a sign-on bonus
in connection with the initial commencement of employment
of the Participant with the Company or any Parent or
Subsidiary, (B) to the Participant with respect to the
grant of rights to purchase, and the related purchase of,
restricted common stock of the Company, and (C) to or with
respect to the Participant as a severance payment or other
termination-based payment (unless otherwise provided in the
Participant's employment or change in control agreement
with the Company or any of its subsidiaries);
provided, however, that such other compensation described (ii)
above shall be allocated, and deemed for these purposes as taxable
compensation, equally over the period in which it is earned."
4. The fifth textual sentence of Section 6 of the Plan is amended
to read as follows:
"In addition, a Participant will be fully vested in his or her
Plan benefit if there has been a Change in Control (as defined in
Section 12), the Participant is in service with the Company or any
Parent or Subsidiary at the time of the Change in Control, and if
within one year after any such Change in Control (or, in the event
the Participant has an employment or change in control agreement
with the Company or any Parent
<PAGE> 3
3
or Subsidiary, within the remaining term of such agreement
determined at the date of the Change in Control, if later), (x)
the Participant's employment is terminated (other than for "cause"
(as defined below)) by the Company or any Parent or The Dime
Savings Bank of New York, FSB (the "Bank") (or any successor to
the stock or substantially all the assets of any of such entities)
or a 50% or more-owned subsidiary thereof (other than a
termination of employment by a subsidiary of the Bank in
connection with the sale of substantially all the assets of such
subsidiary), (y) the Participant terminates his or her employment
with the Company or any Parent or the Bank (or any successor to
the stock or substantially all the assets of any of such entities)
or a 50% or more-owned subsidiary thereof after such employer has
either (A) made a material change in the Participant's functions,
duties or responsibilities, which change would cause the
Participant's position with such employer to become one of lesser
responsibility, importance or scope from that in effect
immediately prior to the Change in Control, or (B) reduced the
Participant's annual salary to a level below that in effect
immediately prior to the Change in Control, or (z) the
Participant's employment is terminated by a subsidiary of the Bank
in connection with the sale of substantially all the assets of
such subsidiary (other than for "cause" (as defined below)) and
the Participant does not commence employment (whether as an
employee or as an independent contractor) with the purchaser of
such assets (or its affiliate) within 12" days of the date of such
sale, provided that in the case of the Change in Control event
described in clause (v) of Section 12, the termination of
employment referred to in clauses (x), (y) and (z) above occurs on
or before the Abandonment Date."
5. The last textual sentence of Section 6 of the Plan is amended
to read as follows:
"Notwithstanding anything in this Plan to the contrary, on and
after a Change in Control (as defined in Section 12) or an
Irrevocable Election, whichever occurs first, a Participant shall
be eligible to be paid a benefit under the Plan, to the extent
vested (and subject to any additional vesting under the Plan as in
effect immediately prior to, on or after the Change in Control or
Irrevocable Election, as applicable, or if it results in a greater
vested percentage, pursuant to the terms of any applicable
employment or change in control agreement between the Participant
and the Company or any Parent or Subsidiary), that is not less
than a benefit calculated based upon the amount of the
Participant's Pension Goal, Average Compensation, vested interest,
and the otherwise applicable terms of the Plan and any related
grant letter or agreement regarding Plan participation, each as
determined immediately prior to the Change in Control or
Irrevocable Election, as applicable (but considering any increases
in the Participant's compensation, service, vested interest and
attained age after the Change in Control or Irrevocable Election,
as applicable)."
<PAGE> 4
4
6. The first textual sentence of Section 7 of the Plan is amended
to read as follows:
"A Participant who remains in service with the Company, a Parent
or any Subsidiary at least until his or her 65th birthday shall be
paid, if applicable vesting requirements have been met, a normal
retirement benefit from the entity that is primarily responsible
for the payment of compensation to such Participant (or any
successor to the stock of such entity), with the Company and the
Bank (to the extent not primarily liable) each secondarily liable
for such payment, provided that in the case of a sale of the stock
of a subsidiary of the Bank, the Company and the Bank shall,
notwithstanding anything in this Plan to the contrary, remain
secondarily liable for such benefit attributable to a Participant
whose employment continues with such subsidiary or the purchaser
of such stock (or its affiliate) (if not otherwise paid by the
primary obligor) only with respect to the portion thereof that is
accrued and vested as of the date of such sale."
7. The first textual sentence of Section 7 of the Plan is amended
to read as follows:
"For purposes of this Section 7, actuarial equivalence shall be
determined based on the methodology used to determine actuarial
equivalence (including the methodology applicable to the early
commencement of benefits) under the Retirement Plan of Dime
Bancorp, Inc. or any successor plan thereto (the "Retirement
Plan") as of the date benefits would otherwise commence under the
Plan, unless, with respect to those Participants who are covered
by the Plan at the time of a Change in Control (as defined in
Section 12) or an Irrevocable Election (whichever occurs first), a
larger benefit under this Plan would result from utilizing the
methodology used to determine actuarial equivalence (including the
methodology applicable to the early commencement of benefits)
under the Retirement Plan immediately prior to the Change in
Control or Irrevocable Election (whichever shall apply), in which
case the methodology resulting in the larger benefit under this
Plan shall be utilized, provided that, if the form of benefit
otherwise applicable to a benefit or benefit offset hereunder is
not a form of benefit payable under the Retirement Plan, then the
methodology otherwise applicable under the Retirement Plan to a
benefit payable thereunder in a form other than a lump sum (which
methodology shall be determined as provided above) shall apply."
8. The first textual sentence of Section 8 of the Plan is amended
to read as follows:
"A Participant shall be paid an early retirement benefit from the
entity that is primarily responsible for the payment of
compensation to such Participant (or any successor to
<PAGE> 5
5
the stock of such entity), with the Company and the Bank (to the
extent not primarily liable) each secondarily liable for such
payment (provided that in the case of a sale of the stock of a
subsidiary of the Bank, the Company and the Bank shall,
notwithstanding anything in this Plan to the contrary, remain
secondarily liable for such benefit attributable to a Participant
whose employment continues with such subsidiary or the purchaser
of such stock (or its affiliate) (if not otherwise paid by the
primary obligor) only with respect to the portion thereof that is
accrued and vested as of the date of such sale), in the event the
Participant's termination of service with the Company and any
Parent and Subsidiaries occurs prior to the Participant attaining
age 65, provided, however, that no such benefit shall commence
prior to the Participant attaining age 55, and provided, further,
that unless the Committee determines otherwise, if the Participant
elects no later than 24 months prior to such termination of
service, the commencement of the Participant's early retirement
benefit shall be delayed to the last day of the month designated
by the Participant, but not later than the last day of the month
following the month the Participant attains age 65."
9. The fourth textual sentence of Section 8 of the Plan is amended
to read as follows:
"In the event the Committee provides for an automatic early
retirement benefit commencement date prior to the last day of the
month following the month in which the Participant attains age 55,
the Participant's benefit hereunder, after being adjusted as
described in the preceding sentence, shall be further reduced so
that it is the actuarial equivalent of the benefit that would be
payable to the Participant at the last day of the month following
the month in which the Participant attains age 55, with such
actuarial equivalence determined based on the methodology used to
determine actuarial equivalence (for other than lump sum benefits)
under the Retirement Plan as of the date benefits would otherwise
commence under the Plan, unless, with respect to those
Participants who are covered by the Plan at the time of a Change
in Control (as defined in Section 12) or an Irrevocable Election
(whichever occurs first), a larger benefit under this Plan would
result from utilizing the methodology used to determine actuarial
equivalence (including the methodology applicable to the early
commencement of benefits) under the Retirement Plan immediately
prior to the Change in Control or Irrevocable Election (whichever
shall apply), in which case the methodology resulting in the
larger benefit under this Plan shall be utilized."
10. Section 8 of the Plan is amended to add a new sentence at the
end thereof to read as follows:
"Notwithstanding anything in the Plan to the contrary, after a
Change in Control (as defined in Section 12) or an Irrevocable
Election (whichever occurs first), any such
<PAGE> 6
6
discretionary determinations by the Committee under this Section 8
shall require the consent of the affected Participant, and
provided further, if such Participant consent is provided, such
Committee determinations shall not be effective unless approved by
the Umbrella Trust Committee."
11. The third textual sentence of Section 9 of the Plan is amended
to delete "or" following the semi-colon at the end of clause (i), to insert "or"
following the semi-colon at the end of clause (ii), and to add a new clause
(iii) following clause (ii) to read as follows:
"(iii) a single lump sum payment;"
12. The fourth textual sentence of Section 9 of the Plan is
amended to read as follows:
"For these purposes, actuarial equivalence shall be determined
based on the methodology used to determine actuarial equivalence
under the Retirement Plan as of the date benefits would otherwise
commence under the Plan, unless, with respect to those
Participants who are covered by the Plan at the time of a Change
in Control (as defined in Section 12) or an Irrevocable Election
(whichever occurs first), a larger benefit under this Plan would
result from utilizing the methodology used to determine actuarial
equivalence (including the methodology applicable to the early
commencement of benefits) under the Retirement Plan immediately
prior to the Change in Control or Irrevocable Election (whichever
shall apply), in which case the methodology resulting in the
larger benefit under this Plan shall be utilized."
13. The sixth textual sentence of Section 9 of the Plan is amended
to read as follows:
"Notwithstanding the foregoing, the Committee may provide that the
automatic form of benefit for a Participant (absent his or her
election to receive a benefit in another form) shall be either an
actuarially reduced 50% or 100% joint and survivor annuity, as
described above, with the Participant's surviving spouse as
beneficiary, provided that after a Change in Control (as defined
in Section 12) or an Irrevocable Election (whichever occurs
first), any such discretionary determinations by the Committee
shall require the consent of the affected Participant, and
provided further, if such Participant consent is provided, such
Committee determinations shall not be effective unless approved by
the Umbrella Trust Committee."
14. The seventh textual sentence of Section 9 of the Plan is
amended to read as follows:
<PAGE> 7
7
"The Committee may also, in its discretion, make available any
other optional forms of benefit to any Participant as it
determines, provided that any payment in any such optional forms
shall be of the equivalent actuarial value of the payments that
would be made under the single life annuity form, with such
actuarial equivalence determined based upon the methodology used
to determine actuarial equivalence under the Retirement Plan as of
the date benefits would otherwise commence under the Plan, unless,
with respect to those Participants who are covered by the Plan at
the time of a Change in Control (as defined in Section 12) or an
Irrevocable Election (whichever occurs first), a larger benefit
under this Plan would result from utilizing the methodology used
to determine actuarial equivalence (including the methodology
applicable to the early commencement of benefits) under the
Retirement Plan immediately prior to the Change in Control or
Irrevocable Election (whichever shall apply), in which case the
methodology resulting in the larger benefit under this Plan shall
be utilized, and provided, further, that the Participant make an
irrevocable election of any such optional form no later than 24
months prior to the termination of the Participant's service with
the Company or any Parent or Subsidiary."
15. The first textual sentence of Section 10 of the Plan is
amended to read as follows:
"Notwithstanding the provisions of Sections 7, 8 and 9, (i) the
Committee may provide, in its sole discretion, that in lieu of any
payment under such sections a Participant shall receive, within 60
days of the Participant's termination of service with the Company,
any Parent and any Subsidiaries, a lump sum benefit equal to the
actuarial equivalent (as determined pursuant to Section 9) of the
benefit that would otherwise be payable in accordance with such
sections, provided that after a Change in Control (as defined in
Section 12) or an Irrevocable Election (whichever occurs first),
any such discretionary determinations by the Committee shall
require the consent of the affected Participant, and provided
further, if such Participant consent is provided, such Committee
determinations shall not be effective unless approved by the
Umbrella Trust Committee, and (ii) a Participant may, at such time
in such manner as may be prescribed by the Committee or its
designee (but no later than 30 days after notice is provided to
the Participant), elect that, following a Change in Control, such
portion of the benefit payable under the Plan, determined on an
actuarial equivalent basis (as provided in Sections 7, 8 and 9),
as is equal to the amounts that would have been payable with
respect to the Participant pursuant to the terms of his or her
employment or change in control agreement with the Company or any
Parent or Subsidiary or otherwise on account of the Change in
Control, but which amounts are not payable, as provided under any
such agreement or otherwise, because of a cutback to avoid the
imposition of excise taxes under Section 4999 of the Code, be
paid, in whole or in part, in a lump sum with the balance of any
benefit payable under the Plan paid in such form of payment as is
otherwise applicable under the Plan."
<PAGE> 8
8
16. The first textual sentence of Section 11 of the Plan is
amended to read as follows:
"If a Participant dies before the payments to the Participant
hereunder have commenced (regardless of the Participant's age), to
the extent the Participant was vested in a benefit hereunder, the
Participant's Surviving Spouse (to whom the Participant must have
been married for the one-year period preceding the Participant's
death), shall be entitled to monthly payments from the entity that
was, immediately before the Participant's death, primarily
responsible for the payment of compensation to such Participant
(or any successor to the stock of such entity), with the Company
and the Bank (to the extent not primarily liable) each secondarily
liable for such payment (provided that in the case of a sale of
the stock of a subsidiary of the Bank, the Company and the Bank
shall, notwithstanding anything in this Plan to the contrary,
remain secondarily liable for such benefit attributable to a
Participant whose employment continues with such subsidiary or the
purchaser of such stock (or its affiliate) (if not otherwise paid
by the primary obligor) only with respect to the portion thereof
that is accrued and vested as of the date of such sale), equal to
the amount of the monthly benefits such surviving spouse would
have received had the Participant commenced receiving benefits
hereunder in accordance with Section 7 or 8 as of the date of his
or her death (presuming for these purposes that the Participant
had attained age 55), having validly elected that benefits be paid
in the form of a 50% joint and survivor annuity with the Surviving
Spouse as beneficiary as described in Section 9, and died
immediately thereafter."
17. Section 21 of the Plan is amended to read as follows:
"21. Governing Law. The Plan shall be construed, administered and
enforced according to the laws of the State of New York without
regard to the principles of the conflicts of laws thereof, except
to the extent that such laws are preempted by federal law."
18. Section 23 of the Plan is amended to read as follows:
"23. Amendment or Termination. The Board or the Committee may
amend, discontinue or terminate the Plan at any time; provided,
however, that no amendment or termination shall adversely affect
the right of any Participant to his or her accrued benefit
hereunder (whether or not vested) or shall extend the period over
which a Participant shall vest in benefits under the Plan beyond
the period as in effect at the commencement of the Participant's
participation in the Plan, without such Participant's written
consent; and, provided further, that upon the occurrence of a
Change in Control or an Irrevocable Election (whichever occurs
first) the last sentence of Section 6 of the Plan, as in effect
immediately prior to such Change in
<PAGE> 9
9
Control or Irrevocable Election, as applicable, may not be
amended, modified or revised as to any affected Participant,
unless such Participant consents to such amendment, modification
or revision as it may apply to such Participant. Notwithstanding
anything in the Plan to the contrary, following the occurrence of
a Change in Control or an Irrevocable Election (whichever occurs
first) neither any provision of the Plan nor any of the terms of
any related grant letter or agreement regarding Plan participation
may be amended, modified or revised in a manner affecting any
Participant who is in service with the Company or any of its
subsidiaries at the time of the Change in Control or Irrevocable
Election, as applicable, if such amendment, modification or
revision would cause, or have the effect of causing, the benefit
payable under the Plan with respect to such Participant (and any
rights of the Participant with respect thereto) to be less than
what such benefit (and any rights relating thereto) would have
been had the benefit been calculated based on the terms of the
Plan and the related grant letter or agreement regarding Plan
participation as in effect immediately prior to the Change in
Control or Irrevocable Election (as applicable) (but considering
any increases in the Participant's compensation, service, vested
interest and attained age after the Change in Control or
Irrevocable Election, as applicable), unless the Participant (or,
as applicable, such Participant's designated beneficiary) consents
to such amendment, modification or revision as it may apply to
such Participant (or his or her designated beneficiary)."
19. A new Section 25 is added after Section 24 of the Plan to read as
follows:
"25. Cancellation of Irrevocable Election. The provisions under
the Plan that become effective following an Irrevocable Election
shall no longer apply in the event the Irrevocable Election is
revoked or canceled pursuant to the terms of the Umbrella Trust
Agreement, and the provisions of the Plan in effect prior to such
Irrevocable Election shall again apply, unless and to the extent
that, prior or subsequent to the revocation or cancellation of
such Irrevocable Election, another Irrevocable Election or Change
in Control (as defined in Section 12) occurs, in which event the
Plan provisions relating to such further Irrevocable Election or
Change in Control shall separately apply."
<PAGE> 1
AMENDMENT TO THE DEFERRED COMPENSATION PLAN
FOR BOARD MEMBERS OF THE DIME SAVINGS BANK OF NEW YORK, FSB
EFFECTIVE MAY 18, 2000
The Deferred Compensation Plan for Board Members of The Dime Savings Bank
of New York, FSB (the "Plan"), is hereby amended effective as of the date set
forth above, as follows:
1. Sections 1.5 through 1.22 of the Plan are renumbered as Sections
1.6 through 1.23 and a new Section 1.5 is added to the Plan to read as follows:
"Section 1.5 Company means Dime Bancorp, Inc."
2. Section 3.2(c) of the Plan is amended in its entirety to read as
follows:
"(c) A Participant's Interest Bearing Memorandum Account shall
be credited monthly with interest at the rate in effect on
three-month Treasury Bills as of November 30 of the preceding
calendar year."
3. Section 3.7(a) of the Plan is amended in its entirety to read as
follows:
"(a) The Administrative Committee shall establish one or more
Discretionary Accounts that are designated to provide one or more
of the same deemed investment options as are offered under the
Dime Bancorp, Inc. Voluntary Deferred Compensation Plan for
Directors. The Bank shall maintain one or more separate
Discretionary Accounts for each Participant who has directed that
all or part of his deferred Fees be credited to such account(s). A
Participant's Discretionary Accounts shall be credited with such
portion of his deferred Fees as he shall direct in accordance with
Section 3.1(a), as of the date on which such Fees would have been
paid if an election to defer were not in effect."
4. The first sentence of Section 3.8(f) of the Plan is amended in its
entirety to read as follows:
"Notwithstanding anything herein to the contrary, if, following a
Change in Control (as defined in Section 3.10) or a Corporate
Event (as defined below), one or more of the investment options
under the Plan are eliminated, the Administrative Committee shall
make available an investment option or have all accounts credited
with earnings based on a single deemed investment (or, if the
Administrative Committee fails to so act, an investment option or
single deemed investment, as described in this sentence, shall
automatically be made available
<PAGE> 2
2
under the Plan) providing for a monthly investment return equal to
no less than the published fixed rate return for 30-year U.S.
Treasury securities as in effect on the last business day of each
month (or, in the event such a return on 30-year U.S. Treasury
securities is not then available, there shall be provided an
investment return as shall be determined by the Committee (the
"Director Umbrella Trust Committee") under the Umbrella Trust
Agreement among the Company, the Bank and HSBC Bank USA, as
Trustee with respect to the Covered Arrangements for Outside
Directors of the Bank and Related Entities, and any successor
agreement thereto (the "Director Umbrella Trust"))."
5. A new Section 3.11 is added to the Plan after Section 3.10 to read
as follows:
"Section 3.11 Adjustments to Phantom Shares. In the event of a
merger, reorganization, consolidation, sale of substantially all
assets, recapitalization, stock dividend, stock split, spin-off,
split-up, split-off, distribution of assets (including cash) or
other change in corporate structure affecting the common stock of
the Company, a substitution or adjustment, as may be determined to
be appropriate by the Administrative Committee (or, as applicable,
the Director Umbrella Trust Committee) in its sole discretion,
shall be made in the aggregate number of or type of Phantom Shares
credited to a Participant's Stock Memorandum Account or Phantom II
Account, and to the method of calculation of the value of Phantom
Shares, including, but not limited to, the special valuation
described in Section 3.9."
6. Section 4.5 of the Plan is amended in its entirety to read as
follows:
"Section 4.5 Change in Control Distributions.
In the event of a Change in Control (as defined in Section
3.10), a Participant may direct that all of the amounts then
credited to the Participant's accounts (subject to any
distribution restrictions applicable to amounts held in the
Participant's Phantom II Account, if any) be distributable in a
single lump sum (or otherwise as soon as practicable) to the
Participant upon a Change in Control, in which event the amount of
any further scheduled distribution shall be reduced by the amount
previously distributed on account of such Change in Control."
7. A new Section 5.4 is added to the Plan to read as follows:
"Section 5.4 Director Umbrella Trust Committee and Trustee.
Notwithstanding anything in the Plan to the contrary, the Director
Umbrella Trust Committee and the trustee under the Director
Umbrella Trust (the "Director
<PAGE> 3
3
Umbrella Trustee") shall have the discretionary authority to
interpret the provisions of the Plan and related elections to the
extent that interpretive authority is provided to the Director
Umbrella Trust Committee and/or the Director Umbrella Trustee, as
applicable, under the Director Umbrella Trust. The decisions of
the Director Umbrella Trust Committee, the Director Umbrella
Trustee and their delegatee(s) shall govern the interpretation of
the Plan and any amendments thereto and related elections,
notwithstanding any authority granted to another individual, group
of individuals or entity herein, including, but not limited to,
the authority to determine the amount, form and timing of payments
hereunder."
8. A new Section 5.5 is added to the Plan to read as follows:
"Section 5.5 Change in Control or Irrevocable Election.
(a) Notwithstanding anything in the Plan to the contrary, in
the event of a Change in Control (as defined in Section 3.10) or
an "Irrevocable Election" under the Director Umbrella Trust, no
amendment may be made to the Plan or act be taken that, with
respect to amounts deferred under the Plan as of the date of the
Change in Control or Irrevocable Election, and earnings thereon,
(i) adversely affects the rights of Participants to previously
permitted forms of benefit payment or any previously elected (or
automatically allowed) dates of benefit payment under Article IV,
(ii) adversely affects the rights of Participants to such amounts
and earnings thereon, (iii) eliminates the protections that apply
hereunder upon a Change in Control or Irrevocable Election, or
(iv) charges Plan expenses to Participant accounts.
(b) Notwithstanding anything hereunder to the contrary, after a
Change in Control (as defined in Section 3.10) or an "Irrevocable
Election" under the Director Umbrella Trust, claims for benefits
hereunder and other elections by a Participant or Beneficiary
under the Director Umbrella Trust may be filed with the Director
Umbrella Trustee, and the timely filing of such a claim or
election shall be treated for all purposes of the Plan as if such
claim or election was timely filed with the Administrative
Committee."
9. Section 6.9 of the Plan is amended in its entirety to read as
follows:
"Section 6.9 Governing Law.
The Plan shall be construed, administered and enforced
according to the laws of the State of New York without regard to
the principles of the conflicts of laws thereof, except to the
extent that such laws are preempted by federal law."
<PAGE> 4
4
10. A new Section 6.10 is added to the Plan to read as follows:
"Section 6.10 Cancellation of Irrevocable Election.
The provisions hereunder relating to periods after an
"Irrevocable Election" under the Director Umbrella Trust shall no
longer apply in the event the Irrevocable Election is revoked or
cancelled pursuant to the terms of the Director Umbrella Trust,
and the provisions of the Plan in effect prior to an Irrevocable
Election shall again apply, unless and to the extent that, prior
or subsequent to the revocation or cancellation of such
Irrevocable Election, another Irrevocable Election or a Change in
Control (as defined in Section 3.10) has occurred, with respect to
which Plan provisions relating thereto will continue to separately
apply."
<PAGE> 1
AMENDMENT TO THE
RETAINER CONTINUATION PLAN
FOR INDEPENDENT DIRECTORS OF
THE DIME SAVINGS BANK OF NEW YORK, FSB
EFFECTIVE MAY 18, 2000
The Retainer Continuation Plan for Independent Directors of The Dime
Savings Bank of New York, FSB (the "Plan") is hereby amended effective as of the
date set forth above, as follows:
1. The following sentence is added at the end of Section 4.2 of the
Plan:
"Notwithstanding the foregoing or anything otherwise in the Plan
to the contrary, after a Change in Control or Irrevocable Election
(each as defined in the Umbrella Trust Agreement among Dime
Bancorp, Inc., The Dime Savings Bank of New York, FSB and HSBC
Bank USA, as Trustee with respect to the Covered Arrangements for
Outside Directors of The Dime Savings Bank of New York, FSB and
Related Entities, or any successor agreement thereto (the
"Director Umbrella Trust" and "Change in Control" and "Irrevocable
Election"), any discretionary determinations by the Committee
under this Section 4.2 shall require the consent of the affected
Participant, and provided further, if such Participant consent is
provided, such Committee determinations shall not be effective
unless approved by the Committee under the Director Umbrella Trust
(the "Director Umbrella Trust Committee")."
2. Section 4.6 of the Plan and all references thereto is renumbered
as Section 4.5 and a new Section 4.6 is added to the Plan to read as follows:
"4.6 Actuarial Equivalence. Notwithstanding the foregoing, where
the actuarial equivalent of a Participant's Plan Benefit shall be
determined based on the factors used to determine actuarial
equivalence under the Retirement Plan, those factors shall apply
at any time prior to a Change in Control or Irrevocable Election
under the Director Umbrella Trust. After a Change in Control or
Irrevocable Election, determinations of actuarial equivalence
shall be based on either the factors used to determine actuarial
equivalence under the Retirement Plan at that time, or the
methodology used to determine actuarial equivalence under the
Retirement Plan immediately prior to the Change in Control or
Irrevocable Election under the Director Umbrella Trust (whichever
shall apply), if it results in the payment of a larger Plan
Benefit."
<PAGE> 2
2
3. A new Section 5.3 is added to the Plan to read as follows:
"Section 5.3 Director Umbrella Trust Committee and Trustee.
Notwithstanding anything in the foregoing or otherwise in the Plan
to the contrary, the Director Umbrella Trust Committee and the
trustee of the Director Umbrella Trust (the "Trustee") shall have
the discretionary authority to interpret the provisions of the
Plan to the extent that interpretive authority is provided to the
Director Umbrella Trust Committee and/or the Trustee, as
applicable, under the Director Umbrella Trust. The decisions of
the Director Umbrella Trust Committee, the Trustee and their
delegatee(s) shall govern the interpretation of the Plan and any
amendments thereto and elections thereunder, notwithstanding any
authority granted to another individual, group of individuals or
entity herein, including, but not limited to, the authority to
determine the amount, form and timing of payments hereunder."
4. A new Section 5.4 is added to the Plan to read as follows:
"5.4 Change in Control or Irrevocable Election. Notwithstanding
anything hereunder to the contrary, after a Change in Control or
Irrevocable Election under the Director Umbrella Trust, claims for
benefits hereunder and other elections by a Participant or
Beneficiary under the Director Umbrella Trust may be filed with
the Trustee, and the timely filing of such a claim or election
shall be treated for all purposes of the Plan as if such claim or
election was timely filed with the Committee."
5. The first textual sentence of Section 6.6 of the Plan is amended
to read as follows:
"The Bank reserves the right to amend, modify, restate or
terminate the Plan at any time; provided, however, that no such
action by the Bank shall reduce a Participant's Plan Benefit
accrued (whether or not then vested) as of the date thereof, and
provided further, that after a Change in Control or Irrevocable
Election under the Director Umbrella Trust, the Bank may not make
any amendment or modification to the Plan that would eliminate a
Participant's available elections under the Plan, as of the date
of the Change in Control or Irrevocable Election, without such
Participant's written consent."
6. Section 6.7 of the Plan is amended in its entirety to read as
follows:
"6.7 Governing Law. The Plan shall be construed, administered
and enforced according to the laws of the State of New York
without regard to the principles of the conflicts of laws thereof,
except to the extent that such laws are preempted by federal law."
<PAGE> 3
3
7. A new Section 6.8 is added to the Plan to read as follows:
"6.8 Cancellation of Irrevocable Election. The provisions
hereunder relating to periods after an Irrevocable Election under
the Director Umbrella Trust shall no longer apply in the event the
Irrevocable Election is revoked or cancelled pursuant to the terms
of the Director Umbrella Trust, and the provisions of the Plan in
effect prior to an Irrevocable Election shall again apply, unless
and to the extent that, prior or subsequent to the revocation or
cancellation of such Irrevocable Election, another Irrevocable
Election or a Change in Control under the Director Umbrella Trust
has occurred, with respect to which Plan provisions relating
thereto will continue to separately apply."
<PAGE> 1
AMENDMENT TO THE BENEFIT RESTORATION PLAN OF
THE DIME SAVINGS BANK OF NEW YORK, FSB
EFFECTIVE MAY 18, 2000
The Benefit Restoration Plan of The Dime Savings Bank of New York, FSB
(the "Plan") is hereby amended effective as of the date set forth above, as
follows:
1. The sixth textual sentence of Section 4.2(a) of the Plan is
amended to provide as follows:
"To the extent a Participant's Supplemental Retirement Benefits
are payable in a form other than a single life annuity, such
Supplemental Retirement Benefits shall be calculated on the basis
of the same actuarial assumptions as then apply under the
Retirement Plan, unless, with respect to those Participants who
are covered by the Plan at the time of a "Change in Control" or an
"Irrevocable Election" (each as defined in the Umbrella Trust
Agreement among Dime Bancorp, Inc., The Dime Savings Bank of New
York, FSB and HSBC Bank USA, as Trustee with respect to the
Covered Arrangements of The Dime Savings Bank of New York, FSB and
Related Entities, and any successor agreement thereto (the
"Umbrella Trust")), a larger benefit under this Plan would result
from utilizing the methodology used to determine actuarial
equivalence under the Retirement Plan immediately prior to the
Change in Control or Irrevocable Election (whichever shall apply),
in which case the methodology resulting in the larger benefit
under this Plan shall be utilized."
2. The third textual sentence of Section 4.2(b) of the Plan is
amended to provide as follows:
"In the event the commencement date for the payment of a
Participant's Supplemental Retirement Benefits is prior to the
date on which he or she would otherwise be entitled to an
unreduced benefit under the Retirement Plan, such Supplemental
Retirement Benefits shall be subject to an actuarial reduction for
such earlier commencement determined in the same manner as
provided under the Retirement Plan, unless, with respect to those
Participants who are covered by the Plan at the time of a "Change
in Control" or an "Irrevocable Election" (each as defined in the
Umbrella Trust), a larger benefit under this Plan would result
from utilizing the actuarial methodology used for such purposes
under the Retirement Plan immediately prior to the Change in
Control or Irrevocable Election (whichever shall apply), in which
case the methodology resulting in the larger benefit under this
Plan shall be utilized."
<PAGE> 2
2
3. The third textual sentence of the paragraph following clause (ii)
of Section 4.3 of the Plan is amended to provide as follows:
"In the event the commencement date for the payment of the
supplemental death benefits is prior to the date on which an
unreduced survivor benefit would otherwise be provided under the
Retirement Plan, or the supplemental death benefits are paid in an
alternative form, the amount of supplemental death benefits shall
be subject to an actuarial modification to reflect such earlier
commencement or alternative form, determined in the same manner as
provided under the Retirement Plan, unless, with respect to those
Participants who are covered by the Plan at the time of a "Change
in Control" or an "Irrevocable Election" (each as defined in the
Umbrella Trust), a larger benefit under this Plan would result
from utilizing the methodology used to determine actuarial
equivalence (including the methodology applicable to the early
commencement of benefits) under the Retirement Plan immediately
prior to the Change in Control or Irrevocable Election (whichever
shall apply), in which case the methodology resulting in the
larger benefit under this Plan shall be utilized."
4. A new Section 5.5 is added to the Plan to read as follows:
"Section 5.5 Umbrella Trust Committee and Trustee.
Notwithstanding anything in the foregoing or otherwise in
the Plan to the contrary, the Committee (the "Umbrella Trust
Committee") under the Umbrella Trust and the trustee of the
Umbrella Trust (the "Trustee") shall have the discretionary
authority to interpret the provisions of the Plan to the extent
that interpretive authority is provided to the Umbrella Trust
Committee and/or the Trustee, as applicable, under the Umbrella
Trust. The decisions of the Umbrella Trust Committee, the Trustee
and their delegatee(s) shall govern the interpretation of the Plan
and any amendments thereto, notwithstanding any authority granted
to another individual, group of individuals or entity herein,
including, but not limited to, the authority to determine the
amount, form and timing of payments hereunder."
5. A new Section 5.6 is added to the Plan to read as follows:
"Section 5.6 Change in Control or Irrevocable Election.
Notwithstanding anything hereunder to the contrary, after a
"Change in Control" or "Irrevocable Election" (each as defined in
the Umbrella Trust), claims for benefits hereunder and other
elections by a Participant or Beneficiary under the Umbrella Trust
may be filed with the Trustee, and the timely filing of such a
claim
<PAGE> 3
3
or election shall be treated for all purposes of the Plan as if
such claim or election was timely filed with the Committee, or as
applicable, Benefits Committee."
6. Section 7.1 of the Plan is amended to provide as follows:
"Section 7.1 Governing Law.
The Plan shall be construed, administered and enforced
according to the laws of the State of New York without regard to
the principles of the conflicts of laws thereof, except to the
extent that such laws are preempted by federal law."
7. A new Section 7.5 is added to the Plan to read as follows:
"Section 7.5 Cancellation of Irrevocable Election.
The provisions hereunder relating to periods after an
"Irrevocable Election" under the Umbrella Trust shall no longer
apply in the event the Irrevocable Election is revoked or
cancelled pursuant to the terms of the Umbrella Trust, and the
provisions of the Plan in effect prior to an Irrevocable Election
shall again apply, unless and to the extent that, prior or
subsequent to the revocation or cancellation of such Irrevocable
Election, another Irrevocable Election or a "Change in Control"
under the Umbrella Trust has occurred, with respect to which Plan
provisions relating thereto will continue to separately apply."
<PAGE> 1
AMENDMENT TO
THE DIME SAVINGS BANK OF NEW YORK, FSB
DEFERRED COMPENSATION PLAN
EFFECTIVE MAY 18, 2000
The Dime Savings Bank of New York, FSB Deferred Compensation Plan (the
"Plan") is hereby amended effective as of the date set forth above, as follows:
1. Section 3.4(a) of the Plan is amended by adding a new paragraph at
the end thereof to read as follows:
"Notwithstanding the foregoing provisions of this subsection (a)
to the contrary, upon and after a "Change in Control" or an
"Irrevocable Election" (each as defined in the Umbrella Trust
Agreement among Dime Bancorp, Inc., The Dime Savings Bank of New
York, FSB and HSBC Bank USA, as Trustee with respect to the
Covered Arrangements of The Dime Savings Bank of New York, FSB and
Related Entities, and any successor agreement thereto (the
"Umbrella Trust")), except as otherwise provided in Section 6.2,
the interest rate on the Bonus Account shall be 7 percent."
2. Section 8.3 of the Plan is amended by adding the following at the
end thereof:
"Notwithstanding the foregoing, after a "Change in Control" or an
"Irrevocable Election" under the Umbrella Trust, neither the Bank
nor the Plan Committee shall make any amendment to the Plan that
(i) adversely affects the rights of an Executive to any previously
permitted forms of benefit payment or any previously elected (or
automatically allowed) dates of benefit payment under Article IV
or Article VI, (ii) changes the timing for the crediting of
earnings on Deferred Accounts or (iii) charges Plan expenses to
Deferred Accounts."
4. A new Section 8.9 is added to the Plan to read as follows:
"8.9 Umbrella Trust Committee and Trustee. Notwithstanding
anything in the foregoing or otherwise in the Plan to the
contrary, the Committee under the Umbrella Trust (the "Umbrella
Trust Committee") and the trustee under the Umbrella Trust (the
"Trustee") shall have the discretionary authority to interpret the
provisions of the Plan to the extent that interpretive authority
is provided to the Umbrella Trust Committee and/or the Trustee, as
applicable, under the Umbrella Trust. The decisions of the
Umbrella Trust Committee, the Trustee and their delegatee(s) shall
govern the interpretation of the Plan and any amendments
<PAGE> 2
2
thereto, notwithstanding any authority granted to another
individual, group of individuals or entity herein, including, but
not limited to, the authority to determine the amount, form and
timing of payments hereunder."
5. A new Section 8.10 is added to the Plan to read as follows:
"8.10 Change in Control or Irrevocable Election. Notwithstanding
anything hereunder to the contrary, after a "Change in Control" or
"Irrevocable Election" under the Umbrella Trust, claims for
benefits hereunder and other elections by a Participant or
Beneficiary under the Umbrella Trust may be filed with the
Trustee, and the timely filing of such a claim or election shall
be treated for all purposes of the Plan as if such claim or
election was timely filed with the Plan Committee."
6. A new Section 8.11 is added to the Plan to read as follows:
"8.11 Cancellation of Irrevocable Election. The provisions
hereunder relating to periods after an "Irrevocable Election"
under the Umbrella Trust shall no longer apply in the event the
Irrevocable Election is revoked or cancelled pursuant to the terms
of the Umbrella Trust, and the provisions of the Plan in effect
prior to an Irrevocable Election shall again apply, unless and to
the extent that, prior or subsequent to the revocation or
cancellation of such Irrevocable Election, another Irrevocable
Election or a "Change in Control" under the Umbrella Trust, has
occurred, with respect to which Plan provisions relating thereto
will continue to separately apply."
7. A new Section 8.12 is added to the Plan to read as follows:
"8.12 Governing Law. The Plan shall be construed, administered
and enforced according to the laws of the State of New York
without regard to the principles of the conflicts of laws thereof,
except to the extent that such laws are preempted by federal law."
<PAGE> 1
AMENDMENT TO THE
KEY EXECUTIVE LIFE INSURANCE/DEATH BENEFIT PLAN
OF THE DIME SAVINGS BANK OF NEW YORK, FSB
EFFECTIVE MAY 18, 2000
The Key Executive Life Insurance/Death Benefit Plan of The Dime
Savings Bank of New York, FSB (the "Plan") is hereby amended in the following
particulars.
1. Article I of the Plan is amended to add after Section 1.16
thereof the following new definitions:
"1.17 'Umbrella Trust' means the trust established pursuant to
the Umbrella Trust Agreement.
1.18 'Umbrella Trust Agreement' means the Umbrella Trust
Agreement among Dime Bancorp, Inc., the Bank, and HSBC Bank USA,
as Trustee with respect to the Covered Arrangements of The Dime
Savings Bank of New York, FSB and Related Entities, and any
successor agreement thereto.
1.19 'Umbrella Trust Change in Control' means a change in
control as defined in the Umbrella Trust Agreement.
1.20 'Umbrella Trust Committee' means the administrative
committee under the Umbrella Trust Agreement."
2. Section 3.3(b) of the Plan is amended to read as follows:
"(b) Any executive who has elected to participate in the Plan
pursuant to Section 3.3(a) may, at any time prior to December 31,
1988 if the executive was first eligible to participate in the
Plan on or before January 15, 1988, at any time prior to the first
anniversary of his or her eligibility to participate in the Plan
if first chosen by the Committee to be eligible to participate
after January 15, 1988, or at such other times as the Compensation
Committee may determine, and subject to Section 3.2, direct that a
portion of his or her Single Life Coverage elected pursuant to
Section 3.3(a) (expressed as a percentage of Annual Compensation)
be converted to an equivalent amount of Survivor Joint Life
Coverage (determined pursuant to Section 3.4(b))."
3. The first textual sentence of Section 3.4(b) of the Plan is
amended to read as follows:
<PAGE> 2
"A Participant who so elects shall receive $1.67 of Survivor Joint
Life Coverage in lieu of each $1.00 of Single Life Coverage for
which the Participant is eligible; provided, however, that if the
Participant's spouse is more than five years older than the
Participant, the amount of Survivor Joint Life Coverage per $1.00
of Single Life Coverage shall be reduced to an amount whose cost
(as determined by the Carrier) is equal to the cost of $1.67 of
Survivor Joint Life Coverage for a Participant whose spouse is
five years older than the Participant, provided that in the event
of an Umbrella Trust Change in Control or an Irrevocable Election
(within the meaning of the Umbrella Trust Agreement) (an
"Irrevocable Election"), whichever occurs first, the amount of any
such reduction to enable the benefit to be of the same cost (as
determined by the Carrier) as Survivor Joint Life Coverage for a
Participant whose spouse is five years older than the Participant
shall be communicated to the Umbrella Trust Committee by the
Carrier."
4. Section 4.1(a) of the Plan is amended to read as follows:
"(a) With respect to a Participant who has elected Single Life
Coverage, the Bank (or following the earlier of an Umbrella Trust
Change in Control or an Irrevocable Election, at the election of
the Umbrella Trust Committee or the trustee of the Umbrella Trust,
the Umbrella Trust) shall pay to the Carrier each year the amount
necessary to maintain in effect a life insurance policy on the
life of the Participant in an amount not less than the amount
sufficient to provide the life insurance coverage elected by the
Participant, provided that after the Retirement of a Participant
the Bank shall only be required to maintain in effect sufficient
life insurance to provide the life insurance benefit available to
the Participant pursuant to Section 5.4."
5. The first sentence of Section 4.1(b) of the Plan is amended to
read as follows:
"(b) In the case of a Participant who has elected Survivor Joint
Life Coverage, the Bank (or following the earlier of an Umbrella
Trust Change in Control or an Irrevocable Election, at the
election of the Umbrella Trust Committee or the trustee of the
Umbrella Trust, the Umbrella Trust) shall pay to the Carrier each
year the amount necessary to maintain in effect a life insurance
policy on the Participant and his or her spouse in an amount not
less than the amount sufficient to provide the life insurance
coverage elected by the Participant."
2
<PAGE> 3
6. The last sentence of Section 4.1(b) of the Plan is amended to read
as follows:
"Following the occurrence of whichever of the foregoing events
applies, the Bank, in its sole discretion, may (but is not
required to) maintain in effect the life insurance policies
described in this Section 4.1(b)."
7. Section 4.2(a) of the Plan is amended to add at the end thereof
the following new sentence to read as follows:
"Notwithstanding anything herein to the contrary, following an
Umbrella Trust Change in Control or an Irrevocable Election, the
Participant may pay any Participant Premiums due under the Plan to
the trustee under the Umbrella Trust and such payment shall be
treated for all purposes under the Plan as a timely payment of
Participant Premiums to the Bank."
8. Section 4.2(b) of the Plan is amended to add at the end thereof
the following new sentence to read as follows:
"Notwithstanding anything herein to the contrary, following an
Umbrella Trust Change in Control or an Irrevocable Election, the
Participant's surviving spouse may pay any Participant Premiums
due under the Plan to the trustee under the Umbrella Trust and
such payment shall be treated for all purposes under the Plan as a
timely payment of Participant Premiums to the Bank."
9. Section 5.2 of the Plan is amended to add a new subsection (c) to
read as follows:
"(c) With respect to a Participant who has elected Single Life
Coverage or Survivor Joint Life Coverage and whose Beneficiary is
entitled to receive benefits under the Plan in the form of life
insurance proceeds, if all or any portion of such benefits are not
available to be paid as life insurance proceeds because of the
lapse of an insurance policy or otherwise (the "life insurance
benefit shortfall"), the Bank shall pay to such Beneficiary a
death benefit in an amount equal to the sum of (i) the amount of
the life insurance benefit shortfall and (ii) a tax gross-up
amount equal to the federal, state, local and other taxes that are
payable with respect to (A) the payment of a death benefit equal
to the amount of the life insurance benefit shortfall and (B) the
gross-up determined with respect to the amount described in (A),
provided that the tax gross-up payment described in clause (ii)(A)
shall apply only to the extent the taxes attributable to the
payment of a death benefit equal to the life insurance benefit
shortfall would not have been payable had the life insurance
benefit shortfall been paid in the form of life insurance
proceeds."
10. Section 5.4(a) of the Plan is amended to read as follows:
3
<PAGE> 4
"(a) The election to provide a life insurance benefit, rather
than a Bank-paid death benefit must be made (and not revoked)
prior to the Participant's date of Retirement), or if made or
received by the Committee after the Participant's date of
Retirement shall only be effective on the January 1 following the
date the election is received by the Committee; provided that with
respect to any Participant whose date of Retirement occurred
before June 1, 1999, an election to provide a life insurance
benefit rather than a Bank-paid death benefit will be effective as
of the date it is received by the Committee if it is so received
on or prior to September 30, 1999."
11. Section 5.4(d) of the Plan is amended to add at the end thereof
the following new sentence to read as follows:
"Notwithstanding anything herein to the contrary, following an
Umbrella Trust Change in Control or an Irrevocable Election, the
Participant may pay any tax withholding obligations with respect
to the taxes described above to the trustee under the Umbrella
Trust and such payment shall be treated for all purposes under the
Plan as a timely payment of such tax withholding amounts to the
Bank."
12. The first sentence of Section 6.1 of the Plan is amended to read
as follows:
"A Participant shall be 100% vested in his or her life insurance
benefits (pursuant to Section 5) or death benefits (pursuant to
Section 5.3), as applicable, upon the Participant's termination of
service described in clause (i) of the definition of Retirement."
13. The second sentence of Section 6.1 of the Plan is amended to read
as follows:
"In addition, a Participant in Tier 0, I or II and in service with
Dime Bancorp, Inc. (the "Company"), the Bank or any of their
subsidiaries at the time of a Change in Control (as defined in
Section 9.8) shall be 100% vested in his or her death benefits
(pursuant to Section 5.3) or life insurance benefits (pursuant to
Section 5), as applicable, upon the occurrence of such Change in
Control, provided that in the case of a Change in Control of the
type described in clause (v) of Section 9.8, such Change in
Control shall result in full vesting only if (A) the Participant's
employment is terminated (other than for "cause" (as defined
below)) by the Company, any parent of the Company or the Bank (or
any successor to the stock or substantially all the assets of any
of such entities) or a 50% or more-owned subsidiary thereof (other
than a termination of employment by a subsidiary of the Bank in
connection with the sale of substantially all the assets of such
subsidiary), (B) the Participant terminates his or her employment
with the Company, any parent of the Company or the Bank (or any
successor to the stock or substantially all the assets of any of
such entities) or a 50% or more-owned subsidiary thereof
4
<PAGE> 5
after such employer either (I) makes a material change in the
Participant's functions, duties or responsibilities, which change
would cause the Participant's position with such employer to
become one of lesser responsibility, importance or scope from that
in effect immediately prior to the occurrence of such Change in
Control or (II) reduces the Participant's annual salary to a level
below that in effect immediately prior to the Change in Control,
or (C) the Participant's employment is terminated by a subsidiary
of the Bank in connection with the sale of the stock or
substantially all the assets of such subsidiary and the
Participant does not commence employment (whether as an employee
or as an independent contractor) with the purchaser of such stock
or assets (or its affiliate) within 120 days of the date of such
sale, provided, further, that in case of subclauses (A), (B) and
(C), such termination of employment occurs after the occurrence of
the Change in Control described in clause (v) of Section 9.8, but
during the remaining term of the applicable employment or change
in control agreement between the Participant and the Company or
any of its subsidiaries in effect at the time of the occurrence of
such Change in Control (or, if greater, or if there is no such
agreement, within one year after the occurrence of such Change in
Control), and otherwise on or before the earlier of the
Abandonment Date (as defined below) or the date the transaction
contemplated by any event described in clause (v) of Section 9.8
is consummated."
14. The portion of the penultimate sentence of Section 6.1 of the Plan
preceding the colon and applicable vesting schedule set forth therein is amended
to read as follows:
"If the Participant terminates employment with the Bank where his
termination of employment does not satisfy the provisions of
clause (i) of the definition of Retirement, and except as
otherwise provided in the second sentence of this Section 6.1, the
Participant's life insurance benefits or death benefits, as
applicable, under the Plan shall vest in accordance with the
following vesting schedule:"
15. Section 6.1 of the Plan is amended to add at the end thereof a new
sentence to read as follows:
"For purposes of this Section 6.1, employment with the Bank shall
include service with any subsidiary or parent of the Bank."
16. Section 7.2(a) of the Plan is amended to read as follows:
"(a) The Board of Directors of the Bank shall have the right to
amend the Plan from time to time and to terminate the Plan at any
time; provided, however, that no such act shall decrease the
dollar amount of benefits payable with respect to a Participant
(or otherwise adversely affect the Participant's rights with
respect to such benefits) from the amount which would have been
payable (and the rights otherwise relating thereto) had the
Participant died immediately prior to such
5
<PAGE> 6
amendment or termination (without regard to the tax treatment of
such benefit). Without limiting the generality of the foregoing
and subject to the proviso in the preceding sentence and Section
9.1(c), the Bank shall have the right to change insurance
carriers, provided that any successor carrier shall be among the
top fifty Comdex (by LifeLink Corporation or a successor)
composite ranked carriers, with assets exceeding $7 billion and
the sum of total capital, surplus and asset valuation reserves
exceeding $1 billion (or, if such ratings are not available from
LifeLink Corporation or a successor, then provided that any
successor carrier shall have a "superior" rating classification
(or other highest rating classification) from another qualified
company issuing composite ratings of insurance carriers), and
provided further, no such change in insurance carriers shall be
effective with respect to Plan benefits in force as of an Umbrella
Trust Change in Control or an Irrevocable Election (whichever
occurs first) unless approved in writing by the Umbrella Trust
Committee. The Bank may not change the form of benefit under the
Plan from life insurance to death benefit and vice versa, unless
the Participant consents to such change in writing, and in such
event Participants and their spouses shall not be required to pay
Participant Premiums for benefits not to be provided as a life
insurance benefit. In the event of a termination of the Plan,
benefits shall be paid at the time or times they would have been
paid, and in such form (as a life insurance benefit or death
benefit (as so provided under the Plan) as would have been paid,
had the Plan not been terminated."
17. Section 7.2(b) of the Plan is deleted in its entirety.
18. Section 7.2(c) of the Plan is amended to read as follows:
"(c) Subject to the limitations of Section 7.2(a), the Committee
shall have the right to amend the Plan from time to time, provided
that no such amendment shall materially increase the cost to the
Bank of maintaining the Plan, and provided further, that following
a Change in Control (as defined in Section 9.8) or an Irrevocable
Election (whichever occurs first), the amendatory authority
provided in this Section 7.2(c) may be exercised by the Committee
only with respect to Plan benefits that first apply following the
Change in Control or Irrevocable Election."
19. Section 8.1 of the Plan is amended to add at the end thereof a new
sentence to read as follows:
"Notwithstanding any provision of the Plan to the contrary, the
Umbrella Trust Committee and the trustee of the Umbrella Trust and
their delegatee(s) shall, to the extent provided in the Umbrella
Trust Agreement, and notwithstanding the authority of the
Committee, the Board of Directors of the Bank, the Bank or any
other person hereunder, have discretionary authority to interpret
the Plan and any
6
<PAGE> 7
related grant letter or agreement governing participation in the
Plan and to determine the timing, amount and form of benefits
payable under the Plan."
20. Section 8.3(a) of the Plan is amended to add a new sentence at the
end thereof to read as follows:
"Notwithstanding anything herein to the contrary, after an
Umbrella Trust Change in Control or Irrevocable Election,
whichever occurs first, any claim relating to life insurance
benefits or death benefits under Section 8.3(a) or 8.3(b) may also
be filed with the trustee under the Umbrella Trust, and the timely
filing of a claim with such trustee shall be treated for all
purposes of the Plan as if such claim was timely filed with the
Plan Administrator."
21. The second sentence of Section 9.1(a) of the Plan is amended to
read as follows:
"Subject to subsection (c) of this Section 9.1, the Bank shall be
the owner of the insurance policies, and shall have all rights of
a policy owner including the right to borrow from the policies and
to receive dividends, if any; however, each policy shall contain
an endorsement indicating that upon (i) the death of the
Participant prior to Retirement (in the case of Single Life
Coverage), (ii) the death of the Participant prior to Retirement
and after the death of his or her spouse, (iii) the death of a
Participant's surviving spouse who has elected Option A pursuant
to Section 3.7 prior to attaining age 65 (in the case of Survivor
Joint Life Coverage), or (iv) (A) the death of the Participant
after his or her Retirement (in the case of Single Life Coverage)
or (B) the death of the Participant after his or her Retirement
and after the death of his or her spouse (in the case of Survivor
Joint Life Coverage), and with respect to whom a life insurance
benefit is payable pursuant to Section 5.4, proceeds of the policy
in an amount equal to the amount of coverage elected by the
Participant (to the extent applicable) or in the amount otherwise
provided for in Section 5.4 shall be paid directly to the
Beneficiary by the Carrier."
22. The last sentence of Section 9.1(a) of the Plan is amended to read
as follows:
"All proceeds of any such policy which may be maintained by the
Bank, and for which a post-retirement life insurance benefit
election under Section 5.4 is not then in effect, shall be paid to
the Bank, or after an Umbrella Trust Change in Control or an
Irrevocable Election (whichever occurs first) to the trustee under
the Umbrella Trust where such policy was held by the Umbrella
Trust, (i) upon the Participant's death after his or her
Retirement (in the case of Single Life Coverage) or (ii) upon (A)
the death, after his or her Retirement, of a Participant who
survives his or her spouse, or (B) the death of a Participant's
surviving spouse who has elected Option B pursuant to Section 3.7
(in the case of Survivor Joint Life
7
<PAGE> 8
Coverage), except to the extent they are payable directly by the
Carrier to the Participant's Beneficiary as provided above."
23. Section 9.1(c) of the Plan is amended to read as follows:
"Notwithstanding anything in the Plan to the contrary, the Bank
may permit or authorize, but is not required or otherwise
obligated to permit or authorize, the holding any insurance policy
purchased to provide the life insurance benefits under the Plan by
a trust, subject to such terms and conditions as the Bank may deem
appropriate; provided, however, following an Umbrella Trust Change
in Control or an Irrevocable Election (whichever occurs first),
any life insurance policies purchased to provide benefits under
the Plan that are held by the Umbrella Trust immediately prior to
such event may not be transferred, exchanged, terminated or
otherwise disposed of by the Bank or any other person without the
consent of the Umbrella Trust Committee."
24. Section 9.10 of the Plan is amended to read as follows:
"9.10 Governing Law. Except to the extent preempted by federal
law, the provisions of the Plan shall be construed, administered
and enforced according to the laws of the State of New York
without regard to the principles of the conflicts of laws
thereof."
25. A new Section 9.11 is added after Section 9.10 of the Plan to read
as follows:
"9.11 Cancellation of Irrevocable Election. The provisions under
the Plan that become effective following an Irrevocable Election
shall no longer apply in the event the Irrevocable Election is
revoked or canceled pursuant to the terms of the Umbrella Trust
Agreement, and the provisions of the Plan in effect prior to such
Irrevocable Election shall again apply, unless and to the extent
that, prior or subsequent to the revocation or cancellation of
such Irrevocable Election, another Irrevocable Election or an
Umbrella Trust Change in Control occurs, in which event the Plan
provisions relating to such further Irrevocable Election or
Umbrella Trust Change in Control shall separately apply."
8
<PAGE> 1
AMENDMENT TO THE
DIME BANCORP, INC. OFFICER INCENTIVE PLAN
EFFECTIVE MAY 18, 2000
The Dime Bancorp, Inc. Officer Incentive Plan (the "Plan") is hereby
amended effective as of the date set forth above, as follows:
1. Section 2 of the Plan is redesignated as subsection 2(a) and the
following is added at the end thereof:
"Notwithstanding anything in the Plan to the contrary, the
Committee (the "Umbrella Trust Committee") under the Umbrella
Trust Agreement among Dime Bancorp, Inc., The Dime Savings Bank of
New York, FSB and HSBC Bank USA, as Trustee with respect to the
Covered Arrangements of The Dime Savings Bank of New York, FSB and
Related Entities, and any successor agreement thereto (the
"Umbrella Trust") and the trustee under the Umbrella Trust (the
"Trustee") shall have the discretionary authority to interpret the
provisions of the Plan to the extent that interpretive authority
is provided to the Umbrella Trust Committee and/or the Trustee, as
applicable, under the Umbrella Trust. The decisions of the
Umbrella Trust Committee, the Trustee and their delegatee(s) shall
govern the interpretation of the Plan and any amendments thereto,
notwithstanding any authority granted to another individual, group
of individuals or entity herein, with respect to the determination
of the amount, form and timing of guaranteed minimum bonus
payments hereunder."
2. A new subsection 2(b) is added to the Plan following subsection
2(a) (as redesignated above) to read as follows:
"(b) Notwithstanding anything hereunder to the contrary, after a
"Change in Control" or "Irrevocable Election" (each as defined in
the Umbrella Trust), claims for guaranteed minimum bonus payments
hereunder by a Participant or Beneficiary under the Umbrella Trust
may be filed with the Trustee, and the timely filing of such a
claim or election shall be treated for all purposes of the Plan as
if such clause or election was timely filed with the Committee."
3. A new Section 5 is added to the Plan to read as follows:
"5. Cancellation of Irrevocable Election. The provisions
hereunder relating to periods after an "Irrevocable Election"
under the Umbrella Trust shall no longer apply in the event the
Irrevocable Election is revoked or cancelled pursuant to the
<PAGE> 2
2
terms of the Umbrella Trust, and the provisions of the Plan in
effect prior to an Irrevocable Election shall again apply, unless
and to the extent that, prior or subsequent to the revocation or
cancellation of such Irrevocable Election, another Irrevocable
Election or a "Change in Control" under the Umbrella Trust has
occurred, with respect to which Plan provisions relating thereto
will continue to separately apply."
<PAGE> 3
AMENDMENT TO THE DIME BANCORP, INC.
SENIOR MANAGEMENT INCENTIVE PLAN
EFFECTIVE MAY 18, 2000
The Dime Bancorp, Inc. Senior Management Incentive Plan (the "Plan") is
hereby amended effective as of the date set forth above, as follows:
1. Section 3 of the Plan is redesignated as subsection 3(a) and the
following is added at the end thereof:
"Notwithstanding the foregoing or anything otherwise in the Plan
to the contrary, the Committee (the "Umbrella Trust Committee")
under the Umbrella Trust Agreement among Dime Bancorp, Inc., The
Dime Savings Bank of New York, FSB and HSBC Bank USA, as Trustee
with respect to the Covered Arrangements of The Dime Savings Bank
of New York, FSB and Related Entities, and any successor agreement
thereto (the "Umbrella Trust") and the trustee of the Umbrella
Trust (the "Trustee") shall have the discretionary authority to
interpret the provisions of the Plan to the extent that
interpretive authority is provided to the Umbrella Trust Committee
and/or the Trustee, as applicable, under the Umbrella Trust. The
decisions of the Umbrella Trust Committee, the Trustee and their
delegatee(s) shall govern the interpretation of the Plan and any
amendments thereto, notwithstanding any authority granted to
another individual, group of individuals or entity herein, with
respect to the determination of the amount, form and timing of
guaranteed minimum bonus payments hereunder."
2. A new subsection 3(b) is added to the Plan following subsection
3(a) (as redesignated above) to read as follows:
"(b) Notwithstanding anything hereunder to the contrary, after a
"change in control" (as defined in the Umbrella Trust) or
"Irrevocable Election" under the Umbrella Trust, claims for
guaranteed minimum target bonus payments hereunder by a
Participant or Beneficiary under the Umbrella Trust may be filed
with the Trustee, and the timely filing of such a claim or
election shall be treated for all purposes of the Plan as if such
claim or election was timely filed with the Committee."
3. Section 8(a) of the Plan is amended to read in its entirety as
follows:
" (a) Guaranteed minimum target bonus payments. Upon the
occurrence of a Change in Control as defined in clause (v) of
subsection 8(b) below, all
<PAGE> 4
2
Participants who are in service with the Company or any of its
subsidiaries or affiliates at the time of the Change in Control,
and who may otherwise (if all conditions related to such award
were met) be entitled pursuant to an Award under this Plan to
receive a target bonus amount for the calendar year in which such
Change in Control occurs (the "Initial Period"), and with respect
to any subsequent calendar year that ends prior to the occurrence
of a Change in Control as defined in any of clause (i) through
(iv) of subsection 8(b) below (an "Interim Period"), shall be
entitled to receive not less than a pro-rated portion of each such
minimum target bonus amount (which target bonus amount may not be
reduced in contemplation of, or on or after the occurrence of, the
Change in Control), calculated by multiplying such minimum target
bonus amount by a fraction, the numerator of which is the number
of days during which the employee was employed by the Company or
any of its subsidiaries or affiliates during the Initial Period or
Interim Period, as appropriate, and the denominator of which is
the number of days in such calendar year, provided that no
Abandonment Date arises with respect to such Change in Control
prior to the end of the Initial Period or Interim Period, as
appropriate. For purposes of determining the guaranteed minimum
target bonus amounts described above, where the target bonus is
denoted as a percentage of annual salary based on a Participant's
tier level, the target bonus will be computed based on the
combination of the Participant's annual salary rate and tier level
in effect at any time during the relevant calendar year that
results in the highest target bonus amount. If an Abandonment Date
occurs with respect to a Change in Control described in clause (v)
of subsection 8(b) below but the employment of a Participant who
was employed as of the date of such Change in Control is
terminated by the Company and its subsidiaries (other than for
"cause" (as defined below)) during the Initial Period or Interim
Period, or the Participant terminates his or her employment with
the Company and its subsidiaries after the Participant's employer
has reduced the Participant's annual salary below that in effect
immediately prior to the occurrence of the event described in
clause (v) of subsection 8(b), provided that such termination of
employment occurs after the occurrence of the event described in
clause (v) of subsection 8(b) and during the Initial Period or
Interim Period, but before the Abandonment Date, then,
notwithstanding the occurrence of the Abandonment Date, one or
more pro-rated minimum guaranteed bonus amounts shall be payable
with respect to such Participant, as appropriate.
In addition, upon the occurrence of a Change in Control as
defined in any of clause (i) through (iv) of subsection 8(b)
below, all Participants who are in service with the Company or any
of its subsidiaries or affiliates at the time of the Change in
Control, and who may otherwise (if all conditions related to such
award were met) be entitled pursuant to an Award under this Plan
to receive a target bonus amount for the calendar year in which
such Change in Control occurs, shall
<PAGE> 5
3
be entitled to receive not less than a pro-rated portion of such
minimum target bonus amount (which target bonus amount may not be
reduced in contemplation of, or on or after the occurrence of, the
Change in Control), calculated by multiplying such minimum target
bonus amount by a fraction, the numerator of which is the number
of days during which the employee was employed by the Company or
any of its subsidiaries or affiliates during the calendar year in
which the Change in Control described in any of such clauses (i)
through (iv) of subsection 8(b) occurs, and the denominator of
which is the number of days in such calendar year. For purposes of
determining the guaranteed minimum target bonus amount described
above, where the target bonus is denoted as a percentage of annual
salary based on a Participant's tier level, the target bonus will
be computed based on the combination of the Participant's annual
salary rate and tier level in effect at any time during the
calendar year that results in the highest target bonus amount. It
is understood that if Changes in Control described in clause (v)
of subsection 8(b) and in any of clauses (i) through (iv) of
subsection 8(b) occur in two different years, guaranteed minimum
bonus amounts shall, if applicable, be payable for each of the
Initial Period, the Interim Period (if applicable), and the
calendar year during which the Change in Control described in any
of clauses (i) through (iv) of subsection 8(b) occurs, while if
Changes in Control described in clause (v) of subsection 8(b) and
in any of clauses (i) through (iv) of subsection 8(b) occur in a
single calendar year, only a single guaranteed minimum bonus
amount will be payable to a Participant pursuant to this
subsection 8(a).
Each of the guaranteed minimum target bonus amounts
described above shall be paid no later than the earlier of (I)
March 31 of the year following the taxable year of the Company in
which the applicable Change in Control event occurs or, for an
Interim Period, in which such calendar year ends, or (II) as soon
as practicable following the Participant's termination of
employment, unless otherwise deferred pursuant to the Dime
Bancorp, Inc. Voluntary Deferred Compensation Plan (in which event
it will be paid in accordance with such deferral election and be
accompanied by earnings thereon)."
4. The language of subsection 8(b)(v) of the Plan preceding the
second sentence thereof (containing the definition of "Abandonment Date") is
amended to read as follows:
"(v) the execution of a binding agreement that if consummated
would result in a Change in Control of a type specified in clause
(i) or (iii) of this subsection 8(b) (an "Acquisition Agreement")
or of a binding agreement for the sale or disposition of assets
that, if consummated, would result in a Change in Control of a
type specified in clause (iv) of this subsection 8(b) (an "Asset
Sale Agreement") or the adoption by the Board of Directors of the
Company or the Bank of a plan of complete liquidation or
dissolution of the Company or the Bank that, if
<PAGE> 6
4
consummated, would result in a Change in Control of a type
specified in clause (iv) of this subsection 8(b) (a "Plan of
Liquidation")."
5. A new Section 17 is added to the Plan to read as follows:
"17. Cancellation of Irrevocable Election. The provisions
hereunder relating to periods after an "Irrevocable Election"
under the Umbrella Trust shall no longer apply in the event the
Irrevocable Election is revoked or cancelled pursuant to the terms
of the Umbrella Trust, and the provisions of the Plan in effect
prior to an Irrevocable Election shall again apply, unless and to
the extent that, prior or subsequent to the revocation or
cancellation of such Irrevocable Election, another Irrevocable
Election or a Change in Control has occurred, with respect to
which Plan provisions relating thereto will continue to separately
apply."
<PAGE> 7
AMENDMENT TO THE DIME BANCORP, INC.
MIDDLE MANAGEMENT INCENTIVE PLAN
EFFECTIVE MAY 18, 2000
The Dime Bancorp, Inc. Middle Management Incentive Plan (the "Plan") is
hereby amended effective as of the date set forth above, as follows:
1. Section 3 of the Plan is redesignated as subsection 3(a) and the
following is added at the end thereof:
"Notwithstanding the foregoing or anything otherwise in the Plan
to the contrary, the Committee (the "Umbrella Trust Committee")
under the Umbrella Trust Agreement among Dime Bancorp, Inc., The
Dime Savings Bank of New York, FSB and HSBC Bank USA, as Trustee
with respect to the Covered Arrangements of The Dime Savings Bank
of New York, FSB and Related Entities, and any successor agreement
thereto (the "Umbrella Trust") and the trustee of the Umbrella
Trust (the "Trustee") shall have the discretionary authority to
interpret the provisions of the Plan to the extent that
interpretive authority is provided to the Umbrella Trust Committee
and/or the Trustee, as applicable, under the Umbrella Trust. The
decisions of the Umbrella Trust Committee, the Trustee and their
delegatee(s) shall govern the interpretation of the Plan and any
amendments thereto, notwithstanding any authority granted to
another individual, group of individuals or entity herein, with
respect to the determination of the amount, form and timing of
guaranteed minimum bonus payments hereunder."
2. A new subsection 3(b) is added to the Plan following subsection
3(a) (as redesignated above) to read as follows:
"(b) Notwithstanding anything hereunder to the contrary, after
a "change in control" (as defined in the Umbrella Trust) or
"Irrevocable Election" under the Umbrella Trust, claims for
guaranteed minimum target bonus payments hereunder by a
Participant or Beneficiary under the Umbrella Trust may be filed
with the Trustee, and the timely filing of such a claim or
election shall be treated for all purposes of the Plan as if such
claim or election was timely filed with the Committee."
3. Section 8(a) of the Plan is amended to read in its entirety as
follows:
" (a) Guaranteed minimum target bonus payments. Upon the
occurrence of a Change in Control as defined in clause (v) of
subsection 8(b) below, all
<PAGE> 8
2
Participants who are in service with the Company or any of its
subsidiaries or affiliates at the time of the Change in Control,
and who may otherwise (if all conditions related to such award
were met) be entitled pursuant to an Award under this Plan to
receive a target bonus amount for the calendar year in which such
Change in Control occurs (the "Initial Period"), and with respect
to any subsequent calendar year that ends prior to the occurrence
of a Change in Control as defined in any of clause (i) through
(iv) of subsection 8(b) below (an "Interim Period"), shall be
entitled to receive not less than a pro-rated portion of each such
minimum target bonus amount (which target bonus amount may not be
reduced in contemplation of, or on or after the occurrence of, the
Change in Control), calculated by multiplying such minimum target
bonus amount by a fraction, the numerator of which is the number
of days during which the employee was employed by the Company or
any of its subsidiaries or affiliates during the Initial Period or
Interim Period, as appropriate, and the denominator of which is
the number of days in such calendar year, provided that no
Abandonment Date arises with respect to such Change in Control
prior to the end of the Initial Period or Interim Period, as
appropriate. For purposes of determining the guaranteed minimum
target bonus amounts described above, where the target bonus is
denoted as a percentage of annual salary based on a Participant's
tier level, the target bonus will be computed based on the
combination of the Participant's annual salary rate and tier level
in effect at any time during the relevant calendar year that
results in the highest target bonus amount. If an Abandonment Date
occurs with respect to a Change in Control described in clause (v)
of subsection 8(b) below but the employment of a Participant who
was employed as of the date of such Change in Control is
terminated by the Company and its subsidiaries (other than for
"cause" (as defined below)) during the Initial Period or Interim
Period, or the Participant terminates his or her employment with
the Company and its subsidiaries after the Participant's employer
has reduced the Participant's annual salary below that in effect
immediately prior to the occurrence of the event described in
clause (v) of subsection 8(b), provided that such termination of
employment occurs after the occurrence of the event described in
clause (v) of subsection 8(b) and during the Initial Period or
Interim Period, but before the Abandonment Date, then,
notwithstanding the occurrence of the Abandonment Date, one or
more pro-rated minimum guaranteed bonus amounts shall be payable
with respect to such Participant, as appropriate.
In addition, upon the occurrence of a Change in Control as
defined in any of clause (i) through (iv) of subsection 8(b)
below, all Participants who are in service with the Company or any
of its subsidiaries or affiliates at the time of the Change in
Control, and who may otherwise (if all conditions related to such
award were met) be entitled pursuant to an Award under this Plan
to receive a target bonus amount for the calendar year in which
such Change in Control occurs, shall
<PAGE> 9
3
be entitled to receive not less than a pro-rated portion of such
minimum target bonus amount (which target bonus amount may not be
reduced in contemplation of, or on or after the occurrence of, the
Change in Control), calculated by multiplying such minimum target
bonus amount by a fraction, the numerator of which is the number
of days during which the employee was employed by the Company or
any of its subsidiaries or affiliates during the calendar year in
which the Change in Control described in any of such clauses (i)
through (iv) of subsection 8(b) occurs, and the denominator of
which is the number of days in such calendar year. For purposes of
determining the guaranteed minimum target bonus amount described
above, where the target bonus is denoted as a percentage of annual
salary based on a Participant's tier level, the target bonus will
be computed based on the combination of the Participant's annual
salary rate and tier level in effect at any time during the
calendar year that results in the highest target bonus amount. It
is understood that if Changes in Control described in clause (v)
of subsection 8(b) and in any of clauses (i) through (iv) of
subsection 8(b) occur in two different years, guaranteed minimum
bonus amounts shall, if applicable, be payable for each of the
Initial Period, the Interim Period (if applicable), and the
calendar year during which the Change in Control described in any
of clauses (i) through (iv) of subsection 8(b) occurs, while if
Changes in Control described in clause (v) of subsection 8(b) and
in any of clauses (i) through (iv) of subsection 8(b) occur in a
single calendar year, only a single guaranteed minimum bonus
amount will be payable to a Participant pursuant to this
subsection 8(a).
Each of the guaranteed minimum target bonus amounts
described above shall be paid no later than the earlier of (I)
March 31 of the year following the taxable year of the Company in
which the applicable Change in Control event occurs or, for an
Interim Period, in which such calendar year ends, or (II) as soon
as practicable following the Participant's termination of
employment, unless otherwise deferred pursuant to the Dime
Bancorp, Inc. Voluntary Deferred Compensation Plan (in which event
it will be paid in accordance with such deferral election and be
accompanied by earnings thereon)."
4. The language of subsection 8(b)(v) of the Plan preceding the
second sentence thereof (containing the definition of "Abandonment Date") is
amended to read as follows:
"(v) the execution of a binding agreement that if consummated
would result in a Change in Control of a type specified in clause
(i) or (iii) of this subsection 8(b) (an "Acquisition Agreement")
or of a binding agreement for the sale or disposition of assets
that, if consummated, would result in a Change in Control of a
type specified in clause (iv) of this subsection 8(b) (an "Asset
Sale Agreement") or the adoption by the Board of Directors of the
Company or the Bank of a plan of complete liquidation or
dissolution of the Company or the Bank that, if
<PAGE> 10
4
consummated, would result in a Change in Control of a type
specified in clause (iv) of this subsection 8(b) (a "Plan of
Liquidation")."
5. A new Section 17 is added to the Plan to read as follows:
"17. Cancellation of Irrevocable Election. The provisions
hereunder relating to periods after an "Irrevocable Election"
under the Umbrella Trust shall no longer apply in the event the
Irrevocable Election is revoked or cancelled pursuant to the terms
of the Umbrella Trust, and the provisions of the Plan in effect
prior to an Irrevocable Election shall again apply, unless and to
the extent that, prior or subsequent to the revocation or
cancellation of such Irrevocable Election, another Irrevocable
Election or a Change in Control has occurred, with respect to
which Plan provisions relating thereto will continue to separately
apply."
<PAGE> 1
AMENDMENT TO THE DIME BANCORP, INC.
SENIOR OFFICER INCENTIVE PLAN
EFFECTIVE MAY 18, 2000
The Dime Bancorp, Inc. Senior Officer Incentive Plan (the "Plan") is
hereby amended effective as of the date set forth above, as follows:
1. The language of Section 2(e)(v) of the Plan preceding the second
sentence thereof (containing the definition of "Abandonment Date") is amended to
read as follows:
"(v) the execution of a binding agreement that if consummated
would result in a Change in Control of a type specified in clause
(i) or (iii) of this Section 2(e) (an "Acquisition Agreement") or
of a binding agreement for the sale or disposition of assets that,
if consummated, would result in a Change in Control of a type
specified in clause (iv) of this Section 2(e) (an "Asset Sale
Agreement") or the adoption by the Board of Directors of the
Company or the Bank of a plan of complete liquidation or
dissolution of the Company or the Bank that, if consummated, would
result in a Change in Control of a type specified in clause (iv)
of this Section 2(e) (a "Plan of Liquidation")."
2. The first textual sentence of Section 3(a) of the Plan is amended
to read as follows:
"Except as provided in Section 9, the Plan shall be administered
by the Committee."
3. Section 3(b) of the Plan is amended in its entirety to read as
follows:
"(b) Binding Nature of Committee Decisions. Except as provided
in Section 9, unless otherwise expressly provided in the Plan, all
designations, determinations, interpretations and other decisions
made under or with respect to the Plan or any award under the Plan
shall be within the sole and absolute discretion of the Committee,
and shall be final, conclusive and binding on all persons,
including the Company, any Participant, and any award beneficiary
or other person having, or claiming, any rights under the Plan."
4. Section 6(c)(iii) of the Plan is amended in its entirety to read
as follows:
"(iii) in the event of a Change in Control as defined in clause
(v) of Section 2(e), all Participants who are in service
with the Company or any of its subsidiaries or affiliates
at the time of the Change in Control, and who may
<PAGE> 2
2
otherwise (if all conditions related to such award were
met) be entitled to receive a Target Bonus Amount under
this Plan for the Performance Period in which such Change
in Control occurs (the "Initial Performance Period"), or
with respect to any subsequent Performance Period that ends
prior to the occurrence of a Change in Control as defined
under any of clauses (i) through (iv) of Section 2(e) (an
"Interim Performance Period"), shall, provided that no
Abandonment Date arises with respect to such Change in
Control prior to the end of the Initial Performance Period
or Interim Performance Period, as appropriate, be entitled
to receive not less than a pro-rated portion of each such
Target Bonus Amount (which Target Bonus Amount may not be
reduced in contemplation of, or on or after the occurrence
of, the Change in Control), calculated by multiplying such
Target Bonus Amount by a fraction, the numerator of which
is the number of days during which the Participant was
employed by the Company or any of its subsidiaries or
affiliates during the Initial Performance Period or Interim
Performance Period, as appropriate, and the denominator of
which is the number of days in such Performance Period,
provided that such minimum pro-rated bonus amount shall not
be subject to any reduction pursuant to the Committee's
exercise of Negative Discretion (but, to the extent
applicable, may be subject to offset or reduction pursuant
to Section 6(c)(iv)) (with any such minimum pro-rated bonus
amount referred to as a "guaranteed minimum target bonus").
If an Abandonment Date occurs with respect to a Change in
Control described in clause (v) of Section 2(e) but the
employment of a Participant who was employed as of the date
of such Change in Control is terminated by the Company and
its subsidiaries (other than for Cause during the relevant
Performance Period described above), or the Participant
terminates his or her employment with the Company and its
subsidiaries after the Participant's employer (1) makes a
material change in the Participant's functions, duties or
responsibilities, which change would cause the
Participant's position with his or her employer to become
one of materially lesser responsibility, importance or
scope from that in effect immediately prior to the
occurrence of such Change in Control or (2) has reduced the
Participant's annual salary below that in effect
immediately prior to the occurrence of the event described
in clause (v) of Section 2(e), provided that such
termination of employment occurs after the occurrence of
the event described in clause (v) of Section 2(e) and
during the relevant Performance Period described above, but
before the Abandonment Date, then, notwithstanding the
occurrence of the Abandonment Date, one or more guaranteed
minimum target bonus amounts as described above shall be
payable with respect to such Participant, as appropriate.
<PAGE> 3
3
In addition, in the event a Change in Control as
defined under any of clauses (i) through (iv) of Section
2(e), all Participants who are in service with the Company
or any of its subsidiaries or affiliates at the time of the
Change in Control, and who may otherwise (if all conditions
related to such award are met) be entitled to receive a
Target Bonus Amount under this Plan for the Performance
Period in which such Change in Control occurs, shall be
entitled to receive not less than a pro-rated portion of
such Target Bonus Amount (which Target Bonus Amount may not
be reduced in contemplation of, or on or after the
occurrence of, the Change in Control), calculated by
multiplying such Target Bonus Amount by a fraction, the
numerator of which is the number of days during which the
Participant was employed by the Company or any of its
subsidiaries or affiliates during the Performance Period in
which the Change in Control described in any of such
clauses (i) through (iv) of Section 2(e) occurs, and the
denominator of which is the number of days in such
Performance Period, provided that such minimum pro-rated
bonus amount shall not be subject to any reduction pursuant
to the Committee's exercise of Negative Discretion (but, to
the extent applicable, may be subject to offset or
reduction pursuant to Section 6(c)(iv)) (with such minimum
pro-rated bonus amount also referred to as a "guaranteed
minimum target bonus"). It is understood that if Changes in
Control described in clause (v) of Section 2(e) and in any
of clauses (i) through (iv) of Section 2(e) occur in two
different Performance Periods, guaranteed minimum target
bonus amounts shall, if applicable, be payable for each of
the Initial Performance Period, the Interim Performance
Period (if applicable), and the Performance Period during
which the Change in Control described in any of clauses (i)
through (iv) of Section 2(e) occurs, while if Changes in
Control described in clause (v) of Section 2(e) and in any
of clauses (i) through (iv) of Section 2(e) occur in a
single Performance Period, only a single guaranteed minimum
target bonus amount will be payable to a Participant
pursuant to this subsection 6(c)(iii).
Each of the minimum pro-rated bonus amounts
described above shall be paid no later than the earlier of
(I) March 31 of the year following the taxable year of the
Company in which the applicable Change in Control event
occurs (or, for an Interim Performance Period, in which
such Performance Period ends), or (II) as soon as
practicable following the Participant's termination of
employment, unless otherwise deferred pursuant to the Dime
Bancorp, Inc. Voluntary Deferred Compensation Plan or
otherwise in accordance with a deferral opportunity made
available to the Participant by the Committee (in which
event it will be paid in
<PAGE> 4
4
accordance with such deferral election and be accompanied
by earnings thereon); and"
5. The following sentence is added at the end of Section 7(a) of the
Plan:
"Notwithstanding the foregoing, it is understood that guaranteed
minimum bonus amounts under subsection 6(c)(iii) are not eligible
for the exception for qualified performance based compensation
under Section 162(m) of the Code and therefore, no amendment to
those provisions hereunder is or shall be necessary to enable the
bonus payments hereunder (other than such guaranteed minimum bonus
amounts) to otherwise comply with the applicable Code Section
162(m) requirements described in the previous sentence."
6. A new Section 9 is added to the Plan to read as follows:
"9. UMBRELLA TRUST COMMITTEE AND TRUSTEE.
(a) Discretionary Authority. Notwithstanding anything in
the Plan to the contrary, including, without limitation, the
provisions of Section 3, the committee (the "Umbrella Trust
Committee") under the Umbrella Trust Agreement among Dime Bancorp,
Inc., The Dime Savings Bank of New York, FSB and HSBC Bank USA, as
Trustee with respect to the Covered Arrangements of The Dime
Savings Bank of New York, FSB and Related Entities, and any
successor agreement thereto (the " Umbrella Trust") and the
trustee of the Umbrella Trust (the "Trustee") shall have the
discretionary authority to interpret the provisions of the Plan to
the extent that interpretive authority is provided to the Umbrella
Trust Committee and/or the Trustee, as applicable, under the
Umbrella Trust. The decisions of the Umbrella Trust Committee, the
Trustee and their delegatee(s) shall govern the interpretation of
the Plan and any amendments thereto, notwithstanding any authority
granted to another individual, group of individuals or entity
herein, including, but not limited to, the authority to determine
the amount, form and timing of guaranteed minimum bonus payments
hereunder.
(b) Change in Control or Irrevocable Election.
Notwithstanding anything hereunder to the contrary, after a change
in control (as defined in the Umbrella Trust) or an "Irrevocable
Election" under the Umbrella Trust, claims for guaranteed minimum
bonus payments hereunder by a Participant or Beneficiary under the
Umbrella Trust may be filed with the Trustee, and the timely
filing of such a claim or election shall be treated for all
purposes of the Plan as if such claim or election was timely filed
with the Committee."
7. A new Section 10 is added to the Plan to read as follows:
<PAGE> 5
5
"10. CANCELLATION OF IRREVOCABLE ELECTION.
The provisions hereunder relating to periods after an
"Irrevocable Election" under the Umbrella Trust shall no longer
apply in the event the Irrevocable Election is revoked or
cancelled pursuant to the terms of the Umbrella Trust, and the
provisions of the Plan in effect prior to an Irrevocable Election
shall again apply, unless and to the extent that, prior or
subsequent to the revocation or cancellation of such Irrevocable
Election, another Irrevocable Election or a change in control (as
defined in the Umbrella Trust) has occurred, with respect to which
Plan provisions relating thereto will continue to separately
apply."
