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EXHIBIT 99.3
EXECUTIVE SUPPLEMENTAL RETIREMENT INCOME
AGREEMENT
FOR JOHN R. GARBARINO
This Restated Executive Supplemental Retirement Income Agreement
(the "Agreement"), which was initially effective as of May 1,
1996, by and between OCEANFIRST BANK (the "Bank"), a federally
chartered savings bank, and John R. Garbarino, hereinafter referred
to as "Executive", is hereby amended and restated effective as of
January 1, 2005, to read as follows:
W I T N E S S E T H :
WHEREAS , the Executive is employed by the Bank; and
WHEREAS , the Bank recognizes the valuable services
heretofore performed for it by the Executive and wishes to
encourage continued employment; and
WHEREAS , the Executive wishes to be assured that he will
be entitled to a certain amount of additional compensation for some
definite period of time from and after retirement from active
service with the Bank or other termination of employment and wishes
to provide his beneficiary with benefits from and after death;
and
WHEREAS , the Bank and the Executive wish to provide the
terms and conditions upon which the Bank shall pay such additional
compensation to the Executive after retirement or other termination
of employment and/or death benefits to his beneficiary after death;
and
WHEREAS , Section 409A of the Internal Revenue Code
of 1986 (the "Code"), as amended, requires that certain deferred
compensation arrangements comply with its terms or subject the
recipient of the compensation to potential taxes and penalties;
and
WHEREAS , the Bank and the Executive desire that the
Agreement comply with Code Section 409A and the Treasury
Regulations promulgated thereunder;
NOW, THEREFORE , in consideration of the premises and of
the mutual promises herein contained, the Bank and the Executive
agree as follows:
SECTION I
DEFINITIONS
When used herein, the following words and phrases shall have the
meanings below unless the context clearly indicates otherwise:
1.1 "Accrued Benefit Account" shall be represented by the
bookkeeping entries required to record the Executive’s
(i) Supplemental Retirement Income Benefit Phantom
Contributions and Supplemental ESOP Benefit Phantom Contributions
plus (ii) accrued interest, equal to the Interest Factor,
earned to-date on such amounts. However, neither the existence
of
such bookkeeping entries nor the Accrued Benefit
Account itself shall be deemed to create either a trust of any
kind, or a fiduciary relationship between the Bank and the
Executive or Beneficiary.
1.2 "Act" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
1.3 "Administrator" means the Human Resources/Compensation
Committee of the Board of Directors of the Bank.
1.4 "Bank" means OCEANFIRST BANK and any successor thereto.
1.5 "Beneficiary" means the individuals or entities designated
as Beneficiary in Exhibit B of this Agreement to whom the deceased
Executive’s benefits are payable. If no designated
Beneficiary is living at the time of the Executive’s death,
the benefits payable pursuant to this Agreement shall pass in
accordance with the Executive’s will or by the laws of
intestacy, as applicable.
1.6 "Benefit Age" means the Executive’s sixty-fifth
(65th) birthday provided, however, that another date may be
chosen upon mutual agreement between the Executive and the
Bank’s Board of Directors.
1.7 "Benefit Eligibility Date" means the date on which the
Executive is entitled to receive any benefit(s) pursuant to
Section(s) III, or V of this Agreement. It shall be the first day
of the month following the month in which the Executive attains his
Benefit Age.
1.8 "Cause" means personal dishonesty, willful misconduct,
willful malfeasance, breach of fiduciary duty involving personal
profit, intentional failure to perform stated duties, willful
violation of any law, rule, regulation (other than traffic
violations or similar offenses), or final cease-and-desist order,
material breach of any provision of this Agreement, gross
negligence in matters of material importance to the Bank, or any
other basis for termination as set forth in the Bank’s
personnel manual, as such manual currently exists or may be
amended.
1.9 "Code" means the Internal Revenue Code of 1986, as
amended.
1.10 "Contributions" shall collectively refer to any and all
Supplemental ESOP Benefit Contributions and Supplemental Retirement
Income Benefit Contributions.
1.11 (a) "Disability Benefit" means the benefit payable to the
Executive following a determination, in accordance with Subsection
6.1(a), that he is no longer able, properly and satisfactorily, to
perform his duties at the Bank.
(b) "Disability Benefit-Supplemental" (if applicable) means the
benefit payable to the Executive’s Beneficiary upon the
Executive’s death in accordance with Subsection 6.1(b).
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1.12 "Effective Date". The initial Effective Date
of this Agreement was May 1, 1996. The Agreement is hereby
amended and restated effective as of January 1, 2005, in order
to conform to Code Section 409A.
1.13 "ESOP" means the Bank’s Employee Stock Ownership
Plan.
1.14 "ESOP Account" means the Executive’s interest in the
assets accumulated under the ESOP, as expressed in terms of a
separate account balance which is periodically adjusted to reflect
Bank contributions, the ESOP’s investment experience, and
distributions and forfeitures.
1.15 "Estate" means the estate of the Executive.
1.16 "Interest Factor" for purposes of:
(a) monthly compounding, discounting or annuitizing of the
Accrued Benefit Account, the term shall mean Six percent
(6%) per annum.
(b) monthly compounding or discounting of the Retirement Income
Trust Fund, the term shall mean Four percent (4%) per annum,
provided, however, that for purposes of annuitizing the balance of
the Retirement Income Trust Fund over the Payout Period, the
trustee of the John R. Garbarino Grantor Trust shall exercise
discretion in selecting the appropriate rate, given the nature of
the investments contained in the Retirement Income Trust Fund and
the expected return associated with the investments.
1.17 "Payout Period" means the time frame during which certain
benefits payable hereunder shall be distributed. Payments shall be
made in monthly installments commencing on the first day of the
month following the occurrence of the event which triggers
distribution and continuing for a period of one hundred eighty
(180) months. Should the Executive make a Timely Election to
receive a lump sum benefit payment, the Executive’s Payout
Period shall be deemed to be one (1) month. Notwithstanding
anything herein to the contrary, in the event that the Executive
exercises the Executive’s withdrawal rights and the Executive
is considered a Specified Employee within the meaning of Code
section 409A(a)(2)(B)(i) at the time of (i) any distribution
due to the Executive’s termination of employment (for reasons
other than death), or (ii) any payments to the Retirement
Income Trust Fund, then such payments shall be delayed until the
first day of the seventh full month following the Executive’s
Separation from Service. In such case, the first payment made to
the Executive will consist of an amount equal to seven
(7) monthly installments so that the Executive (or his
Beneficiary, as applicable) will receive his full benefits
hereunder over a period of 180 months following his Separation from
Service.
1.18 "Phantom Contributions" shall collectively refer to any and
all Supplemental ESOP Benefit Phantom Contributions and
Supplemental Retirement Income Benefit Phantom Contributions.
1.19 "Plan Year" means the twelve (12) month period
commencing January 1 and ending December 31.
1.20 "Retirement Income Trust Fund" means the trust fund account
established by the Executive and into which annual Contributions
will be made by the Bank on behalf of the
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Executive pursuant to Subsection 2.1. The
contractual rights of the Bank and the Executive with respect to
the Retirement Income Trust Fund shall be outlined in a separate
writing to be known as the John R. Garbarino Grantor Trust
Agreement.
1.21 "Separation from Service" means the Executive’s
death, retirement or termination of employment with the Bank within
the meaning of Code Section 409A. No Separation from Service
shall be deemed to occur due to military leave, sick leave or other
bona fide leave of absence if the period of such leave does not
exceed six months or, if longer, so long as the Executive’s
right to reemployment is provided by law or contract. If the leave
exceeds six months and the Executive’s right to reemployment
is not provided by law or by contract, then the Executive shall be
have a Separation from Service on the first date immediately
following such six-month period.
The Executive shall not be treated as having a Separation from
Service if the Executive provides more than insignificant services
for the Bank following the Executive’s actual or purported
termination of employment with the Bank. Services shall be treated
as not being insignificant if such services are performed at an
annual rate that is at least equal to 20% of the services rendered
by the Executive for the Bank, on average, during the immediately
preceding three full calendar years of employment (or if employed
less than three years, such shorter period of employment) and the
annual base compensation for such services is at least equal to 20%
of the average base compensation earned during the final three full
calendar years of employment (or if employed less than three years,
such shorter period of employment).
Where the Executive continues to provide services to a previous
employer in a capacity other than as an employee, a Separation from
Service will not be deemed to have occurred if the Executive is
providing services at an annual rate that is 50% or more of the
services rendered, on average, during the immediate preceding three
full calendar years of employment (or if employed less than three
years, such lesser period) and the annual base compensation for
such services is 50% or more of the annual base compensation earned
during the final three full calendar years of employment (or if
less, such lesser period).
1.22 "Specified Employee" means an employee of the Bank or the
Holding Company that is a "specified employee" within the meaning
of Code Section 409A.
1.23 "Supplemental ESOP Benefit" means the benefit provided by
this Agreement and calculated with reference to the limitations
imposed by Section(s) 401(a)(17) and/or 415 of the Code on the
Executive’s benefits under the ESOP. Such benefit shall be
determined annually by multiplying the per share market price of
the Bank’s stock on December 31 of each Plan Year by the
following number of shares: the difference between (i) the
number of shares which would have been allocated to the
Executive’s ESOP Account for such Plan Year, had the
limitation of Sections 401(a)(17) and 415 of the Code not been
applicable, and (ii) the number of shares actually allocated
to the Executive’s ESOP Account for such Plan Year (taking
into account such Code limitations).
1.24 "Supplemental ESOP Benefit Contribution(s)" means those
annual contributions which the Bank is required to make to the
Retirement Income Trust Fund on behalf of the Executive in
accordance with Subsections 2.1(a)(3) and 1.23.
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1.25 "Supplemental ESOP Benefit Phantom
Contribution(s)" means those annual contributions which the Bank is
no longer required to make on behalf of the Executive to the
Retirement Income Trust Fund. Rather, once the Executive has
exercised the withdrawal rights described in Subsection 2.2, the
Bank shall be required to record the annual amounts, described in
Subsections 2.1(a)(3) and 1.23, in the Executive’s Accrued
Benefit Account.
1.26 "Supplemental Retirement Income Benefit" means an
actuarially determined, annual amount, ( before taking into
account federal and state income taxes) equal to Five Hundred
Thirty Seven Thousand Two Hundred Thirty Seven Dollars
($537,237.00) payable in monthly installments throughout the Payout
Period and based on certain assumptions incorporated into this
Agreement and disclosed in Exhibit E. The definition of
Supplemental Retirement Income Benefit has been incorporated into
the Agreement for the sole purpose of actuarially establishing the
amount of annual Supplemental Retirement Income Benefit
Contributions (or Supplemental Retirement Income Benefit Phantom
Contributions) to the Retirement Income Trust fund (or Accrued
Benefit Account). The amount of any actual retirement,
pre-retirement or disability benefit payable pursuant to the
Agreement will be a function of (i) the amount and timing of
Supplemental Retirement Income Benefit Contributions (or
Supplemental Retirement Income Benefit Phantom Contributions) to
the Retirement Income Trust Fund (or Accrued Benefit Account) and
(ii) the actual investment experience of such Supplemental
Retirement Income Benefit Contributions (or the monthly compounding
rate of Supplemental Retirement Income Benefit Phantom
Contributions).
1.27 "Supplemental Retirement Income Benefit Contribution(s)"
means those annual contributions which the Bank is required to make
to the Retirement Income Trust Fund on behalf of the Executive in
accordance with Subsection 2.1(a)(2) and in the amounts set forth
in Exhibit A of the Agreement.
1.28 "Supplemental Retirement Income Benefit Phantom
Contribution(s)" means those annual contributions which the Bank is
no longer required to make on behalf of the Executive to the
Retirement Income Trust Fund. Rather, once the Executive has
exercised the withdrawal rights described in Subsection 2.2, the
Bank shall be required to record the annual amounts set forth in
Exhibit A of the Agreement and pursuant to Subsection 2.1(a)(2) in
the Executive’s Accrued Benefit Account.
1.29 "Timely Election" means the Executive has made an election
to change the form of his benefit payment(s) by filing with the
Administrator a Notice of Election to Change Form of Payment
(Exhibit C of this Agreement), such election having been made prior
to the event which triggers distribution and at least two
(2) years prior to the Executive’s Benefit Eligibility
Date. In the case of benefits payable from the Accrued Benefit
Account, such election generally shall have been made prior to
December 31, 2008 (i.e. the last day of the "Transition
Period" for bringing plans into compliance with Code
Section 409A). Notwithstanding any provision herein to the
contrary, in the event that the Executive exercises his withdrawal
rights pursuant to Section 2.2 herein, the Executive shall
only be permitted to make subsequent changes to the time or form of
distributions under Section 3.1, 4.1 or 5.1 by meeting each of
the following requirements: In the case of benefits payable from
the Accrued Benefit Account, such election generally shall have
been made prior to December 31, 2008 (i.e. the last day of the
"Transition Period" for bringing plans into compliance with Code
Section 409A). Notwithstanding any
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provision herein to the contrary, in the event
that the Executive exercises his withdrawal rights pursuant to
Section 2.2 herein, the Executive shall only be permitted to
make subsequent changes to the time or form of distributions under
Section 3.1, 4.1 or 5.1 by meeting each of the following
requirements:
(i) no election may take effect until at least 12 months after
the date on which the election is made;
(ii) other than with respect to distributions made on account of
death or disability, the first payment with respect to which such
election is made shall be deferred for a period of at least five
years from the date such payment would otherwise have been made;
and
(iii) any such election must be made at least 12 months prior to
the date of the first scheduled payment under such paragraph.
SECTION II
BENEFITS - GENERALLY
2.1 (a) (1) Retirement Income Trust Fund and Accrued
Benefit Account . The Executive shall establish the John R.
Garbarino Grantor Trust into which the Bank shall be required to
make annual Supplemental Retirement Income Benefit Contributions
and Supplemental ESOP Benefit Contributions on the
Executive’s behalf, pursuant to Subsection 2.1(a)(2) and
Exhibit A with respect to the Supplemental Retirement Income
Benefit, and pursuant to Subsections 2.1(a)(3) and 1.23 with
respect to the Supplemental ESOP Benefit. A trustee shall be
jointly selected by the Executive and the Bank. The trustee shall
maintain an account, separate and distinct from the
Executive’s personal contributions, which account shall
constitute the Retirement Income Trust Fund. The trustee shall be
charged with the responsibility of investing all contributed funds
in accordance with the terms of the John R. Garbarino Grantor
Trust. Distributions from the Retirement Income Trust Fund of the
John R. Garbarino Grantor Trust shall be made by the trustee to the
Executive, in accordance with the terms of the John R. Garbarino
Grantor Trust and the tax reimbursement formula therein, for
purposes of payment of income taxes due and owing on Supplemental
Retirement Income Benefit Contributions and Supplemental ESOP
Benefit Contributions by the Bank to the Retirement Income Trust
Fund, and on any taxable earnings associated with such
Contributions, which the Executive shall be required to pay from
year to year under applicable law prior to actual receipt of any
benefit payments from the Retirement Income Trust Fund. If the
Executive exercises his withdrawal rights pursuant to Subsection
2.2, the Bank’s obligation to make Supplemental Retirement
Income Benefit Contributions and Supplemental ESOP Benefit
Contributions to the Retirement Income Trust Fund shall cease, and
the Bank’s obligation to record Supplemental Retirement
Income Benefit Phantom Contributions and Supplemental ESOP Benefit
Phantom Contributions in the Accrued Benefit Account shall
immediately commence, pursuant to Subsections 2.1(a)(2) and
2.1(a)(3) (as applicable) and Exhibit A of the Agreement. To the
extent the language in this Agreement is inconsistent with the
language in the John R. Garbarino Grantor Trust agreement, this
Agreement shall take precedence over the John R. Garbarino Grantor
Trust agreement.
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(2) Supplemental Retirement Income Benefit
. The annual Supplemental Retirement Income Benefit Contributions
(or Supplemental Retirement Income Benefit Phantom Contributions)
required to be made by the Bank to the Retirement Income Trust Fund
of the John R. Garbarino Grantor Trust (or recorded by the Bank in
the Accrued Benefit Account) have been actuarially determined and
are set forth in Exhibit A which is attached hereto and
incorporated herein by reference. The amount of the annual
Supplemental Retirement Income Benefit Contributions (or
Supplemental Retirement Income Benefit Phantom Contributions) to
the Retirement Income Trust Fund (or Accrued Benefit Account) has
been based on the annual incremental accounting accruals which
would be required of the Bank until the earlier of the
Executive’s death or Benefit Age, (i) pursuant to APB
Opinion No. 12, as amended by FAS 106 and (ii) assuming a
discount rate equal to Six Percent (6%) per annum, in order to
provide the unfunded, non-qualified Supplemental Retirement Income
Benefit described in Subsection 1.26. Supplemental Retirement
Income Benefit Contributions shall be made by the Bank to the
Retirement Income Trust Fund (i) within thirty (30) days
of establishment of such trust, and (ii) within the first five
(5) days of the beginning of each subsequent Plan Year, unless
this Section expressly provides otherwise. Supplemental Retirement
Income Benefit Phantom Contributions, if any, shall be recorded in
the Accrued Benefit Account within the first five (5) days of
the beginning of each applicable Plan Year, unless this Section
expressly provides otherwise. Supplemental Retirement Income
Benefit Phantom Contributions shall accrue interest at a rate equal
to the Interest Factor, during the Payout Period, until the balance
of the Accrued Benefit Account has been fully distributed. Interest
on any Supplemental Retirement Income Benefit Phantom Contribution
shall not commence until such Payout Period commences.
The Administrator shall review the schedule of annual
Supplemental Retirement Income Benefit Contributions (or
Supplemental Retirement Income Benefit Phantom Contributions)
provided for in Exhibit A (i) within thirty (30) days
prior to the close of every third (3rd) Plan Year and
(ii) if the Executive is employed by the Bank until attaining
Benefit Age, on or immediately before attainment of such Benefit
Age. Such review shall consist of an evaluation of the accuracy of
all assumptions used to establish (i) the schedule of
Supplemental Retirement Income Benefit Contributions (or
Supplemental Retirement Income Benefit Phantom Contributions)
provided for in Exhibit A and (ii) the amount of the
Supplemental Retirement Income Benefit as defined in Subsection
1.26. Such assumptions shall include: (a) those listed in
Exhibit E, (b) an assumed tax-deferred investment rate of Six
(6%) and (c) an assumed combined marginal Federal and
state tax rate of Forty Five and Two Hundredths Percent (45.02%),
during the contribution period. Provided that the investments
contained in the Retirement Income Trust Fund have been approved by
the Administrator, the Administrator shall prospectively amend the
schedule of Supplemental Retirement Income Benefit Contributions
(or Supplemental Retirement Income Benefit Phantom Contributions)
provided for in Exhibit A, should the Administrator determine
during any such review that an increase (but not a decrease) in
such Supplemental Retirement Income Benefit Contributions (or
Supplemental Retirement Income Benefit Phantom Contributions) is
necessary in order (i) to provide a benefit equivalent to the
existing Supplemental Retirement Income Benefit, on an after-tax
basis or (ii) to provide a benefit equivalent to a revised
Supplemental Retirement Income Benefit. If the Executive has
exercised his withdrawal rights, the Administrator may
prospectively reduce the schedule provided for in Exhibit A should
the Administrator determine, during any review, that such reduction
is warranted in order to provide the benefit calculated pursuant to
Subsection 1.26. Furthermore, should the Administrator determine
that the balance of the Accrued Benefit
7
Account be excessive for any reason, at the time
benefits are payable from the Accrued Benefit Account (and
Retirement Income Trust Fund) any excess balance shall be
eliminated and inure to the Bank’s benefit.
(3) Supplemental ESOP Benefit . The annual Supplemental
ESOP Benefit Contributions (or Supplemental ESOP Benefit Phantom
Contributions) required to be made by the Bank to the Retirement
Income Trust Fund of the John R. Garbarino Grantor Trust (or
recorded by the Bank in the Accrued Benefit Account) are calculated
as of December 31 of each Plan Year. Such calculation shall be
performed by the Bank in accordance with Subsection 1.23 of this
Agreement, within thirty (30) days after the end of each Plan
Year. Supplemental ESOP Benefit Contributions shall be made by the
Bank to the Retirement Income Trust Fund within sixty
(60) days after the end of each Plan Year, unless this Section
expressly provides otherwise. Supplemental ESOP Benefit Phantom
Contributions shall be recorded in the Accrued Benefit Account
within sixty (60) days after the end of each Plan Year, unless
this Section expressly provides otherwise. Supplemental ESOP
Benefit Phantom Contributions shall accrue interest at a rate equal
to the Interest Factor, up to and throughout the Payout Period,
until the balance of the Accrued Benefit Account has been fully
distributed. Interest on any Supplemental ESOP Benefit Phantom
Contribution shall commence on the date such Supplemental ESOP
Benefit Phantom Contribution is initially recorded in the
Executive’s Accrued Benefit Account.
If the Executive is eligible to receive a benefit under the
terms of the ESOP for any Plan Year, and a Supplemental ESOP
Benefit is due for such Plan Year pursuant to Subsection 1.23, a
Supplemental ESOP Benefit Contribution (or a Supplemental ESOP
Benefit Phantom Contribution) shall be required of the Bank for
such Plan Year. If the Executive has not exercised any withdrawal
rights described in Subsection 2.2 as of December 31 of any
Plan Year, a Supplemental ESOP Benefit Contribution to the
Retirement Income Trust Fund for such Plan Year shall be required
of the Bank. If the Executive has exercised the withdrawal rights
described in Subsection 2.2 as of December 31 of any Plan
Year, a Supplemental ESOP Benefit Phantom Contribution shall be
recorded in the Executive’s Accrued Benefit Account.
Thereafter, the Executive will only be eligible to receive
Supplemental ESOP Benefit Phantom Contributions. The Supplemental
ESOP Benefit Contributions to the Retirement Income Trust Fund (or
the Supplemental ESOP Benefit Phantom Contributions recorded in the
Executive’s Accrued Benefit Account) shall commence in the
Plan Year in which the ESOP is established, and shall continue
through each successive Plan Year in which (i) the Executive
is eligible to receive a benefit under the terms of the ESOP and
(ii) a Supplemental ESOP Benefit is due for such Plan Year
pursuant to Subsection 1.23.
(b) Withdrawal Rights Not Exercised .
(1) Contributions Made Annually
If the Executive does not exercise any withdrawal rights
pursuant to Subsection 2.2, the annual Contributions to the
Retirement Income Trust Fund shall continue each year, unless this
Subsection specifically states otherwise, until the earlier of
(i) the last Plan Year that Supplemental Retirement Income
Benefit Contributions are required pursuant to Exhibit A or
(ii) the Plan Year in which the Executive’s employment
terminates.
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(2) Death During Employment
If the Executive (i) does not exercise any withdrawal
rights pursuant to Subsection 2.2 and (ii) dies while employed
by the Bank, all annual Supplemental Retirement Income Benefit
Contributions set forth in Exhibit A shall be required of the Bank.
Such Supplemental Retirement Income Benefit Contributions to the
Retirement Income Trust Fund shall commence in the Plan Year in
which the Retirement Income Trust Fund is established and shall
continue through the Plan Year in which the Executive dies. The
final Supplemental Retirement Income Benefit Contribution payable
for the Plan Year of the Executive’s death shall be equal to:
(i) the Supplemental Retirement Income Benefit Contribution
scheduled for such Plan Year pursuant to Exhibit A (unless already
made), plus (ii) any remaining Supplemental Retirement Income
Benefit Contributions, required pursuant to Exhibit A, for Plan
Years subsequent to the Executive’s death. Such final
Supplemental Retirement Income Benefit Contribution shall be
payable in a lump sum to the Retirement Income Trust Fund within
thirty (30) days of the Executive’s death.
(3) Change in Control
If (i) the Executive does not exercise his withdrawal
rights pursuant to Subsection 2.2 and (ii) a Change in Control
(as defined in Subsection 5.2) occurs at the Bank, the Supplemental
Retirement Income Benefit Contributions set forth below shall be
required of the Bank. The annual Supplemental Retirement Income
Benefit Contributions set forth in Exhibit A shall be made to the
Retirement Income Trust Fund, commencing in the Plan Year in which
the Retirement Income Trust Fund is established and continuing
through the Plan Year in which the Change in Control occurs. Upon
the occurrence of said Change in Control (as defined in Subsection
5.2), the Bank shall be required to make a lump sum Supplemental
Retirement Income Benefit Contribution to the Executive’s
Retirement Income Trust Fund within thirty (30) days after the
Change in Control in an amount equal to: (i) the full
Supplemental Retirement Income Benefit Contribution required for
the Plan Year in which such Change in Control occurs, as provided
for in Exhibit A (unless already made), plus (ii) the present
value (computed using a discount rate equal to Four Percent
(4%) per annum) of the total Supplemental Retirement Income
Benefit Contributions which would have been required in accordance
with Exhibit A for the three (3) Plan Years following the Plan
Year in which such Change in Control occurs. In the event the
Executive continues employment with the Bank following the date of
the Change in Control, the Bank shall be required to resume making
Supplemental Retirement Income Benefit Contributions in accordance
with the schedule provided for in Exhibit A. Such Supplemental
Retirement Income Benefit Contributions shall resume in the fourth
(4th) Plan Year following the Plan Year in which the Change in
Control occurred and shall continue for the lesser of: (i) the
number of years remaining in the schedule provided for in Exhibit
A, or (ii) the number of years the Executive remains employed
by the Bank.
(4) Voluntary or Involuntary Termination (Not For Cause)
Prior to Benefit Age
If the Executive (i) does not exercise his withdrawal
rights pursuant to Subsection 2.2 and (ii) voluntarily or
involuntarily terminates his service with the Bank pursuant to
Subsection 5.1 and such termination is not for Cause, disability,
or related to a Change in Control, the annual Supplemental
Retirement Income Benefit Contributions to the Retirement Income
Trust Fund set
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forth in Exhibit A for all Plan Years through the
Plan Year in which such termination occurs, shall be required of
the Bank within thirty (30) days after such voluntary or
involuntary termination (or if the Executive is a Specified
Employee, not earlier than the first day of the seventh
(7th) month following the Executive’s Separation from
Service). No additional Supplemental Retirement Income Benefit
Contributions to the Retirement Income Trust Fund shall be required
by the Bank for Plan Years subsequent to the Plan Year in which
termination occurs
(5) Termination Due to Disability
If the Executive (i) does not exercise his withdrawal
rights pursuant to Subsection 2.2 and (ii) terminates service
with the Bank due to disability pursuant to Subsection 6.1, all
annual Supplemental Retirement Income Benefit Contributions set
forth in Exhibit A for all Plan Years through the Plan Year in
which such termination occurs shall be required of the Bank (or if
the Executive is a Specified Employee, not earlier than the first
day of the seventh (7th) month following the Executive’s
Separation from Service). No additional Supplemental Retirement
Income Benefit Contributions to the Retirement Income Trust Fund
shall be required by the Bank for Plan Years subsequent to the Plan
Year in which termination occurs.
(6) Termination For Cause
If the Executive (i) does not exercise his withdrawal
rights pursuant to Subsection 2.2 and (ii) is terminated for
Cause pursuant to Subsections 1.8 and 5.3, the annual Supplemental
Retirement Income Benefit Contributions to the Retirement Income
Trust Fund set forth in Exhibit A for all Plan Years through the
Plan Year in which such termination occurs shall be required of the
Bank (or if the Executive is a Specified Employee, not earlier than
the first day of the seventh (7th) month following the
Executive’s Separation from Service). Thereafter, no further
Supplemental Retirement Income Benefit Contribution(s) to the
Retirement Income Trust Fund shall be required of the Bank for Plan
Years subsequent to the Plan Year in which such termination for
Cause occurs.
(c) Withdrawal Rights Exercised.
(1) Phantom Contributions Made Annually
If the Executive exercises his withdrawal rights pursuant to
Subsection 2.2, no further Supplemental Retirement Income Benefit
Contributions to the Retirement Income Trust Fund shall be required
of the Bank.
Thereafter, Supplemental Retirement Income Benefit Phantom
Contributions shall be recorded annually, pursuant to Exhibit A, in
the Executive’s Accrued Benefit Account commencing with the
Plan Year following the Plan Year in which the Executive first
exercises his withdrawal rights. Such Supplemental Retirement
Income Benefit Contributions shall continue until the earlier of
(i) the last Plan Year that Supplemental Retirement Income
Benefit Phantom Contributions are required pursuant to Exhibit A,
or (ii) the Plan Year in which the Executive’s
employment terminates.
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(2) Death During Employment
If the Executive (i) exercises his withdrawal rights
pursuant to Subsection 2.2 and (ii) dies while employed by the
Bank, all annual Supplemental Retirement Income Benefit
Contributions set forth in Exhibit A for all Plan Years preceding
and including such exercise of withdrawal rights shall be required
of the Bank. Such Supplemental Retirement Income Benefit
Contributions to the Retirement Income Trust Fund shall commence in
the Plan Year in which the Retirement Income Trust Fund is
established and shall continue through the Plan Year in which the
Executive first exercises his withdrawal rights. Thereafter,
Supplemental Retirement Income Benefit Phantom Contributions shall
be recorded annually, pursuant to Exhibit A, in the
Executive’s Accrued Benefit Account. Supplemental Retirement
Income Benefit Phantom Contributions shall be recorded for the Plan
Year following the Plan Year in which the Executive first exercises
his withdrawal rights and shall continue through the Plan Year in
which the Executive dies. The final Supplemental Retirement Income
Benefit Phantom Contribution recorded in the Accrued Benefit
Account for the Plan Year of the Executive’s death shall be
equal to: (i) the Supplemental Retirement Income Benefit
Phantom Contribution scheduled for such Plan Year pursuant to
Exhibit A (unless already made), plus (ii) all remaining
Supplemental Retirement Income Benefit Phantom Contributions,
required pursuant to Exhibit A, for Plan Years subsequent to the
Executive’s death. Such final Supplemental Retirement Income
Benefit Phantom Contribution shall be recorded in the Accrued
Benefit Account within thirty (30) days of the
Executive’s death.
(3) Change in Control
If the (i) Executive exercises his withdrawal rights
pursuant to Subsection 2.2 and (ii) a Change in Control (as
defined in Subsection 5.2) occurs at the Bank, the following
Supplemental Retirement Income Benefit Contributions and
Supplemental Retirement Income Benefit Phantom Contributions shall
be required of the Bank. The annual Supplemental Retirement Income
Benefit Contributions set forth in Exhibit A shall be made to the
Retirement Income Trust Fund, commencing in the Plan Year in which
the Retirement Income Trust Fund is established and continuing
through the Plan Year in which the Executive first exercises his
withdrawal rights. Thereafter, Supplemental Retirement Income
Benefit Phantom Contributions shall be recorded, annually, in the
Executive’s Accrued Benefit Account. Supplemental Retirement
Income Benefit Phantom Contributions shall commence in the Plan
Year following the Plan Year in which the Executive first exercises
his withdrawal rights and shall continue through the Plan Year in
which the Change in Control occurs. Upon the occurrence of said
Change in Control (as defined in Subsection 5.2), the Bank shall be
required to record a lump sum Supplemental Retirement Income
Benefit Phantom Contribution in the Executive’s Accrued
Benefit Account in an amount equal to: (i) the full
Supplemental Retirement Income Benefit Phantom Contribution
required for the Plan Year in which such Change in Control occurs,
as provided for in Exhibit A (unless already made), plus
(ii) the present value (computed using a discount rate equal
to Six Percent (6%) per annum) of the total Supplemental
Retirement Income Benefit Phantom Contributions which would have
been required in accordance with Exhibit A for the three
(3) Plan Years following the Plan Year in which such Change in
Control occurs. In the event the Executive continues employment
with the Bank following the date of the Change in Control, the Bank
shall be required to resume recording Supplemental Retirement
Income Benefit Phantom Contributions in accordance with the
schedule provided for in Exhibit A. Such
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Supplemental Retirement Income Benefit Phantom
Contributions shall resume in the fourth (4th) Plan Year
following the Plan Year in which the Change in Control occurred and
shall continue for the lesser of: (i) the number of years
remaining in the schedule provided for in Exhibit A, or
(ii) the number of years the Executive remains employed by the
Bank.
(4) Voluntary or Involuntary Termination (Not For Cause)
Prior to Benefit Age
If the Executive (i) exercises his withdrawal rights
pursuant to Subsection 2.2 and (ii) voluntarily or
involuntarily terminates his service with the Bank pursuant to
Subsection 5.1 and such termination is not for Cause, disability,
or related to a Change in Control, all annual Supplemental
Retirement Income Benefit Contributions set forth in Exhibit A for
all Plan Years preceding and including such exercise of withdrawal
rights shall be required of the Bank. Such Supplemental Retirement
Income Benefit Contributions to the Retirement Income Trust Fund
shall commence in the Plan Year in which the Retirement Income
Trust Fund is established and shall continue through the Plan Year
in which the Executive first exercises his withdrawal rights.
Thereafter, Supplemental Retirement Income Benefit Phantom
Contributions shall be recorded annually, pursuant to Exhibit A, in
the Executive’s Accrued Benefit Account. Supplemental
Retirement Income Benefit Phantom Contributions shall be recorded
for the Plan Year following the Plan Year in which the Executive
first exercises his withdrawal rights and shall continue through
the Plan Year in which the Executive is terminated. No additional
Supplemental Retirement Income Benefit Phantom Contributions shall
be required to be recorded in the Accrued Benefit Account for Plan
Years subsequent to the Plan Year in which termination occurs.
(5) Termination Due to Disability
If the Executive (i) exercises his withdrawal rights
pursuant to Subsection 2.2 and (ii) terminates service with
the Bank due to disability pursuant to Subsection 6.1, all annual
Supplemental Retirement Income Benefit Contributions set forth in
Exhibit A for all Plan Years preceding and including such exercise
of withdrawal rights shall be required of the Bank. Such
Supplemental Retirement Income Benefit Contributions to the
Retirement Income Trust Fund shall commence in the Plan Year in
which the Retirement Income Trust Fund is established and shall
continue through the Plan Year in which the Executive first
exercises his withdrawal rights. Thereafter, Supplemental
Retirement Income Benefit Phantom Contributions shall be recorded
annually, pursuant to Exhibit A, in the Executive’s Accrued
Benefit Account. Supplemental Retirement Income Benefit Phantom
Contributions shall be recorded for the Plan Year following the
Plan Year in which the Executive first exercises his withdrawal
rights and shall continue through the Plan Year in which the
termination due to disability occurs. No additional Supplemental
Retirement Income Benefit Phantom Contributions shall be required
to be recorded in the Accrued Benefit Account for Plan Years
subsequent to the Plan Year in which termination occurs.
(6) Termination For Cause
If the Executive (i) exercises his withdrawal rights
pursuant to Subsection 2.2 and (ii) is terminated for Cause
pursuant to Subsections 1.8 and 5.3, the annual Supplemental
Retirement Income Benefit Contributions to the Retirement Income
Trust Fund set forth in Exhibit A for all
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Plan Years preceding and including such exercise
of withdrawal rights shall be required of the Bank. Such
Supplemental Retirement Income Benefit Contributions to the
Retirement Income Trust Fund shall commence in the Plan Year in
which the Retirement Income Trust Fund is established and shall
continue through the Plan Year in which the Executive first
exercises his withdrawal rights. The entire balance of the
Executive’s Accrued Benefit Account at the time of such
termination, which shall include (i) any recorded Supplemental
Retirement Income Benefit Phantom Contributions, plus
(ii) interest accrued on such Supplemental Retirement Income
Benefit Phantom Contributions, shall be forfeited.
2.2 Withdrawals from Retirement Income Trust Fund .
Exercise of withdrawal rights by the Executive pursuant to the
John R. Garbarino Grantor Trust agreement shall terminate the
Bank’s obligation to make any further Supplemental Retirement
Income Benefit Contributions and Supplemental ESOP Benefit
Contributions to the Retirement Income Trust Fund, and the
Bank’s obligation to record Supplemental Retirement Income
Benefit Phantom Contributions and Supplemental ESOP Benefit Phantom
Contributions in the Executive’s Accrued Benefit Account
shall immediately commence pursuant to Subsection 2.1 of the
Agreement. For purposes of this Subsection 2.2, "exercise of
withdrawal rights" shall mean those withdrawal rights to which the
Executive is entitled under Article III of the John R. Garbarino
Grantor Trust agreement and shall exclude any distributions made by
the trustee of the Retirement Income Trust Fund to the Executive
for purposes of payment of income taxes in accordance with
Subsection 2.1 of this Agreement.
SECTION III
RETIREMENT BENEFIT
3.1 (a) Normal form of payment .
If (i) the Executive is employed with the Bank until
reaching his Benefit Age, excluding employment with the Bank until
Benefit Age following a Change in
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