0000950123-01-506513.txt : 20011008
0000950123-01-506513.hdr.sgml : 20011008
ACCESSION NUMBER: 0000950123-01-506513
CONFORMED SUBMISSION TYPE: S-8
PUBLIC DOCUMENT COUNT: 4
FILED AS OF DATE: 20010920
EFFECTIVENESS DATE: 20010920
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: NORTH FORK BANCORPORATION INC
CENTRAL INDEX KEY: 0000352510
STANDARD INDUSTRIAL CLASSIFICATION: STATE COMMERCIAL BANKS [6022]
IRS NUMBER: 363154608
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-8
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-69700
FILM NUMBER: 1741230
BUSINESS ADDRESS:
STREET 1: 275 BROAD HOLLOW RD
STREET 2: PO BOX 8914
CITY: MELVILLE
STATE: NY
ZIP: 11747
BUSINESS PHONE: 6318441004
MAIL ADDRESS:
STREET 1: 275 BROAD HOLLOW RD
STREET 2: PO BOX 8914
CITY: MELVILLE
STATE: NY
ZIP: 11747
S-8
1
y53362s-8.txt
NORTH FORK BANCORPORATION, INC. 401(K) RETIRE SP
1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 20, 2001
Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
NORTH FORK BANCORPORATION, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 36-3154608
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
275 BROADHOLLOW ROAD
MELVILLE, NEW YORK 11747
(Address of Principal Executive Offices) (Zip Code)
NORTH FORK BANCORPORATION, INC. 401(K) RETIREMENT SAVINGS PLAN
(Full title of the Plan)
JOHN ADAM KANAS
CHAIRMAN, PRESIDENT AND CHIEF EXECUTIVE OFFICER
NORTH FORK BANCORPORATION, INC.
275 BROADHOLLOW ROAD
MELVILLE, NEW YORK 11747
(Name and address of agent for service)
(631) 844-1004
(Telephone number, including area
code, of agent for service)
Copies of all correspondence to:
THOMAS B. KINSOCK, ESQ.
STINSON, MAG & FIZZELL, P.C.
100 SOUTH FOURTH STREET, SUITE 700
ST. LOUIS, MISSOURI 63102
================================================================================
CALCULATION OF REGISTRATION FEE
Title of Amount to Proposed maximum Proposed maximum Amount of
securities be registered offering price per share aggregate offering registration
to be registered (1) (2) price (2) fee (3)
---------------- --- --- --------- -------
Common Stock 350,000 $26.16 $9,156,000 $2,289.00
$0.01 par value
per share
(1) Represents estimated number of additional shares to be acquired in the
foreseeable future by employees of the registrant under the North Fork
Bancorporation, Inc. 401(k) Retirement Savings Plan. The registrant
previously filed with the Commission on September 28, 1992, a
Registration Statement on Form S-8 (Reg. No. 33-52504), and on February
2, 1996, a Registration Statement on Form S-8 (Reg. No. 333-00675),
relating to securities offered under the plan.
(2) Estimated solely for the purpose of calculating the registration fee.
Such estimate has been calculated in accordance with Rule 457(h) under
the Securities Act of 1933 and is based upon the average of the high
and low prices per share of the registrant's Common Stock as reported
by the New York Stock Exchange on September 17, 2001.
(3) The registration fee has been calculated pursuant to Section 6(b) of
the Securities Act of 1933 as follows: 0.025% of $9,156,000, the
Proposed Maximum Aggregate Offering Price of the shares registered
hereby.
2
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The information specified by Item 1 and Item 2 of Part I of Form S-8 is
omitted from this filing in accordance with the provisions of Rule 428 under the
Securities Act of 1933 and the introductory note to Part I of Form S-8. The
documents containing the information specified in Part I will be delivered to
the participants in the plan covered by this registration statement as required
by Rule 428(b).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
The Registrant previously filed with the Securities and Exchange
Commission (the "Commission") on September 28, 1992 and February 2, 1996,
Registration Statements on Form S-8 (Registration Nos. 33-52504 and 333-00675,
respectively) relating to securities offered under the North Fork
Bancorporation, Inc. 401(k) Retirement Savings Plan. The contents of such
previously filed Registration Statements on Form S-8, including exhibits
thereto, are incorporated herein by reference, except to the extent superseded
or modified by the specific information set forth below or the specific exhibits
attached hereto.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, filed by the Registrant or the Plan with the
Commission, are incorporated herein by reference:
(a) The Registrant's latest annual report on Form 10-K filed pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act");
(b) All other reports filed by the Registrant pursuant to Section 13 or
15(d) of the Exchange Act since the end of the fiscal year covered by
the annual report referred to in (a) above; and
(c) The description of the Registrant's common stock, which is contained in
the Registration Statement filed by the Registrant under Section 12 of
the Exchange Act, including any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by the Registrant or the Plan pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing
of a post-effective amendment that indicates that all securities offered hereby
have been sold or that deregisters all such securities then remaining unsold,
shall be deemed to be incorporated by reference in this Registration Statement
and to be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated by reference herein
and filed prior to the filing hereof shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein modifies or supersedes such statement, and any
statement contained herein or in any other document incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained in any other
subsequently filed document which also is incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
1
3
ITEM 8. EXHIBITS.
The following additional exhibits are filed as part of this
Registration Statement or incorporated by reference herein.
Exhibit Description
------- -----------
4 North Fork Bancorporation, Inc. 401(k) Retirement Savings Plan, as
amended.
5 Opinion of Stinson, Mag & Fizzell, P.C.
23.1 Consent of KPMG LLP, Independent Certified Public Accountants.
23.2 Consent of Stinson, Mag & Fizzell, P.C. (included in Exhibit 5.1).
24 Power of Attorney (included on signature page of the Registration
Statement).
2
4
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized in the City of Melville, State of New York, on August 28, 2001.
NORTH FORK BANCORPORATION, INC.
By: /s/ John Adam Kanas
-----------------------------
John Adam Kanas
Chairman, President and
Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of North Fork
Bancorporation, Inc. hereby severally and individually constitute and appoint
John Adam Kanas and Daniel M. Healy and each of them, the true and lawful
attorneys and agents of each of us to execute in the name, place and stead of
each of us (individually and in any capacity stated below) any and all
amendments to this Registration Statement on Form S-8 and all instruments
necessary or advisable in connection therewith and to file the same with the
Securities and Exchange Commission, each of said attorneys and agents to have
the power to act with or without the other and to have full power and authority
to do and perform in the name and on behalf of each of the undersigned every act
whatsoever necessary or advisable to be done in the premises as fully and to all
intents and purposes as any of the undersigned might or could do in person, and
we hereby ratify and confirm our signatures as they may be signed by our said
attorneys and agents and each of them to any and all such amendments and
instruments.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
NAME TITLE DATE
---- ----- ----
/s/ John Adam Kanas President, Chief Executive August 28, 2001
-----------------------------
John Adam Kanas Officer and Chairman of the Board
(Principal Executive Officer)
/s/ Daniel M. Healy Executive Vice President, Chief August 28, 2001
-----------------------------
Daniel M. Healy Financial Officer and Director
(Principal Financial and
Accounting Officer)
/s/ John Bohlsen Director August 28, 2001
----------------------------------
John Bohlsen
/s/ Irvin L. Cherashore Director August 28, 2001
----------------------------------
Irvin L. Cherashore
/s/ Allan C. Dickerson Director August 28, 2001
----------------------------------
Allan C. Dickerson
/s/ Lloyd A. Gerard Director August 28, 2001
-----------------------------
Lloyd A. Gerard
5
/s/ Raymond A. Nielsen Director August 28, 2001
----------------------------------
Raymond A. Nielsen
/s/ James F. Reeve Director August 28, 2001
-----------------------------
James F. Reeve
/s/ George H. Rowsom Director August 28, 2001
-----------------------------
George H. Rowsom
/s/ Dr. Kurt R. Schmeller Director August 28, 2001
----------------------------------
Dr. Kurt R. Schmeller
/s/ Raymond W. Terry, Jr. Director August 28, 2001
----------------------------------
Raymond W. Terry, Jr.
6
FORM S-8
NORTH FORK BANCORPORATION, INC.
EXHIBIT INDEX
Exhibit
Number Description
------ -----------
4 North Fork Bancorporation, Inc. 401(k) Retirement Savings Plan,
as amended.
5 Opinion of Stinson, Mag & Fizzell, P.C.
23.1 Consent of KPMG LLP, Independent Certified Public Accountants.
23.2 Consent of Stinson, Mag & Fizzell, P.C. (included in Exhibit
5.1).
24 Power of Attorney (included on signature page of the Registration
Statement).
EX-4
3
y53362ex4.txt
NFB, INC. 401(K) RETIREMENT SAVINGS PLAN, AS AMEND
1
NORTH FORK BANCORPORATION, INC.
401(k) RETIREMENT SAVINGS PLAN
AMENDED AND RESTATED AS OF
JANUARY 1, 1997
2
NORTH FORK BANCORPORATION
401(k) RETIREMENT SAVINGS PLAN
CONTENTS
Page
ARTICLE I DEFINITIONS............................................................ 1
ARTICLE II ELIGIBILITY AND PARTICIPATION.......................................... 9
ARTICLE III BEFORE-TAX CONTRIBUTIONS............................................... 12
ARTICLE IV BANK MATCHING CONTRIBUTIONS............................................ 22
ARTICLE V ADMINISTRATION OF FUNDS................................................ 29
ARTICLE VI VESTING OF ACCOUNTS.................................................... 31
ARTICLE VII OPERATION OF THE TRUST FUND............................................ 36
ARTICLE VIII VOTING RIGHTS.......................................................... 37
ARTICLE IX WITHDRAWALS AND LOANS
DURING EMPLOYMENT...................................................... 40
ARTICLE X ROLLOVERS TO THE PLAN.................................................. 46
ARTICLE XI DISTRIBUTIONS UPON TERMINATION
OF EMPLOYMENT.......................................................... 48
ARTICLE XII ADMINISTRATION OF THE PLAN............................................. 54
ARTICLE XIII ADOPTION, AMENDMENT, TERMINATION
AND MERGER............................................................. 62
ARTICLE XIV LIMITATIONS ON BENEFITS AND CONTRIBUTIONS.............................. 65
ARTICLE XV TOP HEAVY PLAN YEARS................................................... 72
ARTICLE XVI MISCELLANEOUS.......................................................... 79
ARTICLE XVII SPECIAL RULES FOR TRANSFERRED ACCOUNTS................................. 82
3
FOREWORD
North Fork Bancorporation, Inc. has established the North Fork Bancorporation,
Inc. 401(k) Retirement Savings Plan ("the Plan"), effective as of October 1,
1992, to enable eligible employees to defer a part of their current income to
provide for their retirement, death or disability. The purpose of the Plan is to
afford tax-favorable treatment to such deferrals and the Plan is to be construed
in a manner consistent with the provisions of Sections 401(a), 401(k) and 401(m)
of the Internal Revenue Code and Treasury Regulations thereunder.
Effective January 1, 1997, North Fork Bancorporation, Inc. has amended and
restated the Plan. This amended and restated Plan includes eight amendments to
the Plan adopted by the Board of Directors and effective between January 1, 1994
and December 31, 1996. This Plan document is effective for Participants who have
an Hour of Service with North Fork Bancorporation, Inc. on or after January 1,
1997. For Participants who terminated employment on or before December 31, 1996,
their benefits and rights under the Plan shall be determined under the Plan
(including all amendments) in effect on their date of termination.
4
ARTICLE I
DEFINITIONS
As used herein, unless otherwise defined or required by the context, the
following words and phrases shall have the meanings indicated. Some of the words
and phrases used in the Plan are not defined in this Article I, but, for
convenience, are defined as they are introduced into the text.
1.1 "Account" means a Participant's (a) Before-tax Contribution Account,
(b) Company Matching Contribution Account, (c) Rollover Account, (d)
Qualified Nonelective Contribution Account or (d) any or all of such
Accounts.
1.2 "Appropriate Form" means the form prescribed by the Committee for a
particular purpose.
1.3 "Bank" means North Fork Bancorporation, Inc.
1.4 "Bank Matching Contributions" means the Employer contributions made to
the Trust Fund pursuant to Article IV.
1.5 "Bank Matching Contribution Account" means the separate Account
maintained for a Participant to record the Participant's share of the
Trust Fund attributable to Company Matching Contributions made on the
Participant's behalf.
1.6 "Bank Stock" means the Class A common stock of North Fork
Bancorporation, Inc.
1.7 "Before-tax Contributions" means contributions made by an Employer
pursuant to an election by the Participant to reduce the cash
Compensation otherwise currently payable by an equivalent amount, in
accordance with the provisions of Section 3.1.
- 1 -
5
1.8 "Before-tax Contribution Account" means the separate Account maintained
for a Participant to record the Participant's share of the Trust Fund
attributable to Before-tax Contributions made on the Participant's
behalf.
1.9 "Beneficiary" means the person or persons so designated in accordance
with Section 2.5 to receive benefits payable under the Plan as a result
of the Participant's death.
1.10 "Board" or "Board of Directors" means the Board of Directors of the
Bank.
1.11 "Break in Service" means a Plan Year during which an Employee does not
complete more than 500 Hours of Service.
1.12 "Code" means the Internal Revenue Code of 1986, as amended from time to
time.
1.13 "Committee" means the committee constituted to administer the Plan in
accordance with Section 12.1. The members of the Committee shall
constitute "named fiduciaries" for the purposes of Section 402(a)(1) of
ERISA, responsible for administration, operation and interpretation of
the Plan.
1.14 "Compensation" means, with respect to any Participant, such
Participant's basic salary and wages, but excluding overtime and
bonuses and increased by the amount of any Before-tax Contributions
made to the Plan on the Participant's behalf and any amount by which
the Employee's current pay is reduced pursuant to the Employee's
election of benefits or coverage under a "cafeteria" plan as described
in Section 125 of the Code. Notwithstanding the foregoing, Compensation
in a Plan Year in excess of $150,000, as adjusted by the Commissioner
for increases in the cost of living as provided in Section
401(a)(17)(B) of the Code and the regulations thereunder, shall be
disregarded for all purposes under the Plan. If the period for
determining compensation used in calculating a Participant's allocation
for a determination period is a Plan Year shorter than 12 months, the
annual Compensations limit is an amount equal to the otherwise
applicable Compensation limit multiplied by a fraction, the numerator
of which is the number of months in the short Plan Year and the
denominator of which is 12.
- 2 -
6
Compensation shall mean W-2 compensation for Compass Account Executives
and Senior Account Executives who are licensed with the National
Association of Security Dealers and/or the New York State Insurance
Department to sell or assist in the sales of Alternative Investment
Products, as defined by the Inter-Agency Guidelines for non-deposit
investment products.
1.15 "Controlled Group" means any corporation or unincorporated business
controlled by, or under common control with, an Employer within the
meaning of Sections 414(b), (c) and (o) of the Code and any organization
which is a member of an affiliated service group within the meaning of
Section 414(m) of the Code that includes an Employer provided, however
that for purposes of the limitations upon benefits contained in Article
XIV, "Controlled Group" status shall be determined in accordance with
section of 415(h) or the Code. A corporation or unincorporated business
shall not be deemed part of the Controlled Group for any purpose under
the Plan with respect to any period before it became part of the
Controlled Group.
1.16 "Deferred Retirement Date" means the first day of the month following
the later of the Participant's Normal Retirement Date and his or her
actual retirement date.
1.17 "Disability" means the total and permanent disability that qualifies
the Participant to receive disability benefits under the Federal Social
Security Act.
1.18 "Disability Retirement Date" means the first of the month coincident
with or next following the date the Participant is deemed to have a
Disability.
1.19 "Early Retirement Date" means the first day in any month after the
Participant has attained age 55.
1.20 "Effective Date" means October 1, 1992.
- 3 -
7
1.21 "Employee" means an individual described in Section 3121(d)(1) or (2)
of the Code who is employed by an Employer or any member of the
Controlled Group.
1.22 "Employer" means the Bank and any member of the Controlled Group which
with the consent of the Board of Directors, has adopted the Plan as a
participant herein and any successors to such Employer.
1.23 "Employment Commencement Date" means:
(a) the first day in respect of which an Employee receives
compensation from an Employer or any member of the Controlled
Group for the performance of services;
(b) in the case of an Employee who has incurred a Termination of
Employment the first day, after such Termination of
Employment, he receives Compensation from any Employer or any
member of the Controlled Group for the performance of
services.
1.24 "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
1.25 "Highly Compensated Employee" shall mean with respect to each Plan Year
an Employee who, at any time during the Plan Year being tested (the
"determination year") or the twelve-month period immediately preceding
the determination year (the "look-back year") (i) was a 5% owner (as
defined in Section 416(i)(1) of the Code) with respect to the Employer
or any member of the Controlled Group (a "5 percent owner"), (ii)
earned more than $50,000 of Section 414(q) compensation (as defined in
Section 414(q)(7) of the Code ("Section 414(q) Compensation")) and was
among the "top-paid group" (as defined in Section 414(q)(4) of the
Code), (iii) earned more than $75,000 of Section 414(q) Compensation,
or (iv) was an officer who earned more than $45,000 of Section 414(q)
Compensation (or, if greater, 50% of the defined benefit plan dollar
limit in effect under Section 415(b)(1)(A) of the Code with respect to
such year). The $50,000 and $75,000 amounts are to be indexed at the
same time and in
- 4 -
8
the same manner as is the dollar limit applicable to defined benefit
plans under Section 415 of the Code.
Notwithstanding the provisions of the foregoing paragraph,
(a) In the case of the determination year for which an Employee is
being tested, an Employee not described in Subparagraph (ii),
(iii) or (iv) above for the look-back year (without regard to
this subparagraph (a)) shall not be treated as being described
in subparagraph (ii), (iii) or (iv) above for the
determination year unless such employee is a member of the
group consisting of the 100 employees paid the greatest
Section 414(q) Compensation during the determination year; and
(b) A former employee shall be treated as a Highly Compensated
Employee if (i) such employee was a Highly Compensated
Employee when such employee separated from service, or (ii)
such employee was a Highly Compensated Employee at any time
after attaining age 55.
If no officer has satisfied the compensation requirements of subsection
(iv) of this Section 1.25 during either a determination year or
look-back year, the highest paid officer for such year shall be treated
as a Highly Compensated Employee.
Notwithstanding any other provision of this Plan, the above
determination of a Highly Compensated Employee shall, at the election
of the Bank, be determined in accordance with the simplified method
described in Section 414(q)(12) of the Code.
Included in consideration when determining who are Highly Compensated
Employees are all Employees employed by an Employer or any member of
the Controlled Group.
The determination of who is a Highly Compensated Employee, including
the determinations of the number and identity of Employees in the
top-paid group, the 100 Employees and the number of Employees treated
as officers will be made in accordance with Section 414(q) of the Code
and the regulations thereunder.
- 5 -
9
Notwithstanding any provision herein to the contrary, an Employer may
elect to make the look-back year calculation for a determination year
on the basis of the calendar year ending with or within the applicable
determination year (or, in the case of a determination year that is
shorter than twelve months, the calendar year ending with or within the
twelve-month period, ending with the end of the applicable
determination year). This election shall be made in accordance with
Temporary Treasury Regulation Section 1.414(q)-1T, Q&A-14(b).
1.26 "Hour of Service" means (i) each hour for which a person is paid or
entitled to payment for the performance of duties with an Employer or
any member of the Controlled Group or other entity required to be
aggregated with the Employer pursuant to Section 414(o) of the Code,
(ii) each hour for which a person is paid, or entitled to payment, on
account of a period of time during which no duties are performed with
an Employer or any member of the Controlled Group irrespective of
whether the employment relationship has terminated due to vacation,
holiday, illness, incapacity (including disability), layoff, jury duty,
military duty or leave of absence and (iii) each hour for which back
pay, irrespective of mitigation of damages, has either been awarded or
agreed to by the Employer or any member of the Controlled Group.
A person who is compensated for a period during which no services are
performed for the Employer shall be credited with such number of Hours
of Service as are required to be so credited pursuant to the provisions
of 29 CFR Section 2530.200b-2(b). Hours of Service which are credited
to a person pursuant to this Section shall be credited to the
computation period described in 29 CFR Section 2530.200b-2(c).
Solely for purposes of determining whether a Break in Service has
occurred, an individual who is absent from work for maternity or
paternity reasons shall receive credit for the Hours of Service which
would otherwise have been credited to such individual but for such
absence, or in any case in which such hours cannot be determined, eight
(8) Hours of Service per day of such absence. Such hours shall not
exceed 500. For purposes of this paragraph, an absence from work for
maternity or
- 6 -
10
paternity reasons means an absence (i) by reason of the pregnancy of
the individual, (ii) by reason of a birth of a child of the individual,
(iii) by reason of the placement of a child with the individual in
connection with the adoption of such child by such individual, or (iv)
for purposes of caring for such child for a period beginning
immediately following such birth or placement. The Hours of Service
credited under this paragraph shall be credited in the Plan Year in
which the absence begins if the crediting is necessary to prevent a
Break in Service in that period, or in all other cases, in the
following Plan Year.
1.27 "Leased Employee" means any person as set forth in Section 414(n)(2) of
the Code.
1.28 "Normal Retirement Age" means the 65th birthday of the Participant.
1.29 "Normal Retirement Date" means the first of the month coincident with
or next following the date the Participant attains Normal Retirement
Age.
1.30 "Participant" means an Employee who has become a participant of the
Plan in accordance with Article II and whose participation has not
terminated pursuant to such Article.
1.31 "Plan" means the North Fork Bancorporation 401(k) Retirement Savings
Plan as set forth herein or as amended from time to time thereafter.
1.32 "Plan Year" means the calendar year provided, however, that the first
Plan Year shall be a short Plan Year beginning on the Effective Date
(October 1, 1992) and ending on December 31, 1992.
1.33 "Qualified Nonelective Contributions" means contributions made by the
Bank, in its sole discretion, in order to correct excess Before-tax
Contributions, pursuant to Section 3.4 herein.
- 7 -
11
1.34 "Rollover Account" means the separate Account maintained for a
Participant to record the Participant's share of the Trust Fund
attributable to contributions as described in Section 10.1 of the Plan.
1.35 "Termination of Employment" means the date on which an Employee ceases
to be employed by an Employer or a member of the Controlled Group for
any reason; provided, however, that no Termination of Employment shall
occur if an Employee is transferred from the employ of one Employer or
member of the Controlled Group to another Employer or member of the
Controlled Group.
1.36 "Transaction Date" means each business day of the Plan Year.
1.37 "Trustee" means the individual or individuals or entity or entities
appointed from time to time by the Board to administer the Trust Fund
in accordance with Section 7.1.
1.38 "Trust Agreement" means the agreement entered into between the Bank and
the Trustee, as provided for in Section 7.1, as the same may be amended
from time to time.
1.39 "Trust Fund" means the trust fund established in accordance with
Section 7.1 from which benefits provided under this Plan will be paid.
1.40 "Valuation Date" means the close of each business day.
1.41 "Year of Service" means the period of 12 consecutive months measured
from the Participant's Employment Date and each Plan Year (commencing
with the Plan Year following the Plan Year in which such Employment
Date occurs) during which an Employee completes at least one thousand
(1,000) Hours of Service.
1.42 "Year of Vesting Service" means a Plan Year after the Effective Date in
which an Employee completes at least one thousand (1,000) Hours of
Service. Employees who complete two hundred-fifty (250) Hours of
Service in the Short Plan Year beginning on the Effective Date shall be
credited with one Year of Vesting Service.
- 8 -
12
ARTICLE II
ELIGIBILITY AND PARTICIPATION
2.1 Eligibility:
(a) Each Employee age 21 or over who was a Participant on December
31, 1996 shall continue to participate in the Plan on January
1, 1997.
(b) Each other Employee shall become eligible to participate on
the first day of the month coincident with or next following
his completion of one Year of Service and attainment of age
21.
2.2 Participation:
An Employee who satisfies the eligibility requirements of Section 2.1
who wants to participate in the Plan shall complete the Appropriate
Form and submit it to the Committee pursuant to Section 3.1. Deferrals
of Compensation shall commence as soon as administratively feasible. An
Employee shall become a Participant as soon as deferrals of such
Employee's Compensation shall commence under the Plan.
2.3 Cessation of Participation:
A Participant shall cease to be a Participant as of the date of his
Termination of Employment; provided, however, an individual who is no
longer an Employee but for whom an Account is maintained under the Plan
shall continue to be a Participant for all purposes of the Plan except
Sections 3.1, 3.3, 4.1, 9.1, 9.2, 10.1 and as otherwise specifically
set forth in the Plan.
2.4 A former Participant who is re-employed by an Employer shall again
become eligible to participate as of his most recent Employment
Commencement Date and shall complete the Appropriate Form and submit it
to the Committee pursuant to Section 3.1.
- 9 -
13
2.5 Beneficiary Designation:
Each Participant shall designate a Beneficiary on the Appropriate Form
provided by the Committee. The designated Beneficiary may be one or
more individuals or an estate or trust; provided, however, that if the
Participant is married at the time of death, the surviving spouse shall
automatically be the sole Beneficiary unless the spouse had consented,
in writing, to a designation of a different Beneficiary. Such consent
must be witnessed by a notary public and must acknowledge the effect of
the designation. Any such consent shall be irrevocable with respect to
the Beneficiary so designated. If more than one individual or trust is
named, the Participant shall indicate the shares and/or precedence of
each individual or trust so named. Any Beneficiary so designated may be
changed by the Participant at any time (subject to the spouse's
consent, if applicable) by signing and filing the Appropriate Form with
the Committee.
In the event that no Beneficiary had been designated or that no
designated Beneficiary survives the Participant, the following
Beneficiaries (if then living) shall be deemed to have been designated
in the following priority: (1) spouse, (2) children, including adopted
children, in equal shares, per stirpes, (3) parents, in equal shares,
(4) the person(s) designated as beneficiary under any group life
insurance maintained by the Employer, and (5) the Participant's estate.
2.6 Former employees of Bayside Federal Savings Bank whose employment with
North Fork Bank began between July 1, 1994 and December 1, 1994 shall
be eligible to participate in the Plan on December 1, 1994 and shall
receive service credit from their date of employment with Bayside
Federal Savings Bank for purposes of eligibility in the Plan.
- 10 -
14
2.7 Former employees of Eastern Federal Savings and Loan Association
employed by Bayside Federal Savings Bank on January 1, 1992 and
subsequently employed by North Fork Bank between July 1, 1994 and
December 1, 1994 shall be eligible to participate in the Plan on
December 1, 1994 and shall receive service credit from their date of
employment with Eastern Federal Savings and Loan Association for
purposes of eligibility in the Plan.
2.8 Former employees of The Bank of Great Neck employed by The Bank of
Great Neck on June 30, 1995 and subsequently employed by North Fork
Bank on July 1, 1995 shall be eligible to participate in the Plan on
July 1, 1995 and shall receive service credit from their date of
employment with The Bank of Great Neck for purposes of eligibility in
the Plan.
2.9 Former employees of Extebank whose employment with North Fork Bank
began between November 1, 1995 and March 15, 1996 shall be eligible to
participate in the Plan April 1, 1996 and shall receive service credit
from their date of employment with Extebank for purposes of eligibility
in the Plan.
2.10 Former employees of the ten Long Island branches of First Nationwide
Bank whose employment with North Fork Bank began on March 22, 1996
shall be eligible to participate in the Plan on April 1, 1996 and shall
receive service credit from their date of employment with First
Nationwide Bank for purposes of eligibility in the Plan.
2.11 Former employees of North Side Savings Bank who are eligible to
participate in the North Side Savings Bank 401(k) Savings Plan on
December 31, 1996, and are subsequently employed by North Fork Bank on
January 1, 1997, shall be eligible to participate in the Plan on
January 1, 1997 and shall receive service credit from their date of
employment with North Side Savings Bank for purposes of eligibility in
the Plan.
- 11 -
15
ARTICLE III
BEFORE-TAX CONTRIBUTIONS
3.1 Before-tax Contributions:
(a) Each Employee who is eligible to participate in the Plan may
elect to reduce his Compensation for each payroll period by an
amount, in any whole percentages of 1% to 12% of his
Compensation for such period and direct his Employer to
contribute such amount to the Plan in cash as a Before-tax
Contribution. A Participant's Before-tax Contribution shall be
credited to his Before-tax Contribution Account.
(b) An election by an Employee pursuant to this Section 3.1 shall
be made in writing on an Appropriate Form, no later than
thirty (30) days (or such lesser number of days as is
acceptable to the Committee) prior to the date he or she
becomes eligible to participate in the Plan. The Participant
shall specify on the Appropriate Form, the percentage of his
Compensation to be deducted each payroll period and
contributed to the Plan as a Before-tax Contribution.
3.2 Limitation on Before-tax Contributions:
Notwithstanding any provision in the Plan to the contrary, in no event
shall the aggregate of Before-tax Contributions (and such other
"elective deferrals", as defined in Section 402(g)(3) of the Code and
Treasury Regulation Section 1.402(g)-1(b)) made on a Participant's
behalf with respect to any year of the Participant exceed $7,000 (or
such higher dollar limit as may be in effect with respect to such year
in accordance with Section 402(g)(5) of the Code and Treasury
Regulation Section 1.402(g)-1(d) (hereinafter referred to as the
"applicable dollar limit")). Any amount in excess of the "applicable
dollar limit" shall be distributed in accordance with Section 3.6 of
this Plan.
- 12 -
16
3.3 Change in Contribution Rate:
(a) A Participant may elect to increase (but not if completely
suspended) or decrease (but not completely suspend) the amount
contributed to the Plan, within the limits specified in
Sections 3.1, as of any January 1, April 1, July 1 or October
1 or any such date authorized by the Committee for the benefit
of Plan Participant, by giving written notice on the
Appropriate Form to the Committee at least thirty (30) days
before such Transaction Date (or such lesser period as the
Committee may prescribe).
(b) A Participant may elect to completely suspend the amount
contributed to the Plan, as of any date by giving written
notice on the Appropriate Form to the Committee at least
thirty (30) days before such date (or such lesser period as
the Committee may prescribe).
(c) A Participant (other than a Participant on an Authorized Leave
as defined below) who elected to completely suspend his
Before-tax Contributions may not elect to resume such
contributions for one year after the Participant elected to
suspend such contributions. Such a Participant may elect to
resume contributions to the Plan by giving written notice on
the Appropriate Form to the Committee at least thirty (30)
days before such date (or such lesser period as the Committee
may prescribe).
(d) A Participant on an Authorized Leave (as defined below) or who
returns from an Authorized Leave may resume his Before-tax
Contributions.
(e) For purposes of this Section 3.3, an Authorized Leave means
any leave of absence authorized by the Committee, including,
but not limited to, a leave of absence because of disability,
layoff, or maternity, which results in a reduction in (but not
an elimination of) the Participant's Compensation.
(f) Contribution rate changes also may be made at such times as
are necessary to comply with the provisions of Section 3.2,
Section 3.4 or Section 4.2.
- 13 -
17
3.4 Limitations on Before-tax Contributions:
Notwithstanding the foregoing provisions of this Article III, the
Committee shall limit the amount of Before-tax Contributions made on
behalf of each Highly Compensated Employee for each Plan Year to the
extent necessary to ensure that either of the following tests is
satisfied:
(a) the "Actual Deferral Percentage" (as hereinafter defined) for
the group of Highly Compensated Employees who are eligible to
participate in the Plan is not more than the Actual Deferral
Percentage of all other Employees who are eligible to
participate in the Plan multiplied by 1.25; or
(b) the excess of the Actual Deferral Percentage for the group of
Highly Compensated Employees who are eligible to participate
in the Plan over that of all other Employees who are eligible
to participate in the Plan is not more than two percentage
points, and the Actual Deferral Percentage for the group of
Highly Compensated Employees eligible to participate in the
Plan is not more than the Actual Deferral Percentage of all
other Employees eligible to participate in the Plan multiplied
by 2.0.
For purposes of this Section 3.4, the term "Actual Deferral Percentage"
shall mean, for a specified group of Employees (or any Employee)
eligible to participate in the Plan for a Plan Year (as determined
pursuant to Treasury Regulation Section 1.401(k)-1(g)(4)), the average
of the ratios (or the ratio) calculated to the nearest one-hundredth of
a percentage point (calculated separately for each person in such group
and to the nearest one-hundredth of a percentage point) of
(a) the aggregate of the Before-tax Contributions which, in
accordance with the rules set forth in Treasury Regulation
Section 1.401(k)-1(b)(4), are taken into account with respect
to such Plan Year, to
- 14 -
18
(b) such employee's "Section 414(s) compensation" (as determined
under Section 414(s) of the Code and the regulations
thereunder) for such Plan Year. For this purpose, Section
414(s) compensation shall mean compensation as described under
Section 415(c)(3) of the Code and the regulations thereunder,
and shall also include all amounts currently not included in
the Employee's gross income by reason of Sections 125 and
402(a)(8) of the Code. Compensation shall be limited to that
portion of the Plan Year in which the Employee was an eligible
Employee (as determined pursuant to Treasury Regulation
Section 1.401(k)-1(g)(4)).
The Actual Deferral Percentage for any Employee who is a Highly
Compensated Employee for the Plan Year and who is eligible to have
Before-tax Contributions made on his behalf under two or more
arrangements described in Section 401(k) of the Code that are
maintained by an Employer or any member of the Controlled Group shall
be determined as if such Before-tax Contributions were made under a
single arrangement.
If the Plan is permissibly aggregated or is required to be aggregated
with other plans, as provided under Treasury Regulation Section
1.401(k)-1(b)(3) for purposes of determining whether or not such plans
satisfy Section 410(b) of the Code (other than for purposes of the
average benefit percentage test), then the provisions of this Section
3.4 shall be applied by determining the Actual Deferral Percentage of
eligible Employees as if all such plans were a single plan. A plan may
not be aggregated with another plan having a different plan year.
If the Plan covers both Employees who are included in a unit of
employees covered by a collective bargaining agreement and Employees
who are not so covered it must be treated as two separate plans (one
for each group of eligible Employees) for purposes of Section 401(k) of
the Code.
In determining the Actual Deferral Percentage for a Plan Year for a
Participant who is a Highly Compensated Employee, the Before-tax
Contributions and Section 414(s)
- 15 -
19
compensation of such Participant shall to the extent required under
Treasury Regulation Section 1.401(k)-1(g)(1), include the Before-tax
Contributions and Section 414(s) compensation of any individual who is
a "Family Member" (as hereinafter defined) and such Family Members
shall be disregarded as separate Employees in determining the Actual
Deferral Percentage both for Participants who are Highly Compensated
Employees and for all other eligible Employees. A Family Member for
this purpose means, with respect to any Employee described in Section
414(q)(6)(A) of the Code, a family member of such individual as
described in Section 414(q)(6)(B) of the Code.
Solely for the purpose of this Section 3.4, the term "Before-tax
Contributions" shall, to the extent elected by the Committee in
accordance with applicable law, include such other contributions which,
in accordance with Treasury Regulation Section 1.401(k)-1(b)(5), may be
aggregated with such Before-tax Contributions for purposes of
demonstrating compliance with the requirements of Section 401(k)(3) of
the Code.
In the event it is determined prior to any payroll period that the
amount of Before-tax Contributions elected to be made thereafter would
cause the limitation prescribed in this Section 3.4 to be exceeded, the
amount of Before-tax Contributions allowed to be made on behalf of
Highly Compensated Employees (and/or such other Participants as the
Committee may prescribe) may be reduced, notwithstanding the
limitations on contribution rate changes in Section 3.3. Except as is
hereinafter provided, the Participants to whom such reduction is
applicable and the amount of such reduction shall be determined
pursuant to such uniform and nondiscriminatory rules as the Committee
shall prescribe.
Notwithstanding the foregoing paragraph, with respect to any Plan Year
in which Before-tax Contributions on behalf of Highly Compensated
Employees exceed the applicable limit set forth in this Section 3.4,
the Committee shall reduce the amount of the excess Before-tax
Contributions made on behalf of the Highly Compensated Employees by
reducing such excess Before-tax Contributions (along with earnings)
attributable to such excess Before-tax Contributions, as determined
pursuant to
- 16 -
20
Treasury Regulation Section 1.401(k)-1(f)(4)(ii)) in accordance with
Treasury Regulations Section 1.401(k)-1(f)(2). The Committee shall
instruct the Trustee to distribute such excess Before-tax Contributions
(along with earnings (including gap period earnings) attributable to
such Before-tax Contributions as determined pursuant to Treasury
Regulation Section 1.401(k)-1(f)(4)(ii)) to the affected Highly
Compensated Employees as soon as practicable after the end of such Plan
Year, and in all events prior to the end of the next following Plan
Year. The amount of such reduction for a Highly Compensated Employee
for a Plan Year is the amount (if any) by which the Employee's
Before-tax Contributions must be reduced for the Employee's Actual
Deferral Percentage to equal the highest permitted Actual Deferral
Percentage under the Plan. To calculate the highest permitted Actual
Deferral Percentage under the Plan, the Actual Deferral Percentage of
the Highly Compensated Employee with the highest permitted Actual
Deferral Percentage is reduced by the amount required to cause the
Employees Actual Deferral Percentage to equal the Actual Deferral
Percentage of the Highly Compensated Employee with the next highest
Actual Deferral Percentage. If a lesser reduction would enable the Plan
to satisfy the Actual Deferral Percentage test, only this lesser
reduction may be made. This process must be repeated until the Plan
satisfies the Actual Deferral Percentage test. The Committee shall also
take all appropriate steps in order to meet the aggregate limitation
test contained in Section 4.3.
To the extent that excess Before-tax Contributions are refunded,
Matching Bank Contributions attributable to such excess contributions
must be forfeited as of the date of determination that such excess
exists.
Notwithstanding distributions pursuant to the foregoing provisions,
excess Before-tax Contributions shall be treated as Annual Additions
for purposes of Article XV.
- 17 -
21
If any Before-tax Contribution made on behalf of a Participant in
excess of the maximum permitted is paid to the Trustee before
discovering the fact that the amount exceeds the limitations of this
Section 3.4, such amount shall be deemed to have been contributed to
the Plan by way of a mistake of fact.
An elective contribution will be taken into account under the Actual
Deferral Percentage test of Code Section 401(k)(3)(A) for a Plan Year
only if it relates to Compensation that either would have been received
by the Employee in the Plan Year and would have been received by the
Employee within 2-1/2 months after the close of the Plan Year.
An elective contribution will be taken into account under the Actual
Deferral Percentage test for a Plan Year only if it is allocated to the
Employee as of a date within the Plan Year. For this purpose, an
elective contribution is considered allocated as of a date within a
Plan Year if the allocation is not contingent on participation or
performance of services after such date and the elective contribution
is actually paid to the Trust no later than 12 months after the Plan
Year to which the contribution relates.
3.5 Qualified Nonelective Contributions:
Notwithstanding anything to the contrary herein, for any Plan Year in
which Before-tax Contributions on behalf of Highly Compensated
Employees exceed the applicable limit set forth in Section 3.4, the
Bank, in its sole discretion, may make Qualified Nonelective
Contributions to the accounts of active non-Highly Compensated
Employees. Any such contributions shall be allocated, as of the last
day of the Plan Year to the Qualified Nonelective Contribution Accounts
of such Participants as are entitled thereto, in the same ratio as each
such Participant's Compensation bears to the aggregate Compensation of
all active non-Highly Compensated Employees. Qualified Nonelective
Contributions shall be nonforfeitable and subject to the same
distribution restrictions that apply to elective contributions.
3.6 Distribution of Excess Deferrals:
- 18 -
22
(a) Notwithstanding any other provision of the Plan, Excess
Before-tax Amounts (as hereinafter defined) plus any income
and minus any loss allocable thereto for both the calendar
year and the period between the end of the calendar year and
the date the distribution is made, as determined pursuant to
Treasury Regulation Section 1.402(g)-1(e)(5)(iii), shall be
distributed no later than each April 15, to Participants who
claim such allocable Excess Before-tax Amounts for the
preceding calendar year.
(b) For purposes of this Section 3.5, "Excess Before-tax Amount"
shall mean the amount of a Participant's Before-tax
Contributions (and other "elective deferrals" within the
meaning of Section 402(g)(3)(A) of the Code) for a calendar
year that the Participant allocates to this Plan pursuant to
the claim procedure set forth in subsection 3.5(c) of this
Plan.
(c) The Participant's claim shall be in writing; shall be
submitted to the Committee no later than March 1 of the
calendar year following the calendar year that the Excess
Before-tax Amount occurred; shall specify the Participant's
Excess Before-tax Amount for the preceding calendar year; and
shall be accompanied by the Participant's written statement
that if such amounts are not distributed, such Excess
Before-tax Amount, when added to amounts deferred under other
plans or arrangements described in Section 401(k), 408(k),
403(b), or 501(c)(18) of the Code, exceeds the limit imposed
on the Participant in accordance with the applicable
provisions of the Code for the year in which the deferral of
the Excess Before-tax Amount occurred.
Excess Before-tax Amounts are not to be disregarded for the
purposes of applying the requirements of Code Section
401(a)(4) and 401(k)(3) to the Plan merely because they are
Excess Before-tax Amounts or are distributed. Notwithstanding
the foregoing, Excess Before-tax Amounts by Non-Highly
Compensated Employees are not to be taken into account under
Code Section
- 19 -
23
401(k)(3) to the extent such deferrals are prohibited under
Section 401(a)(30) of the Code.
Excess Before-tax Amounts are treated as Employer
contributions for purposes of Section 415 of the Code unless
distributed pursuant to this Section 3.5 of the Plan.
3.7 Distribution Requirements Applicable to Before-tax Contributions:
Before-tax Contributions and Qualified Nonelective Contributions and
the income allocable thereto shall in no event be distributed to a
Participant or Beneficiary, as the case may be, earlier than such
Participant's retirement, death, Disability, termination of employment,
or upon the occurrence of one of the following events:
(a) Termination of the Plan without the establishment or
maintenance of another defined contribution plan (other than
an employee stock ownership plan as defined in Section
4975(e)(7) of the Code).
(b) The disposition by an Employer to an unrelated corporation of
substantially all of the assets (within the meaning of Section
409(d)(2) of the Code) used in a trade or business of an
Employer, but only with respect to Employees who continue
employment with the corporation acquiring such assets,
provided that the Employer continues to maintain the Plan
after the disposition.
(c) The disposition by an Employer to an unrelated entity of such
Employer's interest in a subsidiary (within the meaning of
Section 409(d)(3) of the Code), but only with respect to
Employees who continue employment with such subsidiary,
provided that the Employer continues to maintain the Plan
after the disposition.
(d) A hardship distribution, as described in Section 9.1 of the
Plan.
- 20 -
24
With respect to a distribution to a Participant on account of an event
described in subparagraphs (a), (b), or (c) above, such distribution
shall be paid in the form of a lump sum (as defined in Section
402(e)(4) of the Code, without regard to clauses (i), (ii), (iii), and
(iv) of subparagraph (A), subparagraph (B), or subparagraph (H)
thereof).
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25
ARTICLE IV
BANK MATCHING CONTRIBUTIONS
4.1 Bank Matching Contributions:
The Employer shall make contributions to the Plan, with respect to the
1992 Plan Year, on behalf of each Participant, equal to seventy-five
percent (75%) of the Participant's first six percent (6%) of Before-tax
Contributions, with respect to such Plan Year. With respect to any other
Plan Year, the Employer shall make contributions to the Plan based on
Bank profits.
The Employer may designate the Bank Matching Contributions described
above as "qualified matching contributions" (to the extent permitted
under Treasury Regulation Section 1.401(k)-1(g)(13)) on behalf of
Participants.
Any other provision of the Plan notwithstanding, in no event shall the
Bank Matching Contribution for any Plan Year exceed the amount deductible
for such Plan Year for income tax purposes as a contribution to the Trust
Fund under Section 404 of the Code.
Bank Matching Contributions, for any Plan Year, shall be made at the end
of each calendar quarter to Participants who are employed on that date.
Participants who retire, die or leave employment due to a Disability
during a calendar quarter shall receive Bank Matching Contributions
regardless of whether they are employed on the last day of such calendar
quarter.
4.2 Limitations on Bank Matching Contributions:
Notwithstanding the foregoing provisions of Article III and this Article
IV, the Committee shall limit the amount of Bank Matching Contributions
made by or on behalf of each Highly Compensated Employee for each Plan
Year to the extent necessary to ensure that either of the following tests
is satisfied:
- 22 -
26
(a) the "Actual Matching Contribution Percentage" (as hereinafter
defined) for the group of Highly Compensated Employees who are
eligible to participate in the Plan is not more than the Actual
Matching Contribution Percentage of all other Employees who are
eligible to participate in the Plan multiplied by 1.25; or
(b) the excess of the Actual Matching Contribution Percentage for the
group of Highly Compensated Employees who are eligible to
participate in the Plan over that of all other Employees who are
eligible to participate in the Plan is not more than two
percentage points, and the Actual Matching Contribution Percentage
for the group of Highly Compensated Employees eligible to
participate in the Plan is not more than the Actual Matching
Contribution Percentage of all other Employees eligible to
participate in the Plan multiplied by 2.0.
For purposes of this Section 4.2, the term "Actual Matching Contribution
Percentage" shall mean, for a specified group of Employees (or any
Employee) eligible to participate (as determined pursuant to Treasury
Regulation Section 1.401(m)-1(f)(4)) in the Plan for each Plan Year, the
average of the ratios (or the ratio) calculated to the nearest
one-hundredth of a percentage point (calculated separately for each
person in such group and to the nearest one-hundredth of a percentage
point) of
(A) the aggregate of the Bank Matching Contributions which, in
accordance with the rules set forth in Treasury Regulation Section
1.401(m)-1(b)(4), are taken into account with respect to such Plan
Year, to
(B) such Employee's Section 414(s) compensation (as determined under
Section 3.4 of the Plan) for such Plan Year.
The Actual Matching Contribution Percentage for a Participant who is a
Highly Compensated Employee for the Plan Year and who is eligible to make
contributions, or to have matching employer contributions (within the
meaning of Section 401(m)(4)(A) of the Code) made on his behalf under two
or more plans described in
- 23 -
27
Section 401(a) of the Code that are maintained by an Employer or any
member of the Controlled Group, shall be determined as if the total of
such matching contributions were made under a single plan.
If the Plan is permissibly aggregated or is required to be aggregated
with other plans, as provided under Treasury Regulation Section
1.401(m)-1(b)(3) for purposes of Section 410(b) of the Code (other than
the average benefit percentage test), then the provisions of this Section
4.2 shall be applied by determining the Actual Matching Contribution
Percentage of eligible Employees as if all such plans were a single plan.
A plan may not be aggregated with another plan having a different plan
year.
If the Plan covers both Employees who are included in a unit of Employees
covered by a collective bargaining agreement and Employees who are not so
covered it must be treated as two separate plans (one for each group of
eligible Employees) for purposes of Section 401(m) of the Code.
In determining the Actual Matching Contribution Percentage of a
Participant who is a Highly Compensated Employee, Company Matching
Contributions and Section 414(s) compensation of such Participant shall,
to the extent required under Treasury Regulation Section
1.401(m)-1(f)(1), reflect the Company Matching Contributions made on
behalf of, and the Section 414(s) compensation of, any individual who is
a Family Member (as that term is defined in Section 3.4 of the Plan) and
such Family Members shall be disregarded as separate employees in
determining the Actual Matching Contribution Percentage both for
Participants who are Highly Compensated Employees and for all other
eligible Employees.
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28
Solely for the purpose of this Section 4.2, the term "Bank Matching
Contributions" shall, to the extent elected by the Committee in
accordance with applicable law, include such other contributions which,
in accordance with Treasury Regulation Section 1.401(m)-1(b)(5), may be
aggregated with such Bank Matching Contributions for purposes of
demonstrating compliance with the requirements of Section 401(m)(2) of
the Code. Notwithstanding the preceding sentence, to the extent that Bank
Matching Contributions are treated as Before-tax Contributions pursuant
to Section 3.4, such Bank Matching Contributions shall be disregarded for
purposes of this Section 4.2.
In the event it is determined prior to any payroll period that the amount
of Bank Matching Contributions to be made thereafter would cause the
limitation prescribed in this Section 4.2 to be exceeded, the amount of
such contributions (and any Before-tax Contributions, if necessary)
allowed to be made by or on behalf of Highly Compensated Employees
(and/or such other Participants as the Committee may prescribe) shall be
reduced. Except as is hereinafter provided, the Participants to whom such
reduction is applicable and the amount of such reduction shall be
determined pursuant to such uniform and nondiscriminatory rules as the
Committee shall prescribe.
Notwithstanding the foregoing paragraph, with respect to any Plan Year in
which Bank Matching Contributions made on behalf of Highly Compensated
Employees exceed the applicable limit set forth in this Section 4.2, the
Committee shall reduce the amount of the excess Company Matching
Contributions on behalf of the Highly Compensated Employees by reducing
such contributions in accordance with Treasury Regulation Section
1.401(m)-1(e)(2)). The Committee shall instruct the Trustees to
distribute such excess Company Matching Contributions (along with
earnings) attributable to such excess contributions, as determined
pursuant to Treasury Regulation Section 1.401(m)-1(e)(3)(ii)), to the
affected Highly Compensated Employees as soon as practicable after the
end of such Plan Year, and in all events prior to the end of the next
following Plan Year. The amount of such reduction for a Highly
Compensated Employee for a Plan Year is the amount (if any) by which the
- 25 -
29
Employee's Company Matching Contributions must be reduced for the
Employee's Actual Matching Contribution Percentage to equal the highest
permitted Actual Matching Contribution Percentage under the Plan. To
calculate the highest permitted Actual Matching Contribution Percentage
under the Plan, the Actual Matching Contribution Percentage of the Highly
Compensated Employee with the highest permitted Actual Matching
Contribution Percentage is reduced by the amount required to cause the
Employee's Actual Matching Contribution Percentage to equal the Actual
Matching Contribution Percentage of the Highly Compensated Employee with
the next highest Actual Matching Contribution Percentage. If a lesser
reduction would enable the Plan to satisfy the Actual Matching
Contribution Percentage test, only this lesser reduction may be made. The
process must be repeated until the Plan satisfies the Actual Matching
Contribution Percentage test. The Committee shall also take all
appropriate steps in order to meet the aggregate limitation test
contained in Section 4.3.
Notwithstanding distributions pursuant to the foregoing provisions,
excess Bank Matching Contributions shall be treated as Annual Additions
for purposes of Article XIV. If any Bank Matching Contribution on behalf
of a Participant in excess of the maximum permitted is paid to the
Trustee before discovering the fact that the amount exceeds the
limitation provided for under this Section 4.2, such amount shall be
deemed to have been contributed to the Plan by way of a mistake of fact.
4.3 Aggregate Limitation:
Any other provision of the Plan to the contrary notwithstanding, the
provisions of this Section 4.3 shall apply with respect to any Plan Year
if the conditions of both (a) and (b) below are satisfied:
(a) the sum of (i) the "Actual Deferral Percentage" (as defined in
Section 3.4) for the group of Highly Compensated Employees who are
eligible to participate in the Plan and (ii) the "Actual Matching
Contribution Percentage" (as defined in Section 4.2 of the Plan)
for such group of Highly Compensated Employees exceeds the
"Aggregate Limit" (as hereinafter defined), and
- 26 -
30
(b) both (i) the Actual Deferral Percentage for the group of Highly
Compensated Employees who are eligible to participate in the Plan
exceeds 125% of the Actual Deferral Percentage of all other
employees who are eligible to participate in the Plan and (ii) the
Actual Matching Contribution Percentage of such group of Highly
Compensated Employees exceeds 125% of the Actual Matching
Contribution Percentage of all such other employees.
The term "Aggregate Limit" means the greater of the sum of (i) and
(ii) below or the sum of (iii) and (iv) below:
(i) 125% of the greater of (1) the Actual Deferral Percentage
of the group of Employees eligible to participate in the
Plan who are not Highly Compensated Employees, or (2) the
Actual Matching Contribution Percentage of the group of
Employees eligible to participate in the Plan who are not
Highly Compensated Employees, and
(ii) Two percentage points plus the lesser of (i)(1) or (i)(2)
above (but in no event more than twice the lesser of (i)(1)
or (i)(2) above).
(iii) 125% of the lesser of (1) the Actual Deferral Percentage of
the group of Employees eligible to participate in the Plan
who are not Highly Compensated Employees, or (2) the Actual
Matching Contribution Percentage of the group of Employees
eligible to participate in the Plan who are not Highly
Compensated Employees, and
(iv) Two percentage points plus the greater of (iii)(1) or
(iii)(2) above (but in no event more than twice the greater
of (iii)(1) or (iii)(2) above).
If the Actual Deferral Percentage and/or Actual Matching Contribution
Percentage for the group of Highly Compensated Employees who are eligible
to participate in the Plan, determined after any corrective distribution
of excess amounts in accordance
- 27 -
31
with the provisions of Section 3.4 and 4.2 have been effectuated, exceeds
an amount which would cause the limits set forth in the foregoing
provisions of this Section 4.3 to be exceeded, first the amount of Bank
Matching Contributions and then the amount of Before-tax Contributions
shall be reduced, in the same manner and at the same time as such
contributions are reduced in accordance with Sections 3.4 and 4.2, but
only to the extent necessary to bring the Plan into compliance with the
applicable limits set forth in this Section 4.3.
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ARTICLE V
ADMINISTRATION OF FUNDS
5.1 The Committee shall cause to be established and maintained on behalf of
each Participant a Before-tax Contribution Account, a Bank Matching
Contribution Account, a Qualified Nonelective Contribution Account, and a
Rollover Account, if applicable.
5.2 The Participant may elect to have his deferrals and contributions,
whether to the Before-Tax Contribution Account, Bank Matching
Contribution Account, Qualified Nonelective Contribution Account, or
Rollover Account, invested in multiples of 5% in each or a combination of
such investment funds as shall be selected by the Committee from time to
time. The Employee shall determine which of the investment funds he
wishes to invest in and the Trustee shall invest all funds received from
the Employer, and any earnings therein, in the investment funds as
directed from time to time in writing by the Employer.
5.3 Any dividends, interests, property or increments of any sort deriving
from any of the above funds shall be held and reinvested in the same
fund.
5.4 A Participant may change his investment in any of the funds as to future
contributions on a daily basis.
5.5 A Participant may elect to transfer all or any part of his Account from
one investment fund to the other investment fund(s) on a daily basis.
5.6 Valuation of Bank Common Stock
The value of the shares of the Bank's Common Stock will be based on the
price of the shares of stock at the close of each business day.
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5.7 Allocation of Investment Fund Earnings As of each Valuation Date the
Trustee shall determine the earnings of each investment fund and the
individual Account of each Participant shall be credited or charged with
his respective share of the earnings of such investment fund since the
last preceding Valuation Date. Each Participant's share shall be
determined individually with respect to the portion of his individual
Account that is invested in each investment fund, and shall be in the
same proportion to the fund earnings of each such investment fund that
the balance of his Account invested therein as of the preceding Valuation
Date, less distributions or withdrawals therefrom since such prior
Valuation Date.
5.8 Administrative Expenses The Investment Manager's fees shall be charged to
the Participants' Account. All administrative recordkeeping expenses
shall be paid by the Bank.
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ARTICLE VI
VESTING OF ACCOUNTS
6.1 A Participant shall always be 100% vested in the value of his Before-tax
Contribution Account, Rollover Account and Qualified Nonelective
Contribution Account.
6.2 Vesting Schedule
Each Employee who enrolled in the Plan on October 1, 1992 shall be 100%
vested in his Bank Contribution Account. Each other Participant shall
have a nonforfeitable interest in that portion of his Bank Matching
Contribution Account as provided in the following vesting schedule:
Years of Vesting
Vesting Service Percentage
--------------- ----------
2 25%
3 50%
4 75%
5 or more 100%
Each eligible former employee of Bayside Federal Savings Bank and Eastern
Federal Savings and Loan Association who enrolled in the Plan on December
1, 1994 shall be 100% vested in his Bank Matching Contribution Account.
Each eligible former Employee of the Bank of Great Neck who enrolled in
the Plan on July 1, 1995 shall be 100% vested in his Matching
Contribution Account.
Each former employee of the ten Long Island branches of First Nationwide
Bank who enrolled in the Plan on April 1, 1996 shall be 100% vested in
his Bank Matching Contribution Account.
Each eligible former employee of Extebank who enrolled in the Plan on
April 1, 1996 shall be 100% vested in his Bank Matching Contribution
Account.
Each eligible former employee of North Side Savings Bank who enrolls in
the Plan on January 1, 1997 shall be 100% vested in his Bank Matching
Contribution.
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6.3 Reemployment
In the case of a Participant who separates from service without a
nonforfeitable interest in his Bank Matching Contribution and who is
reemployed after having five (5) consecutive one-year Breaks-in-Service,
all Years of Vesting Service after such Breaks-in-Service will be
disregarded for the purpose of vesting the Bank Matching Contributions
that accrued before such breaks, but both pre-break and post-break
service will count for the purposes of vesting the Bank Matching
Contributions that accrue after such breaks. Both accounts will share in
the earnings and losses of the fund.
In the case of a Participant who separates from service without a
nonforfeitable interest in his Bank Matching Contribution who is
reemployed but does not have five (5) consecutive one-year
Breaks-in-Service, both the pre-break and post-break service will count
in vesting both the pre-break and post-break Bank Matching Contribution
Account.
6.4 Forfeitures
(a) With respect to Participants separating from service with the Bank
other than by reason of retirement, disability or death, amounts
in a Participant's Bank Matching Contribution Account which are
not vested in whole or in part pursuant to Section 6.2 above,
shall be forfeited as of the date the Participant receives a
distribution provided that the Participant (i) voluntarily elected
to receive such distribution or (ii) received a distribution of
his entire vested Account and the portion of such distribution
attributable to Bank Matching Contributions did not exceed $3,500.
A Participant who has no vested right to his Bank Matching
Contribution Account shall be deemed to have received a
distribution of his entire vested Account as of the date he
terminated participation in the Plan.
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(b) Notwithstanding the foregoing, the Participant's entire Account
shall be restored if:
(i) the Participant is reemployed prior to incurring five (5)
one-year consecutive Breaks-in-Service,
(ii) the Participant received a distribution which was less than
his entire Account balance, and
(iii) the Participant repays the full amount of the distribution
no later than the earlier of five (5) years after the date
of reemployment or before incurring five (5) consecutive
one-year Breaks-in-Service commencing after the
distribution.
The amount restored shall be equal to the Participant's Bank
Matching Contribution Account, both distributed and forfeited, as
of the date of distribution, unadjusted for any subsequent gains
or losses. Acceptable sources of such restoration include income
to the Plan, forfeitures of Bank Matching Contributions and
Employer Contributions. Rules regarding the order of sources from
which restoration is made shall be determined by the Committee and
applied in a uniform and nondiscriminatory manner. The forfeited
amounts shall be restored to the Participant no later than the end
of the Plan Year following the year in which repayment occurs.
(c) For Participants separating from service who do not elect to
receive a distribution, forfeitures will occur on the earlier of
(1) the date the vested Account balance is distributed or (ii)
after he incurs five (5) consecutive one-year Breaks-in-Service.
(d) Forfeitures shall be used to reduce Bank Matching Contributions.
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6.5 Former employees of Bayside Federal Savings Bank employed by North Fork
Bank between July 1, 1994 and December 1, 1994 shall be eligible to
enroll in the Plan on December 1, 1994. When they become Participants,
they shall receive service credit with Bayside Federal Savings from the
later of October 1, 1992 or their date of employment for purposes of
vesting in the Plan.
6.6 Former employees of Eastern Federal Savings and Loan Association employed
by Bayside Federal Savings Bank on January 1, 1992 and subsequently
employed by North Fork Bank between July 1, 1994 and December 1, 1994
shall be eligible to enroll in the Plan on December 1, 1994. When they
become Participants, they shall receive service credit from the later of
their date of employment with Eastern Federal Savings and Loan
Association, or October 1, 1992 for purposes of vesting in the Plan.
6.7 Former employees of The Bank of Great Neck employed by The Bank of Great
Neck on June 30, 1995 and subsequently employed by North Fork Bank on
July 1, 1995 shall be eligible to enroll in the Plan on July 1, 1995.
When they become Participants, they shall receive service credit from the
later of their date of employment with The Bank of Great Neck, or October
1, 1992 for purposes of vesting in the Plan.
6.8 Former employees of Extebank employed by North Fork Bank between November
15, 1995 and March 15, 1996 shall be eligible to enroll in the Plan on
April 1, 1996. When they become Participants, they shall receive service
credit with Extebank from the later of October 1, 1992 or their date of
employment with Extebank for purposes of vesting in the Plan.
6.9 Former employees of First Nationwide Bank employed by First Nationwide
Bank as of the effective date of the purchase of the ten Long Island
branches and subsequently employed by North Fork Bank shall be eligible
to enroll in the Plan on April 1, 1996. When they become Participants,
they shall receive service credit with First Nationwide Bank from the
later of October 1, 1992 or their date of employment with First
Nationwide Bank for purposes of vesting in the Plan.
6.10 Employees of North Side Savings Bank employed by the North Side Savings
Bank on December 31, 1996 and subsequently employed by North Fork Bank on
January 1,
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38
1997 shall be eligible to enroll in the Plan on January 1, 1997.
When they become Participants, they shall receive credit from the
later of October 1, 1992 or their date of employment with North
Side Savings Bank for purposes of vesting in the Plan.
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ARTICLE VII
OPERATION OF THE TRUST FUND
7.1 Trust Fund; Trustee:
All the funds of the Plan shall be held by a Trustee or Trustees
appointed from time to time by the Board of Directors, in trust under a
Trust Agreement adopted, or as amended, by such Board for use in
providing the benefits of the Plan; and no part of the corpus or income
of the Trust Fund shall be used for, or diverted to, purposes other than
for the exclusive benefit of Participants or their Beneficiaries under
the Plan. No person shall have any interest in or right to any part of
the earnings of the Trust Fund or any rights in, or to, or under the
Trust Fund or any part of the assets thereof, except as and to the extent
expressly provided in the Plan and in the Trust Agreement.
7.2 Funds Maintained by Trustee:
Contributions to the Plan by Employers for each calendar month shall be
transmitted to the Trustee no later than thirty days (30) after the end
of such calendar month. The Trustee shall invest such contributions only
as provided in the Plan and the Trust Agreement.
7.3 Cash:
The Trustee shall maintain in cash, such part of the Trust Fund as the
Committee specifies for the proper administration of the Plan. At the
Committee's direction, the Trustee shall invest such cash in high quality
short-term money market instruments as determined by the Trustee, which
shall be treated as cash for purposes of the Plan.
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ARTICLE VIII
VOTING RIGHTS
8.1 Participant Voting and Tendering Rights:
(a) Each Participant shall be entitled to instruct the Trustee with
respect to voting and/or giving of proxies to vote the number of
shares of Bank Stock in the Accounts of the Participant on the
applicable record date in accordance with the provisions of this
Article.
(b) Each Participant (or, in the event of his or her death, his or her
Beneficiary) is, for purposes of this Section 8.1(b), hereby
designated a "named fiduciary," within the meaning of Section
403(a)(1) of ERISA with respect to (i) the shares of Bank Stock
held in or allocated to his or her Accounts and (ii) his or her
proportionate share (as determined pursuant to subparagraph (c)
below, of that portion of the shares of Bank Stock held in or
allocated to all Participants' Accounts for which Participants do
not give timely instructions as described in such Section 8.1(c)
(such proportionate share being determined at the respective times
such fiduciary rights are exercisable as set forth below).
(c) Each Participant (or, in the event of his or her death, his or her
Beneficiary) shall have the right to instruct the Trustee in
writing as to the manner in which to vote (1) the shares of Bank
Stock held in or allocated to his or her Accounts and (2) his or
her proportionate share (as determined in clause (i) below, as
applicable) of that portion of the shares of Bank Stock allocated
to all Participants' Accounts for which Participants do not give
timely instructions to the Trustee, at any shareholders' meeting
of North Fork Bancorporation, Inc.
(i) An individual's proportionate share of shares of Bank Stock
held in or allocated to all Participants' Accounts for
which timely instructions are not received by the Trustee,
shall be a fraction, the numerator of which shall be the
number of shares which are held in or allocated to such
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individual's Accounts for which he or she provides
instructions to the Trustee and the denominator of which
shall be the number of shares in all Accounts for which
instructions are provided to the Trustee.
(d) Each Participant (or, in the event of his or her death, his or her
Beneficiary) shall have the right to instruct the Trustee in
writing as to the manner in which to respond to a tender or
exchange offer with respect to shares of Bank Stock held in or
allocated to his or her Accounts.
8.2 Distribution of Information and Voting
The Bank shall use its best efforts to timely distribute or cause to be
distributed to each Participant (or Beneficiary) the information
distributed to shareholders' of North Fork Bancorporation, Inc. in
connection with any shareholders' meeting, together with a form
requesting confidential instructions to the Trustee on how such shares of
Bank Stock shall be voted on each such matter. Upon timely receipt of
such instructions, the Trustee shall, on each such matter, vote as
directed, the appropriate number of shares (including fractional shares)
of Bank Stock. The instructions received by the Trustee from individual
Participants (or Beneficiaries) shall be held by the Trustee in strict
confidence and shall not be divulged to any person, including employees,
officers and directors of the Bank or any affiliate; provided, however,
that, to the extent necessary for the operation of the Plan, such
instructions may be relayed by or to the Trustee to or from a
recordkeeper, auditor or other person providing services to the Plan if
such person (1) is not the Bank, an affiliate or any employee, officer or
director thereof, and (2) agrees not to divulge such directions to any
other person, including Employees, officers and directors of the Bank and
its affiliates.
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8.3 Distribution Information-Tendering
The Bank shall use its best efforts to timely distribute or cause to be
distributed to each Participant (or Beneficiary) the information
distributed to shareholders of North Fork Bancorporation, Inc. in
connection with any tender or exchange offer, together with a form
requesting confidential instructions to the Trustee on whether such
shares of Bank Stock are to be tendered. Upon timely receipt of such
instructions, the Trustee shall respond as instructed with respect to
such shares of such Bank Stock. If, and to the extent that, the Trustee
shall not have received timely instructions from any individual given a
right to instruct the Trustee with respect to certain shares by Section
8.1(d), such individual shall be deemed to have timely instructed the
Trustee not to tender or exchange such shares. The instructions received
by the Trustee from individual Participants (or Beneficiaries) shall be
held by the Trustee in strict confidence and shall not be divulged or
released to any person, including employees, officers and directors of
the Bank or any affiliate; provided, however, that, to the extent
necessary for the operation of the Plan, such instructions may be relayed
to or by the Trustee to or from a recordkeeper, auditor or other person
providing services to the Plan if such person (i) is not the Bank, an
affiliate or any employee, officer or director thereof, and (ii) agrees
not to divulge such instructions to any other person, including
employees, officers and directors of the Bank and its affiliates.
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ARTICLE IX
WITHDRAWALS AND LOANS DURING EMPLOYMENT
9.1 Hardship Withdrawals:
A Participant may, upon thirty (30) days prior written notice (or such
lesser period as the Committee may from time to time prescribe), by
filing the Appropriate Form with the Committee, elect to withdraw amounts
during employment, as of the Valuation Date coincident with or next
following the filing of the Appropriate Form, as set forth below:
In the event of "Hardship" (as hereinafter defined), any dollar amount up
to 100% of the value, as of the last Valuation Date coincident with the
Participant's filing of the Appropriate Form, of the value of the
Before-tax Contribution Account (excluding any earnings thereon) and the
vested Bank Matching Contribution Account (excluding earnings thereon).
For purposes of this Section 9.1, the term "Hardship" means a
circumstance resulting from an immediate and heavy financial need of the
Participant attributable to:
(a) costs directly related to the purchase of a principal residence
for the Participant (excluding mortgage payments).
(b) Payment of tuition and related educational fees for the next 12
months of post-secondary education for the Participant, his or her
spouse, children or dependents (as defined in Section 152 of the
Code).
(c) Medical expenses described in Section 213(d) of the Code
previously incurred by the Participant, his or her spouse, or any
dependents of the Participant (as defined in Section 152 of the
Code) or necessary for these persons to obtain medical care
described in Section 213(d) of the Code.
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(d) The need to prevent the eviction of the Participant from his or
her principal residence or foreclosure on the mortgage of the
Participant's principal residence.
A withdrawal will not be made unless such withdrawal is necessary to
satisfy the financial need created by the Hardship. A distribution will
be deemed to be necessary to satisfy an immediate and heavy financial
need of a Participant if all of the following requirements are satisfied:
(1) The distribution is not in excess of the amount of the immediate
and heavy financial need of the Participant. The amount of an
immediate and heavy financial need may include any amounts
necessary to pay any federal, state, or local income taxes or
penalties reasonably anticipated to result from the distribution.
(2) The Participant has obtained all distributions, other than
hardship distributions, and all nontaxable loans currently
available under all plans maintained by the Employer, or any
member of the Controlled Group.
(3) The Participant's Before-tax Contributions will be suspended for
at least 12 months after receipt of the Hardship distribution, and
all other plans (as defined in Treasury Regulation Section
1.401(k)-1(d)(2)(iv)(B)(2)) maintained by the Employer, or any
member of the Controlled Group, in which the Participant
participates, must also provide for this suspension with respect
to hardships under such other plans.
(4) The Participant may not make Before-tax Contributions for the
Participant's taxable year immediately following the taxable year
of the Hardship distribution in excess of the applicable limit
under Section 402(g) for such next taxable year less the amount of
such Participant's Before-tax Contributions for the taxable year
of the Hardship distribution. All other plans maintained by the
Employer or any member of the Controlled Group, in which the
Participant
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participates, must also provide for this limitation with respect
to the Participant's elective contributions under such other
plans.
Any amounts withdrawn under this Section 9.1 shall be paid to a
Participant in a lump sum in cash, as soon as practicable and in
accordance with applicable law after the Valuation Date as of which the
withdrawal election is effective. Hardship withdrawals shall be charged
to the investment funds in which Participant's Accounts are invested
according to administrative procedures established by the Committee.
9.2 Loans to Participants:
Upon proper written application of a Participant or Beneficiary, the
Committee in its sole discretion may make a loan to such Participant or
Beneficiary from the vested portion of his Accounts. The application, and
the resulting loan, must meet the terms and conditions specified in the
following provisions of this Section 9.2. In granting or refusing any
request for a loan, the Committee shall apply uniform standards
consistently and such discretionary power shall not be applied so as to
discriminate in favor of Participants who are Highly Compensated
Employees. Only one loan may be outstanding to a Participant at any time.
a. Request for Loan
An application by a Participant for a loan shall be made in
writing to the Committee at least thirty (30) days in advance of
the desired date of the loan, in such form as the Committee may
specify. The Committee may shorten the thirty (30) day notice if
it finds it administratively feasible.
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b. Loan Amount
The maximum loan available to any Participant at any point in time
shall not exceed the lesser of (i) 50% of the vested portion of
his Accounts or (ii) $50,000 reduced by the difference between the
highest outstanding Plan loan balance during the 12-month period
ending on the day before the day on which the new loan is made and
the outstanding balance of all Plan loans other than the new loan
on the day the new loan is made. In no case, however, shall the
loan amount exceed the value of the Participant's Accounts at the
date the loan is granted.
For purposes of determining the available loan amount, the vested
portion of the Participant's Accounts shall be determined as of
the date the loan is requested.
The minimum loan amount shall be $1,000.
d. Repayment Terms
The term for repayment of the loan shall be determined at the
choice of the Participant to be 12 months, 24 months, 36 months,
48 months or 60 months. Loans for the purchase of a primary
residence may be extended to up to 25 years. Such term shall be
fixed and may not be extended.
To repay the loan, the Participant shall authorize the Employer to
deduct approximately equal payments from his Compensation each
regular pay period. The Employer shall transfer such payroll
deductions to the Trustee within a reasonable time following the
end of each pay period.
Loan repayments other than by payroll deduction will not be
permitted except that payment by scheduled installments may be
otherwise made by a Participant or Beneficiary in the case of a
loan made to (i) a Participant who is a "party in interest" as
defined in Section 3(14) of the Act or (ii) a Participant on an
authorized leave of absence. Loan repayments other than by payroll
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deduction will also be permitted by a Participant who elects to
prepay his loan in full as set forth in Subsection (g) hereof.
e. Interest Rate, Costs
Each loan shall bear interest at a fixed rate based on the prime
rate as published in the Wall Street Journal on the first day of
each calendar quarter, preceding the loan effective date plus an
additional 1%.
f. Loan Security
Each loan shall be secured by the borrower's assignment of 50% of
his entire right, title and interest in and to his Account(s) in
the Plan, supported by the borrower's collateral promissory note
for the amount of the loan, including interest. When the loan is
completed the Participant will receive a Loan Disclosure Statement
which outlines the terms of the loan.
g. Advance Repayment
Except as specifically provided herein, all unpaid loans,
including accrued interest, shall become immediately due and
payable upon death, termination of employment or a distribution to
a Participant after age 70-1/2 under Section 9.3. Such Participant
or Beneficiary shall have the amount of the outstanding loan
deducted from the distribution payable in accordance with Article
XI herein.
A Participant may repay, at any time, all of the then outstanding
principal balance of any loan, together with interest due to the
date of the prepaid portion. Any such prepayments shall be made
directly to the Trustee. Except as otherwise provided above, such
right of prepayment shall be entirely in the discretion of the
Participant and shall be without premium or penalty.
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h. Default
Default shall occur when there is nonpayment of a regularly
scheduled loan payment. After the Participant misses three
consecutive monthly payments, he will be deemed to have received a
taxable distribution in the amount of the loan plus unpaid accrued
interest. However, exercise on the collateral shall not be made
until the occurrence of an otherwise distributable event. Between
the date of default and the date of distribution of benefits under
Section XI herein, interest shall accrue on any unpaid principal
loan amounts.
i. Continued Contributions
A Participant who has received a loan may continue to contribute
to the Plan and the Company will continue to match those
contributions pursuant to Section 4.1 herein.
j. Miscellaneous
Any loans made pursuant to this Section 9.3 shall be made under
such rules and regulations as the Committee shall adopt.
Any questions regarding the loan provisions of the Plan should be
directed to:
The 401(k) Retirement Savings Plan Committee
North Fork Bancorporation, Inc.
275 Broad Hollow Road
Melville, NY 11747
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ARTICLE X
ROLLOVERS TO THE PLAN
10.1 Rollovers
With the consent of the Committee, a Participant may, upon written notice
to the Committee on the Appropriate Form prior to any Valuation Date
contribute in cash to the Plan, amounts which were received from a
qualified pension, profit sharing or stock bonus plan in which a
Participant previously participated and which is permitted to be
contributed to the Plan in accordance with Sections 402(a)(5), 403(a)(4),
403(b)(8) or 408(d)(3)(A)(ii) of the Code (a "Rollover Contribution").
Any such Rollover Contribution shall be received by the Trustees upon the
Committee's determination that the contribution complies in all respects
with the requirements of Sections 402(a)(5), 403(a)(4), 403(b)(8) or
408(d)(3)(A)(ii), whichever is applicable, and, upon any discovery that
any such contribution does not so comply, the Committee shall direct that
the entire amount of the Rollover Contribution, together with all changes
in the value of the Trust Fund allocated thereto, shall be returned as
soon as practicable to the individual by or on whose behalf it is made.
10.2 Direct Rollovers from North Fork Bancorporation Cash Balance Retirement
Plan A Participant who retires on or before December 31, 1997 may
transfer to the Plan his account balance from the North Fork
Bancorporation Cash Balance Retirement Plan under the following
conditions.
(a) On the date of transfer, the retiree must have an Account in the
Plan.
(b) The transfer must be a direct rollover in one lump sum.
(c) A reasonable administrative fee will be charged directly to the
Account.
10.3 Direct Rollovers from the Bayside Federal Savings Bank Employee Stock
Ownership Plan
Employees who were actively employed by the Bank on January 1, 1996 who
were participants in the Bayside Federal Savings Bank Employee Stock
Ownership Plan
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(the "ESOP") may make a one-time direct rollover to the Plan of Company
Stock they receive as a distribution from the ESOP. Such stock shall be
subject to the provisions of Article VIII herein.
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ARTICLE XI
DISTRIBUTION UPON TERMINATION OF EMPLOYMENT
11.1 Amount of Distribution:
Upon a Participant's retirement, death, Disability or other termination
of employment with the Bank or member of the Controlled Group, the
Participant or the Beneficiary, as the case may be, shall be entitled to
a distribution of the vested value of his Accounts, subject to the
following provisions of this Article XI.
A Participant shall be 100% vested in his Accounts on his Early
Retirement Date, Normal Retirement Date, Disability Retirement Date or
Deferred Retirement Date.
11.2 Methods of Distribution:
All distributions provided pursuant to this Article XI shall be made,
except as otherwise provided, in one lump sum as soon as practicable
after the applicable Valuation Date. The portion of such lump sum
attributable to Bank Stock shall be paid in Bank Stock, except that any
fractional shares shall be paid in cash, unless the Participant or his
Beneficiary, as the case may be elects to receive the entire amount in
cash.
11.3 Termination Other Than By Reason of Death:
A Participant who terminates employment other than by reason of death
shall be given the right to elect to receive a distribution of the
vested value of the Participant's Accounts following Termination of
Employment. The Participant must be notified of this right no less than
30 days before the date the distribution is made. If the Participant
makes such affirmative election by completing the Appropriate Form, then
the vested value of the Accounts shall be determined as of the Valuation
Date following such election (or such other Valuation Date occurring
after such election as the Committee determines in accordance with
uniform and nondiscriminatory rules as it shall prescribe). The
non-vested portion, if any, of the Accounts shall be forfeited in
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accordance with Section 6.4(d) herein. Distribution shall be made in a
lump sum pursuant to Section 11.2.
If the distribution is one which Section 401(a)(11) and 417 of the Code
do not apply, such distribution may commence less than 30 days after the
notice required under Section 1.411(a)-11(c) of the Income Tax
Regulations is given provided that:
(1) the Plan Administrator clearly informs the Participant that the
participant has the right to a period of at least 30 days after
receiving the notice to consider the decision of whether or not
to elect a distribution, and
(2) the Participant, after receiving the notice affirmatively elects
a distribution.
If the vested value of such Accounts as of Valuation Date on the date of
the Participant's Termination of Employment does not exceed $3,500,
distribution of such vested value shall be made as soon as practicable
thereafter in a lump sum in cash. If the vested value of such Accounts
as of such Valuation Date exceeds $3,500 and the Participant has not yet
made an election to receive a distribution, such vested value shall,
subject to the provisions of Section 11.5, remain in the Trust Fund and
be valued as of the Valuation Date coincident with or next following the
attainment of age 65. Distribution of the Accounts shall be made as soon
as practicable thereafter in a lump sum pursuant to Section 11.2.
11.4 Termination by Reason of Death:
In the event a Participant's Termination of Employment is by reason of
death (including, for this purpose, death after Termination of
Employment but before distribution), the Accounts will be valued as of
the Valuation Date next following such death (or such later date as the
Committee determines in accordance with such uniform and
nondiscriminatory rules as it shall prescribe), and the total amount so
distributable from the Plan shall be paid to the Beneficiary, in a lump
sum, pursuant to Section 11.2, as soon as practicable after such
Valuation Date, and in all events within 60 days after the end of the
Plan Year in which such death occurs.
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11.5 Deferred Accounts:
In any case in which a Participant has terminated employment but
distribution of the vested value of the Accounts has not yet occurred,
such Accounts shall be retained and administered under the Plan until
such Accounts are distributed. Except as may otherwise be required by
applicable law, the Committee may establish and change from time to time
rules and restrictions applicable to the administration of any Accounts
held on behalf of any such Participants (which rules and restrictions
may differ from those generally applicable to active Participants), and
the Committee may assess against the Accounts of any such Participant
any reasonable costs of administering the same.
Notwithstanding the foregoing, subject to such uniform and
nondiscriminatory rules which the Committee may prescribe, a Participant
who has failed to make an affirmative election for distribution of the
Accounts in accordance with Section 11.3 may elect to have such Accounts
valued for purposes of determining the amount distributable as of any
Valuation Date preceding the attainment of age 65, in which case
distribution shall be made as soon as practicable thereafter in a lump
sum pursuant to Section 11.2.
11.6 Alienation of Benefits:
Except as otherwise provided by law, no benefit, interest, or payment
under the Plan shall be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance or charge,
whether voluntary or involuntary, and no attempt to so anticipate,
alienate, sell, transfer, assign, pledge, encumber or charge the same
shall be valid nor shall any such benefit, interest, or payment be in
any way liable for or subject to the debts, contracts, liabilities,
engagements or torts of the person entitled to such benefit, interest,
or payment or subject to attachment, garnishment, levy, execution or
other legal or equitable process.
Notwithstanding the foregoing, the creation, assignment or recognition
of a right to any benefit payable with respect to a Participant pursuant
to a "qualified domestic
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relations order" (as defined in Section 414(p) of the Code) shall not be
treated as an assignment or alienation prohibited by this Section 11.6.
Any other provision of the Plan to the contrary notwithstanding, if a
qualified domestic relations order requires the distribution of all or
part of a Participant's benefits under the Plan, the establishment or
acknowledgment of the alternate payee's right to benefits under the Plan
in accordance with the terms of such qualified domestic relations order
shall in all events be applied in a manner consistent with the terms of
the Plan. Notwithstanding the foregoing, in no event shall the
recognition of an alternate payee's rights in accordance with this
Section 11.6 be deemed to include the right to make a withdrawal
pursuant to the provisions of Article IX.
Any other provision of the Plan to the contrary notwithstanding, the
Committee is authorized, pursuant to such uniform and nondiscriminatory
rules as it shall establish which shall be consistent with applicable
law and the terms of the applicable qualified domestic relations order,
to pay out benefits to which alternate payees may be entitled prior to
the date such benefits would otherwise become payable in accordance with
the applicable provisions of the Plan.
11.7 Commencement of Benefits:
Payment of a Participant's benefits under the Plan shall begin not later
than the 60th day after the close of the Plan Year in which the latest
of the following events occur:
(a) the Participant attains age 65;
(b) the 10th anniversary of the date the Participant's participation
in the Plan commences;
(c) the Participant's employment with the Company and all members of
the Controlled Group is terminated.
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11.8 Distribution Restrictions:
Notwithstanding anything to the contrary contained in this Plan -
(a) The entire interest of each Participant must be paid to him not
later than the April 1st of the calendar year following the
calendar year in which he attains age seventy and one-half
(70-1/2).
(b) Any payments made pursuant to this Article XI shall be adjusted
to meet the requirements of Section 401(a)(9) of the Code and
regulations thereunder.
11.9 Direct Rollovers From The Plan
This Section applies to distributions made on or after January 1, 1993.
Notwithstanding any provision of the Plan to the contrary that would
otherwise limit a distributee's election under this Section, a
distributee may elect, at the time and in the manner prescribed by the
Committee, to have any portion of an eligible rollover distribution paid
directly to an eligible retirement plan specified by the distributee in
a direct rollover.
a) Definitions.
(i) Eligible rollover distribution: An eligible rollover
distribution is any distribution of all or any portion
of the balance to the credit of the distributee, except
that an eligible rollover distribution does not include:
any distribution that is one of a series of
substantially equal periodic payments (not less
frequently than annually) made for the life (or life
expectancy) of the distributee or the joint lives (or
joint life expectancies) of the distributee and the
distributee's designated beneficiary, or for a specified
period of ten years or more; any distribution to the
extent such distribution is required under Section
401(a)(9) of the Code; and the portion of any
distribution that is not includible in gross income.
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(ii) Eligible retirement plan: An eligible retirement plan is
an individual retirement account described in Section
408(a) of the Code, an individual retirement annuity
described in Section 408(b) of the Code, an annuity plan
described in Section 403(a) of the Code, or a qualified
trust described in Section 401(a) of the Code, that
accepts the distributee's eligible rollover
distribution. However, in the case of an eligible
rollover distribution to the surviving spouse, an
eligible retirement plan is an individual retirement
account or individual retirement annuity.
(iii) Distributee: A distributee includes an Employee or
former Employee. In addition, the Employee's or former
Employee's surviving spouse and the Employee's or former
Employee's spouse or former spouse who is the alternate
payee under a qualified domestic relations order, as
defined in Section 414(p) of the Code, are distributees
with regard to the interest of the spouse or former
spouse.
(iv) Direct rollover: A direct rollover is a payment by the
plan to the eligible retirement plan specified by the
distributee.
11.10 Distribution from Prior Plans
Notwithstanding any other provision set forth in this Section XI, a
Participant's Account which accrued prior to the date of transfer of
assets from a prior plan to the Plan shall be payable in such optional
forms and at such times to the extent required to comply with Section
411(d)(6) of the Code and regulation promulgated thereunder.
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ARTICLE XII
ADMINISTRATION OF THE PLAN
12.1 Committee Appointment by Board:
The Committee shall consist of at least one member, as may be appointed
by the Board, or any officer of the Bank designated by the Board, from
time to time, to provide for the administration of the Plan.
12.2 Term of Appointment:
Each Committee member shall serve until he shall die, resign, be unable
to perform his duties as a result of disability (as solely determined by
the Board) or shall be removed by the Board with or without cause.
12.3 Written Notice of Appointment or Removal:
An appointment to or removal from the Committee shall be by written
notice specifying the effective date thereof, and served by the Board,
or any officer of the Bank designated by the Board, upon the person to
be appointed or the member to be removed and upon the other Committee
members and the Trustee.
12.4 Resignation by Committee Member:
A Committee member may resign at any time by serving written notice on
the Board, or any officer of the Company designated by the Board, the
other Committee members, and the Trustee, no more than thirty (30) days
or less than ten (10) days prior to the effective date of such
resignation.
12.5 Committee President:
If the Committee is comprised of more than one member, one Committee
member shall be selected as chairman by the Committee or the Board.
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12.6 Quorum:
If the Committee is comprised of more than one member, a quorum shall
consist of a majority of the Committee members. A determination of a
majority of the Committee members present at a meeting where a quorum is
present shall be valid and binding upon all Committee members. If the
Committee is comprised of one member his or her determination shall be
binding.
12.7 Tie Vote:
In the event a tie vote on any matter shall occur when a quorum is
present, the vote of the chairman shall decide the action or
determination to be taken.
12.8 Recordkeeping:
The Committee shall initiate and maintain the records and shall submit
annually reports on the Plan and its administration, and such other
reports as shall be required under applicable law. The Committee shall
give each Participant annually a written statement of his Account
Balance a of the end of a Plan Year.
12.9 Reimbursement for Expenses:
The Committee member or members shall serve without compensation but
shall be entitled to be paid such reasonable expenses by the Bank or any
Employer as may be incurred by them in the administration of the Plan.
The Committee shall direct the Trustee concerning all payments which
shall be made from the Trust. Any direction to the Trustee shall be in
writing and may be signed by any member of the Committee, or the Plan
Administrator and a secretary or assistant secretary of the Bank. Any
expenses not paid from the Trust shall be paid by the Bank or any
Employer.
12.10 Administrative Office:
The Committee may establish an administrative office which shall be the
principal office of the Plan.
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12.11 Action Without a Meeting:
Any action required or permitted to be taken at any meeting of the
Committee may be taken without a meeting by all members or by the member
of the Committee signing a written consent thereto, which written
consent shall be filed with the minutes of the proceedings of the
Committee.
12.12 Responsibilities of the Committee:
(a) The Bank is hereby designated as the "administrator" of the Plan
within the meaning of Section 3(16)(A) of ERISA. The members of
the Committee are hereby designated as "named fiduciaries"
within the meaning of Section 402(a)(2) of ERISA, and shall,
unless otherwise provided pursuant to Subsection (b), jointly
administer the Plan as agents of the Company in accordance with
its terms and shall have all powers necessary to carry out the
provisions of the Plan, including, but not limited to, the power
to exercise in good faith, its sole discretion in the
interpretation, construction and administration of the Plan. In
carrying out their duties with respect to the general
administration of the Plan, the Committee shall have, in
addition to any other lawful powers and not by way of
limitation, the following powers:
(1) to decide any and all matters arising in connection with
the administration of the Plan, including using
discretionary authority to determine eligibility for
benefits or to construe the terms of the Plan;
(2) to compute the amount and kind of benefits payable to
the Participants and their Beneficiaries;
(3) to authorize disbursements from the Trust Fund in
accordance with the provisions of the Plan;
(4) to maintain all records necessary for the administration
of the Plan which are not maintained by the Trustees;
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60
(5) to interpret the provisions of the Plan and to make and
publish such rules and regulations as are not
inconsistent with the terms hereof;
(6) to adopt and modify the method of accounting for the
Plan; and
(7) to appoint an investment manager, as defined in Section
3(38) of ERISA, in which case no member of the Committee
shall be liable for the acts or omissions of such
investment manager or be under any obligation to invest
or otherwise manage any asset of the Trust Fund which is
subject to the management of such investment manager.
(b) (1) The Committee may establish procedures for (A) the
allocation of fiduciary responsibilities (other than
"trustee responsibilities" as defined in Section
405(c)(3) of ERISA) under the Plan among themselves and
(B) the designation of persons other than named
fiduciaries to carry out fiduciary responsibilities
(other than trustee responsibilities) under the Plan.
(2) If any fiduciary responsibility is allocated or if any
person is designated to carry out any responsibility
pursuant to Paragraph (1), no named fiduciary shall be
liable for any act or omission of such person on
carrying out such responsibility, except as provided in
Section 405(c)(2) of ERISA.
(c) The Committee shall establish a funding policy and method
consistent with the objectives of the Plan and the requirements
of Title I or ERISA. The Committee shall meet at least annually
to review such funding policy and method. In establishing and
reviewing such funding policy and method, the Committee shall
endeavor to determine the Plan's short-term and long-term
financial needs, taking into account the need for liquidity to
pay benefits and the need for investment growth.
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12.13 The Committee or the Plan Administrator shall direct the Trustee
concerning all payments which shall be made out of the Trust pursuant to
the provisions of the Plan. Any direction to the Trustee shall be in
writing and may be signed by any member of the Committee, or the Plan
Administrator and a Secretary or Assistant Secretary of the Bank. Any
directions as to the amount and manner of payment of any benefits under
the Plan shall require two signatures.
12.14 Committee to Provide Forms:
The Committee may require a Participant to complete and file with the
Committee all forms approved by the Committee, and to furnish all
pertinent information requested by such Committee. The Committee may
rely upon all such information so furnished to it, including the
Participant's current mailing address.
12.15 Appointment of Agents:
The Committee may appoint such independent accountants, enrolled
actuaries, legal counsel, investment advisors, and other agents or
specialists as they deem necessary or desirable in connection with the
performance of their duties thereunder. The Committee shall be entitled
to rely conclusively upon, and shall be fully protected in any action
taken by them in good faith in relying upon, any opinions or reports
which shall be furnished to them by any such independent accountant,
enrolled actuary, legal counsel investment advisor or other specialist.
12.16 Exclusive Benefit:
The members of the Committee shall discharge their duties with respect
to the Plan solely in the interests of the Participants and their
Beneficiaries and -
(a) for the exclusive purpose of providing benefits to Participants
and their Beneficiaries and defraying reasonable expenses of
administering the Plan;
(b) with the care, skill, prudence and diligence under the
circumstances then prevailing that a prudent man, acting in like
capacity and familiar with such
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matters, would use in the conduct of an enterprise of a like
character and with like aims;
(c) in accordance with the documents and instruments governing the
plan insofar as such documents and instruments are consistent
with the provisions of ERISA.
The prudence requirement, only to the extent that it requires
diversification, is not violated by the Plan's acquisition or holding qualifying
employer securities as defined in Section 407(d)(5) of ERISA.
12.17 Claims Procedures:
(a) For purposes of the Plan, a claim for benefits is a written
application for benefits filed with the Committee. The Committee
shall act upon a claim within ninety (90) days of the date on
which the claim is filed, unless special circumstances require a
longer period for adjudication and the claimant is notified in
writing of the reasons for an extension of time; provided,
however, that no extensions shall be permitted beyond ninety
(90) days after the date on which the claimant received notice
of the extension of time from the Committee. If the Committee
fails to notify the claimant of its decision to grant or deny
such claim within the time specified by this subsection (a),
such claim shall be deemed to have been denied by the Committee
and the review procedure described in subsection (b) shall
become available to the claimant.
(b) (1) Whenever a claim for benefits is denied, written notice,
prepared in a manner calculated to be understood by the
claimant, shall be provided to him, setting forth the
specific reasons for the denial and explaining the
procedure for review of the decision made by the
Committee. If the denial is based upon submission of
information insufficient to support a decision, the
Committee shall specify the information which is
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necessary to perfect the claim and its reasons for
requiring such additional information.
(2) Any claimant whose claim is denied may, within sixty
(60) days after his receipt of written notice of such
denial, request in writing a review by the Board, the
members of which shall be "named fiduciaries", within
the meaning of Section 402(a) of ERISA for the purpose
of adjudicating such appeals. Such claimant or his
representative may examine any Plan documents relevant
to his claim and may submit issues and comments in
writing. The Board shall adjudicate the claimant's
appeal within sixty (60) days after its receipt of his
written request for review, unless special circumstances
require a longer period for adjudication and the
claimant is notified in writing of the reasons for an
extension of time; provided, however, that such
adjudication shall be made no later than one hundred
twenty (120) days after the Board's receipt of the
claimant's written request for review.
(3) If the Board fails to notify the claimant of its
decision with respect to his request for review within
the time specified by this subsection (b), such claim
shall be deemed to have been denied on review.
(c) If the claim is denied by the Board, such decision shall be in
writing, shall state specifically the reasons for the decision,
shall be written in a manner calculated to be understood by the
claimant and shall make specific reference to the pertinent Plan
provisions upon which it is based.
(d) The procedure set forth in this Section 12.15 shall be
interpreted in accordance with regulations promulgated by the
United States Department of Labor or any successor authority
regulating claims procedures for employee benefit plans.
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12.18 Appointment of Agents:
The Committee may appoint such independent accountants, enrolled
actuaries, legal counsel, investment advisors, and other agents or
specialists as they deem necessary or desirable in connection with the
performance of their duties thereunder. The Committee shall be entitled
to rely conclusively upon, and shall be fully protected in any action
taken by them in good faith in relying upon, any opinions or reports
which shall be furnished to them by any such independent accountant,
enrolled actuary, legal counsel investment advisor or other specialist.
12.19 Personal Liability:
No member of the Committee shall be liable for any act or omission of
any other member of the Committee nor for any act or omission on such
member's own part, excepting only such member's own willful misconduct
or gross negligence or except as otherwise expressly provided by ERISA.
To the extent permitted by applicable law, the Bank shall indemnify and
save harmless the members of the Committee against any and all claims,
demands, suits or proceedings in connection with the Plan and Trust Fund
that may be brought by Participants or their beneficiaries, Employees of
Employers, or by any other person, corporation, entity, government or
agency thereof; provided, however, that such indemnification shall not
apply with respect to acts or omissions of willful misconduct or gross
negligence. The Board of Directors, at the Bank's or any Employer's
expense, may settle any such claim or demand asserted, or suit or
proceeding brought, against any member of the Committee when such
settlement appears to be in the best interest of the Bank.
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ARTICLE XIII
ADOPTION, AMENDMENT, TERMINATION AND MERGER
13.1 Amendment of the Plan:
The adoption of any amendments to this Plan shall be conditioned on
qualification of the Plan under Section 401(a) of the Code.
13.2 Right to Amend:
The Board of Directors shall have the right, at any time and form time
to time, to amend in whole or in part any of the provisions of this
Plan, and any such amendment shall be binding upon the Participants and
their Beneficiaries, the Trustees, the Committee any Employer who has
joined in the Plan, and all parties in interest. Any such amendment
shall become effective as of the date specified therein.
Notwithstanding anything to the contrary contained in Section 13.2, no
amendment may be made which shall retroactively deprive the Participant
of any benefit accrued prior to the date such amendment was executed.
Except as otherwise provided in regulations prescribed by the Secretary
of the Treasury, a Plan amendment which has the effect of -
(i) eliminating or reducing an early retirement benefit; or
(ii) eliminating an optional form of benefit,
with respect to benefits attributable to service prior to such amendment
shall be treated as reducing accrued benefits for purposes of this
Section 13.2.
No amendment which affects the Trustee's rights, powers,
responsibilities or liabilities shall be effected without the Trustee's
written consent to the adoption of such amendment.
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13.3 Suspension or Termination:
(a) The Bank may, be appropriate notice to the Trustees, terminate
the Plan in its entirety or withdraw from the Plan and terminate
it with respect to itself. Any Employer may voluntarily withdraw
from the Plan, and, upon any such withdrawal, the Plan shall be
terminated in respect of such Employer.
(b) Upon the termination of the Plan with respect to an Employer,
the Committee shall allocate and segregate for the benefit of
the Participants then or theretofore employed by such Employer
their proportionate interest in the Trust Fund.
(c) Any termination or partial termination shall be effective as of
the date specified in the resolution providing therefor, if any,
and shall be binding upon all Employers, all Participants and
their Beneficiaries, the Trustees and all parties in interest.
(d) Upon the termination of the Plan in its entirety or upon the
complete discontinuance of contributions thereto, whether or not
the Bank has given formal notice of such termination or
discontinuance, each Participant shall be fully (100%) vested in
his Account balances, determined as of the date of such
termination or complete discontinuance of contributions.
(e) Upon the partial termination of the Plan within the meaning of
Section 411(d)(3)(A) of the Code, the rights of each affected
Participant to his Account balance, determined as of the date of
such partial termination, shall, insofar as is required by
applicable regulations issued by the Internal Revenue Service,
be fully (100%) vested.
(f) Upon the termination of the Plan in its entirety, the Trustee
shall, after the determination of the balance in each
Participant's Account -
(1) pay any and all expenses chargeable against the Trust
Fund, and
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(2) pay over to appropriate Employers the balance of any
Suspense Account created under Section 14.3 which
remains in existence at the time of termination of the
Plan.
13.4 Merger:
If the Plan shall merge or consolidate with, or transfer its assets or
liabilities to, any other "pension plan", as defined in Section 3(2) of
ERISA, each Participant shall be entitled to receive a benefit
immediately after such merger, consolidation or transfer (assuming that
the Plan had then terminated) which is equal to or greater than the
benefit which he would have been entitled to receive immediately before
such merger, consolidation or transfer (assuming that the Plan had then
terminated).
13.5 Amendment to Vesting Schedule:
If any time the vesting provisions of Article VI are amended in such
manner as to decrease, as of any future date, the vested interest in a
Participant's Account balance which any Participant would have as of
such date, each such Participant who has completed at least three (3)
Years of Service as of the effective date of such amendment shall have
the right to elect to have his or her Account balance continue to vest
in accordance with the vesting provisions in effect immediately prior to
such effective date.
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ARTICLE XIV
LIMITATIONS ON BENEFITS AND CONTRIBUTIONS
14.1 Definitions:
As used in this Article XIV -
(a) "Annual Addition", for a Limitation Year, means, in the case of
this Plan and any other Retirement Plan, the aggregate of -
(1) the amount of a Participant's contributions for the
Limitation Year,
(2) Employer contributions and forfeitures allocated to the
Participant's accounts for the Limitation Year, and
(3) Amounts allocated to an individual medical account, as
defined in Section 415(l)(2) of the Code, which is part
of a pension or annuity plan maintained by the Employer.
Also, amounts derived from contributions paid or accrued
after December 31, 1985, in taxable years ending after
such date, which are attributable to post retirement
medical benefits allocated to the separate account of a
key employee, as defined in Section 419A(d)(3) of the
Code, under a welfare benefit fund, as defined in
Section 419(e) of the Code, maintained by the Employer.
(b) "Defined Benefit Plan" means any Retirement Plan that is not a
Defined Contribution Plan.
(c) "Defined Benefit Plan Faction", for a Limitation Year, means a
fraction,
(1) the numerator of which is the aggregate Projected Annual
Benefit (determined as of the last day of the Limitation
Year) of the Participant under all Defined Benefit
Plans, and
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(2) the denominator of which is an amount equal to the
lesser of -
(i) the product of 1.25 multiplied by the dollar
limitation in effect under Section 415(b)(1)(A)
of the Code for such Limitation Year (adjusted
as described herein)
(ii) the product of 1.4 and the aggregate Projected
Annual Benefit (determined as of such last day
of the Limitation Year) which the Participant
would receive under all such plans if the plans,
in the aggregate, provided the benefit described
in Section 415(b)(1)(B) of the Code.
(3) (A) In the case of an annual retirement benefit that
begins before a Participant's Social Security
Retirement Age, the dollar amount described in
Section 415(b)(1)(A) of the Code for such
Limitation Year shall be adjusted (in accordance
with regulations prescribed by the Secretary) so
that such limitation equals an annual benefit,
beginning at the age at which the Participant's
benefit commences, which is equivalent to the
dollar amount specified under Section
415(b)(1)(A) of the Code beginning at the Social
Security Retirement Age on the basis of the
actuarial assumptions specified in the
respective Defined Benefit Plan for such
adjustment. The reduction under this
subparagraph shall be made in a manner
consistent with the Code and the regulations
promulgated thereunder.
(B) In the case of an annual retirement benefit that
begins after the Participant's Social Security
Retirement Age, the dollar limitation contained
in Section 415(b)(1)(A) of the Code shall be
adjusted (in accordance with regulations
prescribed by the Secretary) so that such
limitation equals an annual benefit beginning at
the age at which the Participant's benefit
commences, which is the
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actuarial equivalent (based on the actuarial
assumptions specified in the respective Defined
Benefit Plan for such adjustment) of a benefit
equal to the dollar amount specified in Section
415(b)(1)(A) of the Code beginning at the Social
Security Retirement Age.
(d) "Defined Contribution Plan" means this Plan and any other
Retirement Plan which provides for an individual account for
each Participant and for benefits based solely on the amount
contributed to such account and any income, expense, gains and
losses, and forfeitures of accounts of other participants which
may be allocated to such account.
(e) "Defined Contribution Plan Fraction", for a Limitation Year,
means a fraction.
(1) the numerator of which is the sum of the Annual
Additions to a Participant's Accounts under this Plan
and all other Defined Contribution Plans, as of the
close of the Limitation Year and for all prior
Limitation Years, and
(2) the denominator of which is the sum of the lesser of the
following amounts, determined for such Limitation Year
and for each prior year of the Participant's service
with an Employer or any member of the Controlled Group:
(A) the product of 1.25 multiplied by the dollar
limitation in effect under Section 415(c)(1)(A)
of the Code, or
(B) the product of 1.4 multiplied by the amount
which may be taken into account under Section
415(c)(1)(B) of the Code.
(f) "Limitation Year" means the Plan Year.
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(g) (1) A Participant's "Projected Annual Benefit" under a
Defined Benefit Plan shall be equal to the annual
retirement benefit to which he would be entitled under
such Plan if he were to continue employment until his
normal retirement age under such plan (or until his
current age, if later), his Section 415 Compensation for
the Limitation Year under consideration remains the same
until the date he attains the age described above, and
all other relevant factors used to determine benefits
under the plan were to remain the same as in the current
Limitation Year for all future Limitation Years.
(2) For purposes of this Subsection (g),
Except as provided below, a benefit payable in a form
other than a straight life annuity must be adjusted to
an actuarially equivalent straight life annuity before
applying the limitation of this article. The actuarial
assumptions used to determine actuarial equivalence will
be those specified in the respective Defined Benefit
Plan for such adjustment. The annual benefit does not
include any benefits attributable to employee
contributions or rollover contributions, or the assets
transferred from a qualified plan that were not
maintained by the Employer. No actuarial adjustment to
the benefit is required for (a) the value of a qualified
joint and survivor annuity, (b) the value of benefits
that are not directly related to retirement (such as the
qualified disability benefit, pre-retirement death
benefits, and post-retirement medical benefits, and (c)
the value of post-retirement cost-of-living increases
made in accordance with Section 415(d) of the Code and
Section 1.415-3(c)(2)(iii) of the Federal Income Tax
Regulations.
(h) "Retirement Plan" means any Plan maintained by an Employer or
any member of the Controlled Group that is (A) a pension, profit
sharing or stock bonus plan, described in Section 401(a) and
501(a) of the Code, (B) an annuity plan or annuity contract
described in Section 403(a) of the Code, or (C) a simplified
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employee pension plan described in Section 408(k) of the Code.
In addition, "Retirement Plan" shall include (A) an individual
retirement account or an individual retirement annuity described
in Section 408(a) or 408(b) of the Code, or any annuity contract
described in Section 403(b) of the Code, if such account or
annuity is considered to be maintained by an Employer or any
member of the Controlled Group under Section 1.415-7(h) or (i)
of the Federal Income Tax Regulations and (B) a program of
voluntary contributions under a Defined Benefit Plan.
(i) "Section 415 Compensation", for any period, means an
individual's current compensation from an Employer or any member
of the Controlled Group required to be reported on Form W-2 for
such period including those items listed in Paragraph (1) of
Treasury Regulation 1.415-2(d) but excluding those items listed
in Paragraph (2) thereof.
(j) "Social Security Retirement Age" means the age used as the
retirement age under Section 216(l) of the Social Security Act,
except that such section shall be applied in accordance with
Section 415(b)(8) of the Code, (A) without regard to the age
increase factor and (B) as if the early retirement age under
Section 216(l)(2) of the Social Security Act were 62.
14.2 Limitation:
Notwithstanding anything in this Plan to the contrary and except as
otherwise provided in this Article XIV, a Participant's Annual Addition
under this Plan, for a Limitation Year, may not exceed the lesser of -
(a) $30,000 or such other amount as may be prescribed pursuant to
Section 415(d) of the Code, or
(b) twenty-five percent (25%) of his Section 415 Compensation for
the Limitation Year.
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14.3 Suspension:
If the Annual Additions otherwise made to the Accounts of a Participant
would cause the limitations of Section 415 applicable to that
Participant for the Limitation Year to be exceeded, such excess shall be
eliminated by making reductions in such Annual Additions in the
following order:
(a) First, the Participant's Before-tax Contributions for that
Limitation Year to the extent they constitute Annual Additions,
and gains attributable to such contributions, shall be returned
to the Participant.
(b) Second, the excess amounts in the Participant's Account shall be
held unallocated in a Suspense Account to be established by the
Trustees and shall be allocated and reallocated in the next
Limitation Year (and succeeding Limitation Years, as necessary),
subject to the limitations of Section 415 of the Code, to the
respective Accounts of all the participants in the Plan. If the
Suspense Account has a balance at any time during a particular
Limitation Year, other than the Limitation Year in which the
excess amount initially arose, all amounts in the Suspense
Account must be allocated and reallocated to Participants'
Accounts (subject to the limitations of Section 415) before any
contributions which would constitute Annual Additions may be
made to the Plan for that Limitation Year.
14.4 1.0 Limitation:
Notwithstanding the provisions of Section 14.2 and 14.3, for each
Participant who is also a participant in a Defined Benefit Plan, the
Committee will compute such Participant's Defined Benefit Plan Fraction
and Defined Contribution Plan Fraction and will adjust his Annual
Additions and his Projected Annual Benefit, so that the sum of such
fractions, for any Limitation Year, will not exceed (1.0).
The limitation on aggregate benefits from a Defined Benefit Plan and a
Defined Contribution Plan which is contained in Section 2004 of ERISA,
shall be complied
- 70 -
74
with by a reduction (if necessary) in the Participant's benefits under a
Defined Benefit Plan before a reduction in this Plan.
14.5 Miscellaneous:
The limitation imposed by this Article XIV shall be administered in
accordance with the final regulations and rulings issued by the
Secretary of the Treasury under Section 415 of the Code.
- 71 -
75
ARTICLE XV
TOP HEAVY PLAN YEARS
15.1 Definitions:
For purposes of this Article XV:
(a) (1) "Key Employee" means any Employee or former Employee
(including beneficiaries of such Employee) who, at any
time during the Plan Year or any of the four
(4) preceding Plan Years, is -
(A) one of the ten (10) Employees whose annual 416
Compensation is more than the limitation in
effect under Section 415(c)(1)(A) and owning (or
considered as owning within the meaning of
Section 318 of the Code) the largest interest in
the Employer or any member of the Controlled
Group;
(B) an owner (within the meaning of Section 318 of
the Code) of (i) more than five percent (5%) of
the outstanding stock, or of stock possessing
more than five percent (5%) of the total
combined voting power, of the Employer or (ii)
more than five percent (5%) of the capital or
profits interest in the Employer which is not a
corporation;
(C) an owner of (i) more than one percent (1%) of
the outstanding stock or of stock possessing
more than one percent (1%) of the total combined
voting power of the Employer or (ii) more than
one percent (1%) of the capital or profits
interest in the Employer which is not a
corporation, in either case if and only if the
416 Compensation of such owner from all
Employers and members of the Controlled Group
combined exceeds $150,000; or
- 72 -
76
(D) an officer of an Employer or any member of the
Controlled Group whose 416 Compensation exceeds
50% of the dollar limit in effect under Section
415(b)(1)(A) of the Code for any such Plan Year.
The determination of who is a Key Employee will be made in
accordance with Code Section 416(i)(1) and the regulations
thereunder.
(b) "Non-key Employee" means an Employee who is not a Key Employee.
(c) "Determination Date" means with respect to any Plan Year the
last day of the immediately preceding Plan Year.
(d) "Aggregation Group" means
(1) each plan of an Employer or any member of the Controlled
Group, which -
(A) has one or more Participants who are Key
Employees, and/or
(B) enables any plan described in Subparagraph (A)
to meet the requirements of Section 401(a)(4) or
Section 410 of the Code,
plus, at the Bank's election,
(2) any other plan or plans which, when considered together
with the plan or plans described in Paragraph (1),
satisfy the requirements of Section 401(a)(4) and
Section 410 of the Code.
(e) the terms "Employee" and "Key Employee" include former Employees
and the beneficiaries of present and former Employees.
- 73 -
77
(f) "Top-Heavy Plan Year" means any Plan Year with respect to which
the Plan is a Top-Heavy Plan described in Section 15.3, such
Section 15.3 to be read as incorporating the definitions
supplied by Section 416 of the Code and the regulations
promulgated thereunder, and those of any successor statute
thereto.
(g) "416 Compensation" has the meaning given the term compensation
by Section 414(q)(7) of the Code.
15.2 Top-Heavy Minimum Governs:
To the extent required under Section 401(a)(10)(B) and/or Section 416 of
the Code (or any successor statute(s) thereto), for any Top-Heavy Plan
Year, the provisions of Section 15.4 shall apply to the Plan,
notwithstanding any other provision in the Plan.
15.3 Top-Heavy Determination:
(a) The Plan is a Top-Heavy Plan with respect to a Plan Year, if, as
of the Determination Date of such Plan Year --
(1) the aggregate of the Account balances of Key Employees
under the Plan exceeds sixty percent (60%) of the
aggregate of the Account balances of all Employees under
the Plan unless the Plan is a member of an Aggregation
Group with respect to which the percentage test of
Subparagraph (2)(B) is not met; or
(2) the Plan is a member of an Aggregation Group --
(A) which is described in Section 15.1(d)(1), and
(B) with respect to which the sum of --
(i) the present value of the cumulative
accrued benefits, of all Key Employees
under all defined benefit plans in the
Aggregation Group, and
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78
(ii) the aggregate of the account balances of
all Key Employees under all defined
contribution plans in the Aggregation
Group --
exceeds sixty percent (60%) of the sum of --
(i) the present value of the cumulative
accrued benefits, of all Employees under
all defined benefit plans included in
the Aggregation Group, and
(ii) the aggregate of the account balances of
all Employees under all defined
contribution plans in the Aggregate
Group.
(b) For purposes of this Section 15.3:
(1) the accrued benefit and/or account balances of any
Employee who is not a Key Employee during the Plan Year
but who was a Key Employee during any prior Plan Year
shall be disregarded;
(2) the present value of an Employee's accrued benefit under
a defined benefit plan as of a Determination Date shall
be determined as of that valuation date which occurs
within the twelve (12) month period ending on such
Determination Date and is used by the enrolled actuary
for computing Plan costs for minimum funding, as if the
Employee's separation from service occurred on such
valuation date.
(3) the account balance of an Employee in a defined
contribution plan as of any Determination Date shall be
equal to the account balance of the Employee on the
valuation date which occurs within the twelve (12) month
period ending on such Determination Date including an
adjustment for contributions made or which are due as of
such Determination Date.
- 75 -
79
(4) for any Plan Year the present value of the accrued
benefit or the account balance of any Employee who has
not performed service for an Employer during the five
(5) year period ending on the Determination Date shall
be disregarded.
(5) the account balance of an Employee in a defined
contribution plan or the present value of the accrued
benefit of an Employee in a defined benefit plan, as of
a Determination Date -
(A) excludes any rollover contribution or similar
transfer to such plan and attributable to the
Participant's interest in a plan other than a
plan maintained by an Employer or any member of
the Controlled Group, and
(B) includes any amount distributed with respect to
the Employee under the plan within the five (5)
year period ending on the Determination Date,
except to the extent that such amount is
included in such Employee's account balance or
the present value of his accrued benefit
pursuant to Paragraph (2) or (3). This
Subparagraph (B) shall also apply to
distributions under a terminated plan which if
it had not been terminated would have been
required to be included in an Aggregation Group.
(6) the present value of Employees' accrued benefit shall be
determined using the actuarial assumptions specified in
the respective Defined Benefit Plans under which such
benefits accrued. The accrued benefit or any Employee
(other than a Key Employee) shall be determined
(i) under the method which is used for accrual
purposes for all plans of the employer or any
member of the Controlled Group, or
(ii) if there is no such method, as if such benefit
accrued not more rapidly than the slowest
accrual rate permitted under Section
411(b)(l)(C) of the Code.
- 76 -
80
15.4 Minimum Benefit:
(a) Except as provided in Subsection (b), the amount of the Employer
contribution made on behalf of each Participant who is not a Key
Employee for any Plan Year for which the Plan is a Top-Heavy
Plan shall be at least equal to the lesser of:
(1) three percent (3%) of such Participant's Section 415
Compensation if the Non-Key Employee has not separated
from service at the end of the Plan Year, regardless of
whether the Non-Key Employee had 1,000 Hours of Service,
less any amount contributed on behalf of the Participant
under any other defined contribution plan maintained by
an Employer or an Affiliate; or
(2) the percentage of Section 415 Compensation represented
by the Employer contribution made on behalf of the Key
Employee for whom such percentage is the highest for
such Plan Year, determined by dividing the Employer
contribution made on behalf of each such key Employee by
so much of his Section 415 Compensation as does not
exceed $150,000.
(b) Where the inclusion of this Plan in an Aggregation Group
pursuant to Section 15.1(d)(1) enables a defined benefit plan
described in Section 15.1(d)(1) to meet the requirements of
Section 401(a)(4) or Section 410 of the Code, the minimum
contribution required under this Section 15.4 shall be the
amount specified in Section 15.4(a)(1).
(c) The above provisions shall not apply to any Participant to the
extent that he is covered under any other plan or plans of the
Employer or any member of the Controlled Group and such plan or
plans have provided the minimum
- 77 -
81
allocation or benefit requirement applicable to this Top-Heavy
Plan will be met in such other plan or plans.
(d) Matching contributions and elective contributions on behalf of
Key Employees are taken into account in determining the minimum
required contribution requirement of Section 416(c)(2) of the
Code. Elective and matching contributions on behalf of Employees
other than Key Employees shall not be treated as Employer
contributions for purposes of the minimum contribution
requirements of Section 416 of the Code.
15.5 Miscellaneous:
For any Top-Heavy Plan Year, the limitations contained in Article XIV of
the Plan shall be applied by substituting "1.0" for "1.25" in Section
14.1(c)(2) and 14.1(e)(2) of the Plan, unless for such Plan Year -
(a) the requirements of Section 15.4 would be satisfied if "four
percent (4%)" were substituted for "three percent (3%)" in
Subsection (a)(1) thereof; and
(b) the Plan would not be a Plan described in Section 15.3 if
"ninety percent (90%)" were substituted for "sixty percent
(60%)" whenever the latter figure appears in Section 15.3.
15.6 For any Plan Year in which the Plan is Top Heavy, non-key Employees
participating in this Plan and the Bank's defined benefit plan will
receive the Top-Heavy minimum benefit under the defined benefit plan.
- 78 -
82
ARTICLE XVI
MISCELLANEOUS
16.1 Uniform Administration:
Whenever, in the administration of the Plan, any action is required to
be taken by an Employer or the Committee, including, but not by way of
limitation, action with respect to eligibility or classification of
employees, contributions or benefits, such action shall be uniform in
nature as applied to all persons similarly situated and no such action
shall be taken which will discriminate in favor of Participants who are
officers or significant shareholders of an Employer or persons whose
principal duties consist of supervising the work of other employees or
Highly Compensated Employees.
16.2 Payment Due an Incompetent:
If the Committee determines that any person to whom a payment is due
thereunder is incompetent by reason of physical or mental disability,
the Committee shall have power to cause the payments becoming due to
such person to be made to another for the benefit of the incompetent,
without responsibility of the Committee or the Trustee to see to the
application of such payment. Payments made in accordance with such power
shall operate as a complete discharge of all obligations on account of
such payment of the Committee, the Trustee and the Trust Fund.
16.3 Source of Payments:
All benefits under the Plan shall be paid or provided solely from the
Trust Fund and the Employers assume no liability or responsibility
therefor, except to the extent required by law.
- 79 -
83
16.4 Plan Not a Contract of Employment:
Nothing herein contained shall be deemed to give any Employee or
Participant the right to be retained in the employ of an Employer or any
member of the Controlled Group or to interfere with the right of the
Employer to discharge any Employee or Participant at any time.
16.5 Applicable Law:
Except to the extent governed by Federal law the Plan shall be
administered and interpreted in accordance with the laws of the State of
Delaware.
16.6 Unclaimed Amounts:
It shall be the sole duty and responsibility of a Participant or
Beneficiary to keep the Committee apprised of the most current mailing
address. If any benefit to be paid under the Plan is unclaimed, within
such reasonable time period in accordance with applicable law, as the
Committee shall prescribe, it shall be forfeited and applied to reduce
Company Matching Contributions; provided, however, that such forfeiture
shall be reinstated if a claim is made by the Participant or Beneficiary
for the forfeited benefit.
16.7 No Liabilities:
No liability shall attach to any Employer for payment of any benefits or
claims thereunder, and all Participants and Beneficiaries, and all
persons claiming under or through them, shall have recourse only to the
Trust Fund for payment or any such benefit or claim.
16.8 Refund of Employer Contribution
In the event of (a) initial disqualification of the Plan in accordance
with Section 403(c)(2)(B) of ERISA, (b) disallowance of a deduction, or
(c) mistake of fact, the Employer contributions shall be returned to the
Employer which made said contribution to the extent permitted under
Section 403(c) of ERISA and Section 401(a)(2) of the Code. Return of
contributions pursuant to (a), (b) or (c) of this Section shall be made
within one (1) year of the date of adverse determination,
- 80 -
84
disallowance of deduction, or date of payment of the mistaken portion of
the contribution, as the case may be only after timely written demand
has been made therefor by the Employer.
16.9 Illegality or Invalidity:
If any provision in this Plan shall be held illegal or invalid for any
reason, such illegality or invalidity shall not affect the remaining
provisions of the Plan, which shall be construed and enforced as if such
illegal or invalid provision had never been included herein.
16.10 Gender:
Whenever any words are used herein in the masculine gender, they shall
be construed as though they were also used in the feminine gender in all
cases where they would so apply, and vice versa, and wherever any words
are used herein in the singular form, they shall be construed as though
they were also used in the plural form in all cases where they would so
apply; and vice versa.
- 81 -
85
ARTICLE XVII
SPECIAL RULES FOR TRANSFERRED ACCOUNTS
17.1 The following provisions shall apply to the Accounts transferred into
the Plan from California Federal Employees' Investment Plan (formerly
known as the "First Nationwide Employees' Investment Plan").
(a) All transferred funds shall be accounted for separately and all
optional forms of benefits protected under Section 411(d)(6) of
the Code shall be preserved with respect to the transferred
funds.
(b) All transferred funds shall be available for in-service
distribution once each Plan Year for:
(i) withdrawal upon the Participant's attainment of age
59-1/2, and
(ii) loans under the provisions of the Plan.
(c) All transferred funds shall be available for hardship
withdrawals under the provisions of the Plan.
(d) Transferred funds shall not be distributed without the consent
of the Participant or the Participant's Beneficiary (if the
Participant is deceased and the Beneficiary is his or her
surviving spouse) prior to April 1 of the year following the
year in which the Participant attains (or in the event of his or
her death would have attained) age 70-1/2. The previous sentence
shall not apply to Account balances of $3,500 or less.
17.2 Effective as soon as reasonably practicable after the receipt of a
favorable determination letter from the Internal Revenue Service, North
Side Savings Bank 401(k) Savings Plan ("Northside Plan") will be merged
into the Plan. All assets and
- 82 -
86
liabilities of the North Side Plan will be transferred into the Plan.
The following shall apply to transferred Participant Accounts.
(a) All transferred funds shall be accounted for separately and all
benefits protected under Section 411(d) of the Code shall be
preserved.
(b) All transferred funds shall be available for in-service
distributions twice each Plan Year for withdrawal upon the
Participant's attainment of age 59-1/2.
(c) All transferred funds shall be available for in-service
distributions once each Plan Year for loans under the provisions
of the Plan.
(d) All transferred funds shall be available for hardship
withdrawals under the provisions of the Plan.
(e) Promissory notes for outstanding loans in the Northside Plan
will be accepted by the Trustee. The loans will amortize for the
same period of time and at the same interest rate as previously
agreed to under the Northside Plan, modified wherever necessary.
(f) Transferred funds shall not be distributed without the consent
of the Participant or the Participant's Beneficiary (if the
Participant is deceased and the Beneficiary is his or her
surviving spouse) prior to April 1 of the year following the
year in which the Participant attains (or in the event of his or
her death would have attained) age 70-1/2. The previous sentence
shall not apply to Account balances of $3,500 or less.
- 83 -
87
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals
this ______ day of ________________, 1997.
________________________________________
North Fork Bancorporation, Inc.
By: ___________________________________
ATTEST:
___________________________________
Secretary
- 84 -
88
AMENDMENT NUMBER ONE
TO THE NORTH FORK BANCORPORATION, INC.
401(k) RETIREMENT SAVINGS PLAN
The North Fork Bancorporation, Inc. 401(k) Retirement Savings Plan is amended in
the following respects, effective August 1, 1997.
(1)
Article XVII is amended to add the following at the end thereof.
"17.3 Effective August 1, 1997, the assets and liabilities of the Bank of
Great Neck 401(k) Savings and Profit Sharing Plan shall be transferred
into the Plan. The following shall apply to transferred Participant
Accounts.
(a) All transferred funds shall be accounted for separately and
all benefits protected under Section 411(d) of the Code shall
be preserved.
(b) All transferred funds shall be available for in-service
distributions for
(i) withdrawal upon the Participant's attainment of age
59-1/2,
(ii) loans under the provisions of the Plan; and
(iii) hardship withdrawals under the provisions of the
Plan.
(c) Transferred funds shall not be distributed without the consent
of the Participant or the Participant's Beneficiary (if the
Participant is deceased and the Beneficiary is his or her
surviving spouse) prior to April 1 of the year following the
year in which the Participant attains (or in the event of his
or her death would have attained) age 70-1/2. The previous
sentence shall not apply to Account balances of $3,500 or
less.
17.4 Effective as soon as practicable after the receipt of a Compliance
Statement from the Internal Revenue Service, the assets and liabilities
of the Extebank 401(k) Plan will be transferred with the Plan. The
following shall apply to the transferred Participant Accounts.
(a) All transferred funds shall be accounted for separately and
all benefits protected under Section 411(d) of the Code shall
be preserved.
(b) All transferred funds shall be available for in-service
distributions for
(i) loans under the provisions of the Plan; and
89
(ii) hardship withdrawals under the provisions of the
Plan.
(c) Transferred funds shall not be distributed without the consent
of the Participant or the Participant's Beneficiary (if the
Participant is deceased and the Beneficiary is his or her
surviving spouse) prior to April 1 of the year following the
year in which the Participant attains (or in the event of his
or her death would have attained) age 70-1/2. The previous
sentence shall not apply to Account balances of $3,500 or
less."
90
AMENDMENT NUMBER TWO
TO THE NORTH FORK BANCORPORATION, INC.
401(k) RETIREMENT SAVINGS PLAN
The North Fork Bancorporation, Inc. 401(k) Retirement Savings Plan is amended in
the following respects, effective December 31, 1997.
(1)
Article XVII is amended to add the following at the end thereof.
"17.5 Effective December 31, 1997, the assets and liabilities of the Bayside
Federal Savings Bank Tax Deferral Plan (the "Bayside Plan") shall be
transferred into the Plan. The following shall apply to transferred
Participant Accounts.
(a) All transferred funds shall be accounted for separately and
all benefits protected under Section 411(d) of the Code shall
be preserved.
(b) All transferred funds shall be available for in-service
distributions for
(i) withdrawal upon the Participant's attainment of age
59-1/2,
(ii) loans under the provisions of the Plan; and
(iii) hardship withdrawals under the provisions of the
Plan.
(c) Transferred funds shall not be distributed without the consent
of the Participant or the Participant's Beneficiary (if the
Participant is deceased and the Beneficiary is his or her
surviving spouse) prior to April 1 of the year following the
year in which the Participant attains (or in the event of his
or her death would have attained) age 70-1/2. The previous
sentence shall not apply to Account balances of $3,500 or
less.
(d) Promissory Notes for outstanding loans in the Bayside Plan
will be accepted by the Trustee. The loans will amortize for
the same period of time and at the same interest rate as
previously agreed to under the provisions of the Bayside Plan,
modified wherever necessary.
91
AMENDMENT NUMBER THREE TO THE
NORTH FORK BANCORPORATION, INC.
401(k) RETIREMENT SAVINGS PLAN
The North Fork Bancorporation, Inc. 401(k) Retirement Savings Plan is amended in
the following respects.
(1)
A new Section 2.12 is added to read:
"Employees of Branford Savings Bank who are eligible to participate in
the Branford Savings Bank 401(k) Savings and Retirement Plan on
December 31, 1997, and are employed by a subsidiary of North Fork
Bancorporation, Inc. on January 1, 1998, shall be eligible to
participate in the Plan on January 1, 1998. All other employees of
Branford Savings Bank shall be eligible to participate pursuant to
Section 2.1(b) herein. Service from their date of employment with
Branford Savings Bank will be credited for purposes of eligibility in
the Plan."
(2)
Section 6.2 is amended to add the following at the end thereof:
"Each eligible former employee of Branford Savings Bank who enrolls in
the Plan on January 1, 1998 shall be 100% vested in his Bank Matching
Contribution."
(3)
Effective January 1, 1998, Section 6.4 is amended to delete "$3,500" on the
eighth line thereof and insert "$5,000" in its stead.
92
(4)
A new Section 6.11 is added to read:
"Eligible employees of Branford Savings Bank employed by Branford
Savings Bank on December 31, 1997 shall be eligible to enroll in the
Plan on January 1, 1998. Participants who elect to join the Plan after
January 1, 1998 shall receive credit from the later of October 1, 1992
or their date of employment with Branford Savings Bank for purposes of
vesting in the Plan."
(5)
Effective January 1, 1998, Section 11.3 is amended to delete "$3,500" on the
20th and 22nd lines thereof and insert "$5,000" in its stead.
(6)
Section 17.1(d), 17.2(f), 17.3(c) and 17.4(c) are amended to delete "$3,500" and
insert "$5,000" on the sixth line thereof.
IN WITNESS WHEREOF, the Bancorporation has caused this Amendment to be
executed by its duly authorized officer on the 15th day of December, 1997.
NORTH FORK BANCORPORATION, INC.
By:
--------------------------------------------------
Daniel M. Healy
Executive Vice President & Chief Financial Officer
ATTEST:
--------------------------------------------------
93
AMENDMENT NUMBER FOUR
TO THE NORTH FORK BANCORPORATION, INC.
401(k) RETIREMENT SAVINGS PLAN
The North Fork Bancorporation, Inc. 401(k) Retirement Savings Plan is amended in
the following respects.
(1)
A new Section 2.13 is added to read:
"Employees of New York Bancorporation, Inc., employed by North Fork
Bank during the period of January 1, 1998 through March 27, 1998 who
were eligible to participate in the Home Federal Savings Bank Tax
Deferral Savings Plan shall be eligible to participate in the Plan at
the beginning of the next payroll period following the date of
employment with the Bank. Employees of New York Bancorporation employed
by North Fork Bank on May 1, 1998 who were eligible to participate in
the Home Federal Savings Bank Tax Deferral Savings Plan on April 30,
1998 shall become Participants in the Plan on May 1, 1998. All other
employees of New York Bancorporation, Inc. employed by North Fork Bank
shall be eligible to participate in the Plan once they have completed
the eligibility requirements pursuant to Section 2.1 herein. Service
from date of employment with New York Bancorporation, Inc. or Hamilton
Bancorp, Inc will be credited to employees for the purposes of
satisfying such eligibility requirements of Section 2.1."
94
(2)
Section 6.2 is amended to add the following at the end thereof.
"Each eligible former employee of New York Bancorporation, Inc. who
enrolls in the Plan by May 1, 1998 shall be 100% vested in his Bank
Matching Contribution."
(3)
A new section 6.11 is added to read:
"Employees of New York Bancorporation, Inc. subsequently
employed by North Fork Bank on January 1, 1998 and thereafter,
who enroll in the Plan, will receive service credit from the
later of October 1, 1992 or their date of employment with New
York Bancorporation, Inc. or Hamilton Bancorp, Inc. for
purposes of vesting in the Plan."
IN WITNESS WHEREOF, the Bancorporation has caused this amendment to be
executed by its duly authorized officer on this _______________ day of
______________, 1998.
NORTH FORK BANCORPORATION, INC.
By: __________________________________________________
Daniel Healy
Executive Vice President & Chief Financial Officer
ATTEST:
95
AMENDMENT NUMBER FIVE
TO THE NORTH FORK BANCORPORATION, INC.
401(k) RETIREMENT SAVINGS PLAN
The North Fork Bancorporation, Inc. 401(k) Retirement Savings Plan is amended in
the following respects.
(1)
Section 4.1 is amended to add the following at the end thereof.
"The Employer shall make a one-time Bank Matching Contribution with
respect to Before-tax Contributions made in the first two payrolls
during the month of October 1998 by Participants employed at the
branches of Branford Savings Bank acquired by Citizens Savings Bank on
October 16, 1998."
(2)
Article XVII is amended to add the following at the end thereof.
"17.5 Effective December 31, 1998, the assets and liabilities of the Home
Federal Savings Bank Tax Deferral Savings Plan will be transferred into the
Plan. The following shall apply to transferred Participant Accounts.
(a) All transferred funds shall be accounted for separately. Separate
accounts shall be set up for transferred voluntary after-tax
contributions.
(b) All benefits protected under Section 411(d) of the Code shall be
preserved.
(c) All transferred funds shall be available for in-service
distributions for:
(i) withdrawal upon the Participant's attainment of age
59-1/2;
(ii) loans under the provisions of the Plan; and
(iii) hardship withdrawals under the provisions of the Plan.
(d) Transferred funds shall not be distributed without the consent of
the Participant or the Participant's Beneficiary (if the Participant is
deceased and the Beneficiary is his or her surviving spouse) prior to
April 1 of the year following the year in which the Participant attains
(or in the event of his or her death would have attained) age 70-1/2.
The previous sentence shall not apply to Account balances of $5,000 or
less".
96
17.6 Effective December 31, 1998, the assets and liabilities of the Branford
Savings Bank 401(k) Savings and Retirement Plan will be transferred into the
Plan.
The following shall apply to transferred Participant Accounts.
(a) All transferred funds shall be accounted for separately and all
benefits protected under Section 411(d) of the Code shall be preserved.
(b) All transferred funds shall be available for in-service
distributions for:
(i) loans under the provisions of the Plan and
(ii) hardship withdrawals under the provisions of the Plan.
(c) Transferred funds shall not be distributed without the consent of
the Participant or the Participant's Beneficiary (if the Participant is
deceased and the Beneficiary is his or her surviving spouse) prior to
April 1 of the year following the year in which the Participant attains
(or in the event of his or her death would have attained) age 70-1/2.
The previous sentence shall not apply to Account balances of $5,000 of
less."
IN WITNESS WHEREOF, the Bancorporation has caused this amendment to be executed
by its duly authorized officer on this ______ day of ______________, 1998.
NORTH FORK BANCORPORATION, Inc.
By__________________________________________________
Daniel Healy
Executive Vice President and Chief Financial Officer
ATTEST:_____________________________________________
97
AMENDMENT NUMBER SIX
TO THE NORTH FORK BANCORPORATION, INC.
401(k) RETIREMENT SAVINGS PLAN
The North Fork Bancorporation, Inc. 401(k) Retirement Savings Plan is amended in
the following respects.
(1)
A new Section 2.14 is added to read:
"Employees of Amivest Corporation employed by a subsidiary of North
Fork Bancorporation, Inc. on December 31, 1998 who were eligible to
participate in the Amivest Corporation 401(k) Plan on December 31, 1998
shall become Participants in the Plan on January 1, 1999. All other
employees of Amivest Corporation employed by a subsidiary of North Fork
Bancorporation, Inc. Shall be eligible to participate in the Plan once
they have completed the eligibility requirements pursuant to Section
2.1 herein. Service from the date of employment with Amivest
Corporation will be credited to employees for purposes of satisfying
such eligibility requirements of Section 2.1."
(2)
Section 6.2 is amended to add the following at the end thereof:
"Each eligible employee of Amivest Corporation who enrolls in the Plan
by January 1, 1999 shall be 100% vested in his Bank Matching
Contribution."
98
(3)
A new Section 6.13 is added to read:
"Employees of Amivest Corporation subsequently employed by a subsidiary
of North Fork Bancorporation, Inc. on January 1, 1999 and thereafter,
who enroll in the Plan, will receive service credit from the later of
October 1, 1992 or their date of employment with Amivest Corporation
for purposes of vesting in the Plan."
IN WITNESS WHEREOF, the Bancorporation has caused this amendment to be
executed by its duly authorized officer this ___________ day of ___________,
1998.
NORTH FORK BANCORPORATION, INC.
By: __________________________________________________
Daniel Healy
Executive Vice President & Chief Financial Officer
ATTEST:____________________________________________________
99
AMENDMENT NUMBER SEVEN TO THE
NORTH FORK BANCORPORATION, INC.
401(k) RETIREMENT SAVINGS PLAN
The North Fork Bancorporation, Inc. 401(k) Retirement Savings Plan
("Plan") is amended in the following respects:
A. AMENDMENTS RELATING TO RELIANCE FEDERAL SAVINGS BANK MERGER:
The following Amendments are effective as of February 18, 2000:
1. A new Section 2.15 is added to the Plan to read in its entirety as
follows:
"Former employees of Reliance Federal Savings Bank or any of its
affiliates who were eligible to participate in the Reliance Federal
Savings Bank 401(k) Retirement Savings Plan on the date of execution of
the merger agreement between North Fork Bancorporation, Inc. and
Reliance Federal Savings Bank who became employees of the Employer on
such date or any subsequent date through and including February 18,
2000, on account of the merger of North Fork Bancorporation, Inc. and
Reliance Federal Savings Bank, shall be eligible to participate in the
Plan as soon as administratively practicable following their employment
by the Employer. All other such former employees shall be eligible to
participate pursuant to Section 2.1(b) herein. Service from the date of
such employees' initial employment with Reliance Federal Savings Bank
or any of its affiliates will be credited to such employees for
purposes of satisfying the eligibility requirements of this Article
II."
2. Section 6.2 is amended to add the following to the end thereof:
"Each eligible former employee of Reliance Federal Savings Bank or any
of its affiliates who enrolls in the Plan as of the earliest
permissible date under Section 2.15 shall immediately be 100% vested in
his or her Bank Matching Contributions."
3. A new Section 6.14 is added to read in its entirety as follows:
"Former employees of Reliance Federal Savings Bank or any of its
affiliates who became employees of the Employer on the date of
execution of the merger agreement between North Fork Bancorporation,
Inc. and Reliance Federal Savings Bank or on any subsequent date
through and including February 18, 2000, on account of the merger of
North Fork Bancorporation, Inc. and Reliance Federal Savings Bank, will
receive service credit from the date of such employees' initial
employment with Reliance Federal Savings Bank or any of its affiliates
for purposes of vesting under this Article VI."
100
B. AMENDMENTS RELATING TO JAMAICA SAVINGS BANK FSB MERGER:
The following Amendments are effective as of February 29, 2000:
1. A new Section 2.16 is added to the Plan to read in its entirety as
follows:
"Former employees of Jamaica Savings Bank FSB or any of its affiliates
who were eligible to participate in the Incentive Savings Plan of
Jamaica Savings Bank FSB on the date of execution of the merger
agreement between North Fork Bancorporation, Inc. and Jamaica Savings
Bank FSB who became employees of the Employer on such date or any
subsequent date through and including February 29, 2000, on account of
the merger of North Fork Bancorporation, Inc. and Jamaica Savings Bank
FSB, shall be eligible to participate in the Plan as soon as
administratively practicable following their employment by the
Employer. All other such former employees shall be eligible to
participate pursuant to Section 2.1(b) herein. Service from the date of
such employees' initial employment with Jamaica Savings Bank FSB or any
of its affiliates will be credited to such employees for purposes of
satisfying the eligibility requirements of this Article II."
2. Section 6.2 is amended to add the following to the end thereof:
"Each eligible former employee of Jamaica Savings Bank FSB who enrolls
in the Plan as of the earliest permissible date under Section 2.16
shall immediately be 100% vested in his or her Bank Matching
Contributions."
3. A new Section 6.15 is added to read in its entirety as follows:
"Former employees of Jamaica Savings Bank FSB or any of its affiliates
who became employees of the Employer on the date of execution of the
merger agreement between North Fork Bancorporation, Inc. and Jamaica
Savings Bank FSB or on any subsequent date through and including
February 29, 2000, on account of the merger of North Fork
Bancorporation, Inc. and Jamaica Savings Bank FSB, will receive service
credit from the date of such employees' initial employment with Jamaica
Savings Bank FSB or any of its affiliates for purposes of vesting under
this Article VI."
IN WITNESS WHEREOF, NORTH FORK BANCORPORATION, INC. has caused this Amendment to
be executed by its duly authorized officer effective as of the dates above
referenced.
NORTH FORK BANCORPORATION, INC.
By
--------------------------------------------------
Daniel Healy
Executive Vice President and
Chief Financial Officer
2
101
AMENDMENT NUMBER EIGHT TO THE
NORTH FORK BANCORPORATION, INC.
401(k) RETIREMENT SAVINGS PLAN
The North Fork Bancorporation, Inc. 401(k) Retirement Savings Plan ("Plan") is
amended in the following respects:
1. A new Section 10.4 is added to the Plan to read in its entirety as
follows:
"10.4 Direct Rollovers from the Reliance Federal Savings Bank Employee Stock
Ownership Plan or the Jamaica Savings Bank FSB Employee Stock Ownership
Plan
(a) Former employees of Reliance Federal Savings Bank or any of
its affiliates who were participants in the Reliance Federal
Savings Bank Employee Stock Ownership Plan ("Reliance ESOP")
who became employees of the Employer on the date of execution
of the merger agreement between North Fork Bancorporation,
Inc. and Reliance Federal Savings Bank or on any subsequent
date through and including February 18, 2000, on account of
the merger of North Fork Bancorporation, Inc. and Reliance
Federal Savings Bank, shall be eligible to make a one-time
direct rollover to the Plan of the company stock they receive
as a distribution from the Reliance ESOP. Such stock shall be
subject to the provisions of Article VIII herein.
(b) Former employees of Jamaica Savings Bank FSB or any of its
affiliates who were eligible to participate in the Jamaica
Savings Bank FSB Employee Stock Ownership Plan ("Jamaica
ESOP") who became employees of the Employer on the date of
execution of the merger agreement between North Fork
Bancorporation, Inc. and Jamaica Savings Bank FSB or on any
subsequent date through and including February 29, 2000, on
account of the merger of North Fork Bancorporation, Inc. and
Jamaica Savings Bank FSB, shall be eligible to make a one-time
direct rollover to the Plan of the company stock they receive
as a distribution from the Jamaica ESOP. Such stock shall be
subject to the provisions of Article VIII herein."
IN WITNESS WHEREOF, NORTH FORK BANCORPORATION, INC. has caused this Amendment to
be executed by its duly authorized officer, effective as of this
___________________ day of May, 2000.
NORTH FORK BANCORPORATION, INC.
By
--------------------------------------------------
Daniel Healy
Executive Vice President and
Chief Financial Officer
102
AMENDMENT NUMBER NINE TO THE
NORTH FORK BANCORPORATION, INC.
401(k) RETIREMENT SAVINGS PLAN
The North Fork Bancorporation, Inc. 401(k) Retirement Savings Plan ("Plan") is
amended in the following respects:
1. A new Section 2.1(c) is added to the Plan to read in its entirety as
follows:
"Effective May 1, 2001, all salaried Employees are be eligible to
participate in the Plan on the first of the month coincident with or
next following three months of service and attainment of age 21."
2. A new Section 2.16 is added to read in its entirety as follows:
"Former employees of I&A Check Cashing Corporation who became employees
of CBMC, Inc. a subsidiary of North Fork Bank Inc., shall be eligible
to participate in the Plan pursuant to Section 2.1 herein. Service from
the date of such employees' initial employment with I&A Check Cashing
Corporation will be credited to such employees for purposes of
satisfying the eligibility requirements of Article II.
3. A new Section 6.15 is added to read in its entirety as follows:
"Former employees of I&A Check Cashing Corporation who became employees
of CBMC, Inc. a subsidiary of North Fork Bank Inc., on March 16, 2001,
will receive service credit from the date of such employees' initial
employment with I&A Check Cashing Corporation for purposes of vesting
under this Article VI."
EX-5
4
y53362ex5.txt
OPINION OF STINSON, MAG & FIZZELL, P.C.
1
EXHIBIT 5
[Stinson, Mag & Fizzell, P.C. Letterhead]
September 20, 2001
Board of Directors
North Fork Bancorporation, Inc.
275 Broadhollow Road
Melville, New York 11747
Re: Registration Statement on Form S-8
401(k) Retirement Savings Plan
Gentlemen:
We have served as counsel to North Fork Bancorporation, Inc., Melville,
New York (the "Company"), in connection with the preparation and filing of a
Registration Statement on Form S-8 (the "Registration Statement") under the
Securities Act of 1933, as amended, and the Rules and Regulations promulgated
thereunder, registering the distribution of up to Three Hundred Fifty Thousand
(350,000) shares of common stock of the Company, par value $0.01 per share (the
"Shares"), through the North Fork Bancorporation, Inc. 401(k) Retirement Savings
Plan (the "Plan").
In rendering the opinions contained herein, we have examined such
corporate records of the Company, such laws and such other information as we
have deemed relevant, including the Company's Certificate of Incorporation, as
amended, and Bylaws, as amended, certain resolutions adopted by the Board of
Directors of the Company relating to the Plan and certificates received from
state officials and from officers of the Company. In delivering this opinion, we
have assumed the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to the originals of all
documents submitted to us as certified, photostatic or conformed copies, and the
correctness of all statements submitted to us by officers of the Company.
Based upon the foregoing, we are of the opinion that:
1. The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware.
2. All Shares distributed through the Plan, if any, that are
authorized but unissued shares of the Company immediately prior to such
distribution, if distributed in accordance with the Plan, will be validly issued
and outstanding and will be fully paid and nonassessable.
We consent to the filing of this opinion letter as an exhibit to the
Registration Statement and to the use of our name in the Registration Statement.
We also consent to your filing of copies of this opinion letter as an exhibit to
the Registration Statement as filed with agencies of such states as you deem
necessary in the course of complying with the laws of such states regarding the
distribution of Shares pursuant to the Plan.
Very truly yours,
/s/ Stinson, Mag & Fizzell, P.C.
--------------------------------
STINSON, MAG & FIZZELL, P.C.
EX-23.1
5
y53362ex23-1.txt
CONSENT OF KPMG LLP
1
EXHIBIT 23.1
Independent Auditors' Consent
The Board of Directors
North Fork Bancorporation, Inc.:
We consent to incorporation by reference in the Registration Statement on Form
S-8 of North Fork Bancorporation, Inc. of our report dated January 18, 2001,
except for Note 2(c), which is as of February 13, 2001, relating to the
consolidated balance sheets of North Fork Bancorporation, Inc. and subsidiaries
as of December 31, 2000 and 1999, and the related consolidated statements of
income, cash flows, changes in stockholders' equity, and comprehensive income
for each of the years in the three-year period ended December 31, 2000, which
report appears in the December 31, 2000 Annual Report on Form 10-K of North Fork
Bancorporation, Inc.
/s/ KPMG LLP
------------------
New York, New York
September 13, 2001