EXHIBIT 10.9
P ROVIDENT F INANCIAL S ERVICES , I NC .
B OARD OF D IRECTORS
V OLUNTARY F EE D EFERRAL P LAN
Effective January 1,
2005
Amended and Restated Effective as
of December 31, 2008
Table of Contents
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A
RTICLE I
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1
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Section 1.1
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Acceleration Event
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1
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Section 1.2
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Administrator
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1
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Section 1.3
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Beneficiary
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1
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Section 1.4
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Board
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1
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Section 1.5
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Code
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1
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Section 1.6
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Company
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1
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Section 1.7
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Change in
Control Event
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1
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Section 1.8
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Cash
Compensation
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1
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Section 1.9
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Disability
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1
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Section 1.10
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Effective
Date
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2
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Section 1.11
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Investment Benchmark
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2
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Section 1.12
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Memorandum Account
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2
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Section 1.13
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Memorandum Subaccount
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2
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Section 1.14
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Non-Employee Director
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2
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Section 1.15
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Participant
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2
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Section 1.16
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Participating Company
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2
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Section 1.17
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Plan
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2
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Section 1.18
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Service
Recipient
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2
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Section 1.19
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Termination of Service
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3
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Section 1.20
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Unforeseeable Emergency
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3
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A
RTICLE II
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3
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Section 2.1
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Election
to Participate
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3
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Section 2.2
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Election
to Defer Cash Compensation
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3
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Section 2.3
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Changes
in Participation
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4
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i
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A
RTICLE III
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4
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Section 3.1
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In
General
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4
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Section 3.2
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Adjustments to Memorandum
Accounts
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5
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Section 3.3
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Vesting
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5
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A
RTICLE IV
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5
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Section 4.1
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Establishment of Trust
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5
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Section 4.2
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Contributions to Trust;
Investments
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6
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Section 4.3
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Unfunded
Character of Plan
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6
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A
RTICLE V
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6
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Section 5.1
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Authority
to Purchase Life Insurance
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6
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Section 5.2
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Cooperation to Effect
Purchases
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6
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Section 5.3
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Ownership
of Policies
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7
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Section 5.4
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Effect of
Termination of Participation
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7
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A
RTICLE VI
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7
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Section 6.1
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Trust
Required
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7
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Section 6.2
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Dividends
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8
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Section 6.3
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Voting
Rights
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8
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Section 6.4
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Distribution
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8
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A
RTICLE VII
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8
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Section 7.1
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Early
Distributions
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8
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Section 7.2
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Scheduled
Distributions to Participants
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9
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Section 7.3
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Distributions to
Beneficiaries
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10
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Section 7.4
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Mandatory
Cashout of Small Balances
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11
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Section 7.5
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Restrictions on Payments to Specified
Employees
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11
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Section 7.6
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One-Time
Election During 2007 and 2008
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11
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ii
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A
RTICLE VIII
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11
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Section 8.1
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Administrator
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11
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Section 8.2
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Claims
Procedure
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12
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Section 8.3
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Claims
Review Procedure
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13
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Section 8.4
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Other
Administrative Provisions
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13
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A
RTICLE IX
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14
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Section 9.1
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Amendment
by the Company
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14
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Section 9.2
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Termination
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14
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Section 9.3
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Amendment
or Termination by Other Companies
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15
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A
RTICLE X
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15
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Section 10.1
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Notice
and Election
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15
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Section 10.2
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Construction and Language
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16
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Section 10.3
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Headings
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16
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Section 10.4
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Non-Alienation of Benefits
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16
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Section 10.5
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Severability
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16
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Section 10.6
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Waiver
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16
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Section 10.7
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Governing
Law
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17
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Section 10.8
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Withholding
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17
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Section 10.9
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No
Deposit Account
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17
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Section 10.10
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Rights of
Participants
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17
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Section 10.11
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Status of
Plan Under ERISA
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17
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Section 10.12
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Successors and Assigns
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17
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Section 10.13
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Compliance with Section 409A of the
Code
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18
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Section 10.14
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Effect of
Restatement
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18
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iii
P ROVIDENT F INANCIAL S ERVICES , I NC .
B
OARD
OF
D
IRECTORS
V
OLUNTARY
F
EE
D
EFERRAL
P
LAN
A
RTICLE
I
D
EFINITIONS
The following definitions shall
apply for the purposes of this Plan unless a different meaning is
clearly indicated by the context:
Section 1.1
Acceleration Event means, with respect to a Participant, any of the
events described in section 7.1 on the basis of which the
Administrator may permit acceleration of the payment of the balance
credited to the Participant’s Memorandum Account.
Section 1.2
Administrator means any person, committee, corporation or
organization appointed by the Board to perform responsibilities
assigned to the Administrator hereunder. If no designation is made
the Board will serve as the Administrator.
Section 1.3
Beneficiary means the person or persons designated by a
Participant under section 7.3 of the Plan.
Section 1.4
Board means
the Board of Directors of the Company.
Section 1.5
Code means the
Internal Revenue Code of 1986 (including the corresponding
provisions of any succeeding law).
Section 1.6
Company means
Provident Financial Services, Inc. or any successor
thereto.
Section 1.7 Change in
Control Event means, with respect to a Participant: (a) a
change in ownership of the Participant’s Service Recipient;
(b) a change in effective control of the Participant’s
Service Recipient; or (c) a change in the ownership of a
substantial portion of the assets of the Participant’s
Service Recipient. The existence of a Change in Control Event shall
be determined by the Administrator in accordance with section 409A
of the Code and the regulations thereunder.
Section 1.8 Cash
Compensation means the monetary compensation payable to a
Non-Employee Director for service as a member of the board of
directors of a Participating Company, including retainer payments
and fees for attendance at board and committee meetings.
Section 1.9
Disability means, with respect to a Participant:
(a) any medically determinable physical or mental impairment
which can be expected to result in death or to last for a
continuous period of at least twelve (12) months and as a
result of which either: (i) the Participant is unable to
engage in any substantial gainful activity or (ii) the
Participant has been receiving income replacement benefits for a
period of at least three (3) months under an
accident
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and health plan covering employees of the
Participant’s employer, or (b) any condition as a result
of which the Participant is determined to be totally disabled by
the Social Security Administration or Railroad Retirement Board, or
(c), solely for purposes of section 2.3, any medically determinable
physical or mental impairment resulting in the Participant’s
inability to perform the duties of his or her position or any
substantially similar position, where such impairment can be
expected to result in death or last for a continuous period of not
less than six (6) months. The existence of a Disability shall
be determined by the Administrator in accordance with section 409A
of the Code and the regulations thereunder.
Section 1.10 Effective
Date means
January 1, 2009.
Section 1.11
Investment Benchmark means a hypothetical investment classification
in which a Participant’s Memorandum Account shall be deemed
to be invested for purposes of crediting or charging earnings,
losses, appreciation or depreciation in accordance with section
3.2. Unless otherwise specified by the Administrator, the
Investment Benchmark shall be the U.S. Prime Rate as reported in
the Wall Street Journal, New York Edition on the day of
application.
Section 1.12
Memorandum Account means, with respect to a Participant, a
bookkeeping account maintained by the Company to which is credited
the amount of the Participant’s deferred Cash Compensation,
together with any earnings and appreciation thereon, and against
which are charged any losses, depreciation or distributions
thereof, pursuant to Article III.
Section 1.13
Memorandum Subaccount means, with respect to a Participant, a portion
of the Participant’s Memorandum Account that is separately
accounted for by the Company due to the application of unique
provisions relating to the applicable distribution schedule or
Investment Benchmark.
Section 1.14
Non-Employee Director means a voting member of the board of directors
of a Participating Company who is not an officer or employee of any
Participating Company.
Section 1.15
Participant means a Non-Employee Director or former
Non-Employee Director who has a Memorandum Account under the
Plan.
Section 1.16
Participating Company means the Company and any other company which,
with the prior approval of the Board, may adopt this
Plan.
Section 1.17
Plan means the
Provident Financial Services, Inc. Board of Directors Voluntary Fee
Deferral Plan.
Section 1.18 Service
Recipient means
with respect to a Participant on any date: (a) the corporation
for which the Participant is performing services on such date;
(b) all corporations that are liable to the Participant for
the benefits due to him under the Plan; (c) a corporation that
is a majority shareholder of a corporation described in section
1.18(a) or (b); or (d) any corporation in a chain of
corporations each of which is a majority shareholder of another
corporation in the chain, ending in a corporation described in
section 1.18 (a) or (b).
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Section 1.19
Termination of Service means cessation of all services to all Service
Recipients in the capacity of a member of such Service
Recipients’ board of directors. The occurrence of a
Termination of Service shall be determined by the Administrator in
accordance with section 409A of the Code and the regulations
thereunder.
Section 1.20
Unforeseeable Emergency means, with respect to a Participant, a severe
financial hardship to the Participant resulting from an illness or
accident of the Participant, the Participant’s spouse,
beneficiary or dependent (within the meaning of section 152 of the
Code, without regard to sections 152(b)(1), (b)(2), and (d)(1)(B)
of the Code), loss of the Participant’s property due to
casualty, or other similar extraordinary and unforeseeable
circumstances arising as a result of events beyond the control of
the Participant. The existence of an Unforeseeable Emergency shall
be determined by the Administrator in accordance with section 409A
of the Code and the regulations thereunder.
A
RTICLE
II
P
ARTICIPATION
Section 2.1 Election
to Participate .
Any Non-Employee Director may elect
to become a Participant in the Plan by submitting to the
Administrator a written election, on a form prescribed by the
Administrator, and subject to the provisions of such form, to defer
the receipt of all or any portion of his Cash Compensation;
provided, however, that no Non-Employee Director shall be
permitted to defer receipt of Cash Compensation that is required to
be withheld and remitted to any federal, state or local taxing
authority pursuant to any requirement for the collection of tax at
the source or that is required to fund any contribution or premium
payment or co-payment required of the Non-Employee Director as a
condition of participation in any benefit plan maintained by the
Company or any other Participating Company at the time the election
is made.
Section 2.2 Election
to Defer Cash Compensation .
An election to defer Cash
Compensation shall be made in writing on the form prescribed by the
Administrator, shall specify the amount or percentage of each
payment of Cash Compensation to be deferred subject to the
provisions of such form, shall apply equally to all items of Cash
Compensation, shall be made on or before the last day of any
calendar year, and shall be effective for the calendar year
following the calendar year in which such election is made and all
subsequent calendar years unless status as a Non-Employee Director
ceases or a change in the rate of deferral is elected pursuant to
section 2.3. Notwithstanding the foregoing, an initial election to
defer Cash Compensation, made by a Non-Employee Director and filed
with the Administrator during the thirty (30) day period
immediately following the date the Non-Employee Director first
becomes eligible to participate in the Plan, shall take effect with
the first payment of Cash Compensation that relates to a period of
service that begins after such election is made, or such later date
as the Non-Employee Director shall specify in his
election.
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Section 2.3 Changes in
Participation .
(a) An election by a Participant
pursuant to section 2.2 shall continue in effect until termination
of status as a Participant; provided, however, that the
Participant may, by written election filed with the Administrator,
increase or decrease the portion of his Cash Compensation to be
deferred, or discontinue such deferral altogether. Such election
shall apply equally to all payments of Cash Compensation, and shall
be effective with respect to Cash Compensation payable for services
rendered after the end of the calendar year in which such election
is filed with the Administrator.
(b) If a Participant incurs a
Disability, or is found, on the Participant’s
applicat