NON-QUALIFIED EXECUTIVE SUPPLEMENTAL RETIREMENT INCOME
DEFERRED COMPENSATION AGREEMENT
THIS AGREEMENT, entered into this 14th day of December 1983, in the City of
Bayonne, State of New Jersey, by and between First Savings and Loan Association
of Bayonne, a Corporation organized and existing under the laws of the State of
New Jersey, and having its principal place of business in the City of Bayonne,
State of New Jersey, hereinafter referred to as the "Corporation", and _________
of _______, New Jersey, hereinafter referred to as the Employee,"
WITNESSETH:
WHEREAS, the Corporation is engaged in the savings and loan business; and,
WHEREAS, an employment relationship has existed between the parties hereto
since January 3, 1956, to the mutual benefit of both parties; and
WHEREAS, the parties wish to continue this relationship and to provide for
certain contingencies; and
WHEREAS, the Employee is considered a highly compensated Employee or member
of a select management group of the Corporation;
NOW, THEREFORE, in consideration of the premises and of the covenants and
agreements hereinafter set forth, and for other good and valuable consideration,
receipt of which is hereby acknowledged, the Corporation and the Employee
covenant and agree as follows:
COMPENSATION TO EMPLOYEE IF RETIRED, DECEASED OR DISABLED
1.1 Compensation Following Termination of Employment: The Corporation
agrees, if the Employee shall have been continuously employed by the Corporation
from the date of this Agreement to his normal retirement date, and his active
employment by the Corporation shall terminate due to retirement, to pay to the
Employee beginning on a date to be determined by the Corporation but within
three calendar months of his normal retirement date, an amount sufficient to
restore in entirety, the benefits originally intended to be provided under the
Basic Pension Plan, without restrictions. The benefits will be paid in equal
monthly payments for the lifetime of the Employee but with not less than 120
monthly payments being paid on his behalf to his estate or designated
beneficiary.
1.2 Death Prior to Termination of Employment. The Corporation agrees, if
the Employee should die while continuously employed by the Corporation but prior
to his normal retirement date, to pay to such beneficiary or beneficiaries as he
may designate in paragraph 4.1, if living, otherwise to the Employee's estate,
the sum equal to one hundred times the monthly benefit as calculated in
accordance with paragraph 1.1 above.
1.3 Death of Employee Following Termination of Employment. In the event
that the Employee should die after the payments provided for in Paragraph 1.1
have commenced but before a total of 120 monthly payments shall have been made
to the Employee, monthly payments shall be continued to such beneficiary or
beneficiaries as the Employee may designate in accordance with Paragraph 4.1, if
living, otherwise to the Employee's estate, in the same amount as he was
receiving under this Agreement prior to his death, and such monthly payments
shall continue until such time as a total of 120 monthly payments shall have
been made in the aggregate to the Employee and to his designated beneficiary or
beneficiaries and/or to their estates. If the last remaining designated
beneficiary should survive the Employee but should die thereafter while
receiving payments, any monthly payments remaining unpaid at that time shall be
paid to the estate of such designated beneficiary at such times and in such
manner as if the designated beneficiary were living.
CONDITIONS FOR PAYMENT
2.1 Continuous Employment. Payment of benefits to Employee or his
designated beneficiary under this Agreement are conditioned upon the continuous
Employment of the Employee by the Corporation (including periods of disability
and authorized leaves of absence as defined in paragraph 8.1 of this Agreement),
from the date of this Agreement to his date of retirement or his death,
whichever is the sooner, and upon the Employee's compliance with the terms of
this Agreement.
2.2 Covenant Not to Compete. The Employee agrees that during his employment
with the Corporation, after his retirement from the Corporation he will not
directly, or indirectly enter into, or in any manner take part in, any business,
profession or other endeavor, either as an employee, agent, independent
contractor, owner or otherwise, which in the opinion of the Corporation shall be
in competition with the business of the Corporation, which opinion of the
Corporation shall be final and conclusive for the purpose hereof. The Employee
agrees that if he shall fail to observe any of the covenants herein and shall
continue to breach any covenant herein contained for a period of thirty (30)
days after the Corporation shall have notified him in writing at this home
address that the Corporation had decided that such business is in competition
with the Corporation; then, any of the provisions hereof to the contrary
notwithstanding, the Employee agrees that no further payments shall be due or
payable by the Corporation hereunder, either to the Employee, his designated
beneficiary or beneficiaries, or to their estates, and that the Corporation
shall have no further liability hereunder. Provided, however, that the Employee
may engage in such employment if he obtains prior written consent of the
Corporation to do so.
2.3 Consultation. The Employee agrees that he will render such reasonable
business consulting and advisory services as the Corporation's board of
directors may call upon him to provide, and as his health may permit for a
period from his retirement to his death, or until prior disability. Such
services shall not require the Employee to be active in the Corporation's
day-to-day activities, and Employee shall perform such services as an
independent contractor. In addition, Employee shall be compensated for such
services in an amount to be then agreed upon, and shall be reimbursed for all
expenses incurred in performing such services.
TERMINATION OF EMPLOYMENT: VESTING
3.1 Vesting Schedule. Notwithstanding any other provisions in this
Agreement, if the Employee is terminated prior to his normal retirement date for
any reason other than death or disability, he shall forfeit all rights to
whatever benefits provided in any Paragraph of this Agreement, and, in lieu
thereof, the Corporation agrees to pay to the Employee in a lump sum, or as may
be mutually agreed upon by the parties, the amount shown for the year of
termination in the following schedule:
Full Years From Date of Agreement
to Severance of Employment The Amount Shall Be
--------------------------------- -------------------
1 year but less than 2 20%
2 years but less than 3 40%
3 years but less than 4 60%
4 years but less than 5 80%
5 years 100%
If the employee should die before all the above agreed-upon benefits are
paid, the remaining benefits shall be payable to such individual or individuals
as the Employee shall have designated in accordance with Paragraph 4.1, or, in
the absence of such designation, to the estate of the Employee, until the
remaining benefits have been paid under the terms agreed upon.
3.2 Commencement of Payments. The payment of any amount coming due under
this Paragraph shall be made or shall begin on that anniversary date of this
Agreement immediately following the date of termination, and such payment or
payments shall be in final settlement of all obligations of the Corporation
which shall exist under this Agreement.
3.3 Termination for Cause. Notwithstanding any other provisions in this
Agreement, if the Employee is discharged by the Corporation for cause, all
benefits payable under this Agreement shall be forfeited. "Cause" as defined in
this Agreement shall mean (a) incompetence, (b) insubordination, (c) conviction
or a plea of nolo contrende in a felony case, or (d) drug addiction.
BENEFICIARIES
4.1 Beneficiary Designation. The Employee by written notice to the
Corporation during his lifetime signed by him and witnessed by at least two
persons, in the form attached as Exhibit A, may designate one or more persons or
entities (including a trust or trusts) to receive as beneficiaries his
contingent compensation, or any balance thereof, and any other compensation
payable to him under this Agreement, in the event of his death prior to full
payment thereof, and if he shall designate more than one, the proportion in
which each is to receive such payments. He may also designate the person or
persons who shall succeed to the rights of the person or persons originally
designated in case the latter should die while
payments remain due under this Agreement. He may from time to time change any
designation so made and the last written notice received by the Corporation
before his death shall be controlling.
4.2 Simultaneous Death. If any beneficiary designated under the provisions
of this Agreement should die simultaneously with the Employee or within the
twenty-four hour period immediately following the death of the Employee, all
benefits payable under this Agreement shall be paid as if such beneficiary had
died prior to the Employee.
NAMED FIDUCIARY AND CLAIMS PROCEDURE
5.1 Name of Fiduciary. The Named Fiduciary of the plan and for purposes of
the claims procedure under this Agreement is President of the Corporation. The
business address and telephone number of the Named Fiduciary under this
Agreement is: 000 Xxxxxxxx, Xxxxxxx, XX 00000, (000) 000-0000. The Corporation
shall have the right to change the Named Fiduciary of this Agreement. The
Corporation shall also have the right to change the address and telephone number
of the Named Fiduciary, but the Corporation shall give the Employee written
notice of any change of the Named Fiduciary, or any change in the address and
telephone number of the Named Fiduciary.
5.2 Request for Benefits. Benefits shall be paid in accordance with the
provisions of this Agreement. The Employee, or a designated beneficiary, or any
other person claiming through the Employee (hereinafter collectively referred to
as the "Claimant") shall make a written request for the benefits provided under
this Agreement. This written claim shall be mailed or delivered to the Named
Fiduciary.
5.3 Denial of Claims. The Named Fiduciary shall within a reasonable time
period, but in no event more than 90 days after the receipt of the claim by the
Named Fiduciary, provide a written notice to every Claimant who is either
partially or wholly denied a claim for benefits under this Agreement. The notice
shall set forth in a manner calculated to be understood by the Claimant, the
specific reasons for the denial; the specific reference to pertinent provisions
of this Agreement on which the denial is based; 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 appropriate
information and explanation of the claims procedure under this Agreement to
permit the Claimant to submit his claim for review.
FUNDING
6.1 The Corporation's obligation under this Agreement shall be an unfunded
and unsecured promise to pay. The Corporation shall not be obligated under any
circumstances to fund its obligations under this Agreement but the Corporation
may, at its sole and exclusive option, elect to fund this Agreement in whole or
part. If the Corporation shall elect to fund this Agreement informally, in whole
or in part, the manner of such informal funding, and the continuance or
discontinuance of such informal funding shall be the sole and exclusive decision
of the Corporation. If the Corporation shall determine to informally fund this
Agreement, in whole or in part, by procuring life insurance for its own benefit
on the life of the Employee, the form of such insurance and the amounts shall be
the sole and exclusive decision of the Corporation. Employee hereby agrees to
submit to medical examinations, supply such information and execute such
documents as may be required by the insurance company or companies to whom the
Corporation may have applied for such insurance if the Corporation shall
determine to informally fund this Agreement with life insurance. If said
policies are obtained, they shall be the sole property of the Corporation, which
shall be the owner and beneficiary of any such policies, and said policies will
in no way be deemed security to the Employee under this Agreement, but shall
remain a general corporate asset.
ACCELERATION OF BENEFIT PAYMENTS.
7.1 The Corporation reserves the right to accelerate the payment of any
benefits payable under this Agreement without the consent of the Employee, his
estate, his designated beneficiaries or any other person claiming through the
Employee, provided that the accelerated payment will be in such amounts and for
such periods as will be the equivalent of the monthly payments that would
otherwise have been payable.
LEAVE OF ABSENCE
8.1 For the purpose of determining the period of an Employee's continuous
employment within the meaning of the Agreement, an Employee's employment shall
not be deemed to have been interrupted by any periods of temporary absence taken
with the advance approval of the Corporation, during which the Employee worked
for no other employer; nor by any period of absence during service in the Armed
Forces of the United States of America, if the Employee shall return to his
employment at the time and under the circumstances required to give him
re-employment rights under any Federal or State Law. In the event the Employee
shall not return to the service of the Corporation within the specified period,
he shall be deemed to have terminated his employment when he originally left the
service of the Corporation.
BIRTHDATE
9.1 All benefits payable under this Agreement are based upon_____, 19__ as
the date of birth of the employee. If the actual date of birth is different,
equitable adjustment shall be made in the benefits payable hereunder.
NON-TRANSFERABILITY OF BENEFITS
10.1 This Agreement shall be binding upon the parties hereto, their heirs,
executors, administrators, successors, and assigns. However, no person entitled
to any payments under this Agreement shall have any right to commute, encumber,
pledge, borrow on or dispose of the right to receive such payments, and except
to the extent that this provision may be contrary to law, no assignment, pledge,
collateralization, or attachment of any of the benefits under this Agreement
shall be valid or recognized by the Corporation.
CONSTRUCTION OF AGREEMENT
11.1 Corporate Merger or Termination. The Corporation agrees that it will
not merge or consolidate with any other corporation or organization, or permit
its business activities to be taken over by any other organization, unless and
until the succeeding or continuing corporation or other organization shall
expressly assume the rights and obligations of the Corporation herein set forth.
The Corporation further agrees that it will not cease its business activities or
terminate its existence, other than as heretofore set forth in this Paragraph,
without having made adequate provision for the fulfilling of its obligations
hereunder. In the event of any default with respect to the provisions of this
Paragraph, the Employee (or other obligee or obligees) shall have a continuing
lien on all corporate assets, including already transferred assets, until such
default be corrected.
11.2 Employee Security. With the exception of the circumstances enumerated
in Paragraph 11.1 above, the rights of the Employee, this designated beneficiary
or beneficiaries or their estates under this Agreement shall be solely those of
an unsecured creditor of the Corporation and they shall have only the rights to
receive from the Corporation those benefits as specified under this Agreement.
Nothing contained in this Agreement and no action taken pursuant to the
provisions of this Agreement shall create or be construed to create a trust of
any kind, or a fiduciary relationship between the Corporation and the Employee,
or any other person. Any funds which may be invested under the provisions of
this Agreement shall continue for all purposes to be a part of the general funds
of the Corporation and no person other than the Corporation shall by virtue of
the provisions of the Agreement have any interest in such funds.
11.3 Computation of Benefits. Any deferred compensation benefits under this
Agreement shall not be deemed salary or other compensation to the Employee for
the purpose of computing benefits to which he may be entitled under any pension
plan or other arrangement of the Corporation for the benefit of its Employees.
11.4 Independence of Benefits. The benefits payable under this Agreement
shall be independent of, and in addition to, any other benefits or compensation,
whether by salary, or bonus or otherwise, payable under any Employment
agreements that now exist or may hereafter exist from time to time between the
Corporation and the Employee. This Agreement between the Corporation and the
Employee does not involve a reduction in salary or foregoing of an increase in
future salary by the Employee, nor does the Agreement in any way affect or
reduce the existing and future compensation and other benefits of the Employee.
11.5 Scope of Agreement: Not a Contract of Employment. this Agreement shall
not be deemed to constitute a contract of employment between the parties hereto,
nor shall any provisions hereof restrict the right of the Corporation to
discharge the Employee for cause as defined in Paragraph 3.3, or for any other
reason; nor does it restrict the right of the Employee to terminate his
employment.
11.6 State law governing Agreement. The Law of the State of New Jersey
shall govern this Agreement.
11.7 Interpretation of Agreement. Where appropriate in this Agreement,
words used in the singular shall include the plural and words used in the
masculine shall include the feminine.
REVOCATION AND AMENDMENT
12.1 This Agreement may be revoked or be amended in whole or in part by
writing signed by both of the parties hereto.
EXECUTION OF AGREEMENT
13.1 This Agreement shall be executed in duplicate, each copy of which when
so executed and delivered, shall be an original; but both copies shall,
together, constitute one and the same instrument.
IN WITNESS WHEREOF, the said Corporation has caused this Agreement to be
signed in its corporate name by its duly authorized officer, and impressed with
its corporate seal, attested by its Secretary, and the said Employee has
hereunto set his hand, all on the day and year first above written.
ATTEST: First Savings and Loan Association of
Bayonne
____________________________ By:___________________ (Seal)
Secretary
WITNESS:
----------------------------- ----------------------------
Employee
TO:
FIRST SAVINGS AND LOAN ASSOCIATION OF BAYONNE
This is a designation of beneficiary under my deferred compensation
contract with the Association.
In the event of my death, please pay any sums due under the contract to:
(Primary
Beneficiary) ____________________________________________________
My (relationship) ______________________________________________:
if living, otherwise to
(First Contingent Beneficiary) __________________________________
My (relationship) ______________________________________________.
This designation supersedes any previous designation I may have made under
my deferred compensation contract with the Association.
_________________________ _________________________
Date Signature
_________________________ _________________________
Date Witnessed By
_________________________ _________________________
Date Witnessed By
ACKNOWLEDGED:
First Savings and Loan
Association of Bayonne
_________________________ _________________________
Date Officer
