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UMBRELLA TRUST AGREEMENT
among
DIME BANCORP, INC.,
THE DIME SAVINGS BANK OF NEW YORK, FSB
and
HSBC Bank USA, as Trustee
with respect to
the Designated Arrangements of
The Dime Savings Bank of New York, FSB
and Related Entities.
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UMBRELLA TRUST AGREEMENT
UMBRELLA TRUST AGREEMENT, dated as of May 18, 2000, by and among DIME
BANCORP, INC., a Delaware corporation with its executive offices at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Company"), THE DIME SAVINGS BANK OF NEW YORK,
FSB, a federal savings bank with its executive offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Bank") and HSBC Bank USA, a banking association with
an office at ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Trustee").
WHEREAS, the Bank is at the date hereof a wholly-owned subsidiary of the
Company (the Bank and the Company being collectively referred to herein as the
"Dime"); and
WHEREAS, each of the Company and the Bank has established the various
plans and arrangements referred to in Appendix I to this Trust Agreement and
further defined in Section 1.5 for the benefit of Participants and their
Beneficiaries (as defined in Section 1.5(b)) under such plans and arrangements,
with such plans and arrangements, being herein referred to collectively as the
"Designated Arrangements;" and
WHEREAS, the Designated Arrangements provide for the payment of certain
cash-based benefits (the "Benefits") to Participants and Beneficiaries (as
defined in Section 1.5); and
WHEREAS, the Company, the Bank and the Trustee are entering into this
Umbrella Trust Agreement, as of May 18, 2000, to establish a trust (the "Trust")
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which contributions will be made, for the purpose of providing the Company and
the Bank with a source of funds to aid them in meeting their respective
liabilities under the Designated Arrangements; and
WHEREAS, the cash and property to be contributed to the Trust by the Bank
shall be subject to the claims of the Bank's creditors in the event the Bank
becomes Insolvent, as herein defined, until paid to Participants and their
Beneficiaries under a Designated Arrangement; and
WHEREAS, the cash and property to be contributed to the Trust by the
Company shall be subject to the claims of the Company's creditors in the event
the Company becomes Insolvent, as herein defined, until paid to Participants and
their Beneficiaries under a Designated Arrangement; and
WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of any
Designated Arrangement as an unfunded plan or arrangement;
WHEREAS, the Trust is intended to be a "grantor trust" with the corpus
and income of the Trust treated as assets and income of the Company or the Bank
for federal income tax purposes pursuant to Sections 671 through 679 of the
Internal Revenue Code of 1986, as amended (the "Code") and shall be construed
accordingly; and
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the Company, the Bank and the Trustee agree as follows:
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ARTICLE I
Establishment of Trust
1.1 Trust Fund. The Company and the Bank hereby establish the Trust
with the Trustee, consisting of such sums of money, policies of life insurance,
and other property acceptable to the Trustee as from time to time shall be paid
or delivered to the Trustee (the "Contributions"). All such Contributions, all
investments made therewith or proceeds thereof and all earnings and profits
thereon, less all payments and charges as authorized herein, shall constitute
the "Trust Fund." The Trust Fund shall be held by the Trustee in trust separate
and apart from other funds of the Company and the Bank and shall be applied in
accordance with the provisions of this Trust Agreement. The Trust Fund shall at
all times be subject to the claims of general creditors of the Company or the
Bank, as their interests may appear, as provided in Article XI1. Participants
and their Beneficiaries shall have no preferred claim on, or any beneficial
ownership interest in, any assets of the Trust. Any rights created under the
Designated Arrangements and this Trust Agreement shall be mere unsecured
contractual rights of the Participants and their Beneficiaries against one or
both of the Company and the Bank.
1.2 Irrevocability. The Trust shall be irrevocable, and except as
provided in Section 5.3 and Article XII, the assets of the Trust shall be held
for the exclusive purpose of providing Benefits to Participants and their
Beneficiaries and defraying expenses of the Trust in accordance with the
provisions of this Trust Agreement. Except as expressly provided in this Trust
Agreement, no part of the
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income or corpus of the Trust Fund shall be recoverable by or applied for the
benefit of the Company, the Bank or their creditors.
1.3 Inalienability of Interests. Benefits payable to Participants and
their Beneficiaries under this Trust Agreement may not be sold, anticipated,
transferred, assigned (either at law or in equity), alienated, pledged,
encumbered, or subjected to attachment, garnishment, levy, execution or other
legal or equitable process.
1.4 Acceptance by the Trustee. The Trustee accepts the Trust
established under this Trust Agreement on the terms and subject to the
provisions set forth herein, and it agrees to discharge and perform fully and
faithfully all of the duties and obligations imposed upon it under this Trust
Agreement.
1.5 Designation of Designated Arrangements; Participants and
Beneficiaries.
(a) The Trust shall serve to aid the Company and the Bank in
accumulating the assets necessary to satisfy their respective contractual
liabilities to pay or provide cash-based Benefits to Participants and
Beneficiaries under the terms of the Designated Arrangements listed (or
otherwise described) in Appendix I to this Trust Agreement, as such Appendix I
may from time to time be amended. Prior to an Irrevocable Election (as defined
in Section 13.5) or Change in Control (as defined in Section 13.4), Appendix I
may be amended to remove or add all or a portion of such plans and arrangements
as may be designated from time to time by action of two Authorized Officers of
either the Company or the Bank (as appropriate) or their
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designees. An "Authorized Officer" of the Company or the Bank shall for this
purpose be any of the individuals listed in Appendix IV to this Trust Agreement,
whose specimen signatures shall be provided by the Dime to the Trustee.
Notwithstanding the foregoing, following an Irrevocable Election, Change in
Control or Potential Change in Control (as defined in Section 11.3(d)(i)),
Appendix I may be amended, additional Designated Arrangements or portions
thereof may be designated and Designated Arrangements or portions thereof may be
eliminated, only with the written approval of the Committee (as defined in
Section 13.6).
(b) The term "Participant" shall mean any person who at the
time an Irrevocable Election or Change in Control first occurs following May 1,
2000, or at any time prior thereto, is or was an officer or employee of the
Company, the Bank or an Affiliate thereof, and at the time of such Irrevocable
Election or Change in Control, is or could become entitled to any benefit
pursuant to, or otherwise could be deemed to be a participant in, any Designated
Arrangement (but shall not include any person serving as a non-employee director
of the Company or the Bank with respect to any Benefits accrued solely in such
capacity).
(c) The term "Beneficiary" shall mean any person who is or may
become entitled to Benefits under any of the Designated Arrangements in the
event of a Participant's death.
1.6 Respective Interests of the Company and the Bank. (a) The
Trustee shall separately account for all Contributions made by the Company and
the Bank, and for all investments made therewith, proceeds thereof, and earnings
and
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profits thereon, and all payments and charges with respect thereto
(respectively, the "Company Trust Assets" and the "Bank Trust Assets");
provided, that such Contributions may be commingled for purposes of investment
hereunder and that any allocations of such commingled investments shall be made
in proportion to the respective amounts of the investment represented by
Contributions of the Company and the Bank; and further provided, that, except as
may otherwise specifically be directed by the Company or the Bank pursuant to
the provisions of this Trust Agreement, any determination by the Trustee
respecting allocation of any investments, proceeds, earnings, profits, payments
and charges in respect of the Trust Fund as between the Company Trust Assets and
the Bank Trust Assets shall be final and binding on the parties hereto.
(b) The Company and the Bank have identified, with respect to
each Designated Arrangement listed on Appendix I, and shall set forth in
Appendix I, with respect to each Designated Arrangement hereafter added thereto,
whether Benefits under such Designated Arrangement constitute (i) primary
obligations hereunder of the Company ("Company Benefits"), (ii) secondary
obligations hereunder of the Company, (iii) primary obligations hereunder of the
Bank ("Bank Benefits"), or (iv) secondary obligations hereunder of the Bank.
Obligations for which the Company is primarily liable and the Bank is
secondarily liable, and obligations for which the Bank is primarily liable and
the Company is secondarily liable are also referred to herein as "Joint
Benefits."
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ARTICLE II
General Powers of Trustee
2.1 Investment of the Trust.
(a) Prior to an Irrevocable Election or Change in Control, the
Company Trust Assets and Bank Trust Assets shall be invested by the Trustee in
the manner directed by the Company or the Bank, respectively, or, to the extent
no such specific direction has been given by the Company or the Bank, in
accordance with the written investment guidelines provided from time to time by
the Company or the Bank.
(b) Subsequent to an Irrevocable Election or Change in Control,
the Trustee shall invest the assets of the Trust Fund, without distinction
between principal and income, in accordance with such written investment
guidelines as may be provided from time to time by the Committee, in (i) life
insurance policies and guaranteed annuity contracts issued by insurers which, at
the time of investment, are rated A+ or better by Standard & Poor's or the
equivalent rating by any nationally recognized rating service (including the
payment of premiums thereon), (ii) bonds rated at least A by Standard & Poor's
or the equivalent rating by any nationally recognized rating service, (iii)
certificates of deposit, money market funds or other high quality cash
equivalents, or (iv) mutual funds designed to invest in those items described in
clauses (i) through (iii) above that otherwise comply with the Bank's or, as
applicable, the Company's investment policies as they apply from time to time
(the relevant portions of which shall be provided to the Trustee by the Bank or
the Company upon its request).
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(c) Subsequent to an Irrevocable Election or a Change in
Control and notwithstanding the foregoing provisions of this Section 2.1, at any
time that the assets of the Trust Fund together with the assets of any other
trust fund established by the Company or the Bank with which the assets of the
Trust Fund are commingled for investment purposes (excluding in each case any
life insurance policies and guaranteed annuity contracts then in effect) do not
exceed $500,000, such assets shall be held in one or more interest-bearing
accounts at a commercial bank or savings bank (which may include the Trustee),
with maturities in the Trustee's discretion based on the anticipated need for
funds, but not in excess of one year.
(d) Prior to an Irrevocable Election or a Change in Control,
each of the Company and the Bank shall have the right at any time, and from time
to time in its sole discretion, to substitute assets of equal fair market value
for any asset held by the Trust. This right is exercisable by each of the
Company and the Bank in a non-fiduciary capacity without the approval or consent
of any person in a fiduciary capacity. After an Irrevocable Election or a Change
in Control, such right shall continue, but any asset so substituted by the
Company or the Bank shall be of equivalent or greater liquidity as compared to
the asset for which it is substituted, and such right may only be exercised with
the consent of the Committee.
2.2 Investment Powers of Trustee. Subject to the provisions of this
Trust Agreement and the directions or investment guidelines provided pursuant
to Section 2.1, the Trustee shall have, with respect to the Trust Fund, the
following investment powers in its discretion:
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(a) To invest and reinvest in any property, real, personal or
mixed, wherever situated, foreign or domestic, including, common and preferred
stocks, bonds, notes and debentures (including convertible stocks and securities
but not including any stock or securities or debt instruments of the Company or
the Bank or their Affiliates unless otherwise expressly directed by the Company
or the Bank pursuant to Section 2.1(a)); leaseholds; mortgages (including,
without limitation, any collective or part interest in any bond and mortgage or
note and mortgage); certificates of deposit and money market funds (including
certificates of deposit and money market funds of the Bank); and life insurance
and guaranteed annuity contracts. Such investments may be made regardless of
diversification and without being limited to investments authorized by law for
the investment of trust funds.
(b) To use Trust Fund assets to purchase, and pay all premiums
and other charges upon, individual or group annuity or life insurance contracts.
(c) To retain any property at any time received by it.
(d) To sell, exchange, convey, transfer or dispose of, and to
grant options for the purchase or exchange with respect to, any property at any
time held by it, by public or private sale, for cash or on credit or partly for
cash and partly on credit.
(e) To participate in any plan of reorganization,
consolidation, merger, combination, liquidation or other similar plan and to
consent to or oppose any such plan or any action thereunder, or any contract,
lease, mortgage, purchase, sale or
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other action by any person or corporation or other entity any of the securities
of which may at any time be held in the Trust Fund, and to do any act with
reference thereto.
(f) To deposit any property with any protective, reorganization
or similar committee, to delegate discretionary power to any such committee and
to pay and agree to pay part of the expenses and compensation of any such
committee and any assessments levied with respect to any property so deposited.
(g) To exercise all conversion and subscription rights
pertaining to any property, and to do any act with reference thereto, including
the exercise of options, the making of agreements or subscriptions and the
payment of expenses, assessments or subscriptions, which may be deemed necessary
or advisable in connection therewith, and to hold and retain any securities or
other property which it may so acquire.
(h) To extend the time of payment of any obligation held in the
Trust Fund.
(i) To enter into standby agreements for future investment,
either with or without a standby fee.
(j) To invest and reinvest all or any specified portion of the
Trust Fund through the medium of any common, collective or commingled trust fund
which has been or may hereafter be established and maintained by the Trustee,
provided that prior to investing any portion of the Trust Fund for the first
time in any such common, collective or commingled trust fund, the Trustee shall
advise the Committee of its intent to make such an investment and furnish to the
Committee any
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information it may reasonably request with respect to such common, collective or
commingled trust fund.
(k) To the extent permitted by law, to commingle assets of the
Trust Fund, for investment purposes only, with assets of other trust funds
established by the Company or the Bank, provided that the Trustee shall maintain
separate records with respect to each such other trust or plan, and further
provided that the assets of the Trust Fund shall not be commingled in any fund
intended to hold only assets of qualified retirement plans within the meaning of
Section 401(a) of the Code.
(l) To acquire, renew or extend or participate in the renewal
or extension of any mortgage, and to agree to a reduction in the rate of
interest on any indebtedness or mortgage or to any other modification or change
in the terms of any indebtedness or mortgage or of any guarantee pertaining
thereto, in any manner and to any extent that may be deemed advisable for the
protection of the Trust or the preservation of any covenant or condition of any
indebtedness or mortgage or in the performance of any guarantee, or to enforce
any default in such manner and to such extent as may be deemed advisable; and to
exercise and enforce any and all rights of foreclosure, to bid on any property
in foreclosure, to take a deed in lieu of foreclosure with or without paying a
consideration therefor and in connection therewith to release the obligation on
the bond secured by such mortgage, and to exercise and enforce in any action,
suit or proceeding at law or in equity any rights or remedies in respect of any
such indebtedness or mortgage or guarantee.
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(m) To make, execute and deliver, as Trustee, any and all
deeds, leases, notes, bonds, guarantees, mortgages, conveyances, contracts,
waivers, releases or other instruments in writing necessary or proper for the
accomplishment of any of the foregoing powers.
2.3 Administrative Powers of Trustee. Subject to the provisions of
this Trust Agreement, the Trustee shall have the following administrative powers
in its discretion:
(a) To exercise all voting rights with respect to the shares of
stock, if any, held in the Trust Fund and to grant proxies, discretionary or
otherwise.
(b) To cause any shares of stock to be registered and held in
the name of one or more of its nominees, or one or more nominees of any system
for the central handling of securities, without increase or decrease of
liability.
(c) To collect and receive any and all money and other property
due to the Trust Fund and to give full discharge therefor.
(d) To settle, compromise or submit to arbitration any claims,
debts or damages due or owing to or from the Trust; to commence or defend suits
or legal proceedings to protect any interest of the Trust; and to represent the
Trust in all suits or legal proceedings in any court or before any other body or
tribunal.
(e) To organize under the laws of any state a corporation,
partnership or trust for the purpose of acquiring and holding title to any
property which it is authorized to acquire under this Trust Agreement and to
exercise with respect thereto any or all of the powers set forth in this Trust
Agreement.
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(f) To determine how all receipts and disbursements shall be
credited, charged or apportioned as between income and principal, and the
decision of the Trustee shall be final and not subject to question by the
Company or the Bank or any Participant or Beneficiary.
(g) After an Irrevocable Election or Change in Control, to the
extent so directed by the Committee, to interpret the provisions of the
Designated Arrangements that govern the determination of eligibility for,
amount, form and timing of payments under the Designated Arrangements,
notwithstanding any authority otherwise provided to another individual, group of
individuals, committee or entity under any such Designated Arrangement.
(h) After consultation with the Committee, to engage such
independent third parties as the Trustee may deem necessary to assist in making
determinations with respect to Benefits payable under the Designated
Arrangements or otherwise under the Trust.
(i) After consultation with the Committee, to engage any legal
counsel, including counsel to the Company or the Bank, or any other suitable
agents (including outside investment managers), to consult with such counsel or
agents with respect to the implementation and construction of this Trust
Agreement, the duties of the Trustee hereunder, the transactions contemplated by
this Trust Agreement, or any act which the Trustee proposes to take or omit, to
rely upon the advice of such counsel or agents, and to pay their reasonable
fees, expenses and compensation.
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(j) To purchase individual or group annuity contracts for
purposes of making annuity-type Benefit payments under the Designated
Arrangements.
(k) To do all other acts, subject to the approval of the
Committee, which the Trustee may deem necessary or desirable for the protection
of the Trust Fund and payment of Benefits hereunder.
2.4 Limitation on Trustee Powers. Notwithstanding any powers granted
to Trustee pursuant to this Trust Agreement or to applicable law, the Trustee
shall not have any power that could give this Trust the objective of carrying on
a business and dividing the gains therefrom, within the meaning of Section
301.7701-2 of the Procedure and Administrative Regulations promulgated pursuant
to the Code.
2.5 Dealings with Trustee. Persons dealing with the Trustee shall be
under no obligation to see to the proper application of any money paid or
property delivered to the Trustee or to inquire into the Trustee's authority as
to any transaction.
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ARTICLE III
Documents, Participant Information and Records
3.1 Copy of Designated Arrangements. The Dime shall provide the
Trustee with a copy of plan documents, agreements or other descriptive materials
relating to each of the Designated Arrangements and shall provide the Trustee
with a copy of documentation evidencing any amendment to any of the Designated
Arrangements as soon as practicable following its adoption or approval. The
Trustee shall be entitled to rely on the terms of any Designated Arrangement as
in effect prior to its amendment until the Trustee receives a copy of such
amendatory documentation. The Trustee may inquire of the Committee regarding the
effect of any such amendment on Benefits payable under a Designated Arrangement.
Copies of Designated Arrangements and amendments thereto may also be provided to
the Trustee by the Committee or by any Participant or Beneficiary.
3.2 Participant Information. The Dime shall prepare and deliver to the
Trustee such information (the "Participant Information") as is reasonably
determined by the Trustee to be necessary to enable the Trustee to determine the
amount and time of payment of each Benefit payable to each Participant or
Beneficiary. Without limiting the generality of the foregoing, the Participant
Information may include (i) the name of each Participant entitled or potentially
entitled to receive Benefits under each of the Designated Arrangements, (ii) the
current address of each Participant, (iii) the Beneficiaries, if any, designated
by each Participant, (iv) the Participant's date of birth, (v) each
Participant's number of years of service with the Company, the Bank or, as
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appropriate, their Affiliates, (vi) each Participant's current and prior
compensation, (vii) any elections made by a Participant regarding the payment of
Benefits or interim deemed investments under any Designated Arrangements where
such elections are permitted or required, (viii) if Benefits are in pay status,
the date payments began and the amount and timing of Benefit payments, (ix) the
name and date of birth of the Participant's spouse, as necessary, and (x) other
information requested by the Trustee. The Trustee shall be entitled to rely on
such Participant Information (as modified by notice pursuant to Section 3.3(a)
and (b)) provided by the Dime unless the Trustee has reason to believe such
Participant Information may be incorrect.
3.3 Updating the Participant Information.
(a) Prior to an Irrevocable Election or Change in Control, the
Dime may from time to time notify the Trustee of any changes to the Participant
Information (including any changes in the list of Participants). Each such
notice shall be signed and dated by an Authorized Officer, shall set forth the
name of each Participant with respect to whom the Participant Information is
being changed (or who is being added to or deleted from the list of
Participants), and all additions to or changes from the information previously
supplied with respect to such Participant.
(b) Upon an Irrevocable Election or Change in Control, the Dime
shall either (i) notify the Trustee that there have been no changes in the
Participant Information from the Participant Information most recently provided
or (ii) if there have been changes in the Participant Information, provide the
Trustee with Participant Information updated to the date of the Irrevocable
Election or Change in Control.
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(c) Subsequent to an Irrevocable Election or Change in Control,
the Trustee shall update the Participant Information, at such time as is
necessary to pay Benefits, from information furnished to it by the Dime or
Participants, as provided in Section 3.4. The Trustee shall request information
from the Dime and Participants as necessary to update the Participant
Information.
3.4 Dime Records.
(a) The Dime shall keep full, accurate and detailed books and
records with respect to the Participants under the Designated Arrangements and
the Benefits payable to them. The Dime shall provide such information and access
to such books and records to the Trustee and any independent third party
retained by the Trustee to assist it, at such time or times as the Trustee shall
reasonably request.
(b) If at any time subsequent to an Irrevocable Election or
Change in Control the Dime fails or refuses to give the Trustee what the Trustee
reasonably believes to be accurate and sufficient Participant Information or
access to such books and records, the Trustee shall be entitled to rely on
Participant Information furnished to the Trustee by the Committee or by the
respective Participants (including Participant Information furnished at the time
or after a claim for Benefits has been made) for the purpose of calculating
Benefits, unless the Trustee has reason to believe such Participant Information
may be incorrect.
(c) The Trustee shall be under no obligation to commence any
action seeking judicial or administrative relief in the event that the Dime does
not comply with its obligations under Section 3.4(a) or the respective
Participants do not
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furnish Participant Information under Section 3.4(b); provided, however, to the
extent permitted by law and following an Irrevocable Election or Change in
Control, any Participant may commence legal action to enforce the obligations
and duties of the Company, the Bank or the Trustee under any Plan.
3.5 Committee's Right to Information. The Participant Information,
records and all other information and documentation (including updates thereto)
to be delivered or otherwise made available to the Trustee by the Dime pursuant
to the foregoing provisions of this Article shall also be delivered or otherwise
made available by the Dime to the Committee or its agent upon request. In
addition, the Trustee shall deliver or make available such information and
documentation to the Committee or its agent upon request. The Committee shall be
entitled to rely on any such information or documentation delivered or made
available to it by the Dime or the Trustee to the same extent that the Trustee
is entitled to rely on such information or documentation pursuant to the
foregoing provisions of this Article.
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ARTICLE IV
Establishment of Accounts and Contributions
4.1 Accounts.
A separate Expense Account shall be established and maintained in
accordance with Section 7.3. Separate accounts also shall be established and
maintained to segregate Company Assets and Bank Assets. No separate Trust
accounts shall be maintained with respect to Participants in any Designated
Arrangement (except for bookkeeping accounts to the extent required to determine
the amount of Benefits under a Designated Arrangement).
4.2 Contributions. Contributions shall be delivered to the Trustee as
follows:
(a) Prior to an Irrevocable Election or Change in Control, the
Company and the Bank shall deliver such cash, insurance policies, or other
property to the Trustee as each of them shall from time to time deem appropriate
for the funding of Benefits and payment of expenses under the Trust.
(b) (i) Upon an Irrevocable Election or Change in Control,
each of the Company and the Bank shall deliver to the Trustee additional
Contributions as shall be necessary so that the Trust holds (x) assets, valued
in accordance with Section 4.3 (but excluding any amounts allocated to the
Expense Account), equal in value to at least 110% of the present value of
projected Benefits payable to or with respect to all Participants and
Beneficiaries (such present value, as determined by the Trustee in the manner
and based upon the assumptions described in Section 5.3, is herein referred to
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as the "Benefit Valuation Amount"), plus (y) amounts required to be contributed
to and held in the Expense Account pursuant to Section 7.3, all determined as of
the date of such Irrevocable Election or Change in Control. The obligation of
each of the Company and the Bank hereunder shall be dependent on the Benefits
under the Designated Arrangements with respect to which each such entity may be
liable (with the entity identified as primarily obligated hereunder with respect
to any Joint Benefit deemed responsible for the full amount of any related asset
and contribution requirements) and the identification of the assets in the
determination above as Company Trust Assets or Bank Trust Assets, as
appropriate. In addition, subsequent to an Irrevocable Election or Change in
Control, the Trustee shall annually, as of the start of the month commencing
coincident with or immediately following each yearly anniversary of the date of
the Irrevocable Election or Change in Control, review its calculation of the
Benefit Valuation Amount in order to determine if the assets then held under the
Trust, valued in accordance with Section 4.3 (but excluding any amounts
allocated to the Expense Account), are equal in value to at least 110% of the
Benefit Valuation Amount as of the date of such determination. If the Trustee
determines that the Trust does not, at the date as of such date, have assets,
valued in accordance with Section 4.3 (but excluding for these purposes any
amounts allocated to the Expense Account) equal in value to at least 110% of the
Benefit Valuation Amount (calculated separately with respect to the respective
obligations of the Company and the Bank in the manner described above), then the
Trustee shall notify the Company and the Bank, and the Company and/or the Bank
shall deliver to the Trustee within 30 days, such
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additional cash Contributions as shall be necessary to provide the Trustee with
such additional cash or other readily marketable assets to satisfy such
obligation. The amount of these cash Contributions shall be determined by the
Trustee, after consultation with and approval by the Committee, based upon the
respective obligations of the Company and the Bank, and the identification of
the assets in the determination above as Company Trust Assets or Bank Trust
Assets, as appropriate.
(ii) In each instance described above in clause (i), in
the event that the Bank has not fulfilled its funding obligations, the Company
shall be required to make additional cash contributions to the Trustee in an
amount equal to the lesser of 110% of the value (determined in accordance with
Section 4.3) of the Joint Benefits and the amount of the Bank's funding
shortfall. In the event that the Company has not fulfilled its funding
obligations, the Bank shall be required to make additional cash contributions to
the Trustee in an amount equal to the lesser of 110% of the value (determined in
accordance with Section 4.3) of the Joint Benefits and the amount of the
Company's funding shortfall. Each such Contribution shall be made to the Trustee
within 30 days of the Committee's approval of a request for such Contribution
from the Trustee or as soon as practicable thereafter.
(c) If any of the Contributions required by Section 4.2
(b) or deposits required by Section 7.3 are not made when required, the Trustee
shall notify each Participant, each Beneficiary of a then-deceased Participant
and the Committee of such event.
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(d) All Contributions received directly or indirectly from the
Company shall be considered Company Trust Assets, and all Contributions received
directly or indirectly from the Bank shall be considered Bank Trust Assets,
unless the party making the Contributions shall otherwise notify the Trustee.
(e) Notwithstanding the foregoing, neither the Trustee nor the
Committee shall be liable for any failure by either the Company or the Bank to
make the Contributions required by Section 4.2(b). Neither the Trustee nor the
Committee shall have any duty to see that the Trust Fund is ultimately adequate
to meet liabilities under the Designated Arrangements. The Committee and the
Trustee are, however, authorized hereunder to seek payment from the Company or
the Bank of any Contributions required by Section 4.2(b) or deposits required by
Section 7.3 that are not made when required, including, without limitation, by
bringing suit therefor against the Company, the Bank or both of them in a court
of competent jurisdiction as provided in Section 13.1 hereof.
4.3 Valuation of Trust Fund
The Trustee may hold, invest and reinvest the assets of the Trust
Fund as a consolidated single fund. Earnings and losses shall be allocated
between Company Trust Assets and Bank Trust Assets, as applicable. As of the
last business day of each calendar month, the Trustee shall value the Trust Fund
at current market values, and shall report such valuation, and the allocation
thereto as between Company Trust Assets and Bank Trust Assets, to the Company
and the Bank and, following an Irrevocable Election or Change in Control, to the
Committee. The report of
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any such valuation shall not constitute a representation by the Trustee that the
amounts reported as fair market values would actually be realized upon the
liquidation of the Trust Fund. Such valuation shall reflect Contributions,
income of the Trust Fund, gains or losses (including gains or losses not yet
realized), distributions and expenses incurred during the month. If the Trust
shall hold at any valuation date any life insurance policies, such policies
shall be valued at the cash surrender value thereof in determining the assets of
the Trust Fund.
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ARTICLE V
Distributions From Trust Fund
5.1 Distributions.
(a) Subject to the provisions of Article XII, prior to an
Irrevocable Election or Change in Control, Benefits shall be paid from the Trust
Fund to Participants and Beneficiaries and insurance premiums shall be paid from
the Trust Fund, only as directed by the Committee. In no event shall payment to
a Participant or his Beneficiary be made in excess of the Benefits due the
Participant or Beneficiary under the applicable Designated Arrangement.
(b) Subject to the provisions of Article XII, the following
provisions shall apply subsequent to an Irrevocable Election or Change in
Control:
(i) The Dime shall, and the Committee may, be
responsible for notifying the Trustee when it believes a Participant or
Beneficiary is entitled to payment of a Benefit or a premium on a life insurance
policy is due. The Committee may also notify the Trustee when it believes a
Participant or Beneficiary is entitled to payment of a Benefit or a premium on a
life insurance policy is due, and the Trustee may receive information from other
sources deemed reliable by it (including, but not limited to, insurance
companies), for purposes of determining when payment of a Benefit or a premium
on a life insurance policy is due. In addition, a Participant or Beneficiary who
believes that he is entitled to payment of a Benefit under a Designated
Arrangement may apply in writing directly to the Trustee for payment of such
Benefit. Such application shall advise the Trustee of the circumstances which
entitle such
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Participant or Beneficiary to payment of such Benefit. Subsequent to receiving
any such aforesaid notice, information or application, and subject to the
provisions of this Section 5.1 (including the right of the Committee to make
final determinations regarding Benefit payments pursuant to Section 5.1(c)) or
otherwise based on the Trustee's determination that a Benefit is payable under a
Designated Arrangement (or a premium on a life insurance policy is due),
distributions from the Trust Fund shall be made by the Trustee to the
Participants and Beneficiaries, or to pay insurance premiums, at the times and
in the amounts as the Trustee shall determine based on the terms of the
applicable Designated Arrangement(s) and the Participant Information, and the
Trustee shall further determine the amount of each payment that shall be charged
against the Company Trust Assets and Bank Trust Assets, respectively.
(ii) The Trustee shall pay from the Trust Fund any
Benefit when due, as determined pursuant to Section 5.1(b)(i), and any premium
on life insurance held by the Trust, unless the Trustee has received evidence,
satisfactory to the Trustee, that such Benefit or premium has been paid by the
Company or the Bank or another entity (or, in the case of a premium on a life
insurance policy, has been paid out of dividends on such policy). Prior to
making a Benefit payment, the Trustee shall notify the Company, the Bank, the
Committee and the Participant or Beneficiary. If, within five business days of
such notification, the Company, the Bank, the Committee or the Participant or
Beneficiary has not objected to the Trustee's determination to pay such
Benefits, then the Trustee's determination shall be final, and, if such payment
is the first in a series of payments, the Trustee's determination shall be final
for all
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payments of such series. If, however, an objection is made by the Company, the
Bank, the Committee or the Participant or Beneficiary within five business days
of the notification, then the procedures set forth in Section 5.1(c) shall
apply. Payment of Benefits shall be made as follows: (A) payment shall first be
made of Company Benefits that are not Joint Benefits to the extent of Company
Trust Assets not allocated to the Expense Account and of Bank Benefits that are
not Joint Benefits to the extent of Bank Trust Assets not allocated to the
Expense Account; and (B) payment shall next be made of any Joint Benefits out of
remaining Company Trust Assets and Bank Trust Assets, as applicable, based upon
the respective obligations of the Company and the Bank (with payment to first be
made out of the assets of the entity (e.g. Bank Trust Assets or Company Trust
Assets) that is listed on Appendix I as the primary obligor hereunder with
respect to the Designated Arrangement, and then, if necessary, out of the assets
of the entity (e.g. Bank Trust Assets or Company Trust Assets) that is listed on
Appendix I as the secondary obligor hereunder with respect to the Designated
Arrangement) until either the Company Trust Assets or Bank Trust Assets not
allocated to the Expense Account shall be exhausted; and (C) thereafter, payment
of any remaining Joint Benefits shall be made out of any remaining Trust Assets
not allocated to the Expense Account.
(iii) If the amount of Company Trust Assets and Bank Trust
Assets not allocated to the Expense Account is insufficient to pay in full all
Company Benefits or Bank Benefits, then payment shall nonetheless be made in
accordance with and to the extent permitted by the preceding clause (ii);
provided, that
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(A) if either Company Trust Assets not allocated to the Expense Account are
insufficient to pay the Company Benefits in full or Bank Trust Assets not
allocated to the Expense Account are insufficient to pay the Bank Benefits,
and/or if the Company Trust Assets and Bank Trust Assets not allocated to the
Expense Account are insufficient to pay the Joint Benefits, then the Trustee
shall so notify the Company or the Bank, as the case may be, and such entity
shall either pay such Benefits directly to the Participant or Beneficiary to
whom they are due (and provide evidence of such payment to the Trustee) or
contribute to the Trust within thirty days of such notice an amount sufficient
to pay all such remaining Benefits, which the Trustee shall then pay to the
Participant or Beneficiary to whom they are due; and (B) if any portion of the
Joint Benefits is paid in accordance with clause (ii)(C) rather than clause
(ii)(B) above, then the entity whose Trust Assets were insufficient to pay its
appropriate (because of its status as a primary obligor hereunder or otherwise)
share of the Joint Benefits shall, upon notification of such shortfall by the
Trustee, contribute to the Trust within thirty days an amount equal to such
shortfall, which shall thereupon be credited as a contribution to the Trust
Assets of the other entity, from whose Trust Assets all or any portion of such
shortfall was paid, in an amount equal to the Benefit so paid, with the
remainder, if any, of such shortfall being paid to the Participant or
Beneficiary to whom such Benefits are due; provided, that neither the Trustee
nor any Participant shall be liable to the Company, the Bank, or any creditor
thereof for amounts paid as Joint Benefits under clause (ii)(C) in excess of the
Company's or the Bank's appropriate share thereof.
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(c) The following additional provisions shall apply subsequent
to an Irrevocable Election or Change in Control:
(i) Whenever the Trustee determines that an
interpretation of the provisions of a Designated Arrangement is necessary or
advisable to a determination of whether, in what form, or in what amount
Benefits may be payable to a Participant or Beneficiary under such Designated
Arrangement pursuant to Section 5.1(b)(i), the Trustee shall make inquiry of the
Committee concerning such interpretation. The Committee shall have the authority
to interpret the applicable Designated Arrangement and to determine, based on
such interpretation, the applicable Participant Information and such other
information supplied by the Participant or Beneficiary and the Company or the
Bank as it shall deem relevant, whether, and if so in what form and amount,
Benefits are payable thereunder to such Participant or Beneficiary. The
Committee shall report its determination to the Trustee, and the Trustee shall
notify the affected Participant or Beneficiary and the Company and the Bank of
the Committee's determination and the Trustee's intent to commence benefit
payments in accordance therewith. Unless either the Participant or Beneficiary,
or the Company or the Bank, shall within five business days of such notification
notify the Trustee that it objects to the determination of the Committee, then
such determination shall become final and the Trustee shall, pursuant to Section
5.1(b)(i) hereof, make such distributions from the Trust Fund to the Participant
and Beneficiary as is called for in such determination; provided, that no
0Participant or Beneficiary shall be deprived by such determination (or other
determination pursuant to this Section
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5.1(c)) of any right such person may have under applicable law or regulation to
claim that such determination (or other determination pursuant to this Section
5.1(c)) was erroneous under the terms of the applicable Designated Arrangement.
If any party shall within such five business day period object to the
determination made by the Committee, then the Trustee shall review such
determination. Such review shall be limited to whether the Committee's
determination was reasonable. If the Trustee finds that such determination
appears reasonable, then such determination shall become final and the Trustee
shall, pursuant to Section 5.1(b)(i), make such distributions from the Trust
Fund to the Participant or Beneficiary as is called for by such determination.
If the Trustee shall conclude that such determination should be further reviewed
by the Committee, in light of the objection thereto, it shall request that the
Committee further consider such matter, in light of such objection and such
other factors as the Trustee may bring to its attention or request it to review
or reconsider. The Committee shall reconsider such matter, based on such facts
as it shall deem relevant, and shall report its determination to the Trustee.
Upon receipt by the Trustee of such report, the determination of the Committee
shall become final, and the Trustee shall make such distribution from the Trust
Fund to the Participant and Beneficiary as is called for by such determination.
Once a determination of the Committee has become final in accordance with this
Section 5.1(c), the Company and the Bank, for themselves, their subsidiaries,
and their successors and assigns, agree to be bound by such determination and
hereby waive any and all rights to recoup any Benefits paid in accordance
therewith, either from the recipient thereof, the Trust, the Trustee or the
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Committee, or to hold any of such parties liable with respect to the payment
thereof. The Committee's powers of determination under this Section 5.1(c) shall
include, without limitation, the authority to interpret the provisions of the
Designated Arrangements that govern the determination of eligibility for,
amount, form and timing of payments under the Designated Arrangements,
notwithstanding any authority otherwise provided to another individual, group of
individuals, committee or entity under any such Designated Arrangement.
Notwithstanding the foregoing, to the extent required under the Employee
Retirement Income Security Act of 1974, as amended, the Committee may establish
alternative claims review procedures for Participants and Beneficiaries.
(ii) The Company, the Bank or the Committee shall notify
the Trustee if any "change in control" or "transfer of control" has occurred
under any of the Designated Arrangements. If no such notice has been provided,
but a Designated Arrangement requires a determination of whether a change in
control-related event has occurred, the Trustee shall request of the Committee
that the Committee make a determination whether such "change in control" or
"transfer of control" has occurred under such Designated Arrangement. The
Committee shall thereupon either (A) make such determination, in which case the
Trustee shall rely on the determination of the Committee, or (B) (1) communicate
the materials and information necessary to the making of such determination to
the Trustee and (2) direct the Trustee to make such determination. In the event
the Committee fails to respond to the Trustee's request within 30 days of the
date of such inquiry, the Trustee shall make its own determination as to whether
such a change in control-related event has occurred.
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(iii) Subject to the provisions of this Section 5.1, if the
Committee so desires, it may, in its sole discretion, or, if so directed by the
Committee, the Trustee may, in its sole discretion, make such additional
inquiries and/or take such additional measures as it deems necessary in order to
enable it to determine whether Benefits are due and payable, including, but not
limited to, interviewing or requesting affidavits from appropriate persons.
5.2 Payment Upon Constructive Receipt. Notwithstanding any other
provision of this Trust Agreement, if any amounts held in the Trust Fund are
found in a "determination" (within the meaning of Section 1313(a) of the Code)
to have been includible in the taxable income of a Participant or Beneficiary
prior to, or without, payment of corresponding amounts under the Designated
Arrangements, and the Participant or Beneficiary provides the Trustee with such
determination, the Trustee promptly shall forward the determination to the
Committee. The Trustee then, unless directed otherwise by the Committee, shall
make a finding as to the extent to which such determination applies to (i)
Company Benefits, Bank Benefits or Joint Benefits and (ii) amounts otherwise
arising out of the Participant's or Beneficiary's interest in, or relationship
to, the Trust. Then, subject to the provisions of Section 5.1(b) and (c) hereof
(without regard to whether there has been an Irrevocable Election or Change in
Control), the Trustee shall pay to such Participant or Beneficiary, as soon as
practicable, an amount equal to the sum of (A) the amount described in (i)
above, reduced by Benefits already paid (whether by the Trust or otherwise)
which were included in such determination (so as to avoid any double payment of
the same Benefits), plus (B) solely with respect to the amount described in (ii)
above, an amount (as determined by the Trustee) sufficient to pay all taxes,
interest
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and penalties, if any, imposed on the Participant or Beneficiary with respect
to the amount described in (ii) above, plus sufficient additional amounts to pay
all taxes imposed on payments made pursuant to this clause (B). Amounts paid
pursuant to clause (A) above shall be deemed to be advance payment of the
applicable portion of Benefits payable under the applicable Designated
Arrangement, as determined by the Committee. Notwithstanding the foregoing, in
the event a Participant or Beneficiary provides the Trustee a Notice (as defined
below), the Trustee promptly shall forward the Notice to the Committee. In such
case, the Trustee, at the direction of the Committee, or the Committee, may
contest the Notice in whole or in part (and be reimbursed by the Trust for all
reasonable costs of such contest), in which case the Participant or Beneficiary
must fully cooperate and assist the Trustee (or, as appropriate, the Committee)
in connection with such contest and the payment described above will not be made
pending the outcome of such contest. At the resolution of such contest (as
determined by the Committee, whether following a litigation, settlement or
otherwise), the Trustee promptly shall pay (C) all amounts (if any) payable to
the Participant or Beneficiary calculated as set forth in clauses (A) and (B)
above (adjusted for the results of the contest) plus (D) in the case of payments
related to the amount described in (i) above, all interest and penalties, if
any, imposed on the Participant or Beneficiary, plus sufficient additional
amounts to pay all taxes imposed on payments made pursuant to this clause D. For
purposes of this Section 5.2, the term "Notice" shall mean a revenue agent's
report or notice of proposed adjustment or notice of deficiency (or any
amendments to the foregoing) or set-off of refund claim issued by a taxing
authority to the Participant or Beneficiary with respect to the inclusion in the
Participant's or Beneficiary's
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taxable income of any amounts held in the Trust Fund prior to, or without,
payment of corresponding amounts under the Designated Arrangements.
5.3 Excess Amounts and Excess Assets.
(a) Prior to the termination of the Trust and upon the request
of the Dime (no more frequently than once every 12 months), the Trustee shall
determine whether the Trust Fund then holds Excess Assets (as described below).
The Trust shall be deemed to hold Excess Assets if at the time of such
determination the value of the assets of the Trust Fund that are Company Trust
Assets or Bank Trust Assets, determined in accordance with Section 4.3
(excluding for these purposes any amounts allocated to the Expense Account),
exceeds, respectively, 110% of the Benefit Valuation Amount that reflects either
(i) the present value of Company Benefits, or (ii) the present value of Bank
Benefits; provided, however, that (x) if the value of Bank Trust Assets,
determined in accordance with Section 4.3 (excluding any amounts allocated to
the Expense Account) is less than 110% of the portion of the Benefit Valuation
Amount that so reflects Bank Benefits, Company Trust Assets shall be considered
Excess Assets only to the extent that the value of Company Trust Assets,
determined in accordance with Section 4.3 (excluding any amounts allocated to
the Expense Account) exceeds 110% of the Benefit Valuation Amount that would be
deemed to reflect Company Benefits if the Company were primarily obligated
hereunder with respect to all Joint Benefits, and (y) if the value of Company
Trust Assets, determined in accordance with Section 4.3 (excluding any amounts
allocated to the Expense Account) is less than 110% of the portion of the
Benefit Valuation Amount that so reflects Company Benefits, Bank Trust Assets
shall be considered Excess
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Assets only to the extent that the value of Bank Trust Assets, determined in
accordance with Section 4.3 (excluding any amounts allocated to the Expense
Account) exceeds 110% of the Benefit Valuation Amount that would be deemed to
reflect Bank Benefits if the Bank were primarily obligated hereunder with
respect to all Joint Benefits. If the Trustee determines that the Trust Fund
holds Excess Assets with respect to either the Company or the Bank, the Trustee
shall notify the Company or the Bank of the amount of such Excess Assets, and,
if the Company or the Bank so request, shall deliver such Excess Assets (or any
portion thereof) to the Company or the Bank as its respective interests may
appear; provided, however, that following an Irrevocable Election or Change in
Control, no such Excess Assets may be delivered to the Company or the Bank
without the consent of the Committee (which consent shall not be unreasonably
withheld).
(b) For purposes of determining the present value of the
projected total Benefits payable to all Participants and Beneficiaries and
whether there are Excess Assets, the Trustee shall use the following
assumptions:
(i) With respect to the Severance Pay Program for
Employees of Dime Bancorp, Inc. and Participating Subsidiaries, the Severance
Pay Plan of North American Mortgage Company, and the Senior Executive Severance
Pay Plan of North American Mortgage Company (the "Severance Program"), it shall
be assumed that the present value of projected Benefits payable to a Participant
actively employed (or on a paid or unpaid leave) by the Company, the Bank or an
Affiliate at the date of determination (an "Active Participant") shall equal the
greater of (A) the total Benefits
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that would be payable under the Severance Program if employment were
involuntarily terminated in a circumstance resulting in eligibility for
severance pay thereunder on the second anniversary of the date of determination,
but not following a change in control (as defined in the Severance Program), and
assuming that the Participant's earnings increase annually during the two year
period between the date of determination and the second anniversary thereof by a
rate not less than the rate of increase in the Consumer Price Index (as defined
in subsection (iii) below) for the preceding 12 month period plus 2 percentage
points (the "CPI + 2 Rate"), and (B) the Benefits that would be payable under
the Severance Program if employment were involuntarily terminated on December
31, 2001 following a change in control (as defined under the Severance Program)
that took place after May 18, 2000, assuming that the Participant's earnings
increase annually during the period between the date of determination and
December 31, 2001 at the CPI + 2 Rate. With respect to a Participant whose
employment by the Company, the Bank or an Affiliate has terminated prior to the
date of determination (an "Inactive Participant"), the present value of the
Benefits payable under the Severance Program will equal the total then as yet
unpaid Benefits payable to or with respect to the Participant under the
Severance Program.
(ii) With respect to accrued but unpaid vacation time,
the present value of projected Benefits payable to an Active Participant shall
equal the actual accrued by unpaid vacation time as of the date of
determination, based on the employee's salary as of date of determination. With
respect to an Inactive Participant,
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the present value of such projected Benefits shall be the total amount due to or
with respect to the Participant with respect to previously accrued but unpaid
vacation time.
(iii) "Consumer Price Index" shall mean the Consumer Price
Index for All Urban Consumers, CPI-U, published by the Bureau of Labor
Statistics of the United States Department of Labor, New York - Northern New
Jersey - Long Island, NY-NJ-CT Area, 'All Items' (1982-84 = 100), or any
successor index thereto covering New York City, appropriately adjusted.
5.4 Transfers to Another Trust. Prior to an Irrevocable Election or
Change in Control, upon the direction of the Company and the Bank concurred in
by the Committee, the Trustee shall deliver such assets of the Trust Fund as the
Company, the Bank and the Committee may direct to another irrevocable trust
established by the Company or the Bank, respectively, for the purpose of paying
Benefits to Participants and Beneficiaries under the Designated Arrangements.
The Trustee shall deliver a copy of the Committee's certification to the trustee
of the transferee trust at the time of delivery of the Trust assets.
5.5 Withholding Tax.
(a) To the extent that amounts are to be paid under this
Article V by the Trustee directly to Participants and Beneficiaries, such
amounts shall be reduced by the Trustee by the amount of any income and
employment tax withholding required by law, as determined by the Dime and
promptly communicated to the Trustee. The Trustee also shall inform each
Participant and Beneficiary to whom payment is made, of the amounts withheld and
the purposes for such withholdings. Such withheld
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amounts shall then be paid by the Trustee to the Dime, which shall remit such
withheld amounts to, and shall file the appropriate withholding reports with,
the appropriate governmental agencies.
(b) To the extent that amounts are to be paid under this
Article V by the Trustee directly to Participants and Beneficiaries, but the
Dime fails to direct the Trustee with respect to the appropriate amounts to be
withheld by the Trustee toward the satisfaction of applicable withholding
requirements, then the Trustee shall withhold amounts in respect of taxes at the
highest applicable rate for the appropriate jurisdiction as determined in good
faith by the Trustee, shall reduce such amounts by the such amount of tax
withholding, and shall inform the Dime and each Participant and Beneficiary to
whom payment is made, of the amounts withheld and the purposes for such
withholdings. Such withheld amounts shall then be paid by the Trustee to the
Dime, which shall remit such withheld amounts to, and shall file the appropriate
withholding reports with, the appropriate governmental agencies.
(c) Unless otherwise agreed to by the Trustee, the Dime shall
be responsible for all tax information reporting with respect to payments made
to Participants and Beneficiaries hereunder.
5.6 Legal Action by Trustee. Except in the event the Company or the
Bank is Insolvent (as defined in Section 12.1), the Trustee shall not itself
commence any legal action, whether in the nature of an interpleader action,
request for declaratory judgment, or otherwise, requesting the court to (i)
determine the validity of this Trust Agreement or (ii) make any determination in
the Trustee's or the Committee's stead
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with respect to Benefits which this Trust Agreement requires to be made by the
Trustee or the Committee. Notwithstanding the foregoing sentence, in defending
any legal action brought by a Participant or Beneficiary with respect to
Benefits due on account of a Participant (and with respect to the Committee, at
any time in its sole discretion), the Trustee and the Committee shall each be
entitled to ask the court to determine the Benefits due on account of such
Participant.
5.7 Dime Obligations. Notwithstanding the provisions of this Trust
Agreement, each of the Dime entities shall remain obligated to pay all Benefits
to the full extent of its respective liabilities under the Designated
Arrangements. Following an Irrevocable Election or Change in Control, to the
extent the Trust assets are not sufficient to pay any Benefit or related
insurance premium in full when due, and the amount of such shortfall is not
contributed to the Trust as provided in Section 5.1(b) hereof, then the Company
and the Bank, to the extent of their respective obligations, shall pay the
amount not otherwise payable from the Trust directly to the Participant or
Beneficiary, and shall provide the Trustee with evidence of such payment.
Nothing in this Trust Agreement shall relieve the Company or the Bank of any
respective liabilities to pay Benefits except to the extent such liabilities are
satisfied from the Trust Fund.
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ARTICLE VI
Settlement of Accounts
6.1 Trustee Records. The Trustee shall keep full, accurate and
detailed accounts of all investments, receipts and disbursements and other
transactions hereunder. Its financial statements, books and records with respect
to the Trust Fund shall be open to inspection by the Company, the Bank and the
Committee, and to their respective attorneys, accountants and agents upon
reasonable notice at all reasonable times during business hours of the Trustee.
6.2 Trustee Statements.
(a) The Trustee shall render to the Company, the Bank, and the
Committee monthly statements of its receipts and disbursements as Trustee
hereunder. Within 60 days after the close of each calendar year or any
termination of the duties of the Trustee, the Trustee shall prepare, sign and
mail to each of the Company, the Bank and the Committee one or more summary
reports. These reports shall show all purchases, sales, receipts, disbursements,
and other transactions effected by the Trustee during the year or period for
which the applicable report or reports are filed, and shall contain an exact
description, the cost as shown on the Trustee's books, and the fair market value
as of the end of such period, of every item held in the Trust and the amount and
nature of every obligation owed by the Trust, and any allocations of Trust Funds
made under the terms hereof. Each of the Company and the Bank shall make a copy
of such reports (or any adjustment thereof) available for inspection by
Participants and Beneficiaries (and persons designated by them) at its principal
executive office during
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business hours for a period of 60 days (30 days in the case of an adjusted
report). If within 90 days after receipt of the report neither the Company, the
Bank nor any Participant, Beneficiary or Committee member has filed with the
Trustee notice of any objection to any act or transaction of the Trustee, the
initial report shall become final as between the Trustee, the Company, the Bank,
the Committee and the Participants and Beneficiaries. If any objection has been
filed, and if the objecting party is satisfied that it should be withdrawn, the
objecting party shall in writing filed with the Trustee signify its approval of
the report, and it shall become a final report as between the Trustee, the
Company, the Bank, the Committee and the Participants and Beneficiaries. If the
report is adjusted following an objection thereto, the Trustee shall mail to the
Company, the Bank and the Committee the adjusted report, and if within 30 days
after receipt of the adjusted report neither the Company, the Bank nor any
Participant, Beneficiary or Committee member has filed with the Trustee notice
of any objection to the transactions as so adjusted, the adjusted report shall
become a final report as between the Trustee, the Company, the Bank, the
Committee and the Participants and Beneficiaries.
(b) Unless a report is fraudulent, when it becomes a final
report it shall be finally settled, and to the extent permitted by law, the
Trustee shall be completely discharged and released, as if such report had been
settled and allowed by a judgment or decree of a court of competent jurisdiction
in an action or proceeding in which the Trustee, the Company, the Bank, and the
Participants and Beneficiaries were parties.
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6.3 Audit. The Trustee shall from time to time permit an independent
public accountant selected by the Dime or the Committee to have access during
ordinary business hours to such records as may be necessary to audit the
Trustee's accounts.
6.4 Judicial Settlement. Nothing contained in this Trust Agreement
shall be construed as depriving the Trustee, the Company, the Bank or the
Committee of the right to have a judicial settlement of the Trustee's accounts,
and upon any proceeding for a judicial settlement of the Trustee's accounts or
for instructions the only necessary parties thereto in addition to the Trustee
shall be the Company, the Bank and the Committee.
6.5 Delivery of Records to Successor. In the event of the removal or
resignation of the Trustee, the Trustee shall deliver to the successor Trustee
all records which shall be required by the successor Trustee to enable it to
carry out the provisions of this Trust Agreement.
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ARTICLE VII
Taxes, Expenses and Compensation of Trustee
7.1 Taxes.
(a) Each of the Company and the Bank agrees that, for tax
purposes, all income, deductions and credits of the Trust Fund belong to them
(and not to the Trust Fund), as their interests may appear, as owners for income
tax purposes and shall be included on their respective income tax returns and
each of the Company and the Bank agrees to pay any taxes imposed on such
amounts.
(b) The Company and the Bank, as their interests may appear,
shall from time to time pay any and all taxes (references in this Trust
Agreement to taxes shall include interest and applicable penalties) of any and
all kinds whatsoever which at any time are due lawfully levied or assessed upon
or become payable in respect of the Trust Fund, its income or any property
forming a part thereof, or any security transaction pertaining thereto.
Notwithstanding the foregoing, in the event that the Trustee is notified that
taxes are nonetheless levied or assessed upon or are payable in respect of the
Trust Fund (notwithstanding its status as a "grantor trust") and have not been
paid by the Company or the Bank, such amounts may be paid from the Trust Fund,
and, if so paid, thereafter all determinations of funding obligations and excess
assets will be based on the assumption that the future earnings of the Trust
Fund (as assumed in present value calculations) will be reduced by taxes
thereon. The Trustee shall notify the Dime of any proposed or final assessments
of taxes and may assume that any such taxes are lawfully levied or assessed
unless the Company or the
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Bank advise it in writing to the contrary within 15 days after receiving the
above notice from the Trustee. In such case, the Trustee, if requested by the
Company or the Bank in writing, shall contest the validity of such taxes in any
manner deemed appropriate by the Company or the Bank (and the Company or the
Bank shall pay all fees and disbursements related to such contest, including
costs of counsel, accountants and other professionals); or the Company or the
Bank may contest the validity of any such taxes, in which case the Company or
the Bank shall so notify the Trustee and the Trustee shall have no
responsibility to contest such taxes. If any party to this Trust Agreement
contests any such proposed levy or assessment, the other parties shall provide
such information and cooperation as the party conducting the contest shall
reasonably request. In lieu of contesting any proposed levy or assessment, the
Company or the Bank may pay all or any portion of any such taxes at any time. If
either the Company or the Bank are paying such taxes it shall notify the Trustee
of its intention to do so within 15 days after receiving the above notice from
the Trustee or within five days after a determination of any such contested levy
or assessment becomes final, either because the determination cannot be appealed
or no appeal of the determination was made.
7.2 Expenses and Compensation. The Trustee shall be paid compensation
by the Dime in accordance with the schedule of fees attached hereto as Appendix
II. The Dime and the Trustee may mutually agree to revise such schedule from
time to time. Subject to the Dime's approval prior to an Irrevocable Election or
a Change in Control, and subject to the approval of the Committee following an
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Irrevocable Election or a Change in Control, the Trustee shall be reimbursed by
the Dime for its reasonable expenses of management and administration of the
Trust, including reasonable compensation of the actuary and any counsel or other
service providers engaged by the Trustee to assist it in such management and
administration in accordance with Sections 2.3(h) and (i) hereof.
7.3 Expense Account and Service Providers
(a) The Dime may from time to time make contributions to the
Trust Fund to be held in an Expense Account, the contributions to which may be
used to pay the Trustee's and the Committee's and the Director Committee's (as
defined in Section 8.2(b)) fees and expenses in accordance with this Trust
Agreement. At the time of an Irrevocable Election or Change in Control, the
Committee shall determine the amount that is reasonably necessary to pay
anticipated Trust expenses over the remaining life of the Trust, which amount
shall not be less than $5 million, and the Company and the Bank shall each be
jointly and severally liable to pay and deliver to the Trustee an amount
determined so that when it is added to amounts previously contributed to be held
in the Expense Account, the amount held or the Expense Account equals such
amount. The allocation of amounts contributed to and held in the Expense Account
as Company Trust Assets and Bank Trust Assets shall be based on the proportion
of the amounts actually contributed by each entity, provided that the Company
and the Bank may agree to a different allocation of those amounts between and
among Company Trust Assets and Bank Trust Assets if either initially contributes
more than 50% of the total amount so contributed or otherwise, in which event
the
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Company and the Bank shall inform the Trustee and the Committee of such revised
allocation, which revised allocation shall apply; provided, however, that after
a Change in Control or an Irrevocable Election, revision of a previously
applicable allocation of Expense Account amounts between Company Trust Assets
and Bank Trust Assets shall require the consent of the Committee. On and after
an Irrevocable Election or a Change in Control, the Trustee shall allocate to
the Expense Account, on a pro-rata basis with the remainder of the Trust Fund,
the income of the Trust Fund and gains and losses (including gains and losses
not yet realized on Trust Fund assets), as of the last day of each calendar
month; provided, however, that the Committee may direct that the Expense Account
be invested separately from other assets of the Trust Fund, in which event the
Expense Account will be allocated the gains and losses of those separate
investments. To the extent there is a balance in the Expense Account, the
Trustee shall utilize such balance for payment of its fees and expenses and
the fees and expenses of the Committee and the Director Committee (as defined in
Section 8.2(b)) as provided in Section 7.2 and this Section 7.3 and for payment
of the indemnities referred to in Section 9.1 and 9.2, and in the absence of
such a balance, shall seek reimbursement from the Dime. In the event that the
Dime shall fail or refuse to make such reimbursement within 90 days of demand,
the Committee shall direct the Trustee to satisfy such obligations out of the
other assets of the Trust Fund in such manner as the Committee deems to be
reasonable in the circumstances. If the Committee directs the Trustee to pay
fees and expenses from other Trust Fund assets, the Dime shall, upon demand by
the Committee, deposit into the Trust Fund a sum equal to the amount paid from
other assets of the Trust Fund for such fees and expenses. Before an Irrevocable
Election or a Change in Control, amounts may be reallocated from the Expense
Account to be maintained as other assets of the Trust
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Fund at the direction of the Company and the Bank, acting together. After an
Irrevocable Election or a Change in Control, solely to the extent the Committee
determines appropriate, amounts may be reallocated from the Expense Account to
be maintained as other assets of the Trust Fund, at the time and in the manner
directed by the Committee.
(b) Each of the Committee and the Director Committee (as
defined in Section 8.2(b)) shall have the power and authority to engage counsel
or other service providers (including consultants and administrators) of its
choice to the extent it deems it necessary or appropriate in order to fulfill
its obligations hereunder, or otherwise to determine, defend or assert any of
the rights or interests of the Committee, the Director Committee, the Trust or
its beneficiaries provided for under this Trust Agreement (which, in the case of
the Committee, shall include the authority to engage actuaries, counsel and
other experts as it deems necessary in order to perform its duties under Section
5.1). The Committee shall, in addition, have the power and authority to direct
the Trustee to purchase liability insurance to cover any or all of (a) the
Committee, (b) each of the Committee's current and former members, (c) any
current or former director, officer or employee of the Dime who is or was
serving or agrees to serve at the request of the Dime or the Committee as an
authorized agent or delegatee of the Bank or the Committee, (d) any other agent
of the Committee or the Trust and (e) the Trustee (each, to the extent so
insured, an "Insured Party") with respect to any and all liabilities to which
such Insured Party may become subject pursuant to, arising out of, occasioned
by, or incurred in connection with or in any way
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associated with this Trust Agreement, including, without limitation, liabilities
to the Dime, subject to such limitations on coverage, deductibles, or other
terms and conditions as the Committee shall in its sole discretion deem
reasonable. To the extent the Committee or the Director Committee (or the
Trustee as directed by the Committee) incurs reasonable expenses as described
above, or incurs other reasonable expenses in performing its duties under this
Trust Agreement, such expenses shall be paid or otherwise reimbursed out of the
Expense Account as a Trust Expense, if and to the extent directed by the
Committee, and if not otherwise previously paid or reimbursed by the Dime. In
the event that there are insufficient funds in the Expense Account and the Dime
shall fail or refuse to make such reimbursement within 90 days of demand, the
Committee may direct that other Trust Fund assets be applied to satisfy such
reimbursement obligation. If such fees and expenses are paid from other Trust
Fund assets, the Dime shall, upon demand by the Committee, deposit into the
Trust Fund a sum equal to the amount paid from other assets of the Trust Fund
for such fees and expenses.
(c) Following an Irrevocable Election or Change in Control,
each member of the Committee who is not at the time of any meeting of the
Committee an employee, officer or director of the Dime shall receive a fee of
$1,500 for each meeting of the Committee which he or she attends personally and
$1,000 for each meeting of the Committee which he or she attends by telephone or
other electronic or wireless means enabling all members in attendance to
communicate with each other contemporaneously, and, following the time such
member of the Committee ceases to
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be an employee, officer or director of the Dime, shall be reimbursed for any
reasonable out-of-pocket expenses incurred in connection with performing his or
her duties under this Trust Agreement. Upon presentation of a request for such
reimbursements to the Trustee (containing such information, including receipts
for out-of-pocket expenses, as the Trustee may reasonably request), then, if not
previously reimbursed by the Dime or pursuant to another Umbrella Trust (as
defined below), the Committee shall direct the Trustee to make such
reimbursements, which shall be reimbursed out of the Trust Fund. In the event
the Committee hereunder undertakes a meeting that is combined with or occurs on
the same day as a meeting of one or more committees under the trust under the
Umbrella Trust Agreement, dated as of May 18, 2000, among the Company, the Bank
and HSBC Bank USA, as Trustee with respect to the Covered Arrangements of the
Bank and Related Entities (including any subsequent amendments or successor
agreements thereto) (the "Executive Trust"), or the Benefit Protection Trust
Agreement, dated as of May 18, 2000, among the Company, the Bank and HSBC Bank
USA, as Trustee (including any subsequent amendments or successor agreements
thereto) (the "Benefit Protection Trust" and, each of the Benefit Protection
Trust and the Executive Trust, an "Umbrella Trust"), any Committee member who is
a member of such other committee(s) shall be entitled to only a single fee for
such meeting or meetings, and the Trustee shall pay a pro-rated portion of the
fee for the meeting (based upon the number of trusts to which the meeting or
meetings relate) out of the assets of this Trust Fund.
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ARTICLE VIII
For Protection of Trustee and Committees
8.1 Evidence of Action by the Dime.
(a) Each of the Company and the Bank has certified to the
Trustee the name or names of any person or persons authorized to act for it on
Appendix IV hereto. Unless the Company or the Bank notifies the Trustee, in a
notice signed by its Secretary or by an Assistant Secretary, that any person
listed on Appendix IV to this Trust Agreement is no longer authorized to act for
the Company or the Bank, the Trustee may continue to rely upon the authority of
such person. The Company or the Bank may certify to the Trustee, in a notice
signed by its Secretary or by an Assistant Secretary, the names of any
additional persons authorized to act for the Company or the Bank. Appendix IV
shall be deemed to be revised to reflect any additions or deletions made in
accordance with this Section 8.1(a).
(b) The Trustee may rely upon any certificate, notice or
direction of the Company or the Bank which the Trustee reasonably believes to
have been signed by at least two duly authorized officers or agents of the
Company or the Bank.
(c) With respect to any action required or permitted to be
taken by Dime hereunder, the Trustee may rely upon the authorization, approval,
direction or consent given by either the Company or the Bank in accordance
herewith, and shall not be required to obtain any additional authorization,
approval, direction or consent of the
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other party hereto, and any action taken by either of the Company or the Bank
for such purposes shall be binding on the other.
8.2 Evidence of Action by the Committee or the Director Committee.
(a) The Trustee may rely on a signed notice of resignation by a
Committee member, and a notice of vacancy or appointment of a successor provided
in accordance with Section 13.6.
(b) The Trustee may rely upon any certificate, notice or
direction of the Committee or the "Committee" under the Umbrella Trust Agreement
(the "Director Trust Agreement") among Dime Bancorp, Inc., The Dime Savings Bank
of New York, FSB and HSBC Bank USA, as Trustee with respect to the covered
Arrangements for Outside Directors of The Dime Savings Bank of New York, FSB and
Related Entities, as amended and restated effective May 18, 2000, as may
subsequently be amended (and any successor agreement thereto) (the "Director
Committee"), which the Trustee reasonably believes to have been signed by at
least two members of the Committee or the Director Committee, as applicable, or,
if the Committee or the Director Committee than consists of only one member, by
such member. The makeup of the Director Committee shall be determined in
accordance with the terms of the Director Trust Agreement.
(c) The Committee may from time to time delegate to one or more
persons any or all of its rights, powers, duties and responsibilities hereunder.
Such delegation shall be effective when made in writing and delivered to the
Trustee, the Company and the Bank as provided in Section 13.7 hereof, for the
period and to
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the extent set forth therein. Notwithstanding the foregoing, however, the
Committee may not delegate any of its rights, powers, duties or responsibilities
under any of Sections 12.3, 12.6, 13.6(b) or 13.6(c) of this Trust, and the
Director Committee may not delegate its authority pursuant to Section 13.5 of
this Trust. The Trustee may rely upon any certificate, notice or direction of
such delegatee or delegatees which the Trustee reasonably believes to have been
signed by such delegatee or delegatees, as to matters within the authority
granted by the Committee to such person or persons. Any such delegation may be
partially or wholly revoked by the Committee at any time, in accordance with
Section 13.6(d) hereof. To the extent that at any time the Director Committee
(as defined in Section 8.2(b)) does not exist, those actions which may otherwise
be taken by the Director Committee may be taken by the Committee.
8.3 Fiduciary Responsibility.
(a) The Trustee shall discharge its duties under this Trust
Agreement in a manner consistent with the objectives of this Trust Agreement and
in accordance with applicable law. Except as otherwise provided in this Trust
Agreement, or under applicable law, the Trustee shall have no liability for (i)
loss sustained by the Trust Fund by reason of the purchase, retention, sale or
exchange of any investment made in accordance with the written directions of the
Dime or the Committee; (ii) failure of the Company or the Bank to make
contributions to the Trust Fund; or (iii) for any insufficiency of assets in the
Trust Fund to pay Benefits when due, unless such loss, failure or insufficiency
is the result of the Trustee's own negligence or willful misconduct.
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(b) The Trustee's duties and obligations shall be limited to
those expressly imposed upon it by this Trust Agreement.
(c) The Company and the Bank at any time may employ as agent
(to perform any act, keep any records or accounts, or make any computations
required of either of them by this Trust Agreement or the Designated
Arrangements) the corporation or association serving as Trustee hereunder.
Nothing done by said corporation or association as such agent shall affect its
responsibilities or liability as Trustee hereunder.
(d) In the exercise of its discretion hereunder, each of the
Committee and the Director Committee shall have due regard for the interests of
each of the Company, the Bank and the Participants (and their Beneficiaries) as
a class; provided, that inasmuch as the interests of such class or entities may
be expected to conflict in certain circumstances, and notwithstanding that
members of the Committee may themselves be Participants, any determination made
by the Committee or the Director Committee that has the effect of being more
favorable to one entity or class to which it owes a duty over another shall not
thereby be deemed invalid or a breach of the Committee's or the Director
Committee's duty to such disfavored entity or class, so long as the Committee or
the Director Committee, as applicable, acts in good faith in making its
determination.
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ARTICLE IX
Indemnity of Trustee and Committees
9.1 Indemnity of Trustee. The Company and the Bank (the "Indemnifying
Parties") hereby jointly and severally indemnify and hold the Trustee harmless
from and against any Liabilities (as defined in Section 9.2) to which the
Trustee may become subject pursuant to, arising out of, occasioned by, or
incurred in connection with or in any way associated with this Trust Agreement,
unless such Liabilities result or arise from any act or omission constituting
gross negligence or willful misconduct of the Trustee. If one or more
Liabilities shall arise and the Indemnifying Parties fail to indemnify the
Trustee as provided herein, then the Trustee may engage counsel of the Trustee's
choice at the expense of the Indemnifying Parties, provided such expenses are
reasonable; and provided further, the Trustee shall be entitled either to
conduct the defense against such Liabilities or to conduct such actions as may
be necessary to obtain the indemnity provided for herein, or to take both such
actions. The Trustee shall notify the Indemnifying Parties of the name and
address of such counsel before the Trustee has so engaged such counsel. If the
Trustee shall be entitled to indemnification by the Indemnifying Parties,
pursuant to this Section 9.1, as determined by a court of competent jurisdiction
and the Indemnifying Parties shall not provide such indemnification upon demand,
the Trustee may apply assets of the Trust Fund in full satisfaction of the
obligations for indemnity by the Indemnifying Parties, and any legal proceeding
by the Trustee against the Indemnifying Parties for such indemnification shall
be in behalf of the Trust.
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9.2 Indemnification of Committees and Agents. The Indemnifying Parties
shall indemnify, to the fullest extent permitted by their respective
Certificates of Incorporation (or equivalent) and By-Laws (collectively, the
"Governing Documents") and applicable law, (including the provisions thereof
relating to advances of costs, charges and expenses), any person who is, or
business entity, including without limitation a corporation, limited liability
company or partnership, that is owned by, a current or former director, officer
or employee of either of such Indemnifying Parties or of any of their direct or
indirect subsidiaries who is or was serving or agrees to serve either at the
request of either of such Indemnifying Parties or of such subsidiary or as a
result of being selected to serve in accordance with Section 13.6 hereof or the
corresponding provision of the Director Trust Agreement as a member of the
Committee or the Director Committee, or as an authorized agent or delegatee of
the Company, the Bank, the Committee or the Director Committee (each such
indemnified person or business entity, an "Indemnified Party") against any loss,
damage, liability, cost, charge or expense (including attorneys' fees),
judgment, fine and amount paid in settlement (herein "Liabilities") actually and
reasonably incurred by such Indemnified Party or on such Indemnified Party's
behalf in connection with any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, investigative or administrative, and
whether threatened or brought by a third party or by the Dime, relating to or in
connection with such Indemnified Party's service as a member of the Committee or
Director Committee or as such authorized agent or delegatee; provided, that the
Indemnified Party has met any applicable standard of conduct required by or
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pursuant to the Governing Documents or by applicable law or regulation in order
to qualify for indemnification thereunder, as well as any other conditions to
such indemnification imposed by the Governing Documents or by applicable law or
regulation and provided, further, that in the event that such indemnification
(including any provision relating to advances of costs, charges and expenses) is
permissible but not required by the Governing Documents, and the Indemnifying
Parties shall fail to provide such indemnification when requested by an
Indemnified Party, then subject to any conditions set forth in the Governing
Documents, the Trustee shall indemnify such Indemnified Party out of the assets
of the Trust Fund. In connection with such indemnification, the Company and the
Bank hereby acknowledge that each member of the Committee and the Director
Committee and each authorized agent or delegatee of the Company, the Bank, the
Committee or the Director Committee is or will be serving as such at the request
of each of the Company and the Bank, both before and after any Change in Control
or Irrevocable Election. Any determination as to whether the Indemnified Party
has met such applicable standard of conduct or other conditions to
indemnification shall be made in accordance with the provisions of the Governing
Documents and applicable law or regulation, as in effect at the time of an
Irrevocable Election or Change in Control. Unless otherwise required by
applicable law, this Section 9.2 may be amended only in accordance with Section
11.3 hereof; provided that, in addition, this Section 9.2 shall not be rescinded
or modified so as to materially reduce the indemnification provided hereunder
without first giving thirty (30) days advance written notice of such rescission
or modification to each individual then
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entitled to indemnification hereunder, or so as to materially reduce the
indemnification provided hereunder with respect to actions taken or omitted to
be taken prior to the effective date of such rescission or modification. An
Indemnifying Party may satisfy its obligation under this Section 9.2 in whole or
in part by purchase of a policy or policies of insurance, but no insurer shall
have any rights against an Indemnifying Party or the Trust arising out of this
Section 9.2. If an Indemnified Party shall be entitled to indemnification by an
Indemnifying Party, pursuant to this Section 9.2, as determined by a court of
competent jurisdiction and such Indemnifying Party shall not provide such
indemnification upon demand, the Trustee shall, to the extent permitted by law,
apply the Company Trust Assets or Bank Trust Assets in full satisfaction of the
obligations for indemnity by the Company or the Bank, as the case may be, and
any subsequent legal proceedings by the Indemnified Party against the Company or
the Bank for such indemnification shall be on behalf of the Trust.
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ARTICLE X
Resignation and Removal of Trustee
10.1 Resignation of Trustee. The Trustee may resign upon 90
days' prior written notice to the Committee and the Dime, except that any such
resignation shall not be effective until the Dime has appointed in writing a
successor Trustee, which must be a bank or trust company, acceptable to the
Committee. The Dime shall make a good faith effort, following receipt of notice
of resignation from the Trustee, to appoint a successor Trustee under this Trust
Agreement. In the event the Dime has failed to appoint a successor Trustee
within six months of the Trustee's notice of resignation, the Trustee shall be
entitled to seek judicial removal.
10.2 Removal of Trustee. At any time prior to the occurrence of an
Irrevocable Election, Change in Control or Potential Change in Control, the Dime
may remove the Trustee without cause upon at least 30 days' notice in writing to
the Trustee. At any time after the occurrence of an Irrevocable Election, Change
in Control or Potential Change in Control, the Trustee may be removed by action
of the Committee. In case of a removal of the Trustee for cause (which, for
these purposes, shall include criminal conduct, gross negligence, mismanagement
of trust funds, or any other material breach of fiduciary duty hereunder), the
party having power to do so hereunder may remove the Trustee immediately,
without any prior notice. At any time after the occurrence of an Irrevocable
Election or Change in Control, the Trustee may also be removed by the Dime upon
the action of the Participants who, at the time such removal is sought, hold in
the aggregate a majority of the beneficial interests in the
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Trust Fund. Any notice sent to Participants seeking their consent to removal of
the Trustee, shall, to the extent the Dime has selected a successor Trustee,
include the name and address of the proposed successor trustee. For purposes of
this Section 10.2, and all other Sections of this Trust Agreement which refer to
this Section 10.2 for purposes of determining the Participants who hold a
majority of the beneficial interests in the Trust Fund, the beneficial interest
of each Participant shall be deemed to be the present value of the projected
total Benefits payable to the Participant, determined in accordance with Section
5.3(b). For purposes of this Trust Agreement where the exercise of rights or
powers conferred on a Participant hereunder requires "action," such action may
be taken by the vote of the Participant present in person or by proxy at a duly
held meeting of Participants or by the written consent of such Participant.
10.3 Successor Trustee. (ai If the Trustee resigns (or is removed) in
accordance with Section 10.1 or 10.2 hereof, (i) prior to an Irrevocable
Election, Change in Control or Potential Change in Control, the Dime may appoint
any third party, such as a bank trust department or other party that may be
granted corporate trustee powers under state law, as a successor to replace the
Trustee upon resignation or removal, and (ii) on or after the date of an
Irrevocable Election, Change in Control or Potential Change in Control, only the
Committee may appoint any third party, such as a bank trust department or other
party that may be granted corporate trustee powers under state law, as a
successor to replace the Trustee upon resignation or removal; provided, however,
that in the case of either the preceding clause (i) or (ii), such successor
Trustee may not be an Affiliate of the Company or the Bank or a party (or
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Affiliate of a party) to a Change in Control or then existing Potential Change
in Control. The appointment shall be effective when accepted in writing by the
new Trustee. The former Trustee shall execute any instrument(s) necessary or
reasonably requested by the Dime or the successor Trustee to evidence the
transfer.
(b) All of the provisions set forth herein with respect to the
Trustee shall relate to each successor Trustee with the same force and effect as
if such successor had been originally named as the Trustee hereunder.
10.4 Transfer of Trust Fund to Successor. Upon the resignation or
removal of the Trustee and appointment of a successor, the Trustee shall
transfer and deliver the Trust Fund and such records or copies of such records
as are reasonably requested to such successor. Following the effective date of
the appointment of the successor, the Trustee's responsibility hereunder shall
be limited to managing the assets in its possession and transferring such assets
to the successor, and settling its final account. Neither the Trustee nor the
successor shall be liable for the acts of the other.
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ARTICLE XI
Duration, Termination and Amendment of Trust
11.1 Duration and Termination. (ai Except as provided in this Trust
Agreement, the Trust is hereby declared to be irrevocable and shall continue
until whichever of the following shall first occur: (i) all payments required by
this Trust Agreement have been made or (ii) the Trust Fund contains no assets
and retains no claims to recover assets from Company or the Bank pursuant to any
provision hereof.
(b) The Company and the Bank may terminate this Trust prior to
the time all Benefit payments under the Designated Arrangements have been made,
provided, however, that the prior written consent of the Participants who, at
the time such termination is sought, hold in the aggregate a majority of the
beneficial interests in the Trust Fund, must be obtained. The determination of
each Participant's beneficial interest for this purpose shall be made in
accordance with Section 10.2. All Company Trust Assets in the Trust upon the
termination of the Trust pursuant to this Section 11.1(b) shall be returned to
the Company, and all Bank Trust Assets in the Trust upon such termination shall
be returned to the Bank.
11.2 Distribution Upon Termination. If this Trust terminates under the
provisions of Section 11.1(a), the Trustee shall liquidate the Trust Fund and,
after its final account has been settled as provided in Article VI, shall
distribute to the Company and the Bank the net balance of any Company Trust
Assets and Bank Trust Assets, respectively, and the net balance of the Expense
Account, remaining after all Benefits and expenses have been paid. Upon making
such distribution, the Trustee shall be
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relieved from all further obligations. The powers of the Trustee hereunder shall
continue so long as any assets of the Trust Fund (including claims against the
Company or the Bank) remain in its hands.
11.3 Amendment.
(a) Prior to an Irrevocable Election, Change in Control or
Potential Change in Control, this Trust Agreement may be amended from time to
time by action of the Company and the Bank, which action may be taken, and shall
be evidenced, in writing by any of the Chief Executive Officer, the Chief
Operating Officer or the Chief Human Resources Officer of each entity, certified
by the Secretary or an Assistant Secretary of such entity.
(b) Subsequent to an Irrevocable Election, Change in Control or
Potential Change in Control, this Trust Agreement may be amended only by the
Committee, provided that the Committee shall exercise its authority to amend the
Trust Agreement only to the extent that such exercise of authority does not
eliminate the rights of creditors of the Bank or the Company to Trust assets in
the event that the Bank or Company becomes Insolvent (as such term is used in
Article XII) or otherwise cause the Trust to fail to be a "grantor trust"
pursuant to Sections 671 through 679 of the Code. No amendment to this Trust
Agreement shall adversely affect any of a Participant's Benefits, or, after an
Irrevocable Election or Change in Control, the amount credited to a
Participant's Account without the consent of the affected Participant. No
amendment to this Trust Agreement that could materially increase the costs of
the Trust to the Company or the Bank shall be made without the approval of
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the affected entity, which approval may be evidenced by a writing by any of the
Chief Executive Officer, the Chief Operating Officer or the Chief Human
Resources Officer of such entity, certified by the Secretary or an Assistant
Secretary of such entity. In the event there is any dispute between the
Committee and the Dime as to whether a proposed amendment to the Trust Agreement
could materially increase the costs of the Trust to the Company or the Bank, the
Trustee shall reach its own independent determination with respect to such
dispute, which determination shall be final and binding on the parties.
(c) No amendment of this Trust Agreement shall be made that
alters the irrevocable character of the Trust established under this Trust
Agreement, and no amendment shall materially increase the duties or
responsibilities of the Trustee unless the Trustee consents thereto in writing.
(d) (i) A "Potential Change in Control" shall be deemed to
have occurred if the event set forth in any one of the following paragraphs
shall have occurred:
(A) the Company enters into an agreement, the
consummation of which would result in the occurrence of a Change in Control;
(B) the Company or any Person publicly announces
an intention to take or to consider taking actions which, if consummated, would
constitute a Change in Control;
(C) any Person becomes the Beneficial Owner,
directly or indirectly, of securities of the Company representing 15% or more of
either
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the then outstanding shares of common stock of the Company or the combined
voting power of the Company's then outstanding securities (not including in the
securities beneficially owned by such Person, any securities acquired directly
from the Company or its Affiliates); or
(D) the Board of Directors of the Company adopts
a resolution to the effect that, for purposes of this Agreement, a Potential
Change in Control has occurred.
As used in connection with the foregoing definition of
Potential Change in Control, "Affiliate," "Beneficial Owner," "Exchange Act" and
"Person" shall have the respective meanings as set forth in Section 13.4 hereof.
(ii) The Committee shall determine whether a Potential
Change in Control or an Abandonment Date has occurred. If the Committee makes
such a determination, then the Committee shall promptly notify the Company, the
Bank and the Trustee of such determination.
In particular, and without limiting the generality of the foregoing, the
parties to this Trust Agreement acknowledge that, as of the date hereof, a
Potential Change in Control has occurred in respect of the exchange offer by
North Fork Bancorporation, Inc. for common shares of the Company.
(iii) As used in this Section, the term "Abandonment Date"
shall mean the date on which (A) an agreement described in Section (d)(i)(A)
above is terminated (pursuant to its terms or otherwise) without having been
consummated, (B) all parties described in Section (d)(i)(B) above publicly
announce
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that they have unconditionally abandoned the transactions contemplated, (C) the
Board adopts a resolution rescinding its previous determination that a Potential
Change in Control has occurred or (D) a court or regulatory body having
competent jurisdiction enjoins or issues a cease and desist or stop order with
respect to or otherwise prevents the consummation of, or a regulatory body
notifies the Bank or the Company that it will not approve, a transaction
described in Section (d)(i)(A) or (B) above or the transactions contemplated
thereby and such injunction, order or notice has become final and not subject to
appeal.
(iv) Following the Abandonment Date of a Potential Change
in Control, the provisions of this Trust Agreement in effect following a
Potential Change in Control shall no longer apply, and the provisions of this
Trust Agreement in effect prior to a Potential Change in Control shall again
apply, unless and to the extent that, prior to the Abandonment Date of such
Potential Change in Control, another Potential Change in Control, or an
Irrevocable Election or Change in Control, has occurred with respect to which
those provisions, as applicable, will continue to separately apply.
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ARTICLE XII
Claims of Creditors
12.1 Insolvency of Bank. As used in this Article XII, the Bank shall be
deemed to be "Insolvent" if (i) the Bank is subject to a pending proceeding
seeking a decree or order of a court or agency or supervisory authority having
jurisdiction in the premises for the appointment of a conservator or receiver or
trustee or liquidator in any insolvency, liquidation, taking of possession,
termination of deposit insurance, readjustment of debt, marshaling of assets and
liabilities or similar proceedings of or relating to the Bank or of or relating
to all or substantially all of its property, or for the winding up or
liquidation of its affairs, under any federal or state law relating to
bankruptcy or insolvency, or (ii) the Bank is unable to pay its debts as they
become due. The Chief Executive Officer or Board of Directors of the Bank shall
promptly notify the Trustee in the event that the Bank becomes Insolvent. If at
any time the Trustee has determined that the Bank is Insolvent, the Trustee
shall discontinue payments to Participants or their Beneficiaries from the Bank
Trust Assets and shall hold the Bank Trust Assets of the Trust for the benefit
of the Bank's general creditors. Nothing in this Trust Agreement shall in any
way diminish any rights of Participants or their Beneficiaries to pursue their
rights as general creditors of the Bank with respect to Benefits due under the
Designated Arrangements or otherwise, or (except in the event the Company
becomes Insolvent) the rights of Participants or their Beneficiaries to receive
payments of Company Benefits from the Company Trust Assets.
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12.2 Trustee's Responsibilities if Bank May Be Insolvent.
(a) If at any time the Bank or a person claiming to be a
creditor of the Bank alleges in writing to the Trustee that the Bank has become
Insolvent, the Trustee shall within 30 days of such allegation, independently
determine whether the Bank is Insolvent and, pending such determination, the
Trustee shall discontinue payments from the Bank Trust Assets of Benefits under
the Designated Arrangements and this Trust Agreement.
(b) If the Bank notifies the Trustee or the Trustee determines
that the Bank is Insolvent, the Trustee shall hold the Bank Trust Assets for the
benefit of the Bank's general creditors, and shall disburse assets from the Bank
Trust Assets to creditors of the Bank only pursuant to an order from a court of
competent jurisdiction.
(c) If the Trustee discontinues payment from the Bank Trust
Assets of Benefits pursuant to this Section 12.2, the Trustee shall resume
payments from the Bank Trust Assets of Benefits under the Designated
Arrangements only after the Trustee has determined that the Bank is not
Insolvent (or is no longer Insolvent, if the Trustee initially determined the
Bank to be Insolvent). The first payment to a Participant following such
discontinuance shall include an aggregate amount equal to the difference between
the payments which would have been made to such Participant under this Trust
Agreement but for this Section 12.2 and the aggregate payments actually
otherwise made to such Participant pursuant to the Designated Arrangements
during any such period of discontinuance; provided, however, that such payment
shall
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be made from the Bank Trust Assets only to the extent Bank Trust Assets are then
available for such purposes.
12.3 Trust Recovery of Payments to Creditors. In the event that an
amount is paid from the Trust Fund to creditors of the Bank (other than as
provided in Article V and Section 7.3), then as soon as practicable (or if the
Bank is then Insolvent, as soon as the Bank is no longer Insolvent) but subject
to the sole discretion of the Bank or, following an Irrevocable Election or
Change in Control, subject to the sole discretion of the Committee, and upon the
Trustee's demand, the Bank shall deposit into the Trust Fund a sum equal to the
amount paid by the Trust Fund to such creditors.
12.4 Insolvency of Company. As used in this Article XII, the Company
shall be deemed to be "Insolvent" if (i) the Company is subject to a pending
proceeding seeking a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
conservator or receiver or trustee or liquidator in any insolvency, liquidation,
taking of possession, readjustment of debt, marshaling of assets and liabilities
or similar proceedings of or relating to the Company or of or relating to all or
substantially all of its property, or for the winding up or liquidation of its
affairs, under any federal or state law relating to bankruptcy or insolvency, or
(ii) the Company is unable to pay its debts as they become due. The Chief
Executive Officer or Board of Directors of the Company shall promptly notify the
Trustee in the event that the Company becomes Insolvent. If at any time the
Trustee has determined that the Company is Insolvent, the Trustee shall
discontinue payments to Participants or their Beneficiaries from the Company
Trust Assets and shall hold the
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Company Trust Assets of the Trust for the benefit of the Company's general
creditors. Nothing in this Trust Agreement shall in any way diminish any rights
of Participants or their Beneficiaries to pursue their rights as general
creditors of the Company with respect to Benefits due under the Designated
Arrangements or otherwise, or (except in the event the Bank becomes insolvent)
the rights of Participants or their Beneficiaries to receive payments of Bank
Benefits from the Bank Trust Assets.
12.5 Trustee's Responsibilities if Company May Be Insolvent.
(a) If at any time the Company or a person claiming to be a
creditor of the Company alleges in writing to the Trustee that the Company has
become Insolvent, the Trustee shall within 30 days of such allegation,
independently determine whether the Company is Insolvent and, pending such
determination, the Trustee shall discontinue payments from the Company Trust
Assets of Benefits under the Designated Arrangements and this Trust Agreement.
(b) If the Company notifies the Trustee or the Trustee
determines that the Company is Insolvent, the Trustee shall hold the Company
Trust Assets for the benefit of the Company's general creditors, and shall
disburse assets from the Company Trust Assets to creditors of the Company only
pursuant to an order from a court of competent jurisdiction.
(c) If the Trustee discontinues payment from the Company Trust
Assets of Benefits pursuant to this Section 12.5, the Trustee shall resume
payments from the Company Trust Assets of Benefits under the Designated
Arrangements only after the Trustee has determined that the Company is not
Insolvent (or is no longer
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Insolvent, if the Trustee initially determined the Company to be Insolvent). The
first payment to a Participant following such discontinuance shall include an
aggregate amount equal to the difference between the payments which would have
been made to such Participant under this Trust Agreement but for this Section
12.5 and the aggregate payments actually otherwise made to such Participant
pursuant to the Designated Arrangements during any such period of
discontinuance; provided, however, that such payment shall be made from the
Company Trust Assets only to the extent Company Trust Assets are then available
for such purposes.
12.6 Trust Recovery of Payments to Creditors. In the event
that an amount is paid from the Trust Fund to creditors of the Company (other
than as provided in Article V and Section 7.3), then as soon as practicable (or
if the Company is then Insolvent, as soon as the Company is no longer Insolvent)
but subject to the sole discretion of the Company or, following an Irrevocable
Election or Change in Control, subject to the sole discretion of the Committee,
and upon the Trustee's demand, the Company shall deposit into the Trust Fund a
sum equal to the amount paid by the Trust Fund to such creditors.
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ARTICLE XIII
Miscellaneous
13.1 Governing Law. This Trust Agreement and the Trust hereby created
shall be governed, construed and regulated by the laws of the State of New York,
without regard to the conflict of laws principles thereof. The parties to this
Agreement agree and expressly consent that any action brought pursuant to or to
enforce the terms of this Agreement may be brought in the courts of the State of
New York sitting in New York, New York, or the United States District Court for
the Southern District of New York. Each of the parties to this Agreement agrees
and expressly consents to submit to the exclusive jurisdiction of the
above-listed courts in any action alleging a breach of this Agreement or seeking
to invalidate or limit the enforceability of this Agreement or of any provision
thereof. Nothing in this provision, however, shall be construed to limit the
Trustee's or the Committee's ability to serve process or commence any action
against any of the parties hereto in any appropriate forum.
13.2 Titles and Headings Not to Control. The titles to Articles and
headings of Sections in this Trust Agreement are placed herein for convenience
of reference only and in case of any conflict, the text of this Trust Agreement,
rather than such titles or headings, shall control.
13.3 Successors and Assigns. Except as provided herein, this Trust
Agreement may not be assigned by any party without the prior written consent of
the other parties, and any purported assignment without such prior written
consent shall be null and void. This Trust Agreement shall be binding upon the
successors and
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permitted assigns of each party hereto. In the case of any
consolidation of the Company or the Bank with, or merger of the Company or the
Bank with or into, any corporation or other entity, or any sale or conveyance of
all or substantially all of the assets of the Company or the Bank, the
corporation or other entity formed by such consolidation, or with or into which
the Company or the Bank is merged, or any Person which acquires all or a
majority of the assets of the Company or the Bank, shall expressly assume in
writing, in form satisfactory to the Trustee, the duties and obligations of the
Company or the Bank, as the case may be, under this Trust Agreement and the
Designated Arrangements; provided, however, that the duties and obligations of
the Company or the Bank, as the case may be, under this Trust Agreement and the
Designated Arrangements shall be binding on any such successor notwithstanding
its failure to expressly assume such duties and obligations in writing. Neither
the Company nor the Bank shall sell or convey all or a majority of its assets to
any Person unless such Person has expressly assumed in writing, in form
satisfactory to the Trustee, each of the duties and obligations of the Company
or the Bank, as the case may be, under this Trust Agreement and the Designated
Arrangements.
13.4 Change in Control. For purposes of this Trust Agreement, a "Change
in Control" shall be deemed to have occurred if the event set forth in any one
of the following paragraphs shall have occurred:
(i) any Person is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Company (not including in the
securities beneficially owned by such Person any securities acquired directly
from the Company
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or its Affiliates) representing 35% or more of the combined voting power of the
Company's then outstanding securities; or
(ii) the following individuals cease for any reason to
constitute a majority of the number of directors then serving as directors of
the Company: individuals who, on July 24, 1997, constitute the Board of
Directors of the Company and any new director (other than a director whose
initial assumption of office is in connection with the settlement of an actual
or threatened election contest, including but not limited to a consent
solicitation, relating to the election of directors of the Company) whose
appointment or election by the Board of Directors of the Company or nomination
for election by the Company's stockholders was approved or recommended by a vote
of at least two-thirds (2/3) of the directors then still in office who either
were directors on July 24, 1997 or whose appointment, election or nomination for
election was previously so approved or recommended; or
(iii) there is consummated a merger or consolidation of
the Company or any direct or indirect subsidiary of the Company with any other
corporation or entity, other than (A) a merger or consolidation which would
result in the voting securities of the Company outstanding immediately prior to
such merger or consolidation continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving entity
or any Parent thereof), in combination with the ownership of any trustee or
other fiduciary holding securities under an employee benefit plan of the Company
or any subsidiary of the Company, at least 65% of the combined voting power of
the securities of the Company, such
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surviving entity or any Parent thereof outstanding immediately after such merger
or consolidation or (B) a merger or consolidation affected solely to implement a
recapitalization of the Company or the Bank (or similar transaction) in which no
Person is or becomes the Beneficial Owner, directly or indirectly, of securities
of the Company or the Bank (not including in the securities beneficially owned
by such Person any securities acquired directly from the Company or its
Affiliates) representing 35% or more of the combined voting power of the
Company's or the Bank's then outstanding securities; or
(iv) the stockholders of the Company or the Bank approve
a plan of complete liquidation or dissolution of the Company or the Bank,
respectively, or there is consummated a sale or disposition by the Company or
any of its subsidiaries of any assets which individually or as part of a series
of related transactions constitute all or substantially all of the Company's
consolidated assets (provided that, for these purposes, a sale of all or
substantially all of the voting securities of the Bank or a Parent of the Bank
shall be deemed to constitute a sale of substantially all of the Company's
consolidated assets), other than any such sale or disposition to an entity at
least 65% of the combined voting power of the voting securities of which are
owned by stockholders of the Company in substantially the same proportions as
their ownership of the voting securities of the Company immediately prior to
such sale or disposition.
As used herein, "Affiliate" shall have the meaning set forth in Rule
12b-2 promulgated under Section 12 of the Exchange Act; "Beneficial Owner" shall
have the
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meaning set forth in Rule 13d-3 under the Exchange Act; "Exchange Act" shall
mean the Securities Exchange Act of 1934, as amended from time to time; "Parent"
shall mean any entity that becomes the Beneficial Owner of at least 80% of the
voting power of the outstanding voting securities of the Company or of an entity
that survives any merger or consolidation of the Company or any direct or
indirect subsidiary of the Company; and "Person" shall have the meaning given in
Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and
14(d) thereof, except that such term shall not include the Company or any of its
subsidiaries, a trustee or other fiduciary holding securities under an employee
benefit plan of the Company or any of its Affiliates, an underwriter temporarily
holding securities pursuant to an offering of such securities, or a corporation
or entity owned, directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the Company.
For purposes of this Trust Agreement, the Committee or the Director
Committee (as defined in Section 8.2(b)) shall determine whether a "Change in
Control" has occurred and if such a determination is made, shall promptly notify
the Company, the Bank, the Committee and the Trustee in writing of such
determination.
13.5 Irrevocable Election.
(a) Either the Committee, acting by majority or if only one
Committee member exists then by such member, or the Director Committee (as
defined in Section 8.2(b)), acting by majority or if only one Director Committee
member exists then by such member, may at any time make an Irrevocable Election
pursuant to this
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Section 13.5 by notifying the Trustee in writing in substantially the form
attached hereto as Appendix III. Without limiting the ability of the Committee
or the Director Committee to make an Irrevocable Election at any time and in
their respective sole and absolute discretion, an Irrevocable Election may (but
need not) be made by the Committee or the Director Committee at any time after a
Potential Change in Control. Such Irrevocable Election shall remain in effect
unless revoked by the action of the Participants who, at the time such
revocation is sought, hold in the aggregate, at least 75% of the beneficial
interests in the Trust Fund. The determination of each Participant's beneficial
interest for this purpose shall be made in accordance with Section 10.2.
(b) Following the revocation or cancellation of an Irrevocable
Election in accordance with Section 13.5(a), the provisions of this Trust
Agreement in effect following an Irrevocable Election shall no longer apply, and
the provisions of this Trust Agreement in effect prior to an Irrevocable Change
in Control shall again apply, unless and to the extent that, prior or subsequent
to the revocation or cancellation of such Irrevocable Election, another
Irrevocable Election, or a Change in Control or Potential Change in Control, has
occurred with respect to which those provisions, as applicable, will continue to
separately apply.
(c) The Committee (or, as applicable, the Director Committee)
shall promptly notify the Trustee of any revocation or cancellation of an
Irrevocable Election.
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13.6 The Committee.
(a) Prior to a Potential Change in Control (as defined in
Section 11.3(d)), an Irrevocable Election or a Change in Control (as defined in
Section 13.4), the Committee shall consist of those individuals holding the
following offices in the Company or in the Bank: (i) Chief Executive Officer;
(ii) Chief Operating Officer; (iii) Chief Financial Officer; (iv) Treasurer; (v)
General Counsel; and (vi) Chief Human Resources Officer, it being understood
that one individual may hold more than one such position. Any member of the
Committee may resign upon 30 days' prior written notice to the Company, the
Bank, the Trustee, and the other members of the Committee. Prior to an
Irrevocable Election, a Change in Control or a Potential Change in Control, each
member of the Committee who is an officer of the Company may be removed by the
Chief Executive Officer of the Company, and each member of the Committee who is
an officer of the Bank may be removed by the Chief Executive Officer of the
Bank, and, in the event of a vacancy on the Committee, if no individual then
holds the officer position so vacated the Chief Executive Officer of the Company
or the Bank, as the case may be, shall appoint a successor. The Dime and the
Committee shall inform the Trustee of the membership of the Committee and any
changes therein, and the Trustee shall, upon the request of any Participant,
provide the Participant with a list of Committee members.
(b) Subsequent to a Potential Change in Control, those members
of the Committee who were members of the Committee immediately preceding the
Potential Change in Control shall continue as members of the Committee
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whether or not such individuals continue to hold the officer positions described
in Section 13.6(a), and the number of members of the Committee shall, unless
otherwise reduced as provided below, be equal to the number of members of such
Committee continuing as such immediately after such Potential Change in Control;
provided, however, that except as otherwise provided below, the membership of
each such individual on the Committee shall cease if such individual is no
longer employed by either the Company or the Bank (or a successor or any parent
or subsidiary of any of such entities). In the event of a vacancy on the
Committee subsequent to a Potential Change in Control, a successor to the
vacancy on the Committee shall be appointed by action (evidenced by written
approval) of a majority of the remaining members of the Committee. No individual
shall be eligible to be named to fill a vacancy on the Committee, however,
unless such individual is, at the time of such appointment, (x) an employee of
the Company or the Bank (or a successor or any parent or subsidiary of any of
such entities) and (y) a Participant, and such individual may continue as a
member on the Committee during the period such individual is both an employee of
the Company or the Bank (or a successor or any parent or subsidiary of any of
such entities) and a Participant. If at any time after a Potential Change in
Control but prior to a Change in Control or an Irrevocable Election (in either
of which event paragraph (c) of this Section 13.6 shall control and be
immediately effective) no member of the Committee, as constituted at such time,
would remain a member of the Committee because all such members have ceased to
be employed by either the Company or the Bank (or a successor or any parent or
subsidiary of any of such entities), then during
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the 90-day period following the date the last such member ceases to be so
employed, the membership of the Committee shall be made up of the most recent
members of the Committee in number equal to the number provided for in the first
sentence of this Subsection 13.6(b). During such 90-day period, (i) those
reconstituted Committee members may, by vote or written consent of a majority
thereof, elect one or more new members of the Committee who satisfy the
requirements set forth in (x) and (y) above (in which event such new members
shall from and after their election constitute the Committee for all purposes of
this Trust Agreement, subject to the other provisions of this Subsection
13.6(b), and the reconstituted Committee members shall cease to serve as
Committee members), or (ii) if the Director Committee shall make an Irrevocable
Election prior to the election of one or more new Committee members, then the
reconstituted Committee members shall constitute the Committee and the
provisions of Section 13.6(c) shall control. If neither of the actions set forth
in the preceding sentence are taken, then, on and after the end of such 90-day
period, successor members of the Committee shall be appointed by action of the
Participants who at such time hold in the aggregate a majority of the beneficial
interests in the Trust Fund. The determination of each Participant's beneficial
interest for each of these purposes shall be made in accordance with Section
10.2. The Trustee shall promptly inform Participants of any vacancy of the
Committee that Participants have the right to fill, and of that right.
(c) Following an Irrevocable Election or a Change in Control
(and irrespective of whether a Potential Change in Control has previously taken
place),
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the Committee shall consist of those individuals who were members of the
Committee immediately prior to the Irrevocable Election or Change in Control,
and the number of Committee members shall, unless otherwise reduced as provided
below, continue at the same level as applied before such Irrevocable Election or
Change in Control, unless such number is changed by action of the Participants
who hold in the aggregate a majority of the beneficial interests in the Trust
Fund. Further, subsequent to an Irrevocable Election or a Change in Control, no
member of the Committee may be removed unless removed by the action of the
Participants who then hold in the aggregate a majority of the beneficial
interests in the Trust Fund. Following an Irrevocable Election or a Change in
Control, after the death, resignation or removal of a member of the Committee, a
successor to a vacancy on the Committee shall be appointed by a majority of the
remaining members of the Committee. However, if following an Irrevocable
Election or a Change in Control all membership positions on the Committee are
vacant, successor members of the Committee shall be appointed by action of the
Participants who at such time hold in the aggregate a majority of the beneficial
interests in the Trust Fund. The determination of each Participant's beneficial
interest for each of these purposes shall be made in accordance with Section
10.2. The Trustee shall promptly inform participants of any vacancy of the
Committee that Participants have the right to fill, and of that right.
(d) Any action by the Committee, unless and to the extent
validly delegated pursuant to Section 8.2(c) hereunder, shall require the
written approval of the majority of the members of the Committee or if the
Committee then
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consists of only one member, by such member. A Committee member or delegatee
shall not be liable hereunder for any act taken or omitted to be taken in good
faith, except for such person's own gross negligence or willful misconduct.
(e) All of the provisions set forth herein with respect to a
member of the Committee shall relate to each successor with the same force and
effect as if such successor had been originally named as a member of the
Committee.
(f) In the case of any ambiguity under this Trust, the Trustee
may seek the direction of, or a determination by, as applicable, the Committee.
13.7 Notices.
(a) Communications to the Trustee shall be sent in writing to
the Trustee's office at ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇
▇▇▇▇▇▇▇▇, Vice President, or to such other address as the Trustee may specify.
No communication shall be binding upon the Trust Fund or the Trustee until it is
received by the Trustee and unless it is in writing and signed by an authorized
person.
(b) Communications to the Bank shall be sent in writing to the
Bank at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Chief Human
Resources Officer, or to such other address as the Bank may specify. No
communication shall be binding upon the Bank until it is received by the Bank.
(c) Communications to the Company shall be sent in writing to
the Company at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: General
Counsel, or to such other address as the Company may specify. No communication
shall be binding upon the Company until it is received by the Company.
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(d) Communications to the Committee shall be sent in
writing to each of the Committee members as follows:
Committee Under the Umbrella Trust Agreement
Dime Bancorp, Inc./The Dime Savings Bank of New York, FSB
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: name of Committee member
with a copy to:
Patterson, Belknap, ▇▇▇▇ & Tyler LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
or to such other address as the respective Committee member may specify. No
communication shall be binding upon the Committee until it is received by at
least two of the Committee members or, if the Committee shall then consist of
only one member, by such member.
(e) Communication to the Director Committee shall be sent in
writing to each of the Committee members as follows:
Committee Under the Directors Umbrella Trust Agreement
Dime Bancorp, Inc./The Dime Savings Bank of New York, FSB
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: name of Director Committee member
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with a copy to:
Patterson, Belknap, ▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
or to such other address as the respective Director Committee member may
specify. No communication shall be binding upon the Director Committee until it
is received by at least two of the Director Committee members or, if the
Director Committee shall then consist of only one member, by such member.
(f) Where any communication is required to be given to the
Dime, such communication shall be sent to both the Company and the Bank as
provided in paragraphs (b) and (c) of this Section 13.7.
13.8 Obligations of The Dime
Wherever this Trust requires that an obligation be performed by
the Dime, then the Company and the Bank shall be jointly and severally liable
for the performance of such obligation.
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13.9 Invalidity of Particular Sections.
Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without invalidating the
remaining provisions hereof which shall continue in full force and effect.
13.10 Code References. Any reference to a Code section herein shall be
deemed to be a reference to its successor provisions to the extent that such
section of the Code has been replaced, renumbered or superseded.
13.11 Counterparts. This Trust Agreement may be executed in any number
of separate counterparts, each such counterpart being deemed to be an original
of this Trust Agreement, and all such counterparts together constituting the
same agreement.
IN WITNESS WHEREOF, DIME BANCORP, INC., THE DIME SAVINGS BANK OF
NEW YORK, FSB and HSBC Bank USA, as Trustee have caused this amended and
restated Trust Agreement to be executed by their duly authorized officers and
their respective seals to be hereunto affixed as of the day and year first above
written.
DIME BANCORP, INC.
By:
------------------------------------------
Name:
------------------------------------------
Title:
SEAL
Attest:
--------------------------
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THE DIME SAVINGS BANK OF NEW YORK, FSB
By:
--------------------------------------
Name:
--------------------------------------
Title:
SEAL
Attest:
--------------------------
HSBC BANK USA, as Trustee
By:
--------------------------------------
Name:
--------------------------------------
Title:
SEAL
Attest:
--------------------------
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APPENDIX I
DESIGNATED ARRANGEMENTS(1)
A. Bank Primary Obligations
1. Severance Pay Program for Employees of Dime Bancorp, Inc. and
Participating Subsidiaries (with respect to eligible individuals employed
by the Company or the Bank or their subsidiaries immediately prior to an
eligible termination of employment)
2. Vacation pay provided under any program or policy established by the
Company or the Bank or their subsidiaries (if, with regard to programs or
policies of a subsidiary, payable while the entity is a subsidiary of the
Company or the Bank)
3. Severance Pay Plan of North American Mortgage Company, but only during
the periods and with respect to the benefits with regard to which the
Bank bears joint and several liability in the event that North American
Mortgage Company (or its successor) does not pay Benefits thereunder
4. Senior Executive Severance Pay Plan of North American Mortgage Company,
but only during the periods and with respect to the benefits with regard
to which the Bank bears joint and several liability in the event that
North American Mortgage Company (or its successor) does not pay Benefits
thereunder
B. Bank Secondary Obligations
None
C. Company Primary Obligations
None
D. Company Secondary Obligations
1. Severance Pay Program for Employees of Dime Bancorp, Inc. and
Participating Subsidiaries (with respect to eligible individuals employed
by the Company or
--------
(1) Unless otherwise noted, references to particular benefit plans and
arrangements include those plans and arrangements as initially adopted
or entered into, and such plans and arrangements as they may be amended
from time to time.
87
the Bank or their subsidiaries immediately prior to an eligible
termination of employment)
2. Vacation pay provided under any program or policy established by the
Company or the Bank or their subsidiaries (if, with regard to programs or
policies of a subsidiary, payable while the entity is a subsidiary of the
Company or the Bank)
88
APPENDIX II
LIST OF FEES AND EXPENSES OF TRUSTEE
A. Administration and Accounting
For the administration, including custody and monthly basic accounting
services, the fee will be computed at the following annual rates applied
to the market value of each of the Bank Trust Assets and the Company
Trust Assets.
.15 of 1% on the first $10 million
.08 of 1% on the next $20 million
.05 of 1% on the balance
Minimum annual fee - $25,000 for the Bank Trust Assets
$5,000 for the Company Trust Assets (provided there
are any Company Trust Assets)
Fees for a period of less than one year shall be pro-rated.
In the event that any of the following occur: (a) a Change in Control,
(b) the filing of an Irrevocable Election, or (c) the Bank or the Company
is determined to be Insolvent, the above annual rates and minimum annual
fees will increase by 100%; provided, however, that in the event such
increase in fees is on account of the Insolvency of the Bank (but not on
account of either of the reasons set forth in (a) or (b) above), such
increase in annual rates and minimum annual fees shall only relate to the
fees regarding Bank Trust Assets, and in the event such increase in fees
is on account of the Insolvency of the Company (but not on account of
either of the reasons set forth in (a) or (b) above), such increase in
annual rates and minimum annual fees shall only relate to the fees
regarding Company Trust Assets. Notwithstanding the foregoing, in no
event (without an appropriate modification of this Appendix II) will the
above annual rates and minimum annual fees increase by more than 100%.
B. Wire Transfers and Security Processing
$20.00 per transaction
C. Disbursement Services
$1.25 per periodic check issued, plus postage
$5.00 per non-periodic check issued, including postage
$10.00 per check rush-issued (24-hours turnaround)
89
$10.00 per tax form
D. Other Administrative Services
For administrative services not covered by the preceding provisions that
are relative to carrying out trustee responsibilities beyond routine
custodial and accounting duties, the Trustee shall maintain time logs
indicating the time spent by its employees and agents on the discharge of
its duties as Trustee. Each hour shall be charged at the Trustee's hourly
rates then in effect under this Agreement or subsequent amendment. The
hourly rates as of the effective date of the Umbrella Trust Agreement
are:
Department Managers $125.00
Vice Presidents... $100.00
All Other Officers $ 75.00
Other Staff....... $ 35.00
Time spent by the Operations Department of the Trustee on the handling of
assets, generation of accounting reports and other standard operations
are not subject to an hourly charge.
E. Participant Recordkeeping Services, if requested or required
Set-Up and Conversion Per Plan
$250 (One-Time Fee)
On-Going Processing Per Plan - Participant Accounting:
Administrative Fee: $1,000 per valuation per year
Participant Fee: $ 25 per year
Out-of-Pocket Expenses
Cost of custom processing, custom statement paper, "reruns"
due to customer error to be billed at cost.
90
APPENDIX III
FORM OF NOTICE OF IRREVOCABLE ELECTION
HSBC Bank USA
insert Trustee address then
in effect, per Section 13.7
Attention:
----------------
Re: Amended and Restated Umbrella Trust Agreement dated
as of __________, 2000, between Dime Bancorp, Inc.,
The Dime Savings Bank of New York, FSB and HSBC Bank
USA, as Trustee, with respect to the Designated
Arrangements of The Dime Savings Bank of New York,
FSB and related entities.
Gentlemen:
You are hereby notified that the [Committee (as defined in Section 13.6
of the Trust Agreement referred to above)] [Director Committee (as defined in
Section 8.2(b))] is making an Irrevocable Election pursuant to Section 13.5 of
such Trust Agreement. You are hereby directed to take all actions and undertake
such responsibilities as are provided for under the Trust Agreement in the event
of an Irrevocable Election.
Sincerely yours(2)
------------------
(2) To be signed by a majority of the Committee appointed pursuant to Section
13.6, or a majority of the Director Committee, or, if the relevant
Committee then consists of only one member, then by such member.
91
APPENDIX IV
CERTIFICATIONS OF AUTHORIZED PERSONS
INDIVIDUALS HAVING AUTHORITY TO
ACT ON BEHALF OF THE BANK
Benefits Committee Members Treasury Division
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Human Resources Department Law Department
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ACT ON BEHALF OF THE COMPANY
Benefits Committee Members Treasury Division
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