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BENEFIT PROTECTION TRUST
among
DIME BANCORP, INC.,
THE DIME SAVINGS BANK OF NEW YORK, FSB
and
HSBC Bank USA, as Trustee
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BENEFIT PROTECTION TRUST AGREEMENT (the "Trust Agreement"), dated as of
May 18, 2000, by and among THE DIME SAVINGS BANK OF NEW YORK, FSB, a federal
savings bank with its executive offices at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (the "Bank"), DIME BANCORP, INC., a Delaware corporation with its
executive offices at 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000 (the "Company"), and
HSBC Bank USA, a banking association with an office at 000 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 (the "Trustee").
WHEREAS, the Bank is at the date hereof a wholly-owned subsidiary of the
Company (the Bank and the Company being collectively referred to herein as the
"Dime"); and
WHEREAS, the Covered Arrangements (as defined in Section 1.5 of this
Trust Agreement) provide for the payment of certain benefits (the "Benefits") to
certain Participants and their Beneficiaries (as defined in Section 1.5 of this
Trust Agreement); and
WHEREAS, the Bank and the Trustee wish to enter into this Trust Agreement
to establish a trust (the "Trust"), to which contributions will be made for the
purpose of providing a source of funds to aid Participants and Beneficiaries in
proceeding with any valid claim for benefits under the Covered Arrangements
which are not timely provided by the Dime following an Irrevocable Election or
Change in Control; and
WHEREAS, the cash and property to be contributed to the Trust by the Bank
has been and shall continue to be subject to the claims of the Bank's creditors
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the event the Bank becomes Insolvent, as herein defined, until paid in
accordance with the terms of this Trust; and
WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of any
Covered Arrangement as an unfunded plan or agreement, and the assets of the
Trust shall not constitute plan assets, within the meaning of the Employee
Retirement Income Security Act of 1974, as amended, of any Covered Arrangement;
and
WHEREAS, the Trust is intended to be a "grantor trust" with the corpus
and income of the Trust treated as assets and income of the Bank for federal
income tax purposes pursuant to Sections 671 through 679 of the Internal Revenue
Code of 1986, as amended (the "Code") and shall be construed accordingly;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the Bank, the Company and the Trustee agree as follows:
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ARTICLE I
Establishment of Trust
1.1 Trust Fund. The Bank hereby establishes the Trust with the
Trustee, consisting of such sums of money, policies of life insurance, and other
property acceptable to the Trustee as from time to time shall be paid or
delivered to the Trustee (the "Contributions"). All such Contributions, all
investments made therewith or proceeds thereof and all earnings and profits
thereon, less all payments and charges as authorized herein, shall constitute
the "Trust Fund." The Trust Fund shall be held by the Trustee in trust separate
and apart from other funds of the Bank and shall be applied in accordance with
the provisions of this Trust Agreement. The Trust Fund shall at all times be
subject to the claims of general creditors of the Bank, as provided in Article
XII. Participants and their Beneficiaries shall have no preferred claim on, or
any beneficial ownership interest in, any assets of the Trust. Any rights
created under this Trust Agreement shall be mere unsecured contractual rights of
the Participants and their Beneficiaries against the Bank.
1.2 Irrevocability. The Trust shall be irrevocable, and except as
provided in Article XII, the assets of the Trust shall be held for the exclusive
purposes of providing legal assistance to Participants and Beneficiaries in
proceeding with any valid claim for Benefits under the Covered Arrangements and
defraying expenses of the Trust in accordance with the provisions of this Trust
Agreement. Except as expressly provided in this Trust Agreement, no part of the
income or corpus of the Trust Fund shall be recoverable by or applied for the
benefit of the Bank or its creditors.
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1.3 Inalienability of Interests. No interest, right or claim in or
to any part of this Trust Agreement shall be sold, anticipated, transferred,
assigned (either at law or in equity), alienated, pledged, encumbered, or
subjected to attachment, garnishment, levy, execution or other legal or
equitable process, except as required by law.
1.4 Acceptance by the Trustee. The Trustee accepts the Trust
established under this Trust Agreement on the terms and subject to the
provisions set forth herein, and it agrees to discharge and perform fully and
faithfully all of the duties and obligations imposed upon it under this Trust
Agreement.
1.5 Description of Covered Arrangements, Participants and
Beneficiaries. (a) The Trust shall serve to accumulate amounts for the purpose
of providing legal assistance to Participants and Beneficiaries in proceeding
with any Valid Claim (as defined in Section 5.1(b)(ii)) for benefits under a
Covered Arrangement. As used in this Trust Agreement: 1.3.1. the term "Covered
Arrangement" shall include any bonus, profit sharing, thrift, compensation,
stock option, restricted stock, pension, retirement, deferred compensation,
employment, termination, welfare benefit, severance or other plan, agreement,
policy or arrangement in existence at the time of an Irrevocable Election or
Change in Control for the benefit of any one or more officers or employees of
Dime; provided, however, that: (i) neither the trust under the Amended and
Restated Umbrella Trust Agreement, dated as of May 18, 2000, among the Company,
the Bank and HSBC Bank USA, as Trustee, with respect to the Covered Arrangements
of the Bank and Related Entities (including any subsequent amendments
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or successor agreements thereto) (the "Executive Trust") nor the trust under the
Umbrella Trust Agreement, dated as of May 18, 2000, among the Company, the Bank
and HSBC Bank USA, as Trustee, with respect to the Designated Arrangements of
the Bank and Related Entities (including any subsequent amendments or successor
agreements thereto) (the "Broad-Based Trust" and, each of the Executive Trust,
the Director Trust (as defined in Section 8.2(b)) and the Broad-Based Trust, an
"Umbrella Trust") shall be deemed to be a Covered Arrangement hereunder; and
(ii) there shall be excluded from the Covered Arrangements any plan, agreement,
policy or arrangement that is defined as a "Covered Arrangement" under the
Executive Trust or as a "Designated Arrangement" under the Broad-Based Trust
(provided, (A) that if under the terms of such Umbrella Trusts, only certain of
the benefits under the "Covered Arrangements" or the "Designated Arrangements,"
as the case may be, referred to therein are payable under the terms of such
Umbrella Trusts, then only the benefits so payable shall be excluded from the
Covered Arrangements under this Trust and (B) that if any portion of any
benefits under the "Covered Arrangements" or the "Designated Arrangements," as
the case may be, referred to therein are not paid by such Umbrella Trusts due to
such Umbrella Trusts' lack of funds for such payment, then only the portion of
such benefits that are paid by such Umbrella Trusts shall be excluded from the
Covered Arrangements under this Trust. For purposes of this Section 1.5, the
term "Dime" shall mean the Company, any successor thereto and each other entity
that is a direct or indirect subsidiary of the Company or a successor thereto,
in each such case at the time of such Irrevocable Election or Change in
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Control, but shall not include any entity that is not a subsidiary of the
Company or a successor thereto at such time, notwithstanding that it was
formerly, or subsequently becomes, a subsidiary of the Company or a successor
thereto.
(b) The term "Participant" shall mean any person who at the
time of an Irrevocable Election or Change of Control, or at any time prior
thereto, is or was an officer or employee of Dime (as defined in paragraph (a)
of this Section 1.5) and at such time is or could become entitled to any benefit
pursuant to, or otherwise could be deemed to be a participant in, any Covered
Arrangement (but shall not include any person serving as a non-employee director
of the Bank or the Company with respect to any Benefits accrued solely in such
capacity); and
(c) The term "Beneficiary" shall mean any person who is or
may become entitled to Benefits under any of the Covered Arrangements in the
event of a Participant's death.
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ARTICLE II
General Powers of Trustee
2.1 Investment of the Trust.
(a) Prior to a Change in Control (as defined in Section
13.4) or an Irrevocable Election (as defined in Section 13.5), the assets of the
Trust Fund shall be invested by the Trustee in the manner directed by the Bank,
or, to the extent no such specific direction has been given by the Bank, in
accordance with the written investment guidelines provided from time to time by
the Committee.
(b) Subsequent to an Irrevocable Election or Change in
Control, the Trustee shall invest the assets of the Trust Fund, without
distinction between principal and income, and in accordance with such written
investment guidelines as may be provided from time to time by the Committee, in
(i) life insurance policies and guaranteed annuity contracts issued by insurers
which, at the time of investment, are rated A+ or better by Standard & Poor's or
the equivalent rating by any nationally recognized rating service, (ii) bonds
rated at least A by Standard & Poor's or the equivalent rating by any nationally
recognized rating service, (iii) certificates of deposit, money market funds or
other high quality cash equivalents, or (iv) mutual funds designed to invest in
those items described in clauses (i) through (iii) above.
(c) Subsequent to an Irrevocable Election or a Change in
Control and notwithstanding the foregoing provisions of this Section 2.1, at any
time that the assets of the Trust Fund together with the assets of any other
trust fund established by the Dime with which the assets of the Trust Fund are
commingled for
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investment purposes (excluding in each case any life insurance policies and
guaranteed annuity contracts then in effect) do not exceed $500,000, such assets
shall be held in one or more interest-bearing accounts at a commercial bank or
savings bank (which may include the Trustee), with maturities in the Trustee's
discretion based on the anticipated need for funds, but not in excess of one
year.
(d) Prior to an Irrevocable Election or a Change in Control,
the Bank shall have the right at any time, and from time to time in its sole
discretion, to substitute assets of equal fair market value for any asset held
by the Trust. This right is exercisable by the Bank in a non-fiduciary capacity
without the approval or consent of any person in a fiduciary capacity. After an
Irrevocable Election or a Change in Control, such right shall continue, but any
asset so substituted by the Bank shall be of equivalent or greater liquidity as
compared to the asset for which it is substituted, and such right may only be
exercised with the consent of the Committee.
2.2 Investment Powers of Trustee. Subject to the provisions of this
Trust Agreement and the directions or investment guidelines provided pursuant to
Section 2.1, the Trustee shall have, with respect to the Trust Fund, the
following investment powers in its discretion:
(a) To invest and reinvest in any property, real, personal
or mixed, wherever situated, foreign or domestic, including, common and
preferred stocks, bonds, notes and debentures (including convertible stocks and
securities but not including any stock or securities or debt instruments of the
Bank or its affiliates unless otherwise expressly directed by the Bank pursuant
to Section 2.1(a)); leaseholds;
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mortgages (including, without limitation, any collective or part interest in any
bond and mortgage or note and mortgage); certificates of deposit and money
market funds (including certificates of deposit and money market funds of the
Dime); and life insurance and guaranteed annuity contracts. Such investments may
be made regardless of diversification and without being limited to investments
authorized by law for the investment of trust funds.
(b) To use Trust Fund assets to purchase, and pay all
premiums and other charges upon, individual or group annuity or life insurance
contracts, the rates of return and maturity dates of which may reasonably be
expected to yield appropriate assets of the Trust Fund and to withdraw from or
borrow against such policies.
(c) To retain any property at any time received by it.
(d) To sell, exchange, convey, transfer or dispose of, and
to grant options for the purchase or exchange with respect to, any property at
any time held by it, by public or private sale, for cash or on credit or partly
for cash and partly on credit.
(e) To participate in any plan of reorganization,
consolidation, merger, combination, liquidation or other similar plan and to
consent to or oppose any such plan or any action thereunder, or any contract,
lease, mortgage, purchase, sale or other action by any person or corporation or
other entity any of the securities of which may at any time be held in the Trust
Fund, and to do any act with reference thereto.
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(f) To deposit any property with any protective,
reorganization or similar committee, to delegate discretionary power to any such
committee and to pay and agree to pay part of the expenses and compensation of
any such committee and any assessments levied with respect to any property so
deposited.
(g) To exercise all conversion and subscription rights
pertaining to any property, and to do any act with reference thereto, including
the exercise of options, the making of agreements or subscriptions and the
payment of expenses, assessments or subscriptions, which may be deemed necessary
or advisable in connection therewith, and to hold and retain any securities or
other property which it may so acquire.
(h) To extend the time of payment of any obligation held in
the Trust Fund.
(i) To enter into standby agreements for future investment,
either with or without a standby fee.
(j) To invest and reinvest all or any specified portion of
the Trust Fund through the medium of any common, collective or commingled trust
fund which has been or may hereafter be established and maintained by the
Trustee, provided that prior to investing any portion of the Trust Fund for the
first time in any such common, collective or commingled trust fund, the Trustee
shall advise the Committee of its intent to make such an investment and furnish
to the Committee any information it may reasonably request with respect to such
common, collective or commingled trust fund.
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(k) To the extent permitted by law, to commingle assets of
the Trust Fund, for investment purposes only, with assets of other trust funds
established by the Dime, provided that the Trustee shall maintain separate
records with respect to each such other trust or plan, and further provided that
the assets of the Trust Fund shall not be commingled in any fund intended to
hold only assets of qualified retirement plans within the meaning of Section
401(a) of the Code.
(l) To acquire, renew or extend or participate in the
renewal or extension of any mortgage, and to agree to a reduction in the rate of
interest on any indebtedness or mortgage or to any other modification or change
in the terms of any indebtedness or mortgage or of any guarantee pertaining
thereto, in any manner and to any extent that may be deemed advisable for the
protection of the Trust or the preservation of any covenant or condition of any
indebtedness or mortgage or in the performance of any guarantee, or to enforce
any default in such manner and to such extent as may be deemed advisable; and to
exercise and enforce any and all rights of foreclosure, to bid on any property
in foreclosure, to take a deed in lieu of foreclosure with or without paying a
consideration therefor and in connection therewith to release the obligation on
the bond secured by such mortgage, and to exercise and enforce in any action,
suit or proceeding at law or in equity any rights or remedies in respect of any
such indebtedness or mortgage or guarantee.
(m) To make, execute and deliver, as Trustee, any and all
deeds, leases, notes, bonds, guarantees, mortgages, conveyances, contracts,
waivers,
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releases or other instruments in writing necessary or proper for the
accomplishment of any of the foregoing powers.
2.3 Administrative Powers of Trustee. Subject to the provisions of
this Trust Agreement, the Trustee shall have the following administrative powers
in its discretion:
(a) To exercise all voting rights with respect to the shares
of stock, if any, held in the Trust Fund and to grant proxies, discretionary or
otherwise.
(b) To cause any shares of stock to be registered and held
in the name of one or more of its nominees, or one or more nominees of any
system for the central handling of securities, without increase or decrease of
liability.
(c) To collect and receive any and all money and other
property due to the Trust Fund and to give full discharge therefor.
(d) To settle, compromise or submit to arbitration any
claims, debts or damages due or owing to or from the Trust; to commence or
defend suits or legal proceedings to protect any interest of the Trust; and to
represent the Trust in all suits or legal proceedings in any court or before any
other body or tribunal.
(e) To organize under the laws of any state a corporation,
partnership or trust for the purpose of acquiring and holding title to any
property which it is authorized to acquire under this Trust Agreement and to
exercise with respect thereto any or all of the powers set forth in this Trust
Agreement.
(f) To determine how all receipts and disbursements shall be
credited, charged or apportioned as between income and principal, and the
decision of
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the Trustee shall be final and not subject to question by the Company or the
Bank or any Participant or Beneficiary.
(g) To engage such independent third parties as the Trustee
may deem necessary to assist in making determinations under the Trust.
(h) To engage any legal counsel, including counsel to the
Dime, or any other suitable agents (including outside investment managers), to
consult with such counsel or agents with respect to the implementation and
construction of this Trust Agreement, the duties of the Trustee hereunder, the
transactions contemplated by this Trust Agreement, or any act which the Trustee
proposes to take or omit, to rely upon the advice of such counsel or agents, and
to pay its reasonable fees, expenses and compensation.
(i) To do all other acts, subject to the approval of the
Committee, which the Trustee may deem necessary or desirable for the protection
of the Trust Fund.
2.4 Limitation on Trustee Powers . Notwithstanding any powers
granted to Trustee pursuant to this Trust Agreement or to applicable law, the
Trustee shall not have any power that could give this Trust the objective of
carrying on a business and dividing the gains therefrom, within the meaning of
Section 301.7701-2 of the Procedure and Administrative Regulations promulgated
pursuant to the Internal Revenue Code.
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2.5 Dealings with Trustee. Persons dealing with the Trustee shall be
under no obligation to see to the proper application of any money paid or
property delivered to the Trustee or to inquire into the Trustee's authority as
to any transaction.
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ARTICLE III
Documents, Participant Information and Records
3.1 Copy of Covered Arrangements. The Bank shall provide the Trustee
with a copy of each of the Covered Arrangements and shall provide the Trustee
with a copy of any amendment to any of the Covered Arrangements as soon as
practicable following its adoption. The Trustee shall be entitled to rely on the
terms of any Covered Arrangement as in effect prior to its amendment until the
Trustee receives a copy of such amendment. Copies of Covered Arrangements and
any amendments thereto may also be provided to the Trustee by the Committee or
by any Participant or Beneficiary.
3.2 Participant Information. The Bank shall deliver to the Trustee
the name and address of each Participant and Beneficiary in each Covered
Arrangement, along with each Participant's date of birth and date of hire,
together with such other information concerning the Participants as the Trustee
may from time to time request (all such information, the "Participant
Information").
3.3 Updating the Participant Information.
(a) Prior to an Irrevocable Election or Change in Control,
the Participant Information to be provided by the Bank shall be based on
then-current information concerning persons who could be deemed Participants and
Beneficiaries if a Change in Control or Irrevocable Election were to occur on
the date as of which such information is reported. The Bank may from time to
time notify the Trustee of any changes to the Participant Information (including
any changes in the list of
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Participants). Each such notice shall be signed and dated by an Authorized
Officer of the Bank, shall set forth the name of each Participant with respect
to whom the Participant Information is being changed (or who is being added to
or deleted from the list of Participants), and all additions to or changes from
the information previously supplied with respect to such Participant. An
"Authorized Officer" of the Bank shall for this purpose be any of the
individuals listed in Schedule I to this Trust Agreement, whose specimen
signatures shall be provided by the Bank to the Trustee.
(b) Upon an Irrevocable Election or Change in Control, the
Bank shall either (i) notify the Trustee that there have been no changes in the
Participant Information from the Participant Information most recently provided
or (ii) if there have been changes in the Participant Information, provide the
Trustee with Participant Information updated to the date of the Irrevocable
Election or Change in Control.
(c) Subsequent to an Irrevocable Election or Change in
Control, the Trustee shall update the Participant Information, at such time as
it determines appropriate, from information furnished to it by the Bank,
Participants or the Committee. The Trustee shall request information from the
Bank, Participants and the Committee as necessary to update the Participant
Information.
Notwithstanding the foregoing, subsequent to an
Irrevocable Election or Change in Control, unless the Committee otherwise
determines, no person shall be added as a Participant with respect to a Covered
Arrangement if such person
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was not a Participant with respect to such Covered Arrangement at the time of
the Irrevocable Election or Change in Control.
(d) The Trustee shall be under no obligation to commence any
action seeking judicial or administrative relief in the event that the Bank, the
Committee or any Participant does not furnish information to it as contemplated
above.
3.4 Committee's Right to Information . The Participant Information,
records and all other information and documentation (including updates thereto)
to be delivered or otherwise made available to the Trustee by the Bank pursuant
to the foregoing provisions of this Article shall also be delivered or otherwise
made available by the Bank to the Committee or its agent upon request. In
addition, the Trustee shall deliver or make available such information and
documentation to the Committee or its agent upon request. The Committee shall be
entitled to rely on any such information or documentation delivered or made
available to it by the Bank or the Trustee to the same extent that the Trustee
is entitled to rely on such information or documentation pursuant to the
foregoing provisions of this Article.
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ARTICLE IV
Contributions and Valuation
4.1 Contributions. Contributions shall be delivered to the Trustee
as follows:
(a) Prior to an Irrevocable Election or Change in Control,
the Bank shall deliver such cash, securities or other property to the Trustee as
is necessary for the payment of expenses under the Trust, and may deliver
additional cash or other property up to the value specified in paragraph (b) of
this Section 4.1.
(b) Upon an Irrevocable Election or Change in Control, the
Bank shall deliver to the Trustee additional Contributions as shall be necessary
so that the assets of the Trust Fund are of fair market value not less than
$7,000,000.
(c) Notwithstanding the foregoing, neither the Trustee nor
the Committee shall be liable for any failure by the Bank to make the
Contributions required by Section 4.1(b).
4.2 Valuation of Trust Fund.
(a) The Trustee may hold, invest and reinvest the assets of
the Trust Fund as a consolidated single fund. As of the last business day of
each calendar month, the Trustee shall value the Trust Fund at current market
values, and shall report such valuation to the Bank and, following an
Irrevocable Election or Change in Control, to the Committee. The report of any
such valuation shall not constitute a representation by the Trustee that the
amounts reported as fair market values would actually be realized upon the
liquidation of the Trust Fund. Such valuation shall reflect
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Contributions, income of the Trust Fund, gains or losses (including gains or
losses not yet realized), distributions and expenses incurred during the month.
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ARTICLE V
Payments From Trust Fund
5.1 Payments.
(a) Subject to the provisions of Article XII, prior to an
Irrevocable Election or Change in Control, the Trustee from time to time upon
receipt of direction from the Bank shall make payments from the Trust, as
specified in such direction to such persons, and in such amounts as the Bank
shall direct.
(b) Subject to the provisions of Article XII, the following
provisions shall apply subsequent to an Irrevocable Election or Change in
Control:
(i) Within ninety (90) days after a Change in
Control or Irrevocable Election the Trustee shall notify each previously
identified Participant and Beneficiary in writing of the Trustee's availability
to arrange for aid in pursuing any Valid Claims they may have against the Dime
(as defined in Section 1.5) or its successors or its agents (including insurance
companies or contract administrators or other parties with whom the Dime has
contracted to provide benefits under Covered Arrangements, if any) with respect
to the Covered Arrangements in which they participate. Such notice shall be in
such form as the Trustee shall determine and the Trustee's obligations under
this clause (i) shall be limited to the delivery of such notice to Participants
who remain in Dime's employ at their workplace or, for Participants no longer in
Dime's employ or Beneficiaries or, if so determined by the Trustee, with respect
to those Participants in Dime's employ, the mailing of such notice to the
address, if any, provided for such Participant or Beneficiary in the Participant
Information.
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(ii) If, after a Change in Control or Irrevocable
Election, a Participant or Beneficiary notifies the Trustee that the Dime (or
any insurance company, contract administrator or any other party, if applicable)
has refused to pay a claim asserted by the Participant or Beneficiary under any
of the Covered Arrangements (such claim, a "Submitted Claim"), the Trustee shall
notify the Committee, and the Committee will, with the assistance of counsel
chosen by the Committee and such other advisors as the Committee shall
reasonably require, determine whether the Submitted Claim (1) relates to a
Covered Arrangement; (2) is made by or on behalf of a Participant or
Beneficiary; (3) is timely made; (4) is well grounded in fact; and (5) is
warranted by existing law or would be warranted by a good faith argument for the
extension, modification or reversal of existing law (a "Valid Claim"). If the
Committee determines that the Submitted Claim is a Valid Claim, then (except as
otherwise hereinafter provided) the Trustee will pay the fees of the counsel
determined under subparagraph (iii) of this Section 5.1(b) to pursue such claim,
whether through a law suit, arbitration, plan claims procedure or otherwise, and
any other reasonable expenses (including, without limitation, the reasonable
out-of-pocket expenses of such counsel and the fees of other professionals,
local counsel and experts) incurred in pursuing such claim. If the Committee
determines that a Submitted Claim is not a Valid Claim, nothing in this Section
5.1(b) shall preclude a Participant or Beneficiary from requesting that the
Committee again consider the Submitted Claim's validity if new or additional
facts become known, if the Submitted Claim ripens through the passage of time or
if changes in applicable law occur that may affect the validity of the Submitted
Claim, nor shall
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such a determination preclude the Participant or Beneficiary from pursuing such
claim with his or her own counsel and at his or her own expense. Notwithstanding
the foregoing, in no event shall any Submitted Claim be deemed to be a Valid
Claim if the Submitted Claim arises under a Covered Arrangement which is
qualified under Section 401(a) of the Code and the Participant or Beneficiary
has not exhausted his or her rights under the claim procedures under such
Covered Arrangement; provided, however, that in the case of any benefit claimed
under any Covered Arrangement that is not qualified under Section 401(a) of the
Code, if the Committee in its sole discretion after consultation with counsel
determines that the cost of pursuing such Submitted Claim is likely to exceed
the amount that is likely to be recovered on such Submitted Claim, then the
Committee may, in its sole and absolute discretion, direct that the Trustee pay
the amount of such Submitted Claim or such lesser amount as the Committee
determines to be appropriate (and thereby become subrogated to the Participant's
or Beneficiary's claim against the Dime), provided only that the Committee in
its sole discretion determines that such Submitted Claim is a Valid Claim and
that paying such Submitted Claim would not be contrary to the purpose for which
this Trust is established.
To the extent that any Covered Arrangements require the Company or the
Bank to pay the legal fees and expenses incurred by a Participant or Beneficiary
to enforce his or her rights thereunder and the Committee determines that a
Valid Claim exists, the Trustee (if so directed by the Committee) shall seek
recovery from the Company or the Bank, as appropriate, of any fees and expenses
or benefits paid or payable in respect of such Participant or Beneficiary from
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the Trust, with any payment from the Company or the Bank to the Trust to be
made part of the Trust Fund, provided, however, that the Committee shall have
discretion regarding the manner in which the Trustee shall seek such recovery.
(iii) The Bank has designated on Schedule II, in order
of priority, the law firms to be engaged to pursue any Valid Claim. In making
such designation, the Bank specifically acknowledges that it is willing to, and
hereby does, waive any claim of conflict of interest on the part of any of such
law firms arising out of any representation of the Company, the Bank or any of
their respective affiliates or successors or the Trust or the Committee or any
Umbrella Trust or Committee either prior to or contemporaneously with the
engagement of such firm to pursue such Valid Claim. Prior to the occurrence of
an Irrevocable Election or Change in Control, the Bank may modify any such
designations, or the order of priority of such law firms, by a notice in writing
delivered to the Trustee, provided that after a Potential Change in Control, the
consent of the Committee to any such modification is required. After an
Irrevocable Election or Change in Control, the Committee may modify any such
designations, or the order of priority of such law firms, by a notice in writing
delivered to the Trustee. If no designated law firm is ready and able to provide
representation with respect to a Valid Claim, the Trustee shall engage a law
firm qualified by reason of its experience in comparable matters to pursue such
Valid Claim and approved by the Committee.
(iv) The Committee, and, in consultation with the
Committee, the Trustee, may separately or together engage an actuary to assist
it or them in determining whether a claim is valid. In addition, the
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Committee and, in consultation with the Committee, the Trustee may separately or
together engage counsel, other experts or other administrators or service
providers as it or they deem necessary for the purpose of performing its or
their duties under this Trust. The reasonable costs of such actuaries, counsel
and other persons or entities, and any other costs reasonably incurred by the
Trustee or Committee in making any determination or performing any other duty
hereunder, shall be paid by the Bank (provided, in the case of costs incurred by
the Trustee, that the Committee approves such cost or expense in advance, which
approval shall not unreasonably be withheld), and if any of such amounts are not
paid by the Bank within thirty days after written request is made therefor, they
shall be payable from the Trust Fund and the Trustee shall be entitled to
reimbursement on behalf of the Trust Fund from the Bank.
(v) Subject to the provisions of this Section 5.1,
as promptly as possible the Committee shall determine whether a Submitted Claim
is a Valid Claim. By submitting a Submitted Claim hereunder, the Participant or
Beneficiary with respect to such Submitted Claim agrees that the determination
by the Committee of whether such Submitted Claim is a Valid Claim shall be final
and binding upon such Participant or Beneficiary for all purposes of this Trust
Agreement; provided, that such determination may not be introduced in evidence,
or otherwise made the basis for any claim of estoppel or similar claim, by the
Dime or such Participant or Beneficiary in litigation or any other proceeding
with respect to such claim brought by such Participant or Beneficiary against
the Dime.
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(vi) The Committee may require, as a condition to
payment by the Trustee of the fees of counsel in respect of any Valid Claim,
such undertakings from the Participant or Beneficiary as the Committee may in
its sole discretion determine. In particular, and without limiting the
generality of the foregoing, such undertakings may include (1) a waiver of any
claim of conflict of interest, on the part of the law firm so engaged, arising
out of or relating to such firm's representation of the Company, the Bank or any
of their respective affiliates or successors, the Trust, the Committee or any
related entity; (2) an agreement that the fees and other costs to be paid by the
Trust will be limited to the Valid Claim and will not, without the prior written
consent of the Committee, include fees relating to the pursuit of other claims,
even if related to the Valid Claim; (3) an agreement limiting the amount of fees
and expenses that the Trustee will pay with respect to any particular Valid
Claim without the prior consent of the Committee; and (4) an undertaking by the
Participant or Beneficiary to pay any fees of counsel incurred in excess of
specified limitations.
(vii) Notwithstanding anything in this Trust Agreement
to the contrary, the Trustee shall not be required to make any payment in
respect of a Valid Claim hereunder to the extent that it determines that such
payment would exceed the remaining assets in the Trust Fund (after setting aside
such amounts as it deems, after consultation with the Committee, reasonably
necessary for payment of expenses of the Trust under Article VII hereof for the
period following such determination through the winding up of the Trust), and
neither the Trustee nor the Committee shall have any liability to counsel, any
Participant or Beneficiary, the Bank or any third party for any
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loss, liability or damages (including, without limitation, consequential
damages) resulting from or relating to such failure to make a payment hereunder.
For purposes of this Section 5.1(b), "Dime" shall have the meaning
ascribed thereto in Section 1.5.
5.2 Gross Up. Notwithstanding any other provision of this Trust
Agreement, if any amounts paid under the Trust Fund to aid a Participant or
Beneficiary in pursuing claims under Covered Arrangements are found in a
"determination" (within the meaning of Section 1313(a) of the Code) to have been
includible in the taxable income of a Participant or Beneficiary without the
benefit of a corresponding deduction and the Participant provides the Trustee
with such determination, the Trustee promptly shall forward the determination to
the Committee. In such event, or in the event that the Committee otherwise
determines that such amounts are includible in the taxable income of a
Participant or Beneficiary without the benefit of a corresponding deduction, the
Trustee shall, to the extent directed by the Committee, pay to such Participant
or Beneficiary as soon as practicable, an amount (as determined by the Trustee)
sufficient to pay all taxes, interest and penalties, if any, imposed on the
Participant or Beneficiary with respect to the amount described above, plus
sufficient additional amounts to pay all taxes imposed on payments made pursuant
to this Section 5.2. Notwithstanding the foregoing, in the event a Participant
or Beneficiary provides the Trustee a Notice (as defined below), the Trustee
promptly shall forward the Notice to the Committee. In such case, the Trustee,
at the direction of the Committee, or the Committee, may contest the Notice in
whole or in part (and be reimbursed by the Trust for all reasonable costs of
such contest), in which case the Participant or Beneficiary must fully cooperate
and assist the Trustee (or, as appropriate, the Committee) in connection with
such contest and the payment
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described above will not be made pending the outcome of such contest. At the
resolution of such contest (as determined by the Committee, whether following a
litigation, settlement or otherwise), the Trustee promptly shall pay all amounts
(if any) payable to the Participant or Beneficiary calculated as set forth above
(adjusted for the results of the contest). For purposes of this Section 5.2, the
term "Notice" shall mean a revenue agent's report or notice of proposed
adjustment or notice of deficiency (or any amendments to the foregoing) or
set-off of refund claim issued by a taxing authority to the Participant or
Beneficiary with respect to the inclusion in the Participant's or Beneficiary's
taxable income (without the benefit of an offsetting deduction) of any amounts
paid under the Trust Fund to aid a Participant or Beneficiary in pursuing claims
under Covered Arrangements.
5.3 Transfers to Another Trust. Prior to an Irrevocable Election or
Change in Control, upon the direction of the Bank concurred in by the Committee,
the Trustee shall deliver such assets of the Trust Fund as the Bank and the
Committee may direct to another irrevocable trust established by the Bank (alone
or with one or more of its subsidiaries) for the purpose of providing the
benefits contemplated hereunder.
5.4 Withholding Tax.
(a) To the extent that amounts are to be paid under this
Article V by the Trustee directly to Participants and Beneficiaries, such
amounts shall be reduced by the Trustee by the amount of any income and
employment tax withholding required by law, as determined by the Bank and
promptly communicated to the Trustee.
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The Trustee also shall inform each Participant and Beneficiary to whom payment
is made, of the amounts withheld and the purposes for such withholdings. Such
withheld amounts shall then be paid by the Trustee to the Bank, which shall
remit such withheld amounts to, and shall file the appropriate withholding
reports with, the appropriate governmental agencies.
(b) To the extent that amounts are to be paid under this
Article V by the Trustee directly to Participants and Beneficiaries, but the
Bank fails to direct the Trustee with respect to the appropriate amounts to be
withheld by the Trustee in satisfaction of applicable withholding requirements,
then the Trustee shall withhold amounts in respect of taxes at the highest
applicable rate for the appropriate jurisdiction as determined in good faith by
the Trustee, shall reduce such amounts by the amount of taxes withheld, and
shall inform the Bank and each Participant and Beneficiary to whom payment is
made, of the amounts withheld and the purposes for such withholdings. Such
withheld amounts shall then be paid by the Trustee to the Bank, which shall
remit such withheld amounts to, and shall file the appropriate withholding
reports or returns with, the appropriate governmental agencies. Provided that
the Trustee has used its best efforts to determine applicable withholding under
this Section 5.4(b), it shall have no liability for failure to withhold amounts
sufficient to meet the applicable requirements.
(c) Unless otherwise agreed to by the Trustee, the Dime
shall be responsible for all tax information reporting with respect to payments
made to Participants and Beneficiaries hereunder.
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5.5 Legal Action by Trustee. Except in the event the Bank is
Insolvent (as defined in Section 12.1), the Trustee shall not itself commence
any legal action, whether in the nature of an interpleader action, request for
declaratory judgment, or otherwise, requesting the court to (i) determine the
validity of this Trust Agreement or (ii) make any determination in the Trustee's
or the Committee's stead with respect to payments which this Trust Agreement
requires to be made by the Trustee, except at the direction of the Committee.
Notwithstanding the foregoing sentence, in defending any legal
action brought by a Participant or Beneficiary with respect to amounts payable
with respect to a Participant, the Trustee shall be entitled to ask the court to
determine the amounts payable with respect to such Participant.
5.6 Dime Obligations. Notwithstanding the provisions of this Trust
Agreement, each of the Dime (as defined in Section 1.5) entities shall remain
obligated to pay all Benefits to the full extent of its respective liabilities
under the Covered Arrangements.
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ARTICLE VI
Settlement of Accounts
6.1 Trustee Records. The Trustee shall keep full, accurate and
detailed accounts of all investments, receipts and disbursements and other
transactions hereunder. Its financial statements, books and records with respect
to the Trust Fund shall be open to inspection by the Bank and the Committee, and
to their respective attorneys, accountants and agents upon reasonable notice at
all reasonable times during business hours of the Trustee.
6.2 Trustee Statements.
(a) The Trustee shall render to the Bank and the Committee
monthly statements of its receipts and disbursements as Trustee hereunder.
Within 60 days after the close of each calendar year or any termination of the
duties of the Trustee, the Trustee shall prepare, sign and mail to each of the
Bank and the Committee one or more summary reports. These reports shall show all
purchases, sales, receipts, disbursements, and other transactions effected by
the Trustee during the year or period for which the applicable report or reports
are filed, and shall contain an exact description, the cost as shown on the
Trustee's books, and the fair market value as of the end of such period, of
every item held in the Trust and the amount and nature of every obligation owed
by the Trust, and information concerning the status of any Valid Claims
remaining outstanding and unsatisfied at the end of such period. The Trustee
shall make a copy of such reports (or any adjustment thereof) available for
inspection by Participants and Beneficiaries (and persons designated by them) at
its principal executive office in New York City during business hours for a
period of 60 days (30 days in the
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case of an adjusted report). If within 90 days after receipt of any report
neither the Bank nor any Participant, Beneficiary or Committee member has filed
with the Trustee notice of any objection to any act or transaction of the
Trustee, the initial report shall become final as between the Trustee, the Bank,
the Committee and the Participants and Beneficiaries. If any objection has been
filed, and if the objecting party is satisfied that it should be withdrawn, the
objecting party shall in writing filed with the Trustee signify its approval of
the report, and it shall become a final report as between the Trustee, the Bank,
the Committee and the Participants and Beneficiaries. If the report is adjusted
following an objection thereto, the Trustee shall mail to the Bank and the
Committee the adjusted report, and if within 30 days after receipt of the
adjusted report neither the Bank nor any Participant, Beneficiary or Committee
member has filed with the Trustee notice of any objection to the transactions as
so adjusted, the adjusted report shall become a final report as between the
Trustee, the Bank, the Committee and the Participants and Beneficiaries.
(b) Unless a report is fraudulent, when it becomes a final
report it shall be finally settled, and to the extent permitted by law, the
Trustee shall be completely discharged and released, as if such report had been
settled and allowed by a judgment or decree of a court of competent jurisdiction
in an action or proceeding in which the Trustee, the Bank and the Participants
and Beneficiaries were parties.
6.3 Audit. The Trustee shall from time to time permit an independent
public accountant selected by the Bank or the Committee to have access during
ordinary business hours to such records as may be necessary to audit the
Trustee's accounts.
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6.4 Judicial Settlement. Nothing contained in this Trust Agreement
shall be construed as depriving the Trustee or the Bank or the Committee of the
right to have a judicial settlement of the Trustee's accounts, and upon any
proceeding for a judicial settlement of the Trustee's accounts or for
instructions the only necessary parties thereto in addition to the Trustee shall
be the Bank and the Committee.
6.5 Delivery of Records to Successor. In the event of the removal or
resignation of the Trustee, the Trustee shall deliver to the successor Trustee
all records which shall be required by the successor Trustee to enable it to
carry out the provisions of this Trust Agreement.
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ARTICLE VII
Taxes, Expenses and Compensation of Trustee and Committee
7.1 Taxes.
(a) The Bank agrees that all income, deductions and credits
of the Trust Fund belong to it, as owner for income tax purposes and shall be
included on its income tax return.
(b) The Bank, shall from time to time pay taxes (references
in this Trust Agreement to the payment of taxes shall include interest and
applicable penalties) of any and all kinds whatsoever which at any time are
lawfully levied or assessed upon or become payable in respect of the Trust Fund,
the income or any property forming a part thereof, or any security transaction
pertaining thereto. Notwithstanding the foregoing, in the event that the Trustee
is notified that taxes are nonetheless levied or assessed upon or in respect of
the Trust Fund (notwithstanding its status as a "grantor trust") and have not
been paid by the Bank, such amounts shall be paid from the Trust Fund. The
Trustee shall notify the Bank of any proposed or final assessments of taxes and
may assume that any such taxes are lawfully levied or assessed unless the Bank
advises it in writing to the contrary within 15 days after receiving the above
notice from the Trustee. In such case, the Trustee, if requested by the Bank in
writing, shall contest the validity of such taxes in any manner deemed
appropriate by the Bank; or the Bank may contest the validity of any such taxes,
in which case the Bank shall so notify the Trustee and the Trustee shall have no
responsibility to contest such taxes. If any party to this Trust Agreement
contests any
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such proposed levy or assessment, the other parties shall provide such
information and cooperation as the party conducting the contest shall reasonably
request. In lieu of contesting any proposed levy or assessment that the Trustee
provides notification of, the Bank may pay all or any portion of any such taxes
by so notifying the Trustee of its intention to do so within 15 days after
receiving the above notice from the Trustee or within five days after a
determination of any such contested levy or assessment becomes final, either
because the determination cannot be appealed or no appeal of the determination
was made.
7.2 Expenses and Compensation. The Trustee shall be paid
compensation by the Bank in accordance with the schedule of fees attached hereto
as Schedule III. The Bank and the Trustee may mutually agree to revise such
schedule from time to time. Subject to the Bank's approval prior to an
Irrevocable Election or a Change in Control, and subject to the approval of the
Committee following an Irrevocable Election or a Change in Control, the Trustee
shall be reimbursed by the Bank for its reasonable expenses of management and
administration of the Trust, including reasonable compensation of the actuary
and any counsel or other service providers engaged by the Trustee to assist it
in such management and administration in accordance with Section 5.1(b)(iv)
hereof (but not including the costs of legal defense paid by the Trust Fund
pursuant hereto in aid of Valid Claims). The fees hereunder, and reasonable
expenses of the Trustee approved by the Bank or the Committee as applicable and
as described above, shall be paid out of the Trust Fund, if not otherwise paid
by the Bank.
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7.3 Committee Expenses and Fees.
(a) Each of the Committee and the Director Committee (as
defined in Section 8.2(b)) shall have the power and authority to engage counsel,
other experts or other administrators or service providers of its choice to the
extent it deems it necessary or appropriate in order to defend or assert any of
the rights or interests of the Committee or the Director Committee, the Trust or
its beneficiaries provided for under this Trust Agreement (which, in the case of
the Committee, shall be in addition to its authority to engage actuaries,
counsel and other experts as it deems necessary in order to perform its duties
and provide benefits under Section 5.1). The Committee shall, in addition, have
the power and authority to direct the Trustee to purchase liability insurance to
cover any or all of (a) the Committee and the Director Committee, (b) each of
the Committee's and the Director Committee's current and former members, (c) any
current or former director, officer or employee of the Dime who is or was
serving or agrees to serve at the request of the Dime, the Committee or the
Director Committee as an authorized agent or delegatee of the Bank or the
Committee or the Director Committee, (d) any other agent of the Committee, the
Director Committee or the Trust and (e) the Trustee (each, to the extent so
insured, an "Insured Party") with respect to any and all liabilities to which
such Insured Party may become subject pursuant to, arising out of, occasioned
by, or incurred in connection with or in any way associated with this Trust
Agreement, including, without limitation, liabilities to the Dime, subject to
such limitations on coverage, deductibles, or other terms and conditions as the
Committee shall in its sole discretion deem reasonable. To the extent the
Committee or
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the Director Committee (or the Trustee as directed by the Committee) incurs
reasonable expenses as described above, or incurs other reasonable expenses in
performing its duties under this Trust Agreement, such expenses shall be paid or
otherwise reimbursed out of the Trust Fund, if and to the extent directed by the
Committee, and if not otherwise previously paid or reimbursed by the Bank.
(b) Following an Irrevocable Election or Change in Control,
each member of the Committee who is not at the time of any meeting of the
Committee an employee, officer or director of the Dime shall receive a fee of
$1,500 for each meeting of the Committee which he or she attends personally and
$1,000 for each meeting of the Committee which he or she attends by telephone or
other electronic or wireless means enabling all members in attendance to
communicate with each other contemporaneously, and following the time such
member of the Committee ceases to be an employee, officer or director of the
Dime, shall be reimbursed for any reasonable out-of-pocket expenses incurred in
connection with performing his or her duties under this Trust Agreement. Upon
presentation of a request for such reimbursements to the Trustee (containing
such information, including receipts for out-of-pocket expenses, as the Trustee
may reasonably request), then, if not previously reimbursed by the Bank or
pursuant to any Umbrella Trust, the Committee shall direct the Trustee to make
such reimbursements, which shall be reimbursed out of the Trust Fund. In the
event the Committee hereunder undertakes a meeting that is combined with or
occurs on the same day as one or more meetings of the committees under the
Umbrella Trusts, any Committee member who is a member of such other committee(s)
shall be entitled to
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only a single fee for such meeting or meetings, and the Trustee shall pay a
pro-rated portion of the fee for the meeting (based upon the number of trusts to
which the meeting or meetings relate) out of the assets of this Trust Fund.
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ARTICLE VIII
For Protection of Trustee and Committees
8.1 Evidence of Action by the Dime.
(a) Each of the Company and the Bank has certified to the Trustee
the name or names of any person or persons authorized to act for it on Schedule
I hereto. Unless the Company or the Bank notifies the Trustee, in a notice
signed by its Secretary or by an Assistant Secretary, that any person listed on
Schedule I to this Trust Agreement is no longer authorized to act for the
Company or the Bank, the Trustee may continue to rely upon the authority of such
person. The Company or the Bank may certify to the Trustee, in a notice signed
by its Secretary or by an Assistant Secretary, the names of any additional
persons authorized to act for the Company or the Bank. Schedule I shall be
deemed to be revised to reflect any additions or deletions made in accordance
with this Section 8.1(a).
(b) The Trustee may rely upon any certificate, notice or
direction of the Company or the Bank which the Trustee reasonably believes to
have been signed by at least two duly authorized officers or agents of the
Company or the Bank.
8.2 Evidence of Action by the Committee or the Director Committee.
(a) The Trustee may rely on a signed notice of resignation
by a Committee member, and a notice of vacancy or appointment of a successor
provided in accordance with Section 13.6.
(b) The Trustee may rely upon any certificate, notice or
direction of the Committee or the "Committee" under the Umbrella Trust Agreement
(the "Director Trust"), dated as of May 18, 2000, among the Company, the Bank
and HSBC
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Bank USA, as trustee, with respect to the "Covered Arrangements" for "Outside
Directors" of the Bank and related entities (the "Director Committee"), which
the Trustee reasonably believes to have been signed by at least two members of
the Committee or the Director Committee, as applicable, or, if the Committee or
the Director Committee then consists of only one member, by such member. The
makeup of the Director Committee shall be determined in accordance with the
terms of the Director Trust.
(c) The Committee may from time to time delegate to one or
more persons any or all of its rights, powers, duties and responsibilities
hereunder. Such delegation shall be effective when made in writing and delivered
to the Trustee and the Bank as provided in Section 13.7 hereof, for the period
and to the extent set forth therein. Notwithstanding the foregoing, however, the
Committee may not delegate any of its rights, powers, duties or responsibilities
under any of Sections 12.3, 13.6(b) or 13.6(c) of this Trust, and the Director
Committee may not delegate its authority pursuant to Section 13.5 of this Trust.
The Trustee may rely upon any certificate, notice or direction of such delegatee
or delegatees which the Trustee reasonably believes to have been signed by such
delegatee or delegatees, as to matters within the authority granted by the
Committee to such person or persons. Any such delegation may be partially or
wholly revoked by the Committee at any time, in accordance with Section 13.6(d)
hereof. To the extent that at any time the Director Committee (as defined in
Section 8.2(b)) does not exist, those actions which may otherwise be taken by
the Director Committee may be taken by the Committee.
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8.3 Fiduciary Responsibility.
(a) The Trustee shall discharge its duties under this Trust
Agreement in a manner consistent with the objectives of this Trust Agreement and
in accordance with applicable law. Except as otherwise provided in this Trust
Agreement, or under applicable law, the Trustee shall have no liability for (i)
loss sustained by the Trust Fund by reason of the purchase, retention, sale or
exchange of any investment made in accordance with the written directions of the
Bank; (ii) failure of the Bank to make contributions to the Trust Fund; or (iii)
for any insufficiency of assets in the Trust Fund to pay amounts contemplated
hereunder, unless such loss, failure or insufficiency is the result of the
Trustee's own negligence or willful misconduct.
(b) The Trustee's duties and obligations shall be limited to
those expressly imposed upon it by this Trust Agreement.
(c) The Bank at any time may employ as agent (to perform any
act, keep any records or accounts, or make any computations required of it by
this Trust Agreement or the Covered Arrangements) the corporation or association
serving as Trustee hereunder. Nothing done by said corporation or association as
such agent shall affect its responsibilities or liability as Trustee hereunder.
(d) In the exercise of its discretion hereunder, each of the
Committee and the Director Committee shall have due regard for the interests of
each of the Bank and the Participants (and their Beneficiaries) as a class;
provided, that inasmuch as the interests of such class or entities may be
expected to conflict in certain circumstances, and notwithstanding that members
of the Committee may
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themselves be Participants, any determination made by the Committee or the
Director Committee that has the effect of being more favorable to one entity or
class to which it owes a duty over another shall not thereby be deemed invalid
or a breach of the Committee's or the Director Committee's duty to such
disfavored entity or class, so long as the Committee or the Director Committee,
as applicable, acts in good faith in making its determination.
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ARTICLE IX
Indemnity of Trustee and Committees
9.1 Indemnity of Trustee . The Company and the Bank (the
"Indemnifying Parties") hereby jointly and severally indemnify and hold the
Trustee harmless from and against any Liabilities (as defined in Section 9.2) to
which the Trustee may become subject pursuant to, arising out of, occasioned by,
or incurred in connection with or in any way associated with this Trust
Agreement, including, without limitation, Liabilities to the Bank or the
Company, unless such Liabilities result or arise from any act or omission
constituting gross negligence or willful misconduct of the Trustee. If one or
more Liabilities shall arise and the Indemnifying Parties fail to indemnify the
Trustee as provided herein, then the Trustee may engage counsel of the Trustee's
choice at the expense of the Indemnifying Parties, provided such expenses are
reasonable; and provided further, the Trustee shall be entitled either to
conduct the defense against such Liabilities or to conduct such actions as may
be necessary to obtain the indemnity provided for herein, or to take both such
actions. The Trustee shall notify the Indemnifying Parties of the name and
address of such counsel before the Trustee has so engaged such counsel. If the
Trustee shall be entitled to indemnification by the Indemnifying Parties,
pursuant to this Section 9.1, as determined by a court of competent jurisdiction
and the Indemnifying Parties shall not provide such indemnification upon demand,
the Trustee may apply assets of the Trust Fund in full satisfaction of the
obligations for indemnity by the Indemnifying Parties, and any legal
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proceeding by the Trustee against the Indemnifying Parties for such
indemnification shall be in behalf of the Trust.
9.2 Indemnification of Committees and Agents. The Indemnifying
Parties shall indemnify, to the fullest extent permitted by their respective
Certificates of Incorporation (or equivalent) and By-Laws (collectively, the
"Governing Documents") and applicable law (including the provisions thereof
relating to advances of costs, charges and expenses), any person who is, or
business entity, including without limitation a corporation, limited liability
company or partnership, that is owned by, a current or former director, officer
or employee of either of such Indemnifying Parties or of any of their direct or
indirect subsidiaries who is or was serving or agrees to serve either at the
request of either of the Indemnifying Parties or of such subsidiary or as a
result of being selected to serve in accordance with Section 13.6 hereof or the
corresponding provision of the Director Trust Agreement as a member of the
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Committee or the Director Committee or as an authorized agent or delegatee of
the Bank, the Committee or the Director Committee (each such indemnified person
or business entity, an "Indemnified Party") against any loss, damage, liability,
cost, charge or expense (including attorneys' fees), judgment, fine and amount
paid in settlement (herein "Liabilities") actually and reasonably incurred by
such Indemnified Party or on such Indemnified Party's behalf in connection with
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, investigative or administrative, and whether threatened or brought by
a third party or by the Company, the Bank or any of their respective affiliates
or successors, relating to or in connection with such Indemnified Party's
service as a member of the Committee or the Director Committee or as such
authorized agent or delegatee; provided, that the Indemnified Party has met any
applicable standard of conduct required by or pursuant to the Governing
Documents or by applicable law or regulation in order to qualify for
indemnification thereunder, as well as any other conditions to such
indemnification imposed by the Governing Documents or by applicable law or
regulation, and provided, further, that in the event that such indemnification
(including any provision relating to advances of costs, charges and expenses) is
permissible but not required by the Governing Documents, and the Indemnifying
Parties shall fail to provide such indemnification when requested by an
Indemnified Party, then subject to any conditions set forth in the Governing
Documents, the Trustee shall indemnify such Indemnified Party out of the assets
of the Trust Fund. In connection with such indemnification, the Company and the
Bank hereby acknowledge that each member of the Committee and the Director
Committee and each authorized agent or delegatee of the Bank, the Committee and
the Director Committee is or will be serving as such at the request of the Bank,
both before and after any Change in Control or Irrevocable Election. Any
determination as to whether the Indemnified Party has met such applicable
standard of conduct or other conditions to indemnification shall be made in
accordance with the provisions of the Governing Documents and applicable law or
regulation as in effect at the time of an Irrevocable Election or Change in
Control. Unless otherwise required by applicable law, this Section 9.2 may be
amended only in accordance with Section 11.3 hereof; provided that, in addition,
this Section 9.2 shall not be rescinded or modified so as to materially reduce
the indemnification provided
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hereunder without first giving thirty (30) days advance written notice of such
rescission or modification to each individual then entitled to indemnification
hereunder, or so as to materially reduce the indemnification provided hereunder
with respect to actions taken or omitted to be taken prior to the effective date
of such rescission or modification. An Indemnifying Party may satisfy its
obligation under this Section 9.2 in whole or in part by purchase of a policy or
policies of insurance, but no insurer shall have any rights against an
Indemnifying Party or the Trust arising out of this Section 9.2. If an
Indemnified Party shall be entitled to indemnification by an Indemnifying Party,
pursuant to this Section 9.2, as determined by a court of competent jurisdiction
and the Indemnifying Party shall not provide such indemnification upon demand,
the Trustee shall, to the extent permitted by law, apply the assets of the Trust
Fund in full satisfaction of the obligations for indemnity by the Company or the
Bank, as the case may be, and any subsequent legal proceedings by the
Indemnified Party against the Company or the Bank for such indemnification shall
be on behalf of the Trust.
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ARTICLE X
Resignation and Removal of Trustee
10.1 Resignation of Trustee. The Trustee may resign upon 90 days'
prior written notice to the Committee and the Bank. Any resignation of the
Trustee shall not be effective until the Committee has appointed in writing a
successor Trustee. The Committee shall make a good faith effort, following
receipt of notice of resignation from the Trustee, to appoint a successor
Trustee under this Trust Agreement. In the event the Committee has failed to
appoint a successor Trustee within six months of the Trustee's notice of
resignation, the Trustee shall be entitled to seek judicial removal.
10.2 Removal of Trustee. At any time prior to the occurrence of an
Irrevocable Election, Change in Control or Potential Change in Control, the Bank
may remove the Trustee without cause upon at least 30 days' notice in writing to
the Trustee. At any time after the occurrence of an Irrevocable Election, Change
in Control or Potential Change in Control, the Trustee by be removed only by
action of the Committee. In case of a removal of the Trustee for cause (which,
for these purposes, shall include criminal conduct, gross negligence,
mismanagement of trust funds, or any other material breach of fiduciary duty
hereunder), the party having power to do so hereunder may remove the Trustee
immediately, without any prior notice.
10.3 Successor Trustee. (a) If the Trustee resigns (or is
removed) in accordance with Section 10.1 or 10.2 hereof, (i) prior to an
Irrevocable Election, Change in Control or Potential Change in Control, the Bank
may appoint any third party, such as a bank trust department or other party that
may be granted corporate
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trustee powers under state law, as a successor to replace the Trustee upon
resignation or removal, and (ii) on or after the date of an Irrevocable
Election, Change in Control or Potential Change in Control, only the Committee
may appoint any third party, such as a bank trust department or other party that
may be granted corporate trustee powers under state law, as a successor to
replace the Trustee upon resignation or removal; provided, however, that in the
case of either the preceding clause (i) or (ii), such successor Trustee may not
be an Affiliate of the Dime or a party (or Affiliate of a party) to a Change in
Control or then existing Potential Change in Control. The appointment shall be
effective when accepted in writing by the new Trustee. The former Trustee shall
execute any instrument(s) necessary or reasonably requested by the Bank or the
successor Trustee to evidence the transfer.
(b) All of the provisions set forth herein with respect to
the Trustee shall relate to each successor Trustee with the same force and
effect as if such successor had been originally named as the Trustee hereunder.
10.4 Transfer of Trust Fund to Successor. Upon the resignation or
removal of the Trustee and appointment of a successor, the Trustee shall
transfer and deliver the Trust Fund and such records or copies of such records
as are reasonably requested to such successor. Following the effective date of
the appointment of the successor, the Trustee's responsibility hereunder shall
be limited to managing the assets in its possession and transferring such assets
to the successor, and settling its final account. Neither the Trustee nor the
successor shall be liable for the acts of the other.
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ARTICLE XI
Duration, Termination and Amendment of Trust
11.1 Duration and Termination . (a) Except as provided in this Trust
Agreement, the Trust is hereby declared to be irrevocable and shall continue
until the tenth anniversary of the date hereof; provided, however, that (i) if
on the tenth anniversary of the date hereof, any Valid Claims are then
outstanding and have not been resolved or any Submitted Claims have been
submitted to the Committee and the Committee has not yet made a determination of
whether or not such Submitted Claims are Valid Claims, then the Trust shall
continue until such time as each of such Valid Claims or Submitted Claims has
been resolved, withdrawn or abandoned, except that, on and after such tenth
anniversary, the Trust shall accept no additional claims by Participants or
Beneficiaries and (ii) the Trustee may, at most twice in every calendar year,
request the Committee to determine whether the Trust Fund is sufficient to pay
what the Committee estimates to be the costs of winding-up the Trust (including,
without limitation, the fees of the Trustee therefor) and that if the Committee
determines that the Trust Fund is insufficient to pay such costs, then (x) the
Trust shall cease accepting new claims by Participants or Beneficiaries, and (y)
after all Valid Claims then outstanding, and all Submitted Claims that have been
submitted to the Committee, have been resolved, the Trust shall terminate.
(b) The Bank may terminate this Trust prior to the time all
Valid Claims under the Covered Arrangements have been resolved, provided,
however, that the prior written consent of the Committee must be obtained.
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11.2 Distribution Upon Termination. If this Trust terminates under
the provisions of Section 11.1(a) or (b), the Trustee shall liquidate the Trust
Fund and, after its final account has been settled as provided in Article VI,
shall distribute to the Bank the net balance of any Trust Fund assets remaining
(i) after all expenses have been paid and (ii) in the case of a termination of
the Trust pursuant to the provisions of Section 11.1(b), after all Valid Claims
have been resolved. Upon making such distribution, the Trustee shall be relieved
from all further obligations. The powers of the Trustee hereunder shall continue
so long as any assets of the Trust Fund (including claims against the Dime)
remain in its hands.
11.3 Amendment.
(a) Prior to an Irrevocable Election, Change in Control or
Potential Change in Control, this Trust Agreement may be amended from time to
time by action of the Bank , which action may be taken, and shall be evidenced,
in writing by any of the Chief Executive Officer, the Chief Operating Officer or
the Chief Human Resources Officer of the Bank , certified by the Secretary or an
Assistant Secretary of such entity.
(b) Subsequent to an Irrevocable Election, Change in Control
or Potential Change in Control, this Trust Agreement may be amended only by the
Committee, provided that the Committee shall exercise its authority to amend the
Trust Agreement only to the extent that such exercise of authority does not
eliminate the rights of creditors of the Bank to Trust Fund assets in the event
that the Bank becomes Insolvent (as such term is used in Article XII) or
otherwise cause the Trust to fail to be a
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"grantor trust" pursuant to Sections 671 through 679 of the Code. No amendment
to this Trust Agreement that could materially increase the costs of the Trust to
the Bank shall be made without the approval of the Bank , which approval may be
evidenced by a writing by any of the Chief Executive Officer, the Chief
Operating Officer or the Chief Human Resources Officer of such entity, certified
by the Secretary or an Assistant Secretary of such entity. In the event there is
any dispute between the Committee and the Bank as to whether a proposed
amendment to the Trust Agreement could materially increase the costs of the
Trust to the Bank , the Trustee shall reach its own independent determination
with respect to such dispute, which determination shall be final and binding on
the parties.
(c) No amendment of this Trust Agreement shall be made that
alters the irrevocable character of the Trust established under this Trust
Agreement, and no amendment shall materially increase the duties or
responsibilities of the Trustee unless the Trustee consents thereto in writing.
(d) (i) A "Potential Change in Control" shall be deemed
to have occurred if the event set forth in any one of the following paragraphs
shall have occurred:
(A) the Company or the Bank enters into an
agreement, the consummation of which would result in the occurrence of a Change
in Control;
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(B) the Company or the Bank or any Person
publicly announces an intention to take or to consider taking actions which, if
consummated, would constitute a Change in Control;
(C) any Person becomes the Beneficial Owner,
directly or indirectly, of securities of the Bank or the Company representing
15% or more of either the then outstanding shares of common stock of the Bank or
the Company or the combined voting power of the Bank's or the Company's then
outstanding securities (not including in the securities beneficially owned by
such Person, any securities acquired directly from the Bank or its affiliates);
or
(D) the Board of Directors of the Bank
adopts a resolution to the effect that, for purposes of this Agreement, a
Potential Change in Control has occurred.
(ii) The Committee shall determine whether a
Potential Change in Control or an Abandonment Date has occurred. If the
Committee makes such a determination, then the Committee shall promptly notify
the Company, the Bank and the Trustee of such determination.
In particular, and without limiting the generality of the foregoing, the
parties to this Trust Agreement acknowledge that, as of the date hereof, a
Potential Change in Control has occurred in respect of the exchange offer by
North Fork Bancorporation, Inc. for common shares of the Company.
(iii) As used in this Section, the term "Abandonment
Date" shall mean the date on which (A) an agreement described in Section
(d)(i)(A)
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above is terminated (pursuant to its terms or otherwise) without having been
consummated, (B) all parties described in Section (d)(i)(B) above publicly
announce that they have unconditionally abandoned the transactions contemplated,
(C) the Board adopts a resolution rescinding its previous determination that a
Potential Change in Control has occurred, or (D) a court or regulatory body
having competent jurisdiction enjoins or issues a cease and desist or stop order
with respect to or otherwise prevents the consummation of, or a regulatory body
notifies the Bank or the Company that it will not approve, a transaction
described in Section (d)(i)(A) or (B) above or the transactions contemplated
thereby and such injunction, order or notice has become final and not subject to
appeal.
(iv) Following the Abandonment Date of a Potential
Change in Control, the provisions of this Trust Agreement in effect following a
Potential Change in Control shall no longer apply, and the provisions of this
Trust Agreement in effect prior to a Potential Change in Control shall again
apply, unless and to the extent that, prior to the Abandonment Date of such
Potential Change in Control, another Potential Change in Control, or an
Irrevocable Election or Change in Control, has occurred with respect to which
those provisions, as applicable, will continue to separately apply.
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ARTICLE XII
Claims of Creditors
12.1 Insolvency of the Bank. As used in this Article XII, the Bank
shall be deemed to be "Insolvent" if (i) the Bank is subject to a pending
proceeding seeking a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
conservator or receiver or trustee or liquidator in any insolvency, liquidation,
taking of possession, termination of deposit insurance, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or relating to
the Bank or of or relating to all or substantially all of its property, or for
the winding up or liquidation of its affairs, under any federal or state law
relating to bankruptcy or insolvency, or (ii) the Bank is unable to pay its
debts as they become due. The Chief Executive Officer or Board of Directors of
the Bank shall promptly notify the Trustee in the event that the Bank becomes
Insolvent. If at any time the Trustee has determined that the Bank is Insolvent,
the Trustee shall discontinue payments on behalf of Participants or their
Beneficiaries from the Trust Fund assets and shall hold the Trust Fund assets
for the benefit of the Bank's general creditors. Nothing in this Trust Agreement
shall in any way diminish any rights of Participants or their Beneficiaries to
pursue their rights as general creditors of the Bank with respect to the Covered
Arrangements or otherwise.
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12.2 Trustee's Responsibilities if the Bank May Be Insolvent.
(a) If at any time the Bank or a person claiming to be a
creditor of the Bank alleges in writing to the Trustee that the Bank has become
Insolvent, the Trustee shall inquire of the Committee whether the Bank is
insolvent and shall be bound by the determination of the Committee as to whether
the Bank is insolvent; provided, however, that if the Committee fails to make
any determination as to the insolvency of the Bank within 30 days following the
inquiry of the Trustee, then the Trustee shall, within 30 days following such
failure, independently determine whether the Bank is Insolvent and, pending the
determination by the Committee or the Trustee, as the case may be, the Trustee
shall suspend payments from the Trust Fund.
(b) If the Bank notifies the Trustee or the Trustee
determines that the Bank is Insolvent, the Trustee shall hold the assets of the
Trust Fund for the benefit of the Bank's general creditors, and shall disburse
assets from the Trust Fund to creditors of the Bank only pursuant to an order
from a court of competent jurisdiction.
(c) If the Trustee suspends payments from the Trust Fund
pursuant to this Section 12.2, the Trustee shall resume such payments only after
the Trustee has determined that the Bank is not Insolvent (or is no longer
Insolvent, if the Trustee initially determined the Bank to be Insolvent).
12.3 Trust Recovery of Payments to Creditors. In the event that an
amount is paid from the Trust Fund to creditors of the Bank (other than as
provided in Article V and Section 7.3), then as soon as practicable (or if the
Bank is then Insolvent, as soon as the Bank is no longer Insolvent) but subject
to the sole discretion of the
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Bank or, following an Irrevocable Election or Change in Control, subject to the
sole discretion of the Committee, and upon the Trustee's demand, the Bank shall
deposit into the Trust Fund a sum equal to the amount paid by the Trust Fund to
such creditors.
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ARTICLE XIII
Miscellaneous
13.1 Governing Law. This Trust Agreement and the Trust hereby created
shall be governed, construed and regulated by the laws of the State of New York,
without regard to the conflict of laws principles thereof. The parties to this
Agreement agree and expressly consent that any action brought pursuant to or to
enforce the terms of this Agreement may be brought in the courts of the State of
New York sitting in New York, New York, or the United States District Court for
the Southern District of New York. Each of the parties to this Agreement agrees
and expressly consents to submit to the exclusive jurisdiction of the
above-listed courts in any action alleging a breach of this Agreement or seeking
to invalidate or limit the enforceability of this Agreement or of any provision
thereof. Nothing in this provision, however, shall be construed to limit the
Trustee's or the Committee's ability to serve process or commence any action
against any of the parties hereto in any appropriate forum.
13.2 Titles and Headings Not to Control. The titles to Articles and
headings of Sections in this Trust Agreement are placed herein for convenience
of reference only and in case of any conflict, the text of this Trust Agreement,
rather than such titles or headings, shall control.
13.3 Successors and Assigns . Except as provided herein, this Trust
Agreement may not be assigned by any party without the prior written consent of
the other parties, and any purported assignment without such prior written
consent shall be null and void. This Trust Agreement shall be binding upon the
successors and
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permitted assigns of each party hereto. In the case of any consolidation of the
Bank with, or merger of the Bank with or into, any corporation or other entity,
the corporation or other entity formed by such consolidation, or with or into
which the Bank is merged, or any Person which acquires all or a majority of the
assets of the Bank, shall expressly assume in writing, in form satisfactory to
the Trustee, the duties and obligations of the Bank under this Trust Agreement;
provided, however, that the duties and obligations of the Bank under this Trust
Agreement shall be binding on any such successor notwithstanding its failure to
expressly assume such duties and obligations in writing. The Bank shall not sell
or convey all or a majority of its assets to any Person unless such Person has
expressly assumed in writing, in form satisfactory to the Trustee, each of the
duties and obligations of the Bank under this Trust Agreement.
13.4 Change in Control. For purposes of this Trust Agreement, a
"Change in Control" shall be deemed to have occurred if the event set forth in
any one of the following paragraphs shall have occurred:
(i) any Person is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Company (not including in the
securities beneficially owned by such Person any securities acquired directly
from the Company or its Affiliates) representing 35% or more of the combined
voting power of the Company's then outstanding securities; or
(ii) the following individuals cease for any reason
to constitute a majority of the number of directors then serving as directors of
the Company and the Bank: individuals who, on July 24, 1997, constitute the
Boards of
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Directors of the Company and the Bank and any new director (other than a
director whose initial assumption of office is in connection with the settlement
of an actual or threatened election contest, including but not limited to a
consent solicitation, relating to the election of directors of the Company)
whose appointment or election by the Boards of Directors of the Company or the
Bank or nomination for election by the Company's stockholders was approved or
recommended by a vote of at least two-thirds (2/3) of the directors then still
in office who either were directors on July 24, 1997 or whose appointment,
election or nomination for election was previously so approved or recommended;
or
(iii) there is consummated a merger or consolidation
of the Company or any direct or indirect subsidiary of the Company with any
other corporation or entity, other than (A) a merger or consolidation which
would result in the voting securities of the Company outstanding immediately
prior to such merger or consolidation continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity or any Parent thereof), in combination with the ownership of
any trustee or other fiduciary holding securities under an employee benefit plan
of the Company or any subsidiary of the Company, at least 65% of the combined
voting power of the securities of the Company, such surviving entity or any
Parent thereof outstanding immediately after such merger or consolidation or (B)
a merger or consolidation effected solely to implement a recapitalization of the
Company or the Bank (or similar transaction) in which no Person is or becomes
the Beneficial Owner, directly or indirectly, of securities of the Company
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or the Bank (not including in the securities beneficially owned by such Person
any securities acquired directly from the Company or its Affiliates)
representing 35% or more of the combined voting power of the Company's or the
Bank's then outstanding securities; or
(iv) the stockholders of the Company or the Bank
approve a plan of complete liquidation or dissolution of the Company or the
Bank, respectively, or there is consummated a sale or disposition by the Company
or any of its subsidiaries of any assets which individually or as part of a
series of related transactions constitute all or substantially all of the
Company's consolidated assets (provided that, for these purposes, a sale of all
or substantially all of the voting securities of the Bank or a Parent of the
Bank shall be deemed to constitute a sale of substantially all of the Company's
consolidated assets), other than any such sale or disposition to an entity at
least 65% of the combined voting power of the voting securities of which are
owned by stockholders of the Company in substantially the same proportions as
their ownership of the voting securities of the Company immediately prior to
such sale or disposition.
As used in this Trust Agreement, "Affiliate" shall have the meaning set
forth in Rule 12b-2 promulgated under Section 12 of the Exchange Act;
"Beneficial Owner" shall have the meaning set forth in Rule 13d-3 under the
Exchange Act; "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time; "Parent" shall mean any entity that becomes the
Beneficial Owner of at least 80% of the voting power of the outstanding voting
securities of the Company or of an
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entity that survives any merger or consolidation of the Company or any direct or
indirect subsidiary of the Company; and "Person" shall have the meaning given in
Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and
14(d) thereof, except that such term shall not include13.4.0.4.0.1. the Company
or any of its subsidiaries, a trustee or other fiduciary holding securities
under an employee benefit plan of the Company or any of its Affiliates, an
underwriter temporarily holding securities pursuant to an offering of such
securities, or a corporation or entity owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company.
For purposes of this Trust Agreement, the Committee shall determine
whether a "Change in Control" has occurred and if such a determination is made,
shall promptly notify the Company, the Bank and the Trustee in writing of such
determination.
13.5 Irrevocable Election.
(a) The Committee, acting by majority or if only one
Committee member exists then by such member, or the Director Committee (as
defined in Section 8.2(b)), acting by majority or if only one Director Committee
member exists then by such member, may at any time make an Irrevocable Election
pursuant to this Section 13.5 by notifying the Trustee in writing in
substantially the form attached hereto as Exhibit A. Without limiting the
ability of the Committee or the Director Committee to make an Irrevocable
Election at any time and in its sole and absolute discretion, an Irrevocable
Election may (but need not) be made by the Committee or the Director
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Committee at any time after a Potential Change in Control.
13.6 The Committee.
(a) Prior to a Potential Change in Control (as defined in
Section 11.3(d)), an Irrevocable Election or a Change in Control (as defined in
Section 13.4), the Committee shall consist of those individuals holding the
following offices in the Bank: (i) Chief Executive Officer; (ii) Chief Operating
Officer; (iii) Chief Financial Officer; (iv) Treasurer; (v) General Counsel; and
(vi) Chief Human Resources Officer, it being understood that one individual may
hold more than one such position. Any member of the Committee may resign upon 30
days' prior written notice to the Bank, the Trustee, and the other members of
the Committee. Prior to an Irrevocable Election, a Change in Control or a
Potential Change in Control, each member of the Committee may be removed by the
Chief Executive Officer of the Bank, and, in the event of a vacancy on the
Committee, if no individual then holds the officer position so vacated the Chief
Executive Officer of the Bank shall appoint a successor. The Bank and the
Committee shall inform the Trustee of the membership of the Committee and any
changes therein, and the Trustee shall, upon the request of any Participant,
provide the Participant with a list of Committee members.
(b) Subsequent to a Potential Change in Control, those
members of the Committee who were members of the Committee immediately preceding
the Potential Change in Control shall continue as members of the Committee
whether or not such individuals continue to hold the officer positions described
in
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Section 13.6(a), and the number of members of the Committee shall, unless
otherwise reduced as provided below, be equal to the number of members of such
Committee continuing as such immediately after such Potential Change in Control;
provided, however, that except as otherwise provided below, the membership of
each such individual on the Committee shall cease if such individual is no
longer employed by the Dime (or a successor or any parent or subsidiary of any
of such entities). In the event of a vacancy on the Committee subsequent to a
Potential Change in Control, a successor to the vacancy on the Committee shall
be appointed by action (evidenced by written approval) of a majority of the
remaining members of the Committee. No individual shall be eligible to be named
to fill a vacancy on the Committee, however, unless such individual is, at the
time of such appointment, (x) an employee of the Company or the Bank (or a
successor or any parent or subsidiary of any of such entities) and (y) a
Participant, and such individual may continue as a member on the Committee
during the period such individual is both an employee of the Company or the Bank
(or a successor or any parent or subsidiary of any of such entities) and a
Participant. If at any time after a Potential Change in Control but prior to a
Change in Control or an Irrevocable Election (in either of which event paragraph
(c) of this Section 13.6 shall control and be immediately effective) no member
of the Committee, as constituted at such time, would remain a member of the
Committee because all such members have ceased to be employed by either the
Company or the Bank (or a successor or any parent or subsidiary of any of such
entities), then during the 90-day period following the date the last such member
ceases to be so employed, the
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membership of the Committee shall be made up of the most recent members of the
Committee in number equal to the number provided for in the first sentence of
this Subsection 13.6(b). During such 90-day period, (i) those reconstituted
Committee members may, by vote or written consent of a majority thereof, elect
one or more new members of the Committee who satisfy the requirements set forth
in (x) and (y) above (in which event such new members shall from and after their
election constitute the Committee for all purposes of this Trust Agreement,
subject to the other provisions of this Subsection 13.6(b), and the
reconstituted Committee members shall cease to serve as Committee members), or
(ii) if the Committee or the Director Committee shall make an Irrevocable
Election prior to the election of one or more new Committee members, then the
reconstituted Committee members shall constitute the Committee and the
provisions of Section 13.6(c) shall control. If neither of the actions set forth
in the preceding sentence are taken, then, on and after the end of such 90-day
period, the Trustee shall appoint successor members of the Committee who satisfy
the requirements set forth in (x) and (y) above.
(c) Following an Irrevocable Election or a Change in Control
(and irrespective of whether a Potential Change in Control has previously taken
place), the Committee shall consist of those individuals who were members of the
Committee immediately prior to the Irrevocable Election or Change in Control,
and the number of Committee members shall continue at the same level as applied
before such Irrevocable Election or Change in Control. Further, subsequent to an
Irrevocable Election or a Change in Control, no member of the Committee may be
removed unless
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removed by the action of at least two-thirds of the remaining members of the
Committee (but in no event shall such action be taken by less than two members
of the Committee). Following an Irrevocable Election or a Change in Control,
after the death, resignation or removal of a member of the Committee, a
successor to a vacancy on the Committee shall be appointed by a majority of the
remaining members of the Committee. However, if following an Irrevocable
Election or a Change in Control all membership positions on the Committee are
vacant, the Trustee shall appoint successor members of the Committee, each of
whom satisfies the condition that, at the time of such appointment, he or she be
a Participant.
(d) Any action by the Committee, unless and to the extent
validly delegated pursuant to Section 8.2(c) hereunder, shall require the
written approval of the majority of the members of the Committee or if the
Committee then consists of only one member, by such member. A Committee member
or delegatee shall not be liable hereunder for any act taken or omitted to be
taken in good faith, except for such person's own gross negligence or willful
misconduct.
(e) All of the provisions set forth herein with respect to a
member of the Committee shall relate to each successor with the same force and
effect as if such successor had been originally named as a member of the
Committee.
(f) In the case of any ambiguity under this Trust, the
Trustee may seek the direction of, or a determination by, as applicable, the
Committee.
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13.7 Notices.
(a) Communications to the Trustee shall be sent in writing
to the Trustee's office at 000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxx Xxxxxxxx, Vice President, or to such other address as the Trustee may
specify. No communication shall be binding upon the Trust Fund or the Trustee
until it is received by the Trustee and unless it is in writing and signed by an
authorized person.
(b) Communications to the Bank shall be sent in writing to
the Bank at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Chief Human
Resources Officer, or to such other address as the Bank may specify. No
communication shall be binding upon the Bank until it is received by the Bank.
(c) Communications to the Committee shall be sent in writing
to each of the Committee members as follows:
Committee Under the Benefit Protection Trust Agreement
Dime Bancorp, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: name of Committee member
with a copy to:
Patterson, Belknap, Xxxx & Tyler LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esq. and
Xxxxx X. Xxxxxx, Esq.
Telecopier: (000) 000-0000
or to such other address as the respective Committee member may specify. No
communication shall be binding upon the Committee until it is received by at
least two
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of the Committee members or, if the Committee shall then consist of only one
member, by such member.
(d) Communication to the Director Committee shall be sent in
writing to each of the Committee members as follows:
Committee Under the Directors Umbrella Trust Agreement
Dime Bancorp, Inc./The Dime Savings Bank of New York, FSB
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: name of Director Committee member
with a copy to:
Patterson, Belknap, Xxxx & Xxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esq. and
Xxxxx X. Xxxxxx, Esq.
Telecopier: (000) 000-0000
or to such other address as the respective Director Committee member may
specify. No communication shall be binding upon the Director Committee until it
is received by at least two of the Director Committee members or, if the
Director Committee shall then consist of only one member, by such member.
13.8 Obligations of the Dime
Wherever this Trust requires that an obligation be performed by
the Dime, then the Company and the Bank shall be jointly and severally liable
for the performance of such obligation. If the Bank is deemed, pursuant to its
Governing Documents or applicable law (including, without limitation, pursuant
to the decision or order of a court of competent jurisdiction or a regulatory
authority having supervisory
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authority over the Bank) not to have the powers or authority necessary to fully
perform its obligations under this Trust Agreement, (i) the Company hereby
agrees that it shall immediately assume all of the rights and obligations of the
Bank hereunder, (ii) this Trust Agreement shall be deemed amended so that every
appearance of the word "Bank" hereunder shall henceforth refer to the Company
unless the context of such word requires otherwise and (iii) the Trust Fund
shall at all times thereafter be subject to the claims of general creditors of
the Company, as provided in Article XII hereof.
13.9 Invalidity of Particular Sections.
Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without invalidating the
remaining provisions hereof which shall continue in full force and effect.
13.10 Counterparts. This Trust Agreement may be executed in any number
of separate counterparts, each such counterpart being deemed to be an original
of this Trust Agreement, and all such counterparts together constituting the
same agreement.
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IN WITNESS WHEREOF, THE DIME SAVINGS BANK OF NEW YORK, FSB, HSBC BANK
USA, as Trustee, and DIME BANCORP, INC. have caused this Trust Agreement to be
executed by their duly authorized officers and their respective seals to be
hereunto affixed as of the day and year first above written.
THE DIME SAVINGS BANK OF NEW YORK, FSB
By:
-----------------------------------
Name:
-----------------------------------
Title:
SEAL
Attest:
--------------------------
HSBC BANK USA, as Trustee
By:
-----------------------------------
Name:
-----------------------------------
Title:
SEAL
Attest:
--------------------------
70
FOR THE PURPOSE OF CONSENTING TO THE JOINT AND
SEVERAL LIABILITIES EXPRESSLY IMPOSED HEREUNDER
AND THE PROVISIONS OF SECTION 13.8 HEREOF:
DIME BANCORP, INC.
By:
-----------------------------------
Name:
-----------------------------------
Title:
SEAL
Attest:
--------------------------
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SCHEDULE I
LIST OF AUTHORIZED OFFICERS
INDIVIDUALS HAVING AUTHORITY TO ACT ON BEHALF OF THE BANK
Benefits Committee Members Treasury Division
-------------------------- -----------------
Xxxxxxxx X. Xxxx Xxxxxxx Xxxx
D. Xxxxx Xxxxx
Xxxxxx X. Xxxxxxx
Xxxxxxx Xxxxxxxxx
Xxxxx X. Xxxxx
Human Resources Department Law Department
-------------------------- --------------
Xxxxxx X. Xxxxxxxx Xxxx Xxxxxxxxxxxxx
Xxxxx X. XxXxxxxx Xxxxxxxxx Xxxx
Xxxxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxxx Office of the Corporate Secretary
Xxxxxx Xxxxxxxx ---------------------------------
Xxxx X. Xxxxxx
INDIVIDUALS HAVING AUTHORITY TO
ACT ON BEHALF OF THE COMPANY
Benefits Committee Members Treasury Division
-------------------------- -----------------
Xxxxxxxx X. Xxxx Xxxxxxx Xxxx
D. Xxxxx Xxxxx
Xxxxxx X. Xxxxxxx
Xxxxxxx Xxxxxxxxx
Xxxxx X. Xxxxx
Human Resources Department Law Department
-------------------------- --------------
Xxxxxx X. Xxxxxxxx Xxxx Xxxxxxxxxxxxx
Xxxxx X. XxXxxxxx Xxxxxxxxx Xxxx
Xxxxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxxx Office of the Corporate Secretary
Xxxxxx Xxxxxxxx ---------------------------------
Xxxx X. Xxxxxx
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SCHEDULE II
LIST OF ATTORNEYS
Patterson, Belknap, Xxxx & Tyler LLP
The Xxxxxxxxx Law Firm
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SCHEDULE III
LIST OF FEES AND EXPENSES OF TRUSTEE
A. Administration and Accounting
For the administration, including custody and monthly basic accounting
services, the fee will be computed at the following annual rates applied
to the market value of the Trust Fund assets.
.15 of 1% on the first $10 million
.08 of 1% on the next $20 million
.05 of 1% on the balance
Minimum annual fee - $10,000
Multiple Accounts Fee - $1,500 each additional account
Market values of multiple accounts are combined for fee purposes. Fees
for a period of less than one year shall be pro-rated.
In the event that any of the following occur: (a) a Change in Control,
(b) the filing of an Irrevocable Election, or (c) the Bank or the
Company is determined to be Insolvent, the above annual rates and
minimum annual fees will increase by 100%; provided, however, that in
the event such increase in fees is on account of the Insolvency of the
Bank (but not on account of either of the reasons set forth in (a) or
(b) above), such increase in annual rates and minimum annual fees shall
only relate to the fees regarding the Company Trust Assets.
Notwithstanding the foregoing, in no event (without an appropriate
modification of this Schedule II) will the above annual rates and
minimum annual fees increase by more than 100%.
B. Wire Transfers and Transaction Processing
For securities transactions, including purchases and sales of equities,
fixed income securities, short term instruments, pay downs on pooled
mortgages, external mutual funds (except for pooled cash equivalent
investment purchases and sales) and wire transfers:
$20.00 per transaction
74
For other securities transactions, including purchases and sales of
options, futures and international transfers of funds:
$40.00 per transaction
C. Disbursements
For check processing:
$10.00 Per check
$20.00 Per check rush-issued (24-hour turnaround)
D. Other Administrative Services
For administrative services not covered by the preceding provisions that
are relative to carrying out trustee responsibilities beyond routine
custodial and accounting duties, the Trustee shall maintain time logs
indicating the time spent by its employees and agents on the discharge
of its duties as Trustee. Each hour shall be charged at the Trustee's
hourly rates then in effect under this Agreement or subsequent
amendment. The hourly rates as of the effective date of the Benefit
Protection Trust are:
Department Managers $150.00
Vice President $125.00
All Other Officers $100.00
Other Staff $ 50.00
Time spent by the Operations Department of the Trustee on the handling
of assets, generation of accounting reports and other standard
operations are not subject to an hourly charge.
E. Participant Recordkeeping Services, if requested or required
Set-Up and Conversion Per Plan
$250 (One-Time Fee)
On-Going Processing Per Plan - Participant Accounting:
Administrative Fee: $1,000 per valuation
Participant Fee: $ 25 per year
Out-of-Pocket Expenses
75
Cost of custom processing, custom statement paper, "reruns" due
to customer error to be billed at cost.
F. Extraordinary Services
Billed as mutually agreed upon.
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EXHIBIT A
HSBC Bank USA
insert Trustee address then
in effect, per Section 13.7
Attention:
----------------
Re: Benefit Protection Trust Agreement dated as
____________, 2000, between the Dime Savings Bank of New
York, FSB, Dime Bancorp, Inc. and HSBC Bank USA, as
Trustee.
Gentlemen:
You are hereby notified that the [Committee (as defined in Section 13.6
of the Trust Agreement referred to above)] [Director Committee (as defined in
Section 8.2(b))] is making an Irrevocable Election pursuant to Section 13.5 of
such Trust Agreement. You are hereby directed to take all actions and undertake
such responsibilities as are provided for under the Trust Agreement in the event
of an Irrevocable Election.
Sincerely yours(1)
----------------
(1) To be signed by a majority of the Committee appointed pursuant to
Section 13.6, or, if the Committee then consists of only one member,
then by such member.