EX-10.28









Exhibit 10.28




BENEFIT MAINTENANCE PLAN




OF




HUDSON CITY SAVINGS BANK




 






Effective December 19, 2006




Amended and Restated Effective As Of December 31, 2008















 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE I
	 	 	 	 
	 
	 	 	 	 
	DEFINITIONS
	 	 	 	 
	 
	 	 	 	 
	Section 1.1 Acceleration Event

	 	 	1	 
	Section 1.2 Affiliated Employer

	 	 	1	 
	Section 1.3 Applicable Limitation

	 	 	1	 
	Section 1.4 Bank

	 	 	2	 
	Section 1.5 Beneficiary

	 	 	2	 
	Section 1.6 Board

	 	 	2	 
	Section 1.7 Change in Control

	 	 	2	 
	Section 1.8 Change in Control Event

	 	 	3	 
	Section 1.9 Code

	 	 	3	 
	Section 1.10 Committee

	 	 	3	 
	Section 1.11 Company

	 	 	3	 
	Section 1.12 Disability

	 	 	4	 
	Section 1.13 Eligible Employee

	 	 	4	 
	Section 1.14 Employee

	 	 	4	 
	Section 1.15 Employer

	 	 	4	 
	Section 1.16 Employer Contributions

	 	 	4	 
	Section 1.17 ERISA

	 	 	4	 
	Section 1.18 ESOP

	 	 	4	 
	Section 1.19 Exchange Act

	 	 	4	 
	Section 1.20 Fair Market Value of a Share

	 	 	4	 
	Section 1.21 Former Member

	 	 	5	 
	Section 1.22 Member

	 	 	5	 
	Section 1.23 Plan

	 	 	5	 
	Section 1.24 Restored ESOP Benefit

	 	 	5	 
	Section 1.25 Restored ESOP Death Benefit

	 	 	5	 
	Section 1.26 Retirement Plan

	 	 	5	 
	Section 1.27 Savings Plan

	 	 	5	 
	Section 1.28 Service Recipient

	 	 	5	 
	Section 1.29 Share

	 	 	5	 
	Section 1.30 Stock Unit

	 	 	5	 
	Section 1.31 Supplemental ESOP Account

	 	 	5	 
	Section 1.32 Supplemental ESOP Benefit

	 	 	6	 
	Section 1.33 Supplemental ESOP Death Benefit

	 	 	6	 
	Section 1.34 Supplemental Retirement Benefit

	 	 	6	 
	Section 1.35 Supplemental Retirement Death Benefit

	 	 	6	 
	Section 1.36 Supplemental Savings Account

	 	 	6	 
	Section 1.37 Supplemental Savings Benefit

	 	 	6	 
	Section 1.38 Supplemental Savings Death Benefit

	 	 	6	 
	Section 1.39 Termination of Service

	 	 	6	 






(i)









 






	 	 	 	 	 
	 	 	Page
	Section 1.40 Unforeseeable Emergency

	 	 	6	 
	 
	 	 	 	 
	ARTICLE II
	 	 	 	 
	 
	 	 	 	 
	MEMBERSHIP
	 	 	 	 
	 
	 	 	 	 
	Section 2.1 Eligibility for Membership

	 	 	6	 
	Section 2.2 Commencement of Membership

	 	 	7	 
	Section 2.3 Termination of Membership

	 	 	7	 
	 
	 	 	 	 
	ARTICLE III
	 	 	 	 
	 
	 	 	 	 
	BENEFITS TO MEMBERS
	 	 	 	 
	Section 3.1 Supplemental ESOP Benefit

	 	 	7	 
	Section 3.2 Restored

	 	 	9	 
	Section 3.3 Supplemental Retirement Benefit

	 	 	10	 
	Section 3.4 Supplemental Savings Benefit

	 	 	12	 
	 
	 	 	 	 
	ARTICLE IV
	 	 	 	 
	 
	 	 	 	 
	DEATH BENEFITS
	 	 	 	 
	 
	 	 	 	 
	Section 4.1 Supplemental ESOP Death Benefit

	 	 	13	 
	Section 4.2 Restored ESOP Death Benefit

	 	 	14	 
	Section 4.3 Supplemental Retirement Death Benefit

	 	 	14	 
	Section 4.4 Supplemental Savings Death Benefit

	 	 	14	 
	Section 4.5 Beneficiaries

	 	 	14	 
	Section 4.6 One-Time Payment Elections

	 	 	15	 
	 
	 	 	 	 
	ARTICLE V
	 	 	 	 
	 
	 	 	 	 
	EARLY DISTRIBUTIONS AND OTHER DISTRIBUTION REQUIREMENTS
	 	 	 	 
	 
	 	 	 	 
	Section 5.1 Unforeseeable Emergency

	 	 	15	 
	Section 5.2 Domestic Relations Order

	 	 	15	 
	Section 5.3 Compliance with Certificate of Divestiture

	 	 	15	 
	Section 5.4 Mandatory Cashout of Small Balances

	 	 	15	 
	Section 5.5 Restrictions on Payments to Key Employees

	 	 	16	 
	Section 5.6 Payment in Shares

	 	 	16	 
	 
	 	 	 	 
	ARTICLE VI
	 	 	 	 
	 
	 	 	 	 
	TRUST FUND
	 	 	 	 
	 
	 	 	 	 
	Section 6.1 Establishment of Trust

	 	 	16	 
	Section 6.2 Contributions to Trust

	 	 	5	 
	Section 6.3 Unfunded Character of Plan

	 	 	16	 






(ii)









 






	 	 	 	 	 
	 	 	Page
	ARTICLE VII
	 	 	 	 
	 
	 	 	 	 
	ADMINISTRATION 
	 	 	 	 
	Section 7.1 The Committee

	 	 	17	 
	Section 7.2 Liability of Committee Members and Their Delegates

	 	 	18	 
	Section 7.3 Plan Expenses

	 	 	18	 
	Section 7.4 Facility of Payment

	 	 	18	 
	 
	 	 	 	 
	ARTICLE VIII
	 	 	 	 
	 
	 	 	 	 
	AMENDMENT AND TERMINATION
	 	 	 	 
	 
	 	 	 	 
	Section 8.1 Amendment by the Bank

	 	 	19	 
	Section 8.2 Termination

	 	 	19	 
	Section 8.3 Amendment or Termination by Other Employers

	 	 	20	 
	 
	 	 	 	 
	ARTICLE IX
	 	 	 	 
	 
	 	 	 	 
	MISCELLANEOUS PROVISIONS
	 	 	 	 
	 
	 	 	 	 
	Section 9.1 Construction and Language

	 	 	20	 
	Section 9.2 Headings

	 	 	20	 
	Section 9.3 Non-Alienation of Benefits

	 	 	20	 
	Section 9.4 Indemnification

	 	 	21	 
	Section 9.5 Severability

	 	 	21	 
	Section 9.6 Waiver

	 	 	21	 
	Section 9.7 Governing Law

	 	 	22	 
	Section 9.8 Withholding

	 	 	22	 
	Section 9.9 No Deposit Account

	 	 	22	 
	Section 9.10 Rights of Employees

	 	 	22	 
	Section 9.11 Status of Plan Under ERISA

	 	 	22	 
	Section 9.12 Successors and Assigns

	 	 	22	 
	Section 9.13 Compliance with Section 409A of the Code

	 	 	22	 







(iii)









 








BENEFIT MAINTENANCE PLAN




OF




HUDSON CITY SAVINGS BANK




INTRODUCTION




          This Benefit Maintenance Plan of Hudson City Savings Bank combines, amends and restates the
ESOP Restoration Plan of Hudson City Savings Bank, the Hudson City Savings Bank Supplemental
Executive Retirement Plan and the Supplementary Savings Plan of Hudson City Savings Bank, on
December 19, 2006, effective as of January 1, 2005. It has been amended and restated effective as
of December 31, 2008.




ARTICLE I




DEFINITIONS




          Wherever appropriate to the purposes of the Plan, capitalized terms shall have the meanings
assigned to them under the Retirement Plan, Savings Plan or ESOP, as applicable; provided, however,
that the following special definitions shall apply for purposes of the Plan, unless a different
meaning is clearly indicated by the context:




          Section 1.1 Acceleration Event means, with respect to a Member, any of the events described
in sections 5.1, 5.2, 5.3 and 5.4 on the basis of which the plan administrator may permit
acceleration of the payment of the balance credited to the Member’s Account.




          Section 1.2 Affiliated Employer means the Bank; any corporation which is a member of a
controlled group of corporations (as defined in section 414(b) of the Code) that includes the Bank;
any trade or business (whether or not incorporated) that is under common control (as defined in
section 414(c) of the Code) with the Bank; any organization (whether or not incorporated) that is a
member of an affiliated service group (as defined in section 414(m) of the Code) that includes the
Bank; any leasing organization (as defined in section 414(n) of the Code) to the extent that any of
its employees are required pursuant to section 414(n) of the Code to be treated as employees of the
Bank; and any other entity that is required to be aggregated with the Bank pursuant to regulations
under section 414(o) of the Code.




          Section 1.3 Applicable Limitation means any of the following: (a) the limitation on annual
compensation that may be recognized under a tax-qualified plan for benefit computation purposes
pursuant to section 401(a)(17) of the Code; (b) the maximum limitation on annual benefits payable
by a tax-qualified defined benefit plan pursuant to section 415(b) of the Code; (c) the maximum
limitation on annual additions to a tax-qualified defined contribution plan pursuant to section
415(c) of the Code; (d) the maximum limitation on aggregate annual benefits and annual additions
under a combination of tax-qualified defined benefit and defined contribution plans maintained by a
single employer pursuant to section 415(e) of the Code; (e)
the maximum limitation on annual elective deferrals to a qualified cash or deferred
arrangement













 






pursuant to section 402(g) of the Code; (f) the annual limitation on elective deferrals
under a qualified cash or deferred arrangement by highly compensated employees pursuant to section
401(k) of the Code; (g) the annual limitation on voluntary employee contributions by, and employer
matching contributions for, highly compensated employees pursuant to section 401(m) of the Code and
(h) any limitation on the definition of compensation employed for benefit accrual purposes under
the ESOP, Retirement Plan or Savings Plan pursuant to which compensation deferred under the
Officers’ Deferred Compensation Plan is excluded solely because of such deferral..




          Section 1.4 Bank means Hudson City Savings Bank and any successor thereto.




          Section 1.5 Beneficiary means any person, other than a Member or Former Member, who is
determined to be entitled to benefits under the terms of the Plan.




          Section 1.6 Board means the Board of Directors of the Bank.




          Section 1.7 Change in Control means the happening of any of the following events:





     (a) the occurrence of any event upon which any “person” (as such term is used
in sections 13(d) and 14(d) of the Exchange Act), other than (i) a trustee or other
fiduciary holding securities under an employee benefit plan maintained for the
benefit of employees of Hudson City Bancorp, Inc.; (ii) a corporation owned,
directly or indirectly, by the stockholders of the Hudson City Bancorp, Inc. in
substantially the same proportions as their ownership of stock of Hudson City
Bancorp, Inc.; or (iii) any group constituting a person in which employees of Hudson
City Bancorp, Inc. are substantial members, becomes the “beneficial owner” (as
defined in Rule 13d-3 promulgated under the Exchange Act), directly or indirectly,
of securities issued by Hudson City Bancorp, Inc. representing 25% or more of the
combined voting power of all of Hudson City Bancorp, Inc.’s then outstanding
securities; or




     (b) the occurrence of any event upon which the individuals who were members of
the Board as of the date this Plan was adopted, together with individuals whose
election by the Board or nomination for election by Hudson City Bancorp, Inc.’s
shareholders was approved by the affirmative vote of at least two-thirds of the
members of the Board then in office who were either members of the Board on the date
this Plan is adopted or whose nomination or election was previously so approved,
cease for any reason to constitute a majority of the members of the Board, but
excluding, for this purpose, any such individual whose initial assumption of office
is in connection with an actual or threatened election contest relating to the
election of directors of Hudson City Bancorp, Inc. (as such terms are used in Rule
14a-11 of Regulation 14A promulgated under the Exchange Act); or




     (c) the shareholders of Hudson City Bancorp, Inc. approve either:



2









 






     (i) a merger or consolidation of Hudson City Bancorp, Inc. with any
other corporation, other than a merger or consolidation following which both
of the following conditions are satisfied:




     (A) either (1) the members of the Board of Hudson City
Bancorp, Inc. immediately prior to such merger or consolidation
constitute at least a majority of the members of the governing body
of the institution resulting from such merger or consolidation; or
(2) the shareholders of Hudson City Bancorp, Inc. own securities of
the institution resulting from such merger or consolidation
representing 80% or more of the combined voting power of all such
securities then outstanding in substantially the same proportions
as their ownership of voting securities of Hudson City Bancorp,
Inc. before such merger or consolidation; and




     (B) the entity which results from such merger or consolidation
expressly agrees in writing to assume and perform Hudson City
Bancorp, Inc.’s obligations under the Plan; or




     (ii) a plan of complete liquidation of Hudson City Bancorp, Inc. or an
agreement for the sale or disposition by Hudson City Bancorp, Inc. of all or
substantially all of its assets; and




     (d) any event that would be described in section 1.7(a), (b) or (c) if “Hudson
City Savings Bank” were substituted for “Hudson City Bancorp, Inc.” therein.



          Section 1.8 Change in Control Event means, with respect to a Member: (a) a change in
ownership of the Member’s Service Recipient; (b) a change in effective control of the Member’s
Service Recipient; or (c) a change in the ownership of a substantial portion of the assets of the
Member’s Service Recipient. The existence of a Change in Control Event shall be determined by the
plan administrator in accordance with section 409A of the Code and the regulations thereunder.




          Section 1.9 Code means the Internal Revenue Code of 1986 (including the corresponding
provisions of any prior law or succeeding law).




          Section 1.10 Committee means the Employee Benefit Plans Committee of the Board, or such other
person, committee or other entity as shall be designated by or on behalf of the Board to perform
the duties set forth in Article VII.




          Section 1.11 Company means Hudson City Bancorp, Inc. or any successor thereto.




          Section 1.12 Disability means, with respect to a Member, any medically determinable physical
or mental impairment which can be expected to result in death or to last for a continuous period of
at least twelve (12) months and as a result of which either: (a) the



3









 






Member is unable to engage in
any substantial gainful activity or (b) the Member has been receiving income replacement benefits
for a period of at least three (3) months under an accident and health plan covering employees of
the Member’s Employer. The existence of a Disability shall be determined by the plan administrator
in accordance with section 409A of the Code and the regulations thereunder.




          Section 1.13 Eligible Employee means an Employee who is eligible for participation in the
Plan in accordance with the provisions of Article II.




          Section 1.14 Employee means any person, including an officer, who is employed by any
Affiliated Employer.




          Section 1.15 Employer means the Company and the Bank and any Affiliated Employer which, with
the prior written approval of the Board of Directors of the Company and subject to such terms and
conditions as may be imposed by the Board of Directors of the Company, shall adopt this Plan.




          Section 1.16 Employer Contributions means contributions by any Employer to the ESOP other
than contributions that result in the allocation of Shares.




          Section 1.17 ERISA means the Employee Retirement Income Security Act of l974, as amended from
time to time (including the corresponding provisions of any succeeding law).




          Section 1.18 ESOP means the Employee Stock Ownership Plan of Hudson City Savings Bank, as
amended from time to time (including the corresponding provisions of any successor qualified
employee stock ownership plan adopted by the Bank).




          Section 1.19 Exchange Act means the Securities Exchange Act of 1934, as amended from time to
time (including the corresponding provisions of any succeeding law).




          Section 1.20 Fair Market Value of a Share means, with respect to a Share on a specified date:





     (a) the final quoted sales price on the date in question (or if there is no
reported sale on such date, on the last preceding date on which any reported sale
occurred) as reported in the principal consolidated reporting system with respect to
securities listed or admitted to trading on the principal United States securities
exchange on which like Shares are listed or admitted to trading; or




     (b) if the Shares are not listed or admitted to trading on any such exchange,
the closing bid quotation with respect to a Share on such date on the National
Association of Securities Dealers Automated Quotations System, or, if no such
quotation is provided, on another similar system, selected by the Committee, then in
use; or



4









 






     (c) if sections 1.20(a) and (b) are not applicable, the fair market value of a
Share as determined by an appraiser independent of any Employer and experienced and
expert in the field of corporate appraisal.



          Section 1.21 Former Member means a person whose membership in the Plan has terminated as
provided under section 2.3.




          Section 1.22 Member means any person who is participating in the Plan in accordance with its
terms.




          Section 1.23 Plan means the Benefit Maintenance Plan of Hudson City Savings Bank, as amended
from time to time (including the corresponding provisions of any successor plan adopted by the Bank
or Company).




          Section 1.24 Restored ESOP Benefit means the benefit payable pursuant to section 3.2 of the
Plan.




          Section 1.25 Restored ESOP Death Benefit means the death benefit payable pursuant to section
4.2 of the Plan.




          Section 1.26 Retirement Plan means the Employees’ Retirement Plan of Hudson City Savings Bank
as amended from time to time (including the corresponding provisions of any successor qualified
defined benefit pension plan adopted by the Bank).




          Section 1.27 Savings Plan means the Profit Incentive Bonus Plan of Hudson City Savings Bank
as amended from time to time (including the corresponding provisions of any successor qualified
401(k) plan adopted by the Bank).




          Section 1.28 Service Recipient means with respect to a Member on any date: (a) the
corporation for which the Member is performing services on such date; (b) all corporations that are
liable to the Member for the benefits due to him under the Plan; (c) a corporation that is a
majority shareholder of a corporation described in section 1.28(a) or (b); or (d) any corporation
in the chain, ending in a corporation described in section 1.28(a) or (b).




          Section 1.29 Share means a share of common stock, par value $.01 per share, of Hudson City
Bancorp, Inc.




          Section 1.30 Stock Unit means a right to receive a payment under the Plan in an amount equal,
on the date as of which such payment is made, to the Fair Market Value of a Share.




          Section 1.31 Supplemental ESOP Account means a bookkeeping account that is credited with
Stock Units and Employer Contributions to reflect all Shares and Employer Contributions (including
any reallocation of amounts forfeited upon the termination of employment of others participating in
the ESOP), respectively, that cannot be allocated to a Member’s account under the ESOP due to the
Applicable Limitations.




5









 








          Section 1.32 Supplemental ESOP Benefit means the benefit payable pursuant to section 3.1 of
the Plan.




          Section 1.33 Supplemental ESOP Death Benefit means the death benefit payable pursuant to
section 4.1 of the Plan.




          Section 1.34 Supplemental Retirement Benefit means the benefit payable pursuant to section
3.3 of the Plan.




          Section 1.35 Supplemental Retirement Death Benefit means the death benefit payable pursuant
to section 4.3 of the Plan.




          Section 1.36 Supplemental Savings Account means a bookkeeping account established a Member
for purposes of measuring the Member’s benefit (including interest earned before or after the date
hereof on any contributions) under the frozen Supplementary Savings Plan of Hudson City Savings
Bank.




          Section 1.37 Supplemental Savings Benefit means the benefit payable pursuant to section 3.4
of the Plan.




          Section 1.38 Supplemental Savings Death Benefit means the death benefit payable pursuant to
section 4.4 of the Plan.




          Section 1.39 Termination of Service means the later of (i) the date of the Employee’s
separation from service (as defined in section 409A of the Code) with all Employers in all
capacities other than as a non-employee director, whether by resignation, discharge, death,
disability, retirement or otherwise..




          Section 1.40 Unforeseeable Emergency means, with respect to a Member, a severe financial
hardship to the Member resulting from illness or accident of the Member, the Member’s spouse or a
dependent (within the meaning of section 152(e) of the Code) of the Member, loss of the Member’s
property due to casualty, or other similar, extraordinary and unforeseeable circumstances arising
as a result of events beyond the control of the Member. The existence of an Unforeseeable Emergency
shall be determined by the plan administrator in accordance with section 409A of the Code and the
regulations thereunder.




ARTICLE II




MEMBERSHIP




          Section 2.1 Eligibility for Membership.




          Only Eligible Employees may be or become Members. An Employee shall become an Eligible
Employee if:





     (a) he has been designated an Eligible Employee by resolution of the Board; and



6









 






     (b) he is a Member of the ESOP and/or Retirement Plan and/or a Participant in
the Savings Plan and the benefits to which he is entitled thereunder are limited by
one or more of the Applicable Limitations;


provided, however, that no person shall be named an Eligible Employee, nor shall any person who has
been an Eligible Employee continue as an Eligible Employee, to the extent that such person’s
participation, or continued participation, in the Plan would cause the Plan to fail to be
considered maintained for the primary purpose of providing deferred compensation for a select group
of management or highly compensated employees for purposes of ERISA. The Board may, in its sole
discretion, designate that an Employee become an Eligible Employee as to any or all of (i) the
Supplemental ESOP Benefit under section 3.1 and Supplemental ESOP Death Benefit under section 4.1,
(ii) the Restored ESOP Benefit under section 3.2 and the Restored ESOP Death Benefit under section
4.2, (iii) the Supplemental Retirement Benefit under section 3.3 and the Supplemental Retirement
Death Benefit under section 4.3 and/or (iv) the Supplemental Savings Benefit under section 3.4 and
the Supplemental Savings Death Benefit under section 4.4. Effective as of January 1, 2004,
Supplemental Savings Benefits have been frozen, with the effect that after such date, no additional
additions or adjustments shall be made to such benefits, except to reflect earnings adjustments on
existing balances.




          Section 2.2 Commencement of Membership.




          An Employee shall become a Member on the date when he is first designated as an Eligible
Employee by the Board, unless the Board shall, by resolution, establish an earlier or later
effective date of participation for a Member.




          Section 2.3 Termination of Membership.




          Membership in the Plan shall cease on the earlier of (a) the date of the Member’s Termination
of Service or (b) the date on which he ceases to be an Eligible Employee.




ARTICLE III




BENEFITS TO MEMBERS




          Section 3.1 Supplemental ESOP Benefit.




          (a) A Member who has been designated by the Board under section 2.1 for a Supplemental ESOP
Benefit under this Plan shall be eligible for such benefit in an amount equal to the sum of:





     (i) a number of Stock Units equal to the excess (if any) of (A) the aggregate
number of Shares (including any reallocation of Shares forfeited upon the
termination of employment of others participating in the ESOP) that would have been
credited to the Member’s account under the ESOP in the absence of the Applicable
Limitations over (B) the number of Shares actually credited to his account under the
ESOP; plus



7









 






     (ii) if and to the extent that Employer Contributions to the ESOP result in
allocations to the Member’s account of assets other than Shares, an amount equal to
the excess (if any) of (A) the aggregate amount of Employer Contributions (including
any reallocation of amounts forfeited upon the termination of employment of others
participating in the ESOP) that would have been credited to the Member’s account
under the ESOP in the absence of the Applicable Limitations over (B) the aggregate
amount of Employer Contributions (including any reallocation of amounts forfeited
upon the termination of employment of others participating in the ESOP) actually
credited to the Member’s account under the ESOP;


adjusted for earnings and losses as provided section 3.1(b); provided, however, that if the Member
dies before the payment of such Supplemental ESOP Benefit begins, no benefit shall be payable under
this section 3.1 and the Supplemental ESOP Death Benefit, if any, which may be payable shall be
determined under section 4.1, if applicable to such Member.




          (b) In the case of a Member who is eligible for the Supplemental ESOP Benefit, the Committee
shall cause to be maintained a Supplemental ESOP Account. Each Supplemental ESOP Account shall be
credited with Stock Units (in respect of Shares) and Employer Contributions as of the date on which
such Shares and Employer Contributions, as well as any allocations of unallocated assets held in a
suspense account, would have been credited to the Member’s account in the ESOP in the absence of
the Applicable Limitations. The balance credited to the Supplemental ESOP Account shall be
adjusted for earnings or losses as follows:





     (i) all Stock Units shall be adjusted from time to time so that the value of a
Stock Unit on any date is equal to the Fair Market Value of a Share on such date,
and the number of Stock Units shall be adjusted as and when appropriate to reflect
any stock dividend, stock split, reverse stock split, exchange, conversion, or other
event generally affecting the number of Shares held by all holders of Shares; and




     (ii) (A) except as provided in section 3.1(b)(ii)(B), the balance credited to
the Supplemental ESOP Account that does not consist of Stock Units shall be credited
with interest as of the last day of each calendar quarter at the highest rate of
interest credited on certificates of deposit issued by the Bank during that calendar
quarter; or




     (B) if and to the extent permitted by the Committee, the balance credited to
Supplemental ESOP Account that does not consist of Stock Units shall be adjusted as
though such Employer Contributions had been contributed to a trust fund and
invested, for the benefit of the Member, in such investments at such time or times
as the Member shall have designated in such form and manner as the Committee shall
prescribe;


provided, however, that to the extent that the Member shall receive on a current basis any dividend
paid with respect to Shares credited to his account under the ESOP, the bookkeeping


8









 






account established for him under this Plan shall not be adjusted to reflect such dividend and,
instead, the Member shall be paid an amount per Stock Unit equal to the dividend per Share received
by the Member under the ESOP at substantially the same time as such dividend is paid under the
ESOP.




          (c) The Supplemental ESOP Benefit payable to a Member hereunder shall be paid in a single lump
sum as soon as practicable during the calendar year following the calendar year in which the
Member’s Termination of Service occurs and shall be in an amount equal to the balance of his
Supplemental ESOP Account. Notwithstanding the foregoing, a Member may, within 30 days after first
becoming eligible to participate in the Plan for purposes of receiving a Supplemental ESOP Benefit,
specify that the Supplemental ESOP Benefit be paid in a different form or commencing at a different
time by filing a written election, in such form and manner as the Committee may prescribe, within
such 30-day period; provided, however, that such election shall be applicable only with respect to
compensation payable for services to be performed subsequent to the election.




          (d) Notwithstanding anything in the Plan to the contrary, any Member who will be seventy (70)
years old or older as of December 31, 2006 may, by written election on or before December 31, 2006
and in such form and manner as the Committee may prescribe, elect to terminate participation in the
Plan with respect to the Supplemental ESOP Benefit and receive payment in an amount equal to the
balance of his Supplemental ESOP Account on a specified date or pursuant to a specified schedule;
provided, however, that no such payment(s) shall be made prior to January 1, 2007.




          Section 3.2 Restored ESOP Benefit.




          (a) A Member who has been designated by the Board under section 2.1 to recover the Restored
ESOP Benefit shall be entitled, upon his Termination of Service upon or after attaining normal
retirement age or being eligible for an early retirement benefit under the terms of the Retirement
Plan, to an unfunded, unsecured promise from the Bank to receive an amount determined by:





     (i) projecting the total number of Shares that would have been allocated to the
Member’s account under the terms of the ESOP and the ESOP Restoration Plan had the
Member continued in the employ of the Bank measured from the date the Member was
first eligible to participate in the ESOP until the ESOP loan was repaid in full and
all of the Shares acquired when the ESOP loan was made were allocated; and then




     (ii) reducing the number of Shares projected in section 3.2(a)(i) above, by the
actual number of Shares allocated to the Member under the terms of the ESOP and the
ESOP Restoration Plan as of the last day of the final plan year of the ESOP in which
the Member was an active Member for purposes of allocations under the ESOP; and




     (iii) multiplying the number of Shares determined in section 3.2(a)(ii) above
by the average of the closing prices of such Shares at the end of each fiscal



9









 







quarter during the preceding twelve fiscal quarters immediately preceding (or
such fewer quarters as the Member has been a Member) the Member’s Termination of
Service;


provided, however, that if the Member dies before the payment of such Restored ESOP Benefit begins,
no benefit shall be payable under this section 3.2 and the Restored ESOP Death Benefit, if any,
which may be payable shall be determined under section 4.2, if applicable to such Member.




          (b) The projection of Shares required by section 3.2(a)(i) above shall be performed by a
public accountant based on assumptions which the Committee has approved as reasonable at the time
the calculation of the benefit payable to the Member is performed.




          (c) The Restored ESOP Benefit payable to a Member hereunder shall be paid in a single lump sum
as soon as practicable during the calendar year following the calendar year in which the Member’s
Termination of Service occurs and shall be in an amount determined pursuant to section 3.2(a)
above. Notwithstanding the foregoing, a Member may, within 30 days after first becoming eligible
to participate in the Plan for purposes of receiving a Restored ESOP Benefit, specify that the
Restored ESOP Benefit be paid in a different form or commencing at a different time by filing a
written election, in such form and manner as the Committee may prescribe, within such 30-day
period; provided, however, that such election shall be applicable only with respect to compensation
payable for services to be performed subsequent to the election.




          (d) Notwithstanding anything in the Plan to the contrary, any Member who will be seventy (70)
years old or older as of December 31, 2006 may, by written election on or before December 31, 2006
and in such form and manner as the Committee may prescribe, elect to terminate participation in the
Plan with respect to the Restored ESOP Benefit and receive payment of the Restored ESOP Benefit in
an amount determined pursuant to section 3.2(a) above on a specified date or pursuant to a
specified schedule; provided, however, that no such payment(s) shall be made prior to January 1,
2007.




          Section 3.3 Supplemental Retirement Benefit.




          (a) A Member who has been designated by the Board under section 2.1 to receive the
Supplemental Retirement Benefit shall be eligible for a Supplemental Retirement Benefit under this
Plan in an amount equal to the excess of :





     (i) The normal retirement allowance, early retirement allowance or disability
retirement allowance (as applicable) to which he would be entitled under the
Retirement Plan in the absence of the Applicable Limitations; over




     (ii) The actual normal retirement allowance, early retirement allowance or
disability retirement allowance (as applicable) to which he is entitled under the
Retirement Plan;


in each case computed as of the date on which his benefit under the Retirement Plan is scheduled to
commence. The Committee may, in its discretion grant additional years of credited service for


10









 






purposes of computing the Supplemental Retirement Benefit; in such event the calculation in section
3.3(a)(i) shall reflect such additional years of credited service.




          (b) The Supplemental Retirement Benefit shall become 100% vested and nonforfeitable if a
Member terminates employment on or after the date he attains age 65, has ten (10) years of service,
dies or becomes disabled (within the meaning of the Retirement Plan). If a Member terminates
employment while the Plan is still in effect and prior to any of the foregoing events, he shall
forfeit all rights to a Supplemental Retirement Benefit.




          (c) In the event of a Change in Control, the Supplemental Retirement Benefit shall become 100%
vested and nonforfeitable and no actuarial reductions shall be applied.




          (d) The Supplemental Retirement Benefit shall be paid:





     (i) To a married Member, in a monthly 100% joint and survivor annuity payable
for the life of the Member, beginning on the first day of the month coincident with
or next following the date of his retirement and upon his death, the monthly payment
shall continue to his surviving spouse for her life, or to his child up to age 21 if
his surviving spouse dies;




     (ii) To an unmarried Member, in a monthly single life annuity, beginning on the
first day of the month coincident with or next following the date of his retirement
and ending with the monthly payment immediately preceding his date of death;


provided, however, that if the Member dies before the payment of such Supplemental Retirement
Benefit begins, no benefit shall be payable under this section 3.3 and the Supplemental Retirement
Death Benefit, if any, which may be payable shall be determined under section 4.3, if applicable to
such Member. For this purpose, a Member’s marital status shall be determined as of the date of the
first benefit payment.




          (d) With the consent of the Committee, a Member may, within thirty (30) days after first
becoming eligible to participate in the Plan for purposes of receiving the Supplemental Retirement
Benefit, elect that the Supplemental Retirement Benefit be paid in a different form or commencing
at a different time by filing a written election, in such form and manner as the Committee may
provide, within such thirty (30) day period, and the amount of such benefit shall be the actuarial
equivalent of the benefit payable in the absence of such election; provided, however, that such
election shall be applicable only with respect to compensation payable for services to be performed
subsequent to the election. The actuarial equivalent shall be computed on the basis of an eight
percent (8%) interest rate assumption and the Unisex Pension Mortality Table for 1984 with ages set
back two (2) years.




          (e) Notwithstanding section 3.3(d), each Member may elect at any time that the Supplemental
Retirement Benefit be paid in a different form or commencing at a different time by filing a
written election, in such form and manner as the Committee may provide; provided, however, that




11









 









     (i) Any such election shall not take effect until twelve (12) months after it
is received by the Committee; and




     (ii) In the case of an election to defer a payment to be made on account of an
event other than the Member’s death, Disability or Unforeseeable Emergency, the
first payment made under such election shall not occur until at least five (5) years
later than such payment would otherwise have been made; and




     (iii) In the case of an election to defer a payment to be made at a specified
time or pursuant to a fixed schedule, such election shall be made at least twelve
(12) months prior to the date the payment (or the first payment, if applicable), is
scheduled to be made.



          Section 3.4 Supplemental Savings Benefit.




          (a) A Member who has been designated by the Board under section 2.1 to receive the
Supplemental Retirement Benefit shall be entitled to the amount credited to his Supplemental
Savings Account as of December 31, 2004, plus interest credited as of the end of each calendar
quarter until the date of payment at the highest rate of interest credited on certificates of
deposit issued by the Bank during that calendar quarter or according to such other interest
crediting or investment earnings mechanism as the Committee may authorize. The Supplemental
Savings Benefit shall be paid in a single lump sum as soon as practicable following the last day of
the calendar year in which (i), (ii), (iii) or (iv) below occurs, as designated by the Member on
his membership form prior to the date he became a Member:





     (i) The Member’s Termination of Service,




     (ii) The Member attains a designated age not less than age 591/2 or greater than
age 701/2,




     (iii) The earlier of (i) or (ii), or




     (iv) The later of (i) or (ii);


provided, however, that if the Member dies before payment of the Supplemental Savings Benefit
begins, no benefit shall be payable under this section 3.4 and the Supplemental Savings Death
Benefit, if any, which may be payable shall be determined under section 4.4, if applicable to such
Member. In the event that a Member failed to designate a commencement date in accordance with the
foregoing, payment shall be made in accordance with section 3.4(a)(i).




          (b) Notwithstanding anything to the contrary in section 3.4(a), a Member or former Member may,
subject to the Committee’s approval, by written election given in such form and manner as the
Committee may prescribe, make an irrevocable election to receive distribution of his Supplemental
Savings Account in annual installments over a period not to exceed fifteen (15) years; provided,
however, that





     (i) Any such election shall not take effect until twelve (12) months after it
is received by the Committee; and



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          (ii) Such election shall be made at least twelve (12) months prior to the date
the payment (or the first payment, if applicable), is scheduled to be made.; and



               (iii) Such election shall conform to the requirements of section 409A of the
Code.



          (c) The Committee shall maintain, or cause to be maintained, records showing the individual
balances of each Member’s Supplemental Savings Account. At least once a year, each Member shall be
furnished with a statement setting forth the value of his Supplemental Savings Account.




ARTICLE IV




DEATH BENEFITS




          Section 4.1 Supplemental ESOP Death Benefit.




          If a Member who is eligible for a Supplemental ESOP Benefit under section 3.1 dies before the
payment of such benefit begins, a Supplemental ESOP Death Benefit shall be payable to the Member’s
Beneficiary under this Plan in amount equal to the balance credited to the Supplemental ESOP
Account established for the Member under section 3.1(b). Such benefit shall be paid in a single
lump as soon as practical during the calendar year following the death of the Member, and the
Supplemental ESOP Account established for such Member pursuant to section 3.1(b) shall continue to
be adjusted as provided therein through the last day of the last calendar month to end prior to the
date of payment.




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          Section 4.2 Restored ESOP Death Benefit.




          If a Member who is eligible for a Restored ESOP Benefit under section 3.2 dies before the
payment of such benefit begins, a Restored ESOP Death Benefit shall be payable to the Member’s
Beneficiary under this Plan in amount determined pursuant to section 3.2(a). Such benefit shall be
paid in a single lump as soon as practical during the calendar year following the death of the
Member.




          Section 4.3 Supplemental Retirement Death Benefit.




          If a Member who is eligible for a Supplemental Retirement Benefit under section 3.3 has
completed ten (10) years of service and dies before the payment of such benefit begins, a
Supplemental Retirement Death Benefit shall be payable to such Member’s spouse, or child up to
age 21 if his surviving spouse dies, in the form of a 100% joint and survivor annuity such that his
spouse (or child, if applicable) shall receive 100% of the annuity that the Member would have
received if the Member had retired on the day before his death and began to receive a 100% joint
and survivor annuity. Written election (which may, subject to the requirements of section 409A of
the Code, be revoked at any time) may be made to waive this preretirement joint and survivor
annuity. Such waiver will not be valid unless endorsed by the Member’s spouse’s notarized (or
witnessed) consent.




          Section 4.4 Supplemental Savings Death Benefit




          If a Member who is eligible for a Supplemental Savings Benefit under section 3.4 dies before
payment of any or all of the balance of his Supplemental Savings Account, a Supplemental Savings
Death Benefit shall be payable in a single lump sum to the Member’s Beneficiary under this Plan as
soon as practical during the calendar year following the Member’s death in the amount of the
balance of his Supplemental Savings Account.




          Section 4.5 Beneficiaries.




          A Member or Former Member may designate a Beneficiary or Beneficiaries to receive any survivor
benefits payable under the Plan upon his death. Any such designation, or change therein or
revocation thereof, shall be made in writing in the form and manner prescribed by the Committee,
shall be revocable until the death of the Member, and shall thereafter be irrevocable; provided,
however, that any change or revocation shall be effective only if received by the Committee prior
to the Member’s or Former Member’s death. If a Member or Former Member shall die without having
effectively named a Beneficiary, he shall be deemed to have named his estate as his sole
Beneficiary. If a Member or Former Member and his designated Beneficiary shall die in
circumstances which give rise to doubt as to which of them shall have been the first to die, the
Member or Former Member shall be deemed to have survived the Beneficiary. If a Member or Former
Member designates more than one Beneficiary, all shall be deemed to have equal shares unless the
Member or Former Member shall expressly provide otherwise.




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          Section 4.6 One-Time Payment Elections.




          Each Member may, at any time prior to January 1, 2009, elect that any benefit payable under
the Plan after December 31, 2008 be paid at a time or in a form permitted under the Plan other than
time and form in effect before the election is made; provided, however that such election shall not
result in any payment being made prior to January 1, 2009.




ARTICLE V




EARLY DISTRIBUTIONS AND OTHER DISTRIBUTION REQUIREMENTS




          Section 5.1 Unforeseeable Emergency.




          In the event that a Member has suffered an Unforeseeable Emergency, the Committee may, in its
sole discretion and to the extent permitted under section 409A of the Code, allow such Member to
obtain a lump sum withdrawal of an amount credited to him under the Plan that does not exceed the
amount necessary to alleviate the Unforeseeable Emergency.




          Section 5.2 Domestic Relations Order .




          To the extent required to comply with the terms of a domestic relations order (within the
meaning of section 414(p) of the Code) directed to and served upon the Plan, the Committee may
direct the payment of all or any portion of the amount credited to him under the Plan at any time
or in accordance with any payment schedule set forth in such order.




          Section 5.3 Compliance with Certificate of Divestiture.




          To the extent necessary to effect compliance with a certificate of divestiture (within the
meaning of section 1043(b)(2) of the Code), the Committee may permit the distribution of all or a
portion of the amount credited to him under the Plan earlier than the times otherwise provided in
the Plan.




          Section 5.4 Mandatory Cashout of Small Balances.




          Notwithstanding anything in the Plan to the contrary but subject to section 5.5 if, as of
December 31st of any calendar year in which the Member’s Termination of Service occurs,
(i) the aggregate amount payable in respect of the Supplemental ESOP Benefit, the Restored ESOP
Benefit and the Supplemental Savings Benefit is $10,000 or less, and/or (ii) the amount payable in
respect of the Supplemental Retirement Benefit is $10,000 or less, in each case, the entire amount
credited to him in respect of such benefit(s) shall be distributed in a single lump sum payment as
soon as practicable during the immediately following calendar year (but in no event later than the
later of December 31st of the year in which the Member’s Termination of
Service occurs and the fifteenth (15th) day of the third (3rd) month
following the Member’s Termination of Service).




          Section 5.5 Restrictions on Payments to Specified Employees.



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          Notwithstanding anything in the Plan to the contrary, to the extent required under section
409A of the Code, no payment to be made to a specified employee (within the meaning of section 409A
of the Code) on or after the date of his Termination of Service shall be made sooner than, and
shall if necessary be deferred to, six (6) months after such Termination of Service.




          Section 5.6 Payment in Shares.




          Notwithstanding anything in the Plan to the contrary, any benefit payable under the Plan that
is denominated in Stock Units or other phantom Shares or adjusted for earnings based on changes in
the value of a Share may, at the discretion of the Committee be paid by distribution to the payment
recipient of a number of Shares of equivalent value.




ARTICLE VI




TRUST FUND




          Section 6.1 Establishment of Trust.




          The Company may establish a trust fund which may be used to accumulate funds to satisfy
benefit liabilities to Members, Former Members and their Beneficiaries under the Plan; provided,
however, that the assets of such trust shall be subject to the claims of the creditors of the
Company in the event that it is determined that the Company is insolvent; and provided, further,
that the trust agreement shall contain such terms, conditions and provisions as shall be necessary
to cause the Company to be considered the owner of the trust fund for federal, state or local
income tax purposes with respect to all amounts contributed to the trust fund or any income
attributable to the investments of the trust fund. The Company shall pay all costs and expenses
incurred in establishing and maintaining such trust. Any payments made to a Member, Former Member
or Beneficiary from a trust established under this section 6.1 shall offset payments which would
otherwise be payable by the Company in the absence of the establishment of such trust. Any such
trust will conform to the terms of the model trust described in Revenue Procedure 92-64, as the
same may be modified from time to time.




          Section 6.2 Contributions to Trust.




          If a trust is established in accordance with section 6.1, the Company shall make contributions
to such trust in such amounts and at such times as may be specified by the
Committee or as may be required pursuant to the terms of the agreement governing the
establishment and operation of such trust.




          Section 6.3 Unfunded Character of Plan.




          Notwithstanding the establishment of a trust pursuant to section 6.1, the Plan shall be
unfunded for purposes of the Code and ERISA. Any liability of the Bank, the Company or another
Employer to any person with respect to benefits payable under the Plan shall be based solely upon
such contractual obligations, if any, as shall be created by the Plan, and shall give



16









 






rise only to
a claim against the general assets of the Bank, the Company or such other Employer. No such
liability shall be deemed to be secured by any pledge or any other encumbrance on any specific
property of the Bank, the Company or any other Employer.




ARTICLE VII




ADMINISTRATION




          Section 7.1 The Committee.




          Except for the functions reserved to the Bank or the Board, the administration of the Plan
shall be the responsibility of the Committee. The Committee shall have the power and the duty to
take all actions and to make all decisions necessary or proper to carry out the Plan. The
determination of the Committee as to any question involving the general administration and
interpretation of the Plan shall be final, conclusive and binding. Any discretionary actions to be
taken under the Plan by the Committee shall be uniform in their nature and applicable to all
persons similarly situated. Without limiting the generality of the foregoing, the Committee shall
have the following powers:





     (a) to furnish to all Members, upon request, copies of the Plan and to require
any person to furnish such information as it may request for the purpose of the
proper administration of the Plan as a condition to receiving any benefits under the
Plan;




     (b) to make and enforce such rules and regulations and prescribe the use of
such forms as it shall deem necessary for the efficient administration of the Plan;




     (c) to interpret the Plan, and to resolve ambiguities, inconsistencies and
omissions, and the determinations of the Committee in respect thereof shall be
binding, final and conclusive upon all interested parties;




     (d) to decide on questions concerning the Plan in accordance with the
provisions of the Plan;




     (e) to determine the amount of benefits which shall be payable to any person in
accordance with the provisions of the Plan, to hear and decide claims for benefits,
and to provide a full and fair review to any Member whose claim for benefits has
been denied in whole or in part;




     (f) to designate a person, who may or may not be a member of the Committee, as
“plan administrator” for purposes of the ERISA;




     (g) to allocate any such powers and duties to or among individual members of
the Committee; and



17









 






     (h) to designate persons other than Committee members to carry out any duty or
power which would otherwise be a responsibility of the Committee or administrator
under the terms of the Plan.



          Section 7.2 Liability of Committee Members and Their Delegates.




          To the extent permitted by law, the Committee and any person to whom it may delegate any duty
or power in connection with administering the Plan, the Bank, the Company, any Employer, and the
officers and directors thereof, shall be entitled to rely conclusively upon, and shall be fully
protected in any action taken or suffered by them in good faith in the reliance upon, any actuary,
counsel, accountant, other specialist, or other person selected by the Committee, or in reliance
upon any tables, valuations, certificates, opinions or reports which shall be furnished by any of
them. Further, to the extent permitted by law, no member of the Committee, nor the Bank, the
Company, any Employer, nor the officers or directors thereof, shall be liable for any neglect,
omission or wrongdoing of any other members of the Committee, agent, officer or employee of the
Bank, the Company or any Employer. Any person claiming benefits under the Plan shall look solely
to the Employer for redress.




          Section 7.3 Plan Expenses.




          All expenses incurred prior to the termination of the Plan that shall arise in connection with
the administration of the Plan (including, but not limited to administrative expenses, proper
charges and disbursements, compensation and other expenses and charges of any actuary, counsel,
accountant, specialist, or other person who shall be employed by the Committee in connection with
the administration of the Plan), shall be paid by the Bank.




          Section 7.4 Facility of Payment.




          If the Company is unable to make payment to any Member, Former Member Beneficiary, or any
other person to whom a payment is due under the Plan because it cannot ascertain the identity or
whereabouts of such Member, Former Member, Beneficiary, or other person after reasonable efforts
have been made to identify or locate such person (including a notice of the payment so due mailed
to the last known address of such Member, Former Member, Beneficiary, or other person shown on the
records of the Employer), such payment and all subsequent payments otherwise due to such Member,
Former Member, Beneficiary or other person shall be forfeited 24 months after the date such payment
first became due; provided, however, that such payment and any subsequent payments shall be
reinstated, retroactively, no later than 60 days after the date on which the Member, Former Member,
Beneficiary, or other person is identified or located.




ARTICLE VIII




AMENDMENT AND TERMINATION




          Section 8.1 Amendment by the Bank.




          The Bank reserves the right, in its sole and absolute discretion, at any time and from to
time, by action of the Board, to amend the Plan in whole or in part. In no event,



18









 






however, shall
any such amendment adversely affect the right of any Member, Former Member or Beneficiary to
receive any benefits under the Plan in respect of participation for any period ending on or before
the later of the date on which such amendment is adopted or the date on which it is made effective.




          Section 8.2 Termination.




          (a) The Company also reserves the right, in its sole and absolute discretion, by action of the
Board, to terminate the Plan, but only in the following circumstances:





     (i) Within thirty (30 days prior to or twelve (12) months after any Change in
Control Event; and




     (ii) At such other time and in such other circumstances as may be permitted
under section 409A of the Code.


In such event, all benefits theretofore accrued shall be 100% vested, no further benefits shall
accrue, and undistributed benefits attributable to participation prior to the date of termination
shall, to the extent not in pay status, be distributed in lump sum payments as soon as practicable
following the effective date of termination and, to the extent already in pay status, be maintained
and distributed in accordance with the payment election in effect, unless the Board of Directors
specifies otherwise in its resolution of termination in accordance with the requirements of section
409A of the Code.




          (b) Notwithstanding anything to the contrary in the Plan, the Plan shall terminate
automatically upon the occurrence of a Change in Control Event, or, with respect to a Change in
Control Event that is contemplated by a definitive written agreement, upon the delivery to the plan
administrator of a written certification of the President and Chief Executive Officer of the
Company that all material conditions to the consummation of the Change in Control Event
contemplated by such definitive agreement have been satisfied or waived and the closing of such
transaction will occur within thirty (30) days thereafter. In such event, undistributed benefits
attributable to participation prior to the date of termination shall be distributed as though each
Member terminated employment with the Bank, the Company and all other Employers as of the effective
date of termination of the Plan.




          (c) The Company reserves the right, in its sole and absolute discretion, by action of the
Board, to suspend the operation of the Plan, but only in the following circumstances:





     (i) With respect to Supplemental ESOP Benefits, Restored ESOP Benefits,
Supplemental Retirement Benefits and/or Supplemental Savings Benefits to be
contributed and/or earned, as applicable, for the calendar years beginning after the
date of adoption of the resolution suspending the operation of the Plan; and




     (ii) At such other time and in such other circumstances as may be permitted
under section 409A of the Code.



19









 




In such event, no further benefits shall accrue following the effective date of the suspense and
any accounts in existence or other amounts payable prior to such date shall continue to be
maintained, and payments shall continue to be made, in accordance with the provisions of the Plan.




          (d) Except for any automatic termination provided for in the Plan, the Plan may only be
terminated by resolution of the Board or by written instrument signed by an officer of the Company
authorized by resolution of the Board to effect such termination.




          Section 8.3 Amendment or Termination by Other Employers.




          In the event that a corporation or trade or business other than the Bank shall adopt this
Plan, such corporation or trade or business shall, by adopting the Plan, empower the Bank to amend
or terminate the Plan, insofar as it shall cover employees of such corporation or trade or
business, upon the terms and conditions set forth in sections 8.1 and 8.2; provided, however, that
any such corporation or trade or business may, by action of its board of directors or other
governing body, amend or terminate the Plan, insofar as it shall cover employees of such
corporation or trade or business, at different times and in a different manner. In the event of
any such amendment or termination by action of the board of directors or other governing body of
such a corporation or trade or business, a separate plan shall be deemed to have been established
for the employees of such corporation or trade or business, and any amounts set aside to provide
for the satisfaction of benefit liabilities with respect to Employees of such corporation or trade
or business shall be segregated from the assets set aside for the purposes of this Plan at the
earliest practicable date and shall be dealt with in accordance with the documents governing such
separate plan.




ARTICLE IX




MISCELLANEOUS PROVISIONS




          Section 9.1 Construction and Language.




          Wherever appropriate in the Plan, words used in the singular may be read in the plural, words
used in the plural may be read in the singular, and the masculine gender may be read to refer to
the feminine gender or the neuter. Any reference to an Article or section shall refer to an
Article or section of the Plan, unless otherwise indicated.




          Section 9.2 Headings.




          The headings of Articles and sections are included solely for convenience of reference. If
there is any conflict between such headings and the text of the Agreement, the text shall control.




          Section 9.3 Non-Alienation of Benefits.




          Except as may otherwise be required by law, no distribution or payment under the Plan to any
Member, Former Member or Beneficiary shall be subject in any manner to anticipation, alienation,
sale, transfer, assignment, pledge, encumbrance or charge, whether



20









 






voluntary or involuntary, and
any attempt to so anticipate, alienate, sell, transfer, assign, pledge, encumber or charge the same
shall be void; nor shall any such distribution or payment be in any way liable for or subject to
the debts, contracts, liabilities, engagements or torts of any person entitled to such distribution
or payment. If any Member, Former Member or Beneficiary is adjudicated bankrupt or purports to
anticipate, alienate, sell, transfer, assign, pledge encumber or charge any such distribution or
payment, voluntarily or involuntarily, the Committee, in its sole discretion, may cancel such
distribution or payment or may hold or cause to be held or applied such distribution or payment, or
any part thereof, to or for the benefit of such Member, Former Member or Beneficiary, in such
manner as the Committee shall direct; provided, however, that no such action by the Committee shall
cause the acceleration or deferral of any benefit payments from the date on which such payments are
scheduled to be made.




          Section 9.4 Indemnification.




          The Bank shall indemnify, hold harmless and defend each Member, Former Member and Beneficiary,
against their reasonable costs, including legal fees, incurred by them or arising out of any
action, suit or proceeding in which they may be involved, as a result of their efforts, in good
faith, to defend or enforce the obligation of the Bank, the Company and any other Employer under
the terms of the Plan.




          Section 9.5 Severability.




          A determination that any provision of the Plan is invalid or unenforceable shall not affect
the validity or enforceability of any other provision hereof.




          Section 9.6 Waiver.




          Failure to insist upon strict compliance with any of the terms, covenants or conditions of the
Plan shall not be deemed a waiver of such term, covenant or condition. A waiver of any provision
of the Plan must be made in writing, designated as a waiver, and signed by the party against whom
its enforcement is sought. Any waiver or relinquishment of any right or power hereunder at any one
or more times shall not be deemed a waiver or relinquishment of such right or power at any other
time or times.




          Section 9.7 Governing Law.




          The Plan shall be construed, administered and enforced according to the laws of the State of
New Jersey without giving effect to the conflict of laws principles thereof, except to the extent
that such laws are preempted by federal law. The federal and state courts located in Bergen
County, New Jersey shall have exclusive jurisdiction over any claim, action, complaint or lawsuit
brought under the terms of the Plan. By accepting any payment under this Plan, the Member and any
other person claiming any rights under the Plan, agrees to submit himself, and any such legal
action as he shall bring under the Plan, to the sole jurisdiction of such courts for the
adjudication and resolution of any such disputes. Any payments made pursuant to this Plan are
subject to and conditioned upon their compliance with 12 U.S.C. section 1828(k) and any regulations
promulgated thereunder.




          Section 9.8 Withholding.




21









 





          Payments from this Plan shall be subject to all applicable federal, state and local income
withholding taxes.




          Section 9.9 No Deposit Account.




          Nothing in this Plan shall be held or construed to establish any deposit account for any
Member or any deposit liability on the part of the Bank. Members’ rights hereunder shall be
equivalent to those of a general unsecured creditor of each Employer.




          Section 9.10 Rights of Employees.




          No Employee shall have any right or claim to any benefit under the Plan except in accordance
with the provisions of the Plan. The establishment of the Plan shall not be construed as
conferring upon any Employee or other person any legal right to a continuation of employment or to
any terms or conditions of employment, nor as limiting or qualifying the right of an Employer to
discharge any Employee.




          Section 9.11 Status of Plan Under ERISA.




          The Plan is intended to be (a) to the maximum extent permitted under applicable laws, an
unfunded, non-qualified excess benefit plan as contemplated by section 3(36) of ERISA for the
purpose of providing benefits in excess of the limitations imposed under section 415 of the Code,
and (b) to the extent not so permitted, an unfunded, non-qualified plan maintained primarily for
the purpose of providing deferred compensation for highly compensated employees, as contemplated by
sections 201(2), 301(a)(3) and 401(a)(1) of ERISA. The Plan is not intended to comply with the
requirements of section 401(a) of the Code or to be subject to Parts 2, 3 and 4 of Title I of
ERISA. The Plan shall be administered and construed so as to effectuate this intent.




          Section 9.12 Successors and Assigns.




          The provisions of the Plan will inure to the benefit of and be binding upon the Members and
their respective legal representatives and testate or intestate distributees, and each
Employer and their respective successors and assigns, including any successor by merger or
consolidation or statutory receiver or any other person or firm or corporation to which all or
substantially all of the assets and business of any Employer may otherwise be sold or otherwise
transferred.




          Section 9.13
Compliance with Section 409A of the Code.




          The Plan is intended to be a non-qualified deferred compensation plan described in section
409A of the Code. The Plan shall be operated, administered and construed to give effect to such
intent. In addition, the Plan shall be subject to amendment, with or without advance notice to
Members and other interested parties, and on a prospective or retroactive basis, including but not
limited to amendment in a manner that adversely affects the rights of Members and other interested
parties, to the extent necessary to effect such compliance.





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