Exhibit 10.2
PROVIDENT BANK
2005
SUPPLEMENTAL EXECUTIVE
RETIREMENT PLAN
INTRODUCTION
WHEREAS , Provident Bank (the “Bank”)
maintains the Supplemental Executive Retirement Plan (the
“1995 SERP”) for the purpose of providing benefits that
“make up” for benefits that cannot be provided under
the Bank’s tax qualified retirement plans due to the
Applicable Limitations (as herein defined) or that are not provided
under such plans due to the deferral of compensation;
and
WHEREAS , the Bank desires to split the 1995 SERP into
two separate plans—one named the Provident Bank Amended and
Restated 1995 Supplemental Executive Retirement Plan (the
“409A Grandfathered SERP”) and one named the Provident
Bank 2005 Supplemental Executive Retirement Plan (the “2005
SERP”)—in connection with the enactment of section 409A
of the Code; and
WHEREAS, the 409A Grandfathered SERP will provide
(a) the supplemental retirement or survivor benefits of
specified executives that were “earned and vested”
(within the meaning of section 409A of the Code) under the 1995
SERP on or prior to December 31, 2004, and (b) the
supplemental incentive savings benefits and supplemental ESOP
benefits of all participants and former participants in the 1995
SERP that were “earned and vested” under the 1995 SERP
on or prior to December 31, 2004; and
WHEREAS, the 2005 SERP (also referred to herein as the
“Plan”) will provide (a) all benefits accrued
under the 1995 SERP through the day prior to the Effective Date (as
defined herein), other than those provided under the 409A
Grandfathered SERP, and (b) all benefits accrued on and after
the Effective Date under the terms of the 2005 SERP;
NOW THEREFORE:
The Bank hereby sets forth below the
terms of the 2005 SERP, which shall be as follows effective as of
the date last written below (the “Effective
Date”):
ARTICLE I
DEFINITIONS
Wherever appropriate to the purposes
of the Plan, capitalized terms shall have the meanings assigned to
them under the Retirement Plan, the 401(k) Plan, and the ESOP;
provided , however , that the following
special definitions shall apply for purposes of the Plan, unless a
different meaning is clearly indicated by the context:
Section 1.1 Actuarial
Equivalent means a benefit of equivalent value when computed on
the basis of actuarial tables and interest rates adopted under the
provisions of the Retirement Plan for use in making such
computations.
Section 1.2 Applicable
Limitation means any one of the following: (a) the maximum
limitation on annual benefits payable by a qualified defined
benefit plan under section 415(b) of the Code; (b) the maximum
limitations on annual additions to a qualified defined contribution
plan under section 415(c) of the Code; (c) the maximum
limitation on the annual amount of compensation that may be taken
into consideration for contribution and benefit purposes under
section 401(a)(17) of the Code; (d) with respect to the 401(k)
Plan, the limitations on salary deferrals and matching
contributions under sections 401(k), 401(m) and 402(g) of the Code,
and (e) with respect to the ESOP, the limitations under
section 415(c)(6) with respect to allocations to highly compensated
employees that apply in order to avoid taking interest
contributions and forfeitures under the ESOP into consideration in
applying the limitations of section 415(c)(1).
Section 1.3 Bank means
Provident Bank, and any successor thereto, and any corporation that
is a member of a controlled group of corporations (as defined in
section 414(b) of the Code) that includes Provident Bank or any
trade or business (whether or not incorporated) that is under
common control (as defined in section 414(c) of the Code) with
Provident Bank, which, with the prior approval of the Board, and
subject to such conditions as may be imposed by such Board, shall
adopt this Plan.
Section 1.4 Bank
Contributions means contributions by the Bank to the 401(k)
Plan.
Section 1.5 Beneficiary
means such person(s) as may be designated by a Participant as the
Participant’s Beneficiary in accordance with such rules and
procedures as may be prescribed by the Committee. If no Beneficiary
has been designated, then the Beneficiary shall be the estate of
the Participant.
Section 1.6 Benefit
means a Supplemental Retirement Benefit, a Supplemental Incentive
Savings Benefit, or a Supplemental ESOP Benefit.
Section 1.7 Board means
the Board of Directors of the Bank.
Section 1.8 Code means
the Internal Revenue Code of 1986, as amended from time to
time.
Section 1.9 Committee
means the Compensation Committee of the Board, or such other
person, committee or other entity as shall be designated by or on
behalf of the Board to perform duties on its behalf under the
Plan.
Section 1.10 Common
Stock means common stock of Provident New York Bancorp or any
successor in interest.
Section 1.11 Conversion
Date means the date specified by the Committee as the
“Conversion Date.”
Section 1.12 Default
Rate means the rate earned from time-to-time in a money market
fund as designated from time-to-time by the Committee.
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Section 1.13 Eligible
Employee means a person who is employed by the Bank as an
Executive Vice President or in a more senior executive officer
position and designated as eligible to participate in the Plan by
the Chief Executive Officer of the Bank (or the Committee in this
case of designation of the Chief Executive Officer to participate
in the Plan).
Section 1.14 ESOP means
the Provident Bank Employee Stock Ownership Plan, as amended from
time to time.
Section 1.15 ERISA means
the Employee Retirement Income Security Act of 1974, as amended
from time to time (including the corresponding provisions of any
succeeding law).
Section 1.16 401(k) Plan
means the Provident Bank 401(k) Plan, as amended from time to
time.
Section 1.17 Participant
means each person who is or becomes a Participant in accordance
with Article II hereof.
Section 1.18 Payment
Election means an election duly filed by a Participant in
accordance with Section 3.5 that specifies the time and form
of payment of a Participant’s Benefits.
Section 1.19 Plan means
this Provident Bank 2005 Supplemental Executive Retirement Plan, as
amended from time to time.
Section 1.20 Retirement
Plan means the Provident Bank Defined Benefit Pension Plan, as
amended from time to time.
Section 1.21 Termination of
Service means an Employee’s separation from the service
(within the meaning of section 409A of the Code) with respect to
the Bank, whether by resignation, discharge, death, disability,
retirement or otherwise.
Section 1.22 Transition
Interest Rate means the higher of (a) the five-year CD
rate and (b) the Federal Funds Target Rate, in each case as
published in the Wall Street Journal on the first publication date
of the calendar year.
Section 1.23 Transition
Participant means a Participant who is not actively employed by
the Bank on or after the Conversion Date.
Section 1.24 Valuation
Date means, unless otherwise determined by the Committee, the
last business day of each calendar month.
ARTICLE II
PARTICIPATION
Section 2.1 Effective Date
Participants .
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Each Participant in the 1995 SERP
who immediately prior to the Effective Date had an accrued benefit
under the 1995 Plan that was not earned and vested as of
December 31, 2004, shall be a Participant as of the Effective
Date.
Section 2.2 New
Participants .
On and after the Effective Date, an
Eligible Employee shall become a Participant on the first day (on
or after becoming an Eligible Employee) on which either
(a) the Eligible Employee’s salary is paid at an annual
rate equal to or in excess of the annual limitation under section
401(a)(17) of the Code as in effect from time to time, or
(b) the Eligible Employee’s benefit under the Retirement
Plan, 401(k) Plan or ESOP is reduced because of an Applicable
Limitation.
ARTICLE III
BENEFITS TO
PARTICIPANTS
Section 3.1 Supplemental
Retirement Benefits .
(a) A Participant shall be entitled
to a supplemental retirement benefit (the “Supplemental
Retirement Benefit”) under this Plan in an amount equal to
the excess of:
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(i)
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the retirement
or survivor benefit to which the Participant would be entitled
under the Retirement Plan assuming that (A) the Applicable
Limitations did not apply, and (B) any compensation or fees
deferred by the Participant as an officer or director of the Bank
were counted as compensation under the Retirement Plan in the year
to which the deferred compensation or fees related (but only to the
extent that any such compensation or fees would have constituted
“Compensation” as defined in the Retirement Plan had
they not been deferred); over
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(ii)
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the sum of
(A) the actual retirement or survivor benefit to which
Participant is entitled under the Retirement Plan taking into
account the Applicable Limitations and (B) the
Participant’s Supplemental Retirement Benefit under the 409A
Grandfathered SERP (determined as an Actuarially Equivalent Benefit
payable in the same form as the benefit described in
Section 3.1(a)(i)).
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(b) The Supplemental Retirement
Benefit provided for in Section 3.1(a) shall be paid in
accordance with Section 3.5 hereto and shall be Actuarially
Equivalent to the amount provided for in
Section 3.1(a).
(c) In the event of the death of a
Participant before the date that the Participant has commenced
receiving the Participant’s Supplemental Retirement Benefit,
the Participant’s Beneficiary shall be entitled to receive a
survivor benefit (“Survivor Benefit”) hereunder that is
Actuarially Equivalent to the survivor benefit, if any, that would
be payable under the Retirement
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Plan assuming that the Participant’s
accrued retirement benefit under the Retirement Plan as of the day
prior to the Participant’s death was equal to the
Supplemental Retirement Benefit to which the Participant would have
been entitled hereunder had the Participant’s Termination of
Service occurred as of the day before the Participant’s
death. Such Survivor Benefit shall be paid to the
Participant’s Beneficiary at such time and in such form as
may be permitted by the Committee and designated by the Participant
in his or her Payment Election. In the event of the death of a
Participant on or after the date that the Participant has commenced
receiving the Participant’s Supplemental Retirement Benefit,
such Supplemental Retirement Benefit, to the extent unpaid, shall
be paid to the Participant’s Beneficiary at such time and in
such form as may be permitted by the Committee and designated by
the Participant in his or her Payment Election.
Section 3.2 Supplemental
Incentive Savings Benefit .
(a) A Participant’s
“Supplemental Incentive Savings Benefit” shall be an
amount equal to the excess of:
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(i)
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The product of
(A) the Participant’s 401(k) Plan Make-Up Benefit, if
any, adjusted for Deemed Earnings in accordance with
Section 3.4 hereof, and (B) the Participant’s
vested percentage under the 401(k) Plan, over
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(ii)
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the
Participant’s Supplemental Incentive Savings Benefit under
the 409A Grandfathered SERP.
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A