exv10w10



 





Exhibit 10.10




NORTHFIELD BANK




NON-QUALIFIED SUPPLEMENTAL

EMPLOYEE STOCK OWNERSHIP PLAN




                                        , 2007




 









 








NORTHFIELD BANK

NON-QUALIFIED SUPPLEMENTAL

EMPLOYEE STOCK OWNERSHIP PLAN




     1. Purpose



          This Non-Qualified Supplemental Employee Stock Ownership Plan (“Plan”) is intended to provide
Participants (as defined herein) or their Beneficiaries with the full dollar amount of
Employer-provided pension benefits obtainable under The Northfield Bank Employee Stock Ownership
Plan (“ESOP”) which may not be accrued under said ESOP due to the limitations imposed by Section
415 of the Internal Revenue Code (the “Code”) and the limitation on includible compensation imposed
by Section 401(a)(17) of the Code. The benefits provided under this Plan (as described below) are
intended to constitute a deferred compensation plan for “a select group of management or highly
compensated employees” for purposes of the Employee Retirement Income Security Act of 1974, as
amended (“ERISA”). This Plan is intended to comply with Section 409A of the Internal Revenue Code
(“Code”) and the regulatory guidance and other guidance issued thereunder.




     2. Definitions



          Where the following words and phrases appear in the Plan, they shall have the respective
meaning as set forth below unless the context clearly indicates the contrary. Except to the extent
otherwise indicated herein, and to the extent inconsistent with the definitions provided below, the
definitions contained in the ESOP are applicable under the Plan.




          2.1 “Bank” means Northfield Bank.




          2.2 “Beneficiary” means the person designated by the Participant under the ESOP to
receive benefits in the event of the Participant’s death.




          2.3 “Board of Directors” means the Board of Directors of Northfield Bank.




          2.4 “Change in Control” shall mean (1) a change in ownership of the Company or the Bank under
paragraph (i) below, or (2) a change in effective control of the Company or the Bank under
paragraph (ii) below, or (3) a change in the ownership of a substantial portion of the assets of
the Company or the Bank under paragraph (iii) below:





	 	i.	 	Change in the ownership of the Bank. A change in
the ownership of the Bank shall occur on the date that any one person, or
more than one person acting as a group (as defined in Treasury Regulation
Section 1.409A-3(i)(5)(v)(B)), acquires ownership of stock of the
corporation that, together with stock held by such person or group,
constitutes more than 50% of the total fair market value or total voting
power of the stock of such corporation; or





 









 





	 	ii.	 	Change in the effective control of the Bank. A
change in the effective control of the Bank shall occur on the date that
either (i) any one
person, or more than one person acting as a group (as defined in Treasury
Regulation Section 1.409A-3(i)(5)(vi)(D)), acquires (or has acquired during
the 12-month period ending on the date of the most recent acquisition by
such person or persons) ownership of stock of the Bank possessing 30% or
more of the total voting power of the stock of the Bank; or (ii) a majority
of members of the Bank’s board of Directors is replaced during any 12-month
period by Directors whose appointment or election is not endorsed by a
majority of the members of the corporation’s board of Directors prior to the
date of the appointment or election, provided that this sub-section (ii) is
inapplicable where a majority shareholder of the Bank is another
corporation; or
	 
	 	iii.	 	Change in the ownership of a substantial portion of
the Bank’s assets. A change in the ownership of a substantial portion of
the Bank’s assets shall occur on the date that any one person, or more
than one person acting as a group (as defined in Treasury Regulation
Section 1.409A-3(i)(5)(vii)(C)), acquires (or has acquired during the
12-month period ending on the date of the most recent acquisition by such
person or persons) assets from the Bank that have a total gross fair
market value equal to or more than 40% of the total gross fair market
value of all of the assets of the corporation immediately prior to such
acquisition or acquisitions. For this purpose, gross fair market value
means the value of the assets of the corporation, or the value of the
assets being disposed of, determined without regard to any liabilities
associated with such assets. There is no Change in Control event under
this paragraph (iii) when there is a transfer to an entity that is
controlled by the shareholders of the transferring corporation
immediately after the transfer; or
	 
	 	iv.	 	For all purposes hereunder, the definition of
Change in Control shall be construed to be consistent with the
requirements of Treasury Regulation Section 1.409A-3(i)(5), except to the
extent modified herein. Notwithstanding anything herein to the
contrary, a Change in Control shall not be deemed to occur as the result
of the reorganization and second step conversion of the Company to a
fully converted stock holding company.





          2.5 “Code” means the Internal Revenue Code of 1986, as amended from time to time.
Reference to a specific provision of the Code shall include such provision, any valid regulation
or ruling promulgated thereunder and any comparable provision of future law that amends,
supplements or supersedes such provision.




          2.6 “Committee” means the Compensation Committee of the Board of Directors.




          2.7 “Company” means NSB Holdings, Inc.




          2.8 “Effective Date” means                                         , 2007.




2









 








          2.9 “Employee” means an employee of the Employer on whose behalf benefits are payable
under the ESOP.




          2.10 “Employer” means the Bank or the Company, as applicable, and any successors by
merger, purchase, reorganization or otherwise. If a subsidiary or affiliate of the Employer adopts
the Plan, it shall be deemed the Employer with respect to its employees.




          2.11 “ERISA” means the Employee Retirement Income Security Act of 1974, as amended
from time to time. Reference to a specific provision of ERISA shall include such provision, any
valid regulation or ruling promulgated thereunder and any comparable provision of future law that
amends, supplements or supersedes such provision.




          2.12 “ESOP” means Northfield Bank Employee Stock Ownership Plan, and any successor
thereto.




          2.13 “Participant” means an Employee who has been designated for participation in this
Plan pursuant to Section 3.1.




          2.14 “Phantom Stock” means the unit of measurement of a Participant’s account
hereunder denominated in hypothetical shares of the Company’s Stock. On any measurement date, the
Phantom Stock shall have a value equal to the fair market value of the Company’s Stock on such
date.




          2.15 “Plan” means Northfield Bank Non-Qualified Supplemental Employee Stock Ownership
Plan, as set forth herein and as may be amended from time to time.




          2.16 Plan Year” means the period from January 1 to December 31.




          2.17 “Separation from Service” means the Employee’s death, Retirement or other
termination of employment with the Bank within the meaning of Code Section 409A. No Separation
from Service shall be deemed to occur due to military leave, sick leave or other bona fide leave of
absence if the period of such leave does not exceed six months or, if longer, so long as the
Employee’s right to reemployment is provided by law or contract. If the leave exceeds six months
and the Employee’s right to reemployment is not provided by law or by contract, then the Employee
shall have a Separation from Service on the first date immediately following such six-month period.




          Whether a termination of employment has occurred is determined based on whether the facts and
circumstances indicate that the Employer and Employee reasonably anticipated that no further
services would be performed after a certain date or that the level of bona fide services the
employee would perform after such date (whether as an employee or as an independent contractor)
would permanently decrease to no more than 20% of the average level of bona fide services performed
over the immediately preceding 36 months (or such lesser period of time in which the Participant
performed services for the Bank). The determination of whether a Participant has had a Separation
from Service shall be made by applying the presumptions set forth in the Treasury Regulations under
Code Section 409A.




3









 








          2.18 “Specified Employee” means any Participant who also satisfies the definition of
“key employee” as such term is defined in Code Section 416(i). In the event a Participant is a
Specified Employee, no distribution shall be made to such Participant upon Separation from Service
prior to the date which is six (6) months following Separation from Service.




          2.19 “Stock” means the common stock of the Company, par value $.01 per share.




          2.20 “Surviving Spouse” means the legal spouse of a Participant, living at the time of
the death of the Participant.




     3. Participation



          3.1 Designation to Participate. Upon the designation of the Committee, and subject to
the approval of the Board of Directors, Employees may become Participants at any time during the
Plan Year. Each Employee initially selected by the Committee to participate in the Plan shall be
set forth on Exhibit A attached hereto and made a part hereof.




          3.2 Continuation of Participation. An Employee who has become a Participant shall
remain a Participant so long as benefits are payable to or with respect to such Participant under
the Plan.




     4. Benefit Requirements and Payments



          4.1 Supplemental ESOP Benefits. A Participant shall be entitled to receive as a
benefit from this Plan the supplemental ESOP benefit set forth below. In the event of the death of
a Participant prior to the commencement of payment of benefits hereunder, the Surviving Spouse of
the Participant shall be entitled to receive as a benefit from this Plan an amount equal to 100% of
the supplemental ESOP benefit that would have been payable to the Participant at the time of his
death. The supplemental ESOP benefit is denominated in shares of Phantom Stock equal to the sum of
the difference between “(a)” and “(b),” plus “(c)”, where:





	 	(a)	 	is the number of shares of Stock that would
have been allocated to the account of the Participant for a Plan Year
and the earnings thereon, had the limitations of Sections 401(a)(17)
and 415(c)(1)(A) and 415(c)(6) of the Code not been applicable;
	 
	 	(b)	 	is the number of shares of Stock actually
allocated to the account of the Participant for the relevant ESOP Plan
Year, and the earnings thereon; and
	 
	 	(c)	 	is the number of shares of Phantom Stock into
which the dividends and interest properly allocable to the
Participant’s account under the Plan can be converted, based on the
following: each Plan Year, a determination shall be made as to the
dividends and interest that would be allocated to such Participant’s
account hereunder for such year, based on the shares of Phantom Stock
allocated thereto.




4









 






	 	 	 	As of the last day of such Plan Year, the cash dividends and interest
so determined shall be converted to shares of Phantom Stock, based on
the fair market value of the Company’s Stock on such date.





          4.2 Incidents of Supplemental ESOP Payments. Benefits under this Section 4 shall be
payable to the Participant in a lump sum within 90 days of the first to occur of:





	 	(a)	 	the Participant’s “Separation from Service,”
other than due to death or Disability;
	 
	 	(b)	 	the Participant’s Disability;
	 
	 	(c)	 	the Participant’s death; or
	 
	 	(d)	 	a Change in Control of the Bank or the Company.





          Notwithstanding anything herein to the contrary, if the Participant is a Specified Employee
and the distribution under this Section is due to the Participants Separation from Service, the
distribution should occur on the first day of the seventh month following Separation from Service.




          4.3 Form of Supplemental ESOP Payments. A Participant’s supplemental ESOP benefits
under Section 4.1 of this Plan shall be a benefit paid in cash, provided, however, that if the Bank
or the Company establishes a rabbi trust and purchases shares of the Company’s Stock to fulfill its
commitment to Participant’s hereunder, then a Participant’s ESOP benefit shall be distributed
solely in shares of the Company’s Stock.




     5. Administration of the Plan



          5.1 Committee; Duties. This Plan shall be administered by the Committee which shall
consist of not less than three (3) persons appointed by the Board of Directors. The Committee shall
have the authority to make, amend, interpret and enforce all appropriate rules and regulations for
the administration of the Plan and decide or resolve any and all questions, including
interpretations of this Plan, that may arise in connection with the administration of the Plan;
provided, however, that any such interpretations, rules and/or regulations shall be consistent with
the requirements of Code Section 409A and any Treasury Regulations or other guidance issued
thereunder. A majority vote of the Committee members shall control any decision. Members of the
Committee may be Participants under the Plan.




          5.2 Agents. The Committee may, from time to time, employ other agents and delegate to
them such administrative duties as it sees fit, and may from time to time consult with counsel who
may be counsel to the Employer.




          5.3 Binding Effect of Decisions. The decision or action of the Committee regarding of
any question arising out of or in connection with the administration, interpretation and
application of the Plan and the rules and regulations promulgated hereunder shall be final and
conclusive and binding upon all persons having any interest in the Plan.




5









 








          5.4 Indemnity of Committee. The Employer shall indemnify and hold harmless the members
of the Committee against any and all claims, loss, damage, expense or liability arising from any
action or failure to act with respect to this Plan, except in the case of gross negligence or
willful misconduct.




     6. Claims Procedure



          6.1 Claim. Any person claiming a benefit, requesting an interpretation or ruling under
the Plan, or requesting information under the Plan shall present the request in writing to the
Committee which shall respond in writing within thirty (30) days.




          6.2 Denial of Claim. If the claim or request is denied, the written notice of denial
shall state:





	 	(a)	 	the reason for denial, with specific reference
to the Plan provisions on which the denial is based.
	 
	 	(b)	 	a description of any additional material or
information required and an explanation of why it is necessary.
	 
	 	(c)	 	an explanation of the Plan‘s claim review
procedure.





          6.3 Review of Claim. Any person whose claim or request is denied or who has not
received a response within thirty (30) days may request review by notice given in writing to the
Committee. The claim or request shall be reviewed by the Committee who may, but shall not be
required to, grant the claimant a hearing. On review, the claimant may have representation, examine
pertinent documents, and submit issues and comments in writing.




          6.4 Final Decision. The decision on review shall normally be made within sixty (60)
days. If an extension of time is required for a hearing or other special circumstances, the
claimant shall be notified and the time limit shall be one hundred twenty (120) days. The decision
shall be in writing and shall state the reason and the relevant plan provisions. All decisions on
review shall be final and bind all parties concerned.




     7. Amendment or Termination



          7.1 Amendment of Plan. A majority of the Board of Directors may amend this Plan at any
time or from time to time. However, no such amendment shall adversely affect the benefits of the
Participant which have accrued prior to such action.




          7.2 Plan Termination.





(a) Partial Termination. The Board may partially terminate the Plan by
freezing future accruals if, in its judgment, the tax, accounting, or other
effects of the continuance of the Plan, or potential payments thereunder,
would not be in the best interests of the Bank.



6









 






(b) Complete Termination. Subject to the requirements of Code Section 409A,
in the event of complete termination of the Plan, the Plan shall cease to
operate and the Bank shall pay out to the Participant his benefit as if the
Participant had terminated employment as of the effective date of the
complete termination. Such complete termination of the Agreement shall
occur only under the following circumstances and conditions:




	 	(i)	 	The Administrator may terminate the Plan
within 12 months of a corporate dissolution taxed under Code Section
331, or with approval of a bankruptcy court pursuant to 11 U.S.C.
§503(b)(1)(A), provided that the amounts deferred under the Plan are
included in the Participant’s gross income in the latest of (i) the
calendar year in which the Plan terminates; (ii) the calendar year
in which the amount is no longer subject to a substantial risk of
forfeiture; or (iii) the first calendar year in which the payment is
administratively practicable.
	 
	 	(ii)	 	The Board may terminate the Plan by Board
action taken within the 30 days preceding a Change in Control (but
not following a Change in Control), provided that the Plan shall
only be treated as terminated if all substantially similar
arrangements sponsored by the Bank are terminated so that the
Participant and all participants under substantially similar
arrangements are required to receive all amounts of compensation
deferred under the terminated arrangements within 12 months of the
date of the termination of the arrangements. For these purposes,
“Change in Control” shall be defined in accordance with the Treasury
Regulations under Code Section 409A.
	 
	 	(iii)	 	The Board may terminate the Plan
provided that (A) the termination and liquidation does not occur
proximate to a downturn in the financial health of the Bank or
Company, (B) all arrangements sponsored by the Bank that would be
aggregated with this Plan under Treasury Regulations Section
1.409A-1(c) if the Participant covered by this Plan was also covered
by any of those other arrangements are also terminated; (C) no
payments other than payments that would be payable under the terms
of the arrangement if the termination had not occurred are made
within 12 months of the termination of the arrangement; (D) all
payments are made within 24 months of the termination of the
arrangements; and (E) the Bank does not adopt a new arrangement that
would be aggregated with any terminated arrangement under Treasury
Regulations Section 1.409A-1(c) if the Participant participated
in both arrangements, at any time within three years following
the date of termination of the arrangement.





7









 










     8. Miscellaneous



          8.1 Unfunded Plan. This Plan is intended to be an unfunded plan maintained primarily
to provide deferred compensation benefits for a select group of management or highly compensated
employees. However, the Employer may elect to fund for the benefits of Participants as described in
Section 8.3 below. This Plan will continue to be unfunded for tax purposes and Title I of ERISA
even if benefits are funded by the Employer under Section 8.3 below.




          8.2 Unsecured General Creditor. The Participant and his Beneficiaries, heirs,
successors and assigns shall have no legal or equitable rights, interest or claims in any property
or assets of the Employer, nor shall they be beneficiaries of, or have any rights, claims or
interests in any life insurance policies, annuity contracts or the proceeds therefrom owned or
which may be acquired by the Employer. Such policies or other assets of the Employer shall not be
held under any trust for the benefit of Participants, their Beneficiaries, heirs, successors or
assigns, or held in any way as collateral security for the fulfilling of the obligations of
Employer under this Plan. Any and all of the Employer‘s assets shall be, and remain, the general,
unpledged, unrestricted assets of the Employer. The Employer‘s obligation under the Plan shall be
that of an unfunded and unsecured promise of the Employer to pay money in the future.




          8.3 Trust Fund. The Employer shall be responsible for the payment of all benefits
provided under the Plan. At its discretion, the Employer may establish one (1) or more trusts, with
such trustees as the Board may approve, for the purpose of providing for payment of such benefits.
Such trust or trusts may be irrevocable, but the assets thereof shall be subject to the claims of
the Employer‘s creditors. To the extent any benefits provided under the Plan are actually paid from
any such trust, the Employer shall have no further obligation with respect thereto, but to the
extent not so paid, such benefits shall remain the obligation of, and shall be paid by, the
Employer. Notwithstanding anything herein to the contrary, if the Employer establishes a trust,
the trust shall be operated in a manner that complies with the provisions of accounting
pronouncement EITF 97-14 (as published by the Emerging Issues Task Force of the Financial
Accounting Standards Board) in order to cause any employer stock held by the trust to be classified
and accounted for in equity, in a manner similar to the way other treasury shares are accounted for
(that is, changes in fair value in employer stock attributable to a participant’s account would not
be recognized).




          8.4 Nonassignability. Neither the Participant nor any other person shall have any
right to commute, sell, assign, transfer, pledge, anticipate, mortgage or otherwise encumber,
transfer, hypothecate or convey in advance of actual receipt the amounts, if any, payable
hereunder, or any part thereof, which are, and all rights to which are, expressly declared to be
unassignable and nontransferable. No part of the amounts payable shall, prior to actual payment, be
subject to seizure or sequestration for the payment of any debts, judgments, alimony or separate
maintenance owed by a Participant or any other person, nor be transferable
by operation of law in the event of a Participant‘s or any other person‘s bankruptcy or
insolvency.

8









 









          8.5 Expenses of Plan. All expenses of the Plan will be paid by the Employer.




          8.6 Payment of Employment and Code Section 409A Taxes. Any distribution under this
Plan shall be reduced by the amount of any taxes required to be withheld from such distribution.
This Plan shall permit the acceleration of the time or schedule of a payment to pay employment
related taxes as permitted under Treasury regulation Section 1.409A-3(j) or to pay any taxes that
may become due at any time that the arrangement fails to meet the requirements of Code Section 409A
and the regulations and other guidance promulgated thereunder. In the latter case, such payments
shall not exceed the amount required to be included in income as the result of the failure to
comply with the requirements of Code Section 409A.




          8.7 Acceleration of Payments. Except as specifically permitted herein or in other
sections of this Plan, no acceleration of the time or schedule of any payment may be made
hereunder. Notwithstanding the foregoing, payments may be accelerated hereunder by the Bank, in
accordance with the provisions of Treasury Regulation Section 1.409A-3(j)(4) and any subsequent
guidance issued by the United States Treasury Department. Accordingly, payments may be
accelerated, in accordance with requirements and conditions of the Treasury Regulations (or
subsequent guidance) in the following circumstances: (i) as a result of certain domestic relations
orders; (ii) in compliance with ethics agreements with the Federal government; (iii) in compliance
with ethics laws or conflicts of interest laws; (iv) in limited cash-outs (but not in excess of the
limit under Code Section 402(g)(1)(B)); (v) in the case of certain distributions to avoid a
non-allocation year under Code Section 409(p); (vi) to apply certain offsets in satisfaction of a
debt of the Participant to the Bank; (vii) in satisfaction of certain bona fide disputes between
the Participant and the Bank; or (viii) for any other purpose set forth in the Treasury Regulations
and subsequent guidance.




          8.8 Participation by Subsidiaries and Affiliates. If any employer is now or hereafter
becomes a subsidiary or affiliated company of the Employer and its employees participate in the
ESOP, the Board of Directors may authorize such subsidiary or affiliated company to participate in
this Plan upon appropriate action by such employer necessary to adopt the Plan.




          8.9 Delivery of Elections to Committee. All elections, designation, requests, notices,
instructions and other communications required or permitted under the Plan from the Employer, a
Participant, Beneficiary or other person to the Committee shall be on the appropriate form, shall
be mailed by first-class mail or delivered to such address as shall be specified by such Committee,
and shall be deemed to have been given or delivered only upon actual receipt thereof by such
Committee at such location.




          8.10 Delivery of Notice to Participants. All notices, statements, reports and other
communications required or permitted under the Plan from the Employer or the Committee to any
Officer, Participant, Beneficiary or other person, shall be deemed to have been duly given when
delivered to, or when mailed by first-class mail, postage prepaid, and addressed to such person at
this address last appearing on the records of the Committee.




9









 





     9. Construction of the Plan



          9.1 Construction of the Plan. The provisions of this Plan shall be construed,
regulated, and administered according to the laws of the State of New York, to the extent not
superseded by Federal law.




          9.2 Counterparts. This Plan has been established by the Employer in accordance with
the resolutions adopted by the Board of Directors and may be executed in any number of
counterparts, each of which shall be deemed to be an original. All the counterparts shall
constitute one instrument, which may be sufficiently evidenced by any one counterpart.




          9.3 Validity. In case any provision of this Plan shall be held illegal or invalid for
any reason, said illegality or invalidity shall not affect the remaining parts hereof, but this
Plan shall be construed and enforced as if such illegal or invalid provision had never been
inserted herein.




[signature page follows]




10









 





     IN WITNESS WHEREOF, and as evidence of the adoption of the Plan by the Employer, it has caused
the same to be signed by its Officer duly authorized, and its corporate seal to be affixed this ___
day of                                        , 200___.



	 	 	 	 	 	 	 	 	 
	ATTEST:	 	 	 	NORTHFIELD BANK

	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 
	 


	 	 	 	 	 	 

	 	 
	 

	 	 	 	 	 	          Chairman of the Board, Chief Executive	 	 
	 

	 	 	 	 	 	          Officer and President	 	 






11









 





NORTHFIELD BANK




Exhibit A



Participant                     Date of Participation










A-1