SUPPLEMENTAL EMPLOYEE RETIREMENT AGREEMENT
EXHIBIT
10 a) (ii)
AGREEMENT
made as of the 1st day of January, _____, by and between STATE BANK OF LONG
ISLAND (hereinafter referred to as "the Bank") and ________________ (hereinafter
referred to as "the Employee"),
W I T N E S S E T H :
1. The
Employee will serve for the term of employment by the Bank or any Subsidiary of
the Bank, and will devote the time, attention, skill and effort reasonably
required to perform competently the duties of any position to which he is
elected or appointed. For the purposes of this Agreement, “Subsidiary” means any
corporation or association of which a majority of the voting common or capital
stock is owned directly or indirectly by the Bank.
2. The Bank
or the Subsidiary, as the case may be, will pay the Employee compensation in
such amount as the Board of Directors of the Bank or the Subsidiary, as the case
may be ("the Board") may from time to time determine.
3. The Bank
or the Subsidiary, as the case may be, will also pay the Employee deferred
compensation as described in Paragraph 5.
4. (a) The Bank
will credit to a book reserve (hereinafter referred to as the "Deferred
Compensation Account") established for this purpose, on or before the last day
of each calendar year in which the Employee: (i) has been employed by the Bank
or a Subsidiary; and (ii) has been a participant in the State Bancorp, Inc.
Employee Stock Ownership Plan ("the ESOP") and/or the State Bank of Long Island
401(k) Retirement Plan and Trust ("the 401(k) "; the ESOP and the 401(k) being
hereafter together referred to as the "Plans"), an amount equal to the
difference, if any, between: (iii) the amount which would have been contributed
to the Plans (or either of them if the Employee is not a participant in both of
the Plans) pursuant to their respective terms, conditions and employer
contribution limits in the absence of any limitations imposed by the Internal
Revenue Code, as now in effect or as it may be amended from time to time; and
(iv) the actual amount contributed.
(b) Funds
credited to the Deferred Compensation Account shall be kept in cash, co-mingled
with the assets of the Bank or invested and reinvested in mutual funds, stocks,
bonds, securities, or any other assets as may be selected by the Board in its
discretion. Funds credited to the Deferred Compensation Account shall be
credited with interest at a rate which is not less than the Bank's Prime Rate at
such time. "Prime Rate" as used in this Agreement, means the rate of interest
announced by the Bank as its prime rate as in effect on the first day of each
calendar month, which rate shall remain in effect for the subsequent calendar
month.
(c) Title to
and beneficial ownership of any assets, whether cash or investments, which the
Bank may earmark to pay the contingent deferred compensation hereunder, shall at
all times remain in the Bank, and the Employee and his designated beneficiary
shall not have any property interest whatsoever in any specific assets of the
Bank.
5. The
benefits to be paid as deferred compensation are as follows:
(a) If the
Employee ceases to be Employee of the Bank or a Subsidiary on or after having
attained age 60, the Bank shall pay him in thirty-six (36) equal monthly
installments an amount equal to the fair market value of the assets in the
Deferred Compensation Account as of such date. Notwithstanding the foregoing,
the total amount payable to the Employee shall be increased semi-annually to
reflect the net income on the funds which remain invested in the Deferred
Compensation Account. If the Employee dies on or after his 60th birthday and
before the thirty-six (36) monthly payments are made, the unpaid balance will
continue to be paid in installments for the unexpired portion of such three (3)
year period to his designated beneficiary in the same manner as set forth
above.
1
(b) If the
Employee ceases to be an employee of the Bank or a Subsidiary for any reason
other than death or disability, but before having attained age 60, then the
amount in the Deferred Compensation Account shall continue to be invested or
held in cash as the Board, in its discretion, may determine and no payments
shall be made until the Employee shall have reached age 60, at which time
payments shall be made in the same manner and to the same extent as set forth in
paragraph 5(a). Notwithstanding the foregoing, if prior to reaching age 60 the
Employee dies or becomes disabled, then payments shall be made in the same
manner and to the same extent as set forth in paragraph 5(c).
(c) If the
Employee dies or is disabled before attaining age 60 and while an employee of
the Bank or a Subsidiary, then the Bank shall make thirty-six (36) monthly
payments to the Employee (if he is disabled) or to his designated beneficiary
(if he is deceased), in the same manner and to the same extent as provided in
paragraph 5(a).
(d) If both
the Employee and his designated beneficiary die before thirty-six (36) monthly
payments are made by the Bank, then the remaining value of the Deferred
Compensation Account shall be determined as of the date the designated
beneficiary died and shall be paid as promptly as possible in one lump sum to
the estate of the designated beneficiary.
(e) The
beneficiary is a designated beneficiary for the purposes of this Agreement only
as designated by the Employee. The beneficiary is ________________,
_______________
of the Employee. The Employee may change his designation at any time without the
consent of any prior beneficiary. If the Employee dies and there is no
designated beneficiary then surviving, the amounts payable under paragraph 5(c)
shall be payable to the Employee's estate.
(f) For the
purposes of paragraph 5(c), the Employee will be considered disabled if, on the
basis of evidence satisfactory to the Board, the Board finds a mental or
physical impairment rendering him unable to serve as an employee of the Bank and
the impairment will continue for more than one year.
(g) The
installment payments to be made under paragraphs 5(a) and 5(c) shall commence on
January 1 of the calendar year next succeeding the year which the Employee
ceases to be an employee of the Bank or a Subsidiary. The installments payable
to the Employee under paragraph 5(b) shall commence on January 1 of the calendar
year next succeeding the calendar year in which he attains age 60.
(h) Notwithstanding
anything herein to the contrary, the Board shall have the right in its sole
discretion to vary the manner and time of making the installment distributions
provided in this paragraph and may make such distributions in lump sums or over
a shorter period of time as it may find appropriate, provided, however,
installment distributions shall not be made in lesser amounts or over a longer
period of time than provided in this paragraph.
6.
Nothing
in this Agreement and no action taken pursuant to the provisions of this
Agreement shall create or be construed to create a trust of any kind, or a
fiduciary relationship between the Bank and the Employee, his designated
beneficiary or any other person. Any funds which may be invested under the
provisions of this Agreement shall continue for all purposes to be a part of the
general funds of the Bank and no person other than the Bank shall by virtue of
the provisions of this Agreement have any interest in such funds. To the extent
that any person acquires a right to receive payments from the Bank under this
Agreement, such right shall be no greater than the right of any unsecured
general creditor of the Bank.
7.
The right
of the Employee or any other person to the payment of deferred compensation or
other benefits under this Agreement shall not be assigned, transferred, pledged
or encumbered except by will or by the laws of descent and
distribution.
8.
If the
Board finds that any person to whom a payment is payable under this Agreement is
unable to care for his affairs because of illness or accident, or is a minor,
any payment due (unless a prior claim therefor shall have been made by a duly
appointed guardian, committee or other legal representative) may be paid to the
spouse, a child, a parent, or a brother or sister, or to any person deemed by
the Board to have incurred expense for such person otherwise entitled to
payment, in such manner and proportions as the Board may determine. Any such
payment shall be a complete discharge of the liabilities of the Bank under this
Agreement.
2
9.
Nothing
herein shall be construed as conferring upon the Employee the right to continue
in the employ of the Bank as an officer or in any other capacity.
10. Any
deferred compensation payable under this Agreement shall not be deemed salary or
other compensation to the Employee for the purpose of computing benefits to
which he may be entitled under any pension plan or other arrangement of the Bank
for the benefit of its employees.
11. The Board
or the Bank (the “Bank Board”) shall have full power and authority to interpret,
construe and administer this Agreement and the Bank Board's interpretations and
construction thereof, the actions thereunder, including any valuation of
Deferred Compensation Account, or the amount or recipient of the payment to be
made therefrom, shall be binding and conclusive on all persons for all purposes.
No member of the Bank Board shall be liable to any person for any action taken
or omitted in connection with the interpretation and administration of this
Agreement unless attributable to his own wilful misconduct or lack of good
faith.
12. This
Agreement shall be binding upon and inure to the benefit of the Bank, its
successors and assigns and the Employee, his heirs, executors, administrators
and legal representatives.
13. This
Agreement shall be construed in accordance with and governed by the laws of the
State of New York.
14. This
Agreement may not be amended or modified, except by an agreement in writing
signed by the parties hereto.
15. Claims
and Review Procedure
15.1 For all
claims other than disability benefits:
15.1.1
Claims
Procedure. Any individual (“Claimant”) who has not received benefits under this
Agreement that he or she believes should be paid shall make a claim for such
benefits as follows:
15.1.1.1 Initiation
- Written Claim. .The Claimant initiates a claim by submitting to the Bank a
written claim for the benefits.
15.1.1.2 Timing of
Bank Response. The Bank shall respond to such Claimant within 90 days after
receiving the claim. If the Bank determines that special circumstances require
additional time for processing the claim, the Bank can extend the response
period by an additional 90 days by notifying the Claimant in writing, prior to
the end of the initial 90-day period, that an additional period is required. The
notice of extension must set forth the special circumstances and the date by
which the Bank expects to render its decision.
15.1.1.3 Notice of
Decision. If the Bank denies part or all of the claim, the Bank shall notify the
Claimant in writing of such denial. The Bank shall write the notification in a
manner calculated to be understood by the Claimant. The notification shall set
forth:
(a) The
specific reasons for the denial,
(b) A
reference to the specific provisions of this Agreement on which the denial is
based,
(c) A
description of any additional information or material necessary for the Claimant
to perfect the claim and an explanation of why it is needed,
3
(d) An
explanation of this Agreement’s review procedures and the time limits applicable
to such procedures, and
(e) A
statement of the Claimant’s right to bring a civil action under ERISA Section
502(a) following an adverse benefit determination on review.
15.1.2 Review
Procedure. If the Bank denies part or all of the claim, the Claimant shall have
the opportunity for a full and fair review by the Bank of the denial, as
follows:
15.1.2.1 Initiation
- Written Request. To initiate the review, the Claimant, within 60 days after
receiving the Bank’s notice of denial, must file with the Bank a written request
for review.
15.1.2.2 Additional
Submissions - Information Access. The Claimant shall then have the opportunity
to submit written comments, documents, records and other information relating to
the claim. The Bank shall also provide the Claimant, upon request and free of
charge, reasonable access to, and copies of, all documents, records and other
information relevant (as defined in applicable ERISA regulations) to the
Claimant’s claim for benefits.
15.1.2.3 Considerations
on Review. In considering the review, the Bank shall take into account all
materials and information the Claimant submits relating to the claim, without
regard to whether such information was submitted or considered in the initial
benefit determination.
15.1.2.4 Timing of
Bank Response. The Bank shall respond in writing to such Claimant within 60 days
after receiving the request for review. If the Bank determines that special
circumstances require additional time for processing the claim, the Bank can
extend the response period by an additional 60 days by notifying the Claimant in
writing, prior to the end of the initial 60-day period, that an additional
period is required. The notice of extension must set forth the special
circumstances and the date by which the Bank expects to render its decision.
15.1.2.5 Notice of
Decision. The Bank shall notify the Claimant in writing of its decision on
review. The Bank shall write the notification in a manner calculated to be
understood by the Claimant. The notification shall set forth:
(a) The
specific reasons for the denial,
(b) A
reference to the specific provisions of this Agreement on which the denial is
based,
(c) A
statement that the Claimant is entitled to receive, upon request and free of
charge, reasonable access to, and copies of, all documents, records and other
information relevant (as defined in applicable ERISA regulations) to the
Claimant’s claim for benefits, and
A
statement of the Claimant’s right to bring a civil action under ERISA Section
502(a).
15.2 For
disability claims:
4
15.2.1 Claims
Procedures. Any individual (“Claimant”) who has not received benefits under this
Agreement that he or she believes should be paid shall make a claim for such
benefits as follows:
15.2.1.1 Initiation
- Written Claim. The Claimant initiates a claim by submitting to the Bank a
written claim for the benefits.
15.2.1.2 Timing of
Bank Response. The Bank shall notify the Claimant in writing or electronically
of any adverse determination as set out in this Section.
15.2.1.3 Notice of
Decision. If the Bank denies part or all of the claim, the Bank shall notify the
Claimant in writing of such denial. The Bank shall write the notification in a
manner calculated to be understood by the Claimant. The notification shall set
forth:
(a) The
specific reasons for the denial,
(b) A
reference to the specific provisions of this Agreement on which the denial is
based,
(c) A
description of any additional information or material necessary for the Claimant
to perfect the claim and an explanation of why it is needed,
(d) An
explanation of the Agreement’s review procedures and the time limits applicable
to such procedures,
(e) A
statement of the Claimant’s right to bring a civil action under ERISA Section
502(a) following an adverse benefit determination on review,
(f) [See
§2560.503-1(g)(v)] Any internal rule, guideline, protocol, or other similar
criterion relied upon in making the adverse determination, or a statement that
such a rule, guideline, protocol, or other similar criterion was relied upon in
making the adverse determination and that the Claimant can request and receive
free of charge a copy of such rule, guideline, protocol or other criterion from
the Bank, and
(g) If the
adverse benefit determination is based on a medical necessity or experimental
treatment or similar exclusion or limit, either an explanation of the scientific
or clinical judgment for the determination, applying the terms of this Agreement
to the Claimant’s medical circumstances, or a statement that such explanation
will be provided free of charge upon request.
15.2.1.4 Timing of
Notice of Denial/Extensions. The Bank shall notify the Claimant of denial of
benefits in writing or electronically not later than 45 days after receipt of
the claim by the Bank. The Bank may elect to extend notification by two 30-day
periods subject to the following requirements:
(a) For the
first 30-day extension, the Bank shall notify the Claimant (1) of the necessity
of the extension and the factors beyond the Bank’s control requiring an
extension; (2) prior to the end of the initial 45-day period; and (3) of the
date by which the Bank expects to render a decision.
5
(b) If the
Bank determines that a second 30-day extension is necessary based on factors
beyond the Bank’s control, the Bank shall follow the same procedure in (a)
above, with the exception that the notification must be provided to the Claimant
before the end of the first 30-day extension period.
(c) For any
extension provided under this section, the Notice of Extension shall
specifically explain the standards upon which entitlement to a benefit is based,
the unresolved issues that prevent a decision on the claim, and the additional
information needed to resolve those issues. The Claimant shall be afforded 45
days within which to provide the specified information.
15.2.2 Review
Procedures - Denial of Benefits. If the Bank denies part or all of the claim,
the Claimant shall have the opportunity for a full and fair review by the Bank
of the denial, as follows:
15.2.2.1 Initiation
of Appeal. Within 180 days following notice of denial of benefits, the Claimant
shall initiate an appeal by submitting a written notice of appeal to Bank.
15.2.2.2 Submissions
on Appeal - Information Access. The Claimant shall be allowed to provide written
comments, documents, records, and other information relating to the claim for
benefits. The Bank shall provide to the Claimant, upon request and free of
charge, reasonable access to, and copies of, all documents, records, and other
information relevant (as defined in applicable ERISA regulations) to the
Claimant’s claim for benefits.
15.2.2.3 Additional
Bank Responsibilities on Appeal. On appeal, the Bank shall:
(a) [See
§2560.503-1(h)(3)(i)-(v)] Take into account all materials and information the
Claimant submits relating to the claim, without regard to whether such
information was submitted or considered in the initial benefit determination;
(b) Provide
for a review that does not afford deference to the initial adverse benefit
determination and that is conducted by an appropriate named fiduciary of the
Bank who is neither the individual who made the adverse benefit determination
that is the subject of the appeal, nor the subordinate of such
individual;
(c) In
deciding an appeal of any adverse benefit determination that is based in whole
or in part on a medical judgment, including determinations with regard to
whether a particular treatment, drug, or other item is experimental,
investigational, or not medically necessary or appropriate, consult with a
health care professional who has appropriate training and experience in the
field of medicine involved in the medical judgment;
(d) Identify
medical or vocational experts whose advise was obtained on behalf of the Bank in
connection with a Claimant’s adverse benefit determination, without regard to
whether the advice was relied upon in making the benefit determination; and
6
(e) Ensure
that the health care professional engaged for purposes of a consultation under
subsection (c) above shall be an individual who was neither an individual
who was consulted in connection with the adverse benefit determination that is
the subject of the appeal, nor the subordinate of any such
individual.
15.2.2.4 Timing of
Notification of Benefit Denial - Appeal Denial. The Bank shall notify the
Claimant not later than 45 days after receipt of the Claimant’s request for
review by the Bank, unless the Bank determines that special circumstances
require an extension of time for processing the claim. If the Bank determines
that an extension is required, written notice of such shall be furnished to the
Claimant prior to the termination of the initial 45-day period, and such
extension shall not exceed 45 days. The Bank shall indicate the special
circumstances requiring an extension of time and the date by which the Bank
expects to render the determination on review.
15.2.2.5 Content
of Notification of Benefit Denial. The Bank shall provide the Claimant with a
notice calculated to be understood by the Claimant, which shall
contain:
(a) The
specific reason or reasons for the adverse determination;
(b) Reference
to the specific plan provisions on which the benefit determination is based;
(c) A
statement that the Claimant is entitled to receive, upon request and free of
charge, reasonable access to, and copies of all documents, records, and other
relevant information (as defined in applicable ERISA
regulations);
(d) A
statement of the Claimant’s right to bring an action under ERISA Section 502(a);
(e) [See
§2560.503-1(j)(5)] Any internal rule, guideline, protocol, or other similar
criterion relied upon in making the adverse determination, or a statement that
such a rule, guideline, protocol, or other similar criterion was relied upon in
making the adverse determination and that the Claimant can request and receive
free of charge a copy of such rule, guideline, protocol or other criterion from
the Bank;
(f) If the
adverse benefit determination is based on a medical necessity or experimental
treatment or similar exclusion or limit, either an explanation of the scientific
or clinical judgment for the determination, applying the terms of this Agreement
to the Claimant’s medical circumstances, or a statement that such explanation
will be provided free of charge upon request; and
(g) The
following statement: “You and your Bank may have other voluntary alternative
dispute resolution options such as mediation. One way to find out what may be
available is to contact your local U.S. Department of Labor Office and your
state insurance regulatory agency.”
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.
|
STATE
BANK OF LONG ISLAND | |
|
BY:__________________________ | |
|
_____________________________ |
7