AMENDED AND RESTATED PARTICIPATION AGREEMENT UNDER THE NORTHEAST COMMUNITY BANK SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
Exhibit
10.1
AMENDED
AND RESTATED
UNDER
THE
NORTHEAST
COMMUNITY BANK
SUPPLEMENTAL
EXECUTIVE RETIREMENT PLAN
THIS
AMENDED AND RESTATED PARTICIPATION AGREEMENT (the “Amended Participation
Agreement”) is entered into as of the 1st day
of January 2010 by and between NORTHEAST
COMMUNITY BANK (the “Employer”), and Xxxxxxx X. Xxxxxxxx, an executive of
the Employer (the “Participant”).
RECITALS:
WHEREAS,
the Employer has adopted the Northeast Community Bank Supplemental Executive
Retirement Plan (the “Plan”) effective as of January 1, 2006, and
WHEREAS, the Employer and the
Participant have previously entered into a Participation Agreement under the
Plan and desire to make certain modifications thereto
NOW,
THEREFORE, in consideration of the foregoing and the agreements and
covenants set forth herein, the parties agree as follows:
1.
Definitions.
Except as otherwise provided, or unless the context otherwise requires, the
terms used in this Amended Participation Agreement shall have the same meanings
as set forth in the Plan.
2.
Plan. Plan means the Northeast
Community Bank Supplemental Executive Retirement Plan, as the same may be
altered or supplemented in any validly executed Participation
Agreement.
3.
Incorporation
of Plan.
The Plan, a copy of which is attached hereto as Exhibit A, is hereby
incorporated into this Amended Participation Agreement as if fully set forth
herein, and the parties hereby agree to be bound by all of the terms and
provisions contained in the Plan. The Participant hereby acknowledges receipt of
a copy of the Plan and, subject to the foregoing, confirms his understanding and
acceptance of all of the terms and conditions contained therein.
4.
Effective
Date of Participation.
The effective date of the Participant’s participation in the Plan shall be
January 1, 2006 (the “Participation Date”).
5.
Normal
Retirement Age.
The Participant’s Normal Retirement Age for purposes of the Plan and this
Participation Agreement is the later of the date the Participant (i) attains age
sixty (60) or (ii) completes twenty (20) years of service.
6.
Year
of Service.
The Participant shall be credited with one year of service for each twelve (12)
month period the Participant has been employed by the Employer, whether such
employment began before or after the Participation Date.
7.
Prohibition
Against Funding.
Should any investment be acquired in connection with the liabilities assumed
under this Plan and this Amended Participation Agreement, it is expressly
understood and agreed that the Participants and Beneficiaries shall not have any
right with respect to, or claim against, such assets, nor shall any such
purchase be construed to create a trust of any kind or a fiduciary
relationship between the Employer and the Participants, their Beneficiaries or
any other person. Any such assets shall be and remain a part of the general,
unpledged and unrestricted assets of the Employer, subject to the claims of its
general creditors. It is the express intention of the parties hereto that this
arrangement shall be unfunded for tax purposes and for purposes of Title I of
ERISA. The Participant shall be required to look to the provisions of the Plan
and to the Employer itself for enforcement of any and all benefits due under
this Amended Participation Agreement, and, to the extent the Participant
acquires a right to receive payment under the Plan and this Amended
Participation Agreement, such right shall be no greater than the right of any
unsecured general creditor of the Employer. The Employer shall be designated the
owner and beneficiary of any investment acquired in connection with its
obligation under the Plan and this Amended Participation Agreement.
8.
Provisions Related to
SERP Benefit.
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(a)
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Normal
Retirement SERP Benefit. Upon the Participant’s termination of
employment upon or after attaining Normal Retirement Age, the Participant
shall receive an annual benefit of fifty percent (50%) of the
Participant’s final average base salary over the immediately preceding
full thirty-six (36) calendar months prior to termination of employment,
paid for the period and on the terms provided herein. The Participant’s
base salary calculation shall be provided by Employer’s payroll
department.
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(b)
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Early
Retirement SERP Benefit. In the event the Participant
terminates employment prior to attaining age sixty (60) but after
completing at least twenty (20) years of service, the Participant shall
receive the SERP Benefit described in Paragraph 8(a), reduced by .25% for
each month by which the Participant’s age at termination of employment is
less than the Normal Retirement
Age.
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(c)
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Form
of SERP Benefit Payment. Subject to the restrictions of Section 4.3
of the Plan, the annual SERP Benefit shall be paid in equal monthly
installments beginning not later than thirty (30) days after the
Participant’s termination date until all benefits are fully
paid. The annual SERP Benefit shall be paid for the greater of
(i) the Participant’s life or (ii) fifteen (15) years, following the
Participant’s Normal Retirement, eligible Early Retirement, or termination
of employment by reason of disability (with payments beginning at age 65
if the Participant terminates employment due to
disability).
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(d)
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Post-Retirement
Death Benefit. The Participant’s annual SERP Benefit shall be
payable for a minimum period of fifteen (15) years. In the event that the
Participant dies during the minimum fifteen (15) year SERP Benefit payment
period, the Participant’s Beneficiary, as designated pursuant to this
Participation Agreement, will continue to receive such payments until the
minimum benefits are fully paid.
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(e)
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Pre-Retirement
Death Benefit. In the event of the Participant’s death prior to
Normal Retirement, the Participant’s Beneficiary(ies) shall be entitled to
a pre-retirement death benefit equal to the actuarial equivalent
(calculated as described in Paragraph 8(g) below) of the unreduced SERP
Benefit payment described in Paragraph 8(a) of this Agreement. This
benefit shall be distributed to the Participant’s Beneficiary(ies) in a
lump sum amount as soon as administratively feasible upon Employer
notification.
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(f)
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Disability
SERP Benefit. In the event of the Participant’s termination of
employment by reason of disability, if the Participant has attained Normal
Retirement Age or is eligible for Early Retirement, the Participant shall
receive a SERP benefit determined under Paragraph 8(a) or 8(b), as
appropriate. If the Participant has not attained Normal
Retirement Age and is not eligible for Early Retirement on his termination
date, the Participant shall receive a SERP benefit equal to the value of
the Participant’s Accrued SERP Benefit, payable as provided in Paragraph
8(c) of this Participation Agreement. For purposes of this
Participation Agreement and the Plan, “disability” means that the
Participant (i) is unable to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which
can be expected to result in death or can be expected to last for a
continuous period of not less than 12 months, or (ii) is, by reason of any
medically determinable physical or mental impairment which can be expected
to result in death or can be expected to last for a continuous period of
not less than 12 months, receiving income replacement benefits for a
period of not less than 3 months under a disability program covering
employees of the Employer. The Administrator shall have full
and final authority, which shall be exercised in its discretion, to
determine conclusively whether the Participant is disabled, and shall make
such determination consistent with Section
409A.
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(g)
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Change
of Control SERP Benefit. In lieu of the benefit payable
under any other provision of this Participation Agreement and the Plan,
but subject to the restrictions of Section 4.3 of the Plan, upon the
Participant’s termination of employment (other than for Cause or by reason
of his death) following a Change of Control, the Participant shall receive
the unreduced SERP Benefit described in Paragraph 8(a) (i.e., a benefit
determined without regard to the Participant’s age or Years of Service) in
the form of a lump sum payment that is actuarially equivalent to the
Normal Retirement benefit (calculated as of the date of termination and
using the discount rate specified in Code Section 1274 in effect for the
period of termination). Such payment shall be made to the
Participant (or his beneficiary) not later than thirty (30) days after the
Participant’s termination date.
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9.
General
Provisions
(a) No
Assignment.
No
benefit under the Plan or this Amended Participation Agreement shall be subject
in any manner to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, or charge, and any such action shall be void for all purposes of
the Plan or this Amended Participation Agreement. No benefit shall in any manner
be subject to the debts, contracts, liabilities, engagements, or torts of any
person, nor shall it be subject to attachments or other legal process for or
against any person, except to such extent as may be required by
law.
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(b)
Headings.
The
headings contained in the Amended Participation Agreement are inserted only as a
matter of convenience and for reference and in no way define, limit, enlarge, or
describe the scope or intent of this Plan nor in any way shall they affect this
Participation Agreement or the construction of any provision
thereof.
(c) Terms.
Capitalized
terms shall have meanings as defined herein. Singular nouns shall be read as
plural, masculine pronouns shall be read as feminine, and vice versa, as
appropriate.
(d) Successors.
This
Amended Participation Agreement shall be binding upon each of the parties and
shall also be binding upon their respective successors and the Employer’s
assigns.
(e) Amendments.
This
Participant Agreement may not be modified or amended, except by a duly executed
instrument in writing signed by the Employer and the Participant. The subsequent
amendment or termination of the Plan by the Employer shall not affect the
Participant’s rights under this Amended Participation Agreement.
IN
WITNESS WHEREOF, each of the parties has caused this Amended and Restated
Participation Agreement to be executed as of the day first above
written.
| PARTICIPANT | NORTHEAST COMMUNITY BANK | ||
| /s/ Xxxxxxx X. Xxxxxxxx | /s/ Xxxxxxxxx Xxxxxxxx | ||
| Xxxxxxx X. Xxxxxxxx | By: Xxxxxxxxx Xxxxxxxx | ||
| Title: Executive Vice President & COO/CFO | |||
| /s/ Xxxxxx X. Xxxxxx | |||
| By: Xxxxxx X. Xxxxxx | |||
| Title: Audit Committee Chair | |||
4
EXHIBIT
A
NORTHEAST
COMMUNITY BANK
SUPPLEMENTAL
EXECUTIVE RETIREMENT PLAN
ARTICLE
I
GENERAL
1.1 PURPOSE
OF THE PLAN.
The purpose of the Northeast Community Bank Supplemental Executive Retirement
Plan (the “Plan”) is to reward certain management and highly compensated
employees of the Employer who have contributed to the Employer’s success and are
expected to continue to contribute to such success in the future.
1.2 PLAN
BENEFITS GENERALLY.
Pursuant to the Plan, the Employer may provide to each Participant a
supplemental retirement benefit, subject to the terms and conditions contained
in the Plan and the Participant’s individual Participation
Agreement.
1.3 EFFECTIVE
DATE.
The effective date of the Plan is January 1, 2006.
ARTICLE
II
DEFINITIONS
ACCRUED
SERP BENEFIT means, with respect to each Participant, the amount of
liability that should be accrued by the Employer (i.e., determined without
regard to whether such liability is actually accrued), under Generally Accepted
Accounting Principles (“GAAP”), for the Employer’s obligation to the Executive
under this Agreement, by applying Accounting Principles Board Opinion Number 12
(“APB 12”) as amended by Statement of Financial Accounting Standards Number 106
(“FAS 106”).
ADMINISTRATOR
means the Board or a committee of the Board designated to serve as
Administrator.
BENEFICIARY
means the person or persons designated by a Participant as his beneficiary in
accordance with the provisions of Article V and subject to the Participation
Agreement.
BOARD
means the Board of Directors of the Employer.
CAUSE
shall have the meaning set forth in Section 4.2.
CHANGE
OF CONTROL means the
occurrence of any one of the following events:
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(1)
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Merger: Northeast
Community Bancorp, Inc., the holding company for the Employer (the
“Company”) merges into or consolidates with another corporation, or merges
another corporation into the Company, and as a result less than a majority
of the combined voting power of the resulting corporation immediately
after the merger or consolidation is held by persons who were stockholders
of the Company immediately before the merger or
consolidation.
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(2)
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Acquisition of
Significant Share Ownership: The Company files, or is
required to file, a report on Schedule 13D or another form or schedule
(other than Schedule 13G) required under Sections 13(d) or 14(d) of the
Securities Exchange Act of 1934, if the schedule discloses that the filing
person or persons acting in concert has or have become the beneficial
owner(s) of 25% or more of a class of the Company’s voting securities, but
this clause (2) shall not apply to beneficial ownership of Company voting
shares held in a fiduciary capacity by an entity of which the Company
directly or indirectly beneficially owns 50% or more of its outstanding
voting securities.
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(3)
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Change in Board
Composition: During any period of two consecutive years,
individuals who constitute the Company’s Board of Directors at the
beginning of the two-year period cease for any reason to constitute at
least a majority of the Company’s Board of Directors; provided, however,
that for purposes of this clause (3), each director who is first elected
by the board (or first nominated by the board for election by the
stockholders) by a vote of at least two-thirds (⅔) of the directors who
were directors at the beginning of the two-year period shall be deemed to
have also been a director at the beginning of such period;
or
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(4)
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Sale of
Assets: The Company sells to a third party all or
substantially all of its
assets.
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Notwithstanding anything in this Plan
to the contrary, in no event shall the reorganization of the Bank into the
mutual holding company form of organization or the conversion of the Bank to the
full stock holding company form of organization (including the elimination of
the mutual holding company) constitute a “Change in Control” for purposes of
this Plan.
CODE means the
Internal Revenue Code of 1986, as amended.
EMPLOYER
means Northeast Community Bank.
ERISA
means the Employee Retirement Income Security Act of 1974, as amended from time
to time.
EXECUTIVE
means a management or highly compensated employee of the Employer designated by
the Administrator as eligible to participate in the Plan.
NORMAL
RETIREMENT means termination of a Participant’s employment with the
Employer for any reason other than for Cause after such Participant has reached
his Normal Retirement Age.
NORMAL
RETIREMENT AGE means the normal retirement age set forth in the
Participant’s Participation Agreement.
PARTICIPANT
means any Executive who elects to participate in the Plan by entering into a
Participation Agreement in accordance herewith.
PARTICIPATION
AGREEMENT means a written agreement between the Employer and a
Participant, pursuant to which the Employer agrees to make SERP Benefit payments
in accordance with the Plan and the Participation Agreement. Each Participation
Agreement shall contain such information, terms and conditions as the
Administrator in its discretion may specify, including without limitation, the
following:
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(a)
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the
effective date of the Participant’s participation in the
Plan;
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(b)
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the
Participant’s Normal Retirement
Age;
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(c)
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the
SERP Benefits to which the Participant is entitled under the Plan and the
form of payment for such benefits (i.e. installments or lump
sum);
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(d)
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the
identity of the Participant’s Beneficiary;
and
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(e)
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any
other provisions which supplement the terms and conditions contained in
the Plan and which are not inconsistent with the terms and conditions of
the Plan.
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SERP
BENEFIT means, with respect to each Participant, an annual cash benefit
in the amount determined pursuant to the Participant’s Participation
Agreement.
YEARS
OF SERVICE shall have the meaning set forth in the Participant’s
Participation Agreement.
ARTICLE
III
ELIGIBILITY
AND PARTICIPATION
3.1 ELIGIBILITY.
The Administrator, in its sole discretion, shall from time to time determine
those Executive(s) who shall be eligible to participate in the
Plan.
3.2 PARTICIPATION.
Each Executive who is eligible to participate in the Plan shall enroll in the
Plan by entering into a Participation Agreement and completing such other forms
and furnishing such other information as the Administrator may request. An
Executive’s participation in the Plan shall commence as of the date specified in
the Participation Agreement.
ARTICLE
IV
BENEFITS
4.1 SERP
BENEFIT.
Each Participant, subject to the terms and conditions of his Participation
Agreement, shall become entitled to receive SERP Benefits in the amounts and for
the periods set forth in the executed Participation Agreement.
4.2 NO
BENEFITS PAYABLE UPON TERMINATION FOR CAUSE.
Notwithstanding anything in this Plan or in any Participation Agreement to the
contrary, no benefits shall be payable to any Participant who is terminated from
his or her employment with the Employer for Cause. For purposes hereof,
termination for Cause shall mean the following:
Termination
of employment because of the Participant’s personal dishonesty, incompetence,
willful misconduct, breach of fiduciary duty involving personal profit,
intentional failure to perform stated duties, willful violation of any law, rule
or regulation (other than traffic violations or similar infractions) or a final
cease-and-desist order.
4.3 DISTRIBUTIONS TO SPECIFIED
EMPLOYEE.
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(a)
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If
any employee is a “Specified Employee,” as defined in subsection (b)
below, upon a termination of employment for any reason other than
Disability or death, a distribution may not be made before the date which
is 6 (six) months after the date of separation from service (or, if
earlier, the date of death of the
employee).
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(b)
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A
“Specified Employee” means a key employee (as defined in Code Section
416(i) without regard to paragraph (5) thereof) of a corporation any stock
in which is publicly traded on an established securities market or
otherwise, all within the meaning of Code Section
409A(a)(2)(B)(i).
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ARTICLE
V
BENEFICIARIES
5.1 BENEFICIARY.
For purposes of this section, the Participant’s executed Participation Agreement
shall dictate the Participant’s rights and responsibilities regarding the
Participant’s Beneficiary(ies).
ARTICLE
VI
PLAN
ADMINISTRATION
6.1 ADMINISTRATION.
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(a)
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General.
The Plan shall be administered by the Administrator. The Administrator
shall have sole and absolute discretion to interpret where necessary all
provisions of the Plan and each Participation Agreement (including,
without limitation, by supplying omissions from, correcting deficiencies
in, or resolving inconsistencies or ambiguities in, the language of the
Plan, a Participation Agreement, or between the Plan and a Participation
Agreement), to determine the rights and status under the Plan of
Participants or other persons, to resolve questions or disputes arising
under the Plan and to make any determinations with respect to the benefits
payable under the Plan and the persons entitled thereto as may be
necessary for the purposes of the Plan. The Administrator’s determination
of the rights of any Executive or former Executive hereunder shall be
final and binding on all persons, subject only to the claims procedures
outlined in Article 7 hereof.
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(b)
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Delegation
of Duties.
The Administrator may delegate any of its administrative duties,
including, without limitation, duties with respect to the processing,
review, investigation, approval and payment of benefits payable hereunder,
to a named administrator or
administrators.
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6.2 REGULATIONS.
The Administrator may promulgate any rules and regulations it deems necessary in
order to carry out the purposes of the Plan or to interpret the provisions of
the Plan; provided, however, that no rule, regulation or interpretation shall be
contrary to the provisions of the Plan. The rules, regulations and
interpretations made by the Administrator shall, subject only to the claims
procedure outlined in Article 7 hereof, be final and binding on all
persons.
6.3 REVOCABILITY
OF ADMINISTRATOR/EMPLOYER ACTION.
Any action taken by the Administrator with respect to the rights or benefits
under the Plan of any Executive or former Executive shall be revocable by the
Administrator as to payments not yet made to such person in order to correct any
incorrect payment to a Participant or a Beneficiary, and then only to the extent
necessary to correct such error. Acceptance of any benefits under the Plan
constitutes acceptance of, and agreement to, the Administrator’s making any
appropriate adjustments in future payments to such person to correct any
previously made overpayment or underpayment.
6.4 AMENDMENT.
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(a)
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Right
to Amend. The Board, by written instrument, shall have the right to
amend the Plan at any time and with respect to any provisions hereof, and
all parties hereto or claiming any interest hereunder shall be bound by
such amendment; provided, however, that no such amendment shall, without
the Participant’s consent, affect or otherwise modify the rights of a
Participant under a Participation Agreement in effect prior to the
amendment.
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(b)
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Amendment
Required by Law. Notwithstanding the provisions of Section 6.4(a),
the Plan may be amended at any time, retroactively if required, if found
necessary, in the opinion of the Board, in order to ensure that the Plan
is characterized as a non-tax-qualified plan of deferred supplemental
retirement compensation maintained for members of a select group of
executives and thus exempt from ERISA and in compliance with all other
provisions under the Code, as such provisions relate to the original
purpose of this Plan, supplemental retirement income to the Participant(s)
and/or other related Plan and Employer
objectives.
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6.5 TERMINATION.
The Board of the Employer reserves the right, at any time, to terminate the
Plan; provided however, that no such termination shall, without the
Participant’s consent, affect or otherwise modify the rights of a Participant
under a Participation Agreement in effect prior to the effective date of
termination. Following termination of the Plan, unless otherwise
agreed to by the parties, such Participation Agreement shall remain in effect
and shall be construed by the terms of the Plan in effect prior to the
termination.
6.6 WITHHOLDING.
The Employer shall deduct from any distributions hereunder any taxes or other
amounts required by law to be withheld therefrom.
ARTICLE
VII
CLAIMS
ADMINISTRATION
7.1 GENERAL.
If a Participant, Beneficiary or his or her representative is denied all or a
portion of an expected Plan benefit for any reason and the Participant,
Beneficiary or his or her representative desires to dispute the decision of the
Administrator, he/she must file a written notification of his or her claim with
the Administrator.
7.2 CLAIMS
PROCEDURE.
Upon receipt of any written claim for benefits, the Administrator shall be
notified and shall give due consideration to the claim presented. If any
Participant or Beneficiary claims to be entitled to benefits under the Plan and
the Administrator determines that the claim should be denied in whole or in
part, the Administrator shall, in writing, notify such claimant within ninety
(90) days of receipt of the claim that the claim has been denied. The
Administrator may extend the period of time for making a determination with
respect to any claim for a period of up to ninety (90) days, provided that the
Administrator determines that such an extension is necessary because of special
circumstances and notifies the claimant, prior to the expiration of the initial
ninety (90) day period, of the circumstances requiring the extension of time and
the date by which the Administrator expects to render a decision. If the claim
is denied to any extent by the Administrator, the Administrator shall furnish
the claimant with a written notice setting forth:
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(a)
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the
specific reason or reasons for denial of the
claim;
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(b)
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a
specific reference to the Plan provisions on which the denial is
based;
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(c)
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a
description of any additional material or information necessary for the
claimant to perfect the claim and an explanation of why such material or
information is necessary; and
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(d)
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an
explanation of the provisions of this
Article.
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7.3 RIGHT
OF APPEAL.
A claimant who has a claim denied under Section 7.2 may appeal to the
Administrator for reconsideration of that claim. A request for reconsideration
under this section must be filed by written notice within sixty (60) days after
receipt by the claimant of the notice of denial under Section 7.2.
7.4 REVIEW
OF APPEAL.
Upon receipt of an appeal the Administrator shall promptly take action to give
due consideration to the appeal. Such consideration may include a hearing of the
parties involved, if the Administrator feels such a hearing is necessary. In
preparing for this appeal, the claimant shall have the right to review pertinent
documents and submit in writing a statement of issues and comments. After
consideration of the merits of the appeal, the Administrator shall issue a
written decision, which shall be binding on all parties. The decision shall
specifically state its reasons and pertinent Plan provisions on which it relies.
The Administrator’s decision shall be issued within sixty (60) days after the
appeal is filed, except that the Administrator may extend the period of time for
making a determination with respect to any claim for a period of up to sixty
(60) days, provided that the Administrator determines that such an extension is
necessary because of special circumstances and notifies the claimant, prior to
the expiration of the initial sixty (60) day period, of the circumstances
requiring the extension of time and the date by which the Administrator expects
to render a decision.
7.5 DESIGNATION.
The Administrator may designate any other person of its choosing to make any
determination otherwise required under this Article. Any person so designated
shall have the same authority and discretion granted to the Administrator
hereunder.
7.6 LITIGATION
COSTS.
If a claimant brings a lawsuit for benefits hereunder, to enforce any right
hereunder or for other relief arising out of the terms of the Plan, the costs
and expenses of litigation by any party shall be borne by the losing party. The
prevailing party shall recover as expenses all reasonable attorneys’ fees
incurred by it in connection with the proceedings or any appeals
therefrom.
ARTICLE
VIII
MISCELLANEOUS
8.1 ADMINISTRATOR.
The Administrator is expressly empowered to interpret the Plan and to determine
all questions arising in the administration, interpretation, and application of
the Plan; to employ actuaries, accountants, counsel, and other persons it deems
necessary in connection with the administration of the Plan; to request any
information from the Employer it deems necessary to determine whether the
Employer would be considered insolvent or subject to a proceeding in bankruptcy;
and to take all other necessary and proper actions to fulfill its duties as
Administrator. The Administrator is relieved of all responsibility in connection
with its duties hereunder to the fullest extent permitted by law, except any
breach of duty to the Participants or Beneficiaries. If any individual shall
have been delegated the duties or responsibilities as Administrator, such person
shall not be liable for any actions by him or her hereunder unless due to his or
her own gross negligence or willful misconduct and shall be indemnified and held
harmless by the Employer from and against all personal liability to which he or
she may be subject by reason of any act done or omitted to be done in his or her
official capacity as Administrator in the good faith administration of the Plan,
including all expenses reasonably incurred in his or her defense in the event
the Employer fails to provide such defense upon request.
8.2 NO
ASSIGNMENT.
No benefit under the Plan or a Participation Agreement shall be subject in any
manner to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, or charge, and any such action shall be void for all purposes of
the Plan or a Participation Agreement. No benefit
shall in any manner be subject to the debts, contracts, liabilities,
engagements, or torts of any person, nor shall it be subject to attachment or
other legal process for or against any person.
8.3 NO
EMPLOYMENT RIGHTS.
Participation in this Plan and execution of a Participation Agreement shall not
be construed to confer upon any Participant the legal right to be retained in
the employ of the Employer, or give a Participant or Beneficiary, or any other
person, any right to any payment whatsoever, except to the extent of the
benefits provided for hereunder. Each Participant shall remain subject to
discharge to the same extent as if this Plan had never been adopted and the
Participation Agreement had never been executed.
8.4 INCOMPETENCE.
If the Administrator determines that any person to whom a benefit is payable
under this Plan is incompetent by reason of physical or mental disability, the
Administrator shall have the power to cause the payments becoming due to such
person to be made to another individual for the Participant’s benefit without
responsibility of the Administrator to see to the application of such payments.
Any payment made pursuant to such power shall, as to such payment, operate as a
complete discharge of the Employer, the Administrator, and their
representatives.
8.5 IDENTITY.
If, at any time, any doubt exists as to the identity of any person entitled to
any payment hereunder or the amount or time of such payment, the Administrator
shall be entitled to hold such sum until such identity or amount or time is
determined or until an order of a court of competent jurisdiction is obtained.
The Administrator shall also be entitled to pay such sum into court in
accordance with the appropriate rules of law. Any expenses incurred by the
Employer or Administrator incident to such proceeding or litigation shall be
charged against the SERP Benefit of the affected Participant.
8.6 NO
LIABILITY.
No liability shall attach to or be incurred by any employee of the Employer or
Administrator individually under or by reason of the terms, conditions, and
provisions contained in the Plan, or for the acts or decisions taken or made
under or in connection with the Plan; and, as a condition precedent to the
establishment of this Plan or the receipt of benefits hereunder, or both, such
liability, if any, is expressly waived and released by each Participant and by
any and all persons claiming benefits under the Plan. Such waiver and
release shall be conclusively evidenced by any act or participation in or the
acceptance of benefits under this Plan.
8.7 EXPENSES.
Except as otherwise provided in the Plan, all expenses incurred in the
administration of the Plan shall be paid by the Employer.
8.8 EMPLOYER
DETERMINATIONS.
Any determinations, actions, or decisions of the Employer (including, but not
limited to, Plan amendments and Plan termination) shall be made by the Board in
accordance with its established procedures or by such other individuals, groups,
or organizations that have been properly delegated by the Board to make such
determinations or decisions.
8.9 CONSTRUCTION.
All questions of interpretation, construction or application arising
under or concerning the terms of this Plan and any Participation Agreement shall
be decided by the Administrator, in its sole and final discretion, whose
decision shall be final, binding and conclusive upon all persons.
8.10 GOVERNING
LAW.
To the extent not preempted by federal laws, this Plan shall be governed by,
construed and administered under the laws of the State of New York.
8.11 SEVERABILITY.
Should any provision of the Plan or any Participation Agreement be deemed or
held to be unlawful or invalid for any reason, such fact shall not adversely
affect the other provisions, unless such invalidity shall render impossible or
impractical the functioning of the Plan and, in such case, the appropriate
parties shall immediately adopt a new provision to take the place of the one
held illegal or invalid.
8.12 HEADINGS.
The headings contained in the Plan are inserted only as a matter of convenience
and for reference and in no way define, limit, enlarge, or describe the scope or
intent of this Plan nor in any way shall they affect this Plan or the
construction of any provision thereof.
8.13 TERMS.
Capitalized terms shall have meanings as defined herein. Singular nouns shall be
read as plural, masculine pronouns shall be read as feminine, and vice versa, as
appropriate.
8.14 OWNERSHIP
OF ASSETS; RELATIONSHIP WITH EMPLOYER.
Nothing contained in the Plan, and no action taken pursuant to its provisions,
shall create or be construed to create a trust of any kind or a fiduciary
relationship between the Employer and any Participant or any other person. To
the extent that any person acquires a right to receive payments from the
Employer under this Plan, such right shall be no greater than the right of an
unsecured general creditor of the Employer.
8.15 DEPOSITS
IN TRUST.
The Employer may, at its sole discretion, establish with a corporate trustee a
grantor rabbi trust under which all or a portion of the assets of the Plan are
to be held, administered and managed. The trust agreement evidencing the trust
shall conform with the terms of Revenue Procedure 92-64 or any successor
procedure. The Employer in its sole discretion may make deposits to augment the
principal of such trust.
8.16
SECTION
409A COMPLIANCE. The
Plan and each Participation Agreement entered into pursuant to this Plan shall
be interpreted in accordance with, and shall comply in form and operation with,
Section 409A of the Code. Notwithstanding any provision of the Plan
or any Participation Agreement to the contrary, the Board may adopt such
amendments to the Plan or Participation Agreement or adopt other policies and
procedures (including amendments, policies and procedures with retroactive
effect), or take any other actions, that the Board determines are necessary or
appropriate to (a) exempt the benefits under the Plan from Section 409A of the
Code and/or preserve the intended tax treatment of the benefits provided with
respect to the deferral, or (b) comply with the requirements of Section 409A
(including, without limitation, any related Department of Treasury
guidance).
EXHIBIT
B
NORTHEAST
COMMUNITY BANK
SUPPLEMENTAL
EXECUTIVE RETIREMENT PLAN
BENEFICIARY
DESIGNATION
In the
event of the Participant’s death, any benefits to which the Participant may be
entitled shall be paid to the Beneficiary designated below. This Beneficiary
Designation shall be subject to the terms and conditions set forth in the Plan
and shall supersede all prior Beneficiary Designations made by the Participant.
This Beneficiary Designation shall be attached to and become part of that
certain Amended and Restated Participation Agreement, effective as of
_______________, 2010, between the Employer and the Participant.
Primary
Beneficiary:______________________________________________
Secondary
Beneficiary:____________________________________________
IN
WITNESS WHEREOF, the Participant has executed this Beneficiary
Designation as of the date indicated.
___________________________________
Signature
___________________________________
Printed Name of Participant
Printed Name of Participant
___________________________________
Dated
