Exhibit 10.11
Haven Bancorp, Inc.
Key Executive
Deferred Compensation Plan
ARTICLE 1
INTRODUCTION
1.1 Purpose of Plan
The Company has adopted the Plan set forth herein to provide a
means by which certain Eligible Individuals may elect to defer
receipt of designated percentages or amounts of their Compensation.
1.2 Status of Plan
The Plan is intended to be a plan that is "unfunded and is
maintained by an employer primarily for the purpose of providing
deferred compensation for a select group of management or highly
compensated employees" within the meaning of sections 201(2) and
301(a)(3) of ERISA, and shall be interpreted and administered, to
the extent possible, in a manner consistent with that intent.
ARTICLE 2
DEFINITIONS
Wherever used herein, the following terms have the meanings set
forth below, unless a different meaning clearly is required by the
context:
2.1 Account means, for each Participant, an account maintained on
the books and records of the Company that is established for his or
her benefit under Section 5.1.
2.2 Appeal Committee means the Compensation Committee of the Board
of Directors of the Company.
2.3 Cause means, when used in connection with the termination of
a Participant's employment, the termination of the Participant's
employment by the Company on account of: (i) the willful violation
by the Participant of (A) any federal or state law, (B) any rule of
the Company or (C) any rule or regulation of any regulatory body to
which the Company is subject including, without limitation, the
Office of Thrift Supervision and the Federal Deposit Insurance
Corporation, which would materially reflect on the Participant's
character, competence or integrity; (ii) a breach by a Participant
of the Participant's duty of loyalty to the Company in
contemplation of the Participant's termination of employment with
the Company; or (iii) the Participant's unauthorized removal from
the premises of the Company of any document (in any medium or form)
relating to the Company or its customers. Any such determination
shall be made in the Plan Administrator's sole discretion. The
Company's rights hereunder in the event a Participant's employment
is (or is deemed to have been) terminated for Cause are in addition
to any rights the Company may have under any other agreement with
the Participant or at law or in equity. If, subsequent to a
Participant's termination of employment it is determined that the
Participant's employment could have been terminated for Cause, such
Participant's employment shall, at the election of the Plan
Administrator in its sole discretion, be deemed to have been
terminated for Cause.
2.4 Code means the Internal Revenue Code of 1986. Reference to
any section or subsection of the Code includes reference to any
comparable or succeeding provisions of any legislation that amends,
supplements or replaces such section or subsection.
2.5 Company means Haven Bancorp, Inc. ("Haven") (or any successor
to all or a major portion of Haven's assets or business that
assumes the obligations of Haven hereunder) and each of its
subsidiaries and affiliates.
2.6 Compensation means, with respect to each calendar year, the
amount payable in cash to an Eligible Individual as: (i) base
salary; (ii) bonus; or (iii) other cash incentive compensation,
before giving effect to any compensation reduction election made in
connection with: (A) a cash or deferred arrangement within the
meaning of section 401(k) of the Code; or (B) a "cafeteria plan"
within time meaning of section 125 of the Code.
2.7 Deferral Date means, with respect to each calendar year, each
pay date or such other date or dates selected by the Plan
Administrator prior to the beginning of the calendar year to which
an Elective Deferral relates.
2.8 Deferral Election means any election by a Participant to make
an Elective Deferral hereunder by filing an Election Form in
accordance with Section 4.1 hereof.
2.9 Distribution Date means, with respect to each Participant, the
date the Participant ceases to be employed by the Company or any
affiliate of the Company.
2.10 Effective Date means May 26, 1999, the date as of which the
Plan first became effective.
2.11 Election Form means the participation election form approved
and prescribed by the Plan Administrator.
2.12 Elective Deferral means the portion of a Participant's
Compensation that is deferred by a Participant under Section 4.1.
2.13 Eligible Individual means, in a Plan Year, an employee of the
Company selected by the Committee to participate in the Plan whose
Compensation in the immediately preceding Plan Year was, and whose
Compensation for such Plan Year is expected to be, at least equal
to the Minimum Eligible Compensation. The Plan Administrator may,
in its sole discretion, limit the individuals or classes of
individuals who may be considered Eligible Individuals.
2.14 ERISA means the Employee Retirement Income Security Act of
1974, as amended from time to time. Reference to any section or
subsection of ERISA includes reference to any comparable or
succeeding provisions of any legislation that amends, supplements
or replaces such section or subsection.
2.15 Interest Rate means, for each Plan Year other than the 1999
Plan Year, the rate paid by CFS Bank on one-year certificates of
deposit purchased in New York State on the last business day of the
immediately preceding Plan Year and, for the 1999 Plan Year, the
rate paid by CFS Bank on one-year certificates of deposit purchased
in New York State on July 31, 1999.
2.16 "Minimum Eligible Compensation" means, with respect to each
calendar year, an amount of Compensation paid by the Company in
such year to an individual that, when added to any Elective
Deferral under the Plan, equals or exceeds (1) in 1998 and 1999,
$100,000 and (2) in 2000 and thereafter, the product of 1.25 and
the dollar limit applicable for such calendar year under section
414(q)(1)(B)(i) of the Code.
2.17 Participant means any Eligible Individual who participates in
the Plan in accordance with Article 3.
2.18 Plan means this Haven Bancorp, Inc. Key Executive Deferred
Compensation Plan.
2.19 Plan Administrator means the person, persons, committee or
entity designated by the Company to administer the Plan. If no
such person, persons, committee or entity is so serving at any
time, the Company shall be the Plan Administrator.
2.20 Plan Year means the calendar year.
2.21 Unforeseeable Emergency means a severe financial hardship
resulting from a sudden unexpected illness or accident of the
Participant or of a dependent of the Participant, loss of the
Participant's property due to casualty, or other similar
circumstances as a result of events beyond the control of the
Participant that, in each case, would constitute an "unforeseeable
emergency" within the meaning of Treasury Regulation section 1.457-
2(h)(4), and that may not be relieved (a) through reimbursement or
compensation by insurance or otherwise, (b) by liquidation of the
Participant's assets, to the extent the liquidation of such assets
would not itself cause severe financial hardship or (c) by
cessation of deferrals under the Plan. An Unforeseeable Emergency
shall not include the need to send a Participant's child to college
or the desire to purchase a home.
ARTICLE 3
PARTICIPATION
3.1 Commencement of Participation
Any Eligible Individual who elects to defer part of his or her
Compensation in accordance with Section 4.1 shall become a
Participant in the Plan as of the first Deferral Date an Elective
Deferral is credited to the Participant's Account in accordance
with Section 4.1.
3.2 Continued Participation
A Participant in the Plan shall continue to be a Participant so
long as any amount remains credited to his or her Account.
ARTICLE 4
ELECTIVE DEFERRALS
4.1 Elective Deferrals
(a) Elective Deferrals for 1999. Subject to Section 4.1(e)
hereof, an Eligible Individual may, by completing an Election Form
and filing it with the Plan Administrator no later than June 30,
1999, elect to defer a percentage or dollar amount of the Eligible
Individual's Compensation attributable to services rendered in 1999
on or after July 1, 1999, on such terms as the Plan Administrator
may permit in its sole discretion.
(b) Elective Deferrals for 2000 and Thereafter. Subject to Section
4.1(e) hereof, an Eligible Individual may, by completing an
Election Form and filing it with the Plan Administrator not later
than November 30 of each Plan Year beginning with the 1999 Plan
Year, elect to defer a percentage or dollar amount of the Eligible
Individual's Compensation attributable to the next succeeding Plan
Year, on such terms as the Plan Administrator may permit in its
sole discretion.
(c) Mechanics of Deferral. A Participant's Compensation shall be
reduced in accordance with the Participant's election hereunder and
amounts deferred hereunder shall be credited to the Participant's
Account as of the Deferral Date coincident with or next succeeding
the date as of which the Participant would have received an amount
deferred in the absence of having made a Deferral Election.
(d) Revocation of Deferral Election. To the extent permitted by
the Plan Administrator, a Participant may change or revoke his or
her Deferral Election with respect to Compensation payable for a
Plan Year by giving written notice to the Plan Administrator in
such form as may be required by the Plan Administrator, before the
first day of such Plan Year.
(e) Limit on Deferrals. No Eligible Individual shall be permitted
to elect to defer an amount of the Participant's Compensation
hereunder in any Plan Year in excess of the lesser of: (i) 10% of
such Eligible Individual's Compensation in such Plan Year; and (ii)
$20,000. If and to the extent an Eligible Individual's Election
Form specifies an amount as an Elective Deferral that would exceed
the 10% of Compensation or $20,000 limit described in the
immediately preceding sentence, such Election Form shall be deemed
to specify as an Elective Deferral the maximum amount that could be
deferred under this Paragraph (e).
ARTICLE 5
ACCOUNTS
5.1 Accounts
The Plan Administrator shall establish an Account for each
Participant that reflects the Participant's Elective Deferrals,
together with adjustments for interest (determined in accordance
with Section 5.2(b)), forfeitures and any distributions from the
Account. The Plan Administrator shall provide each Participant
with a periodic statement of his or her Account that reflects
deferrals, interest, forfeitures described in Section 6.1(b) hereof
and distributions added to or subtracted from, as the case may be,
such Account since the prior periodic statement.
5.2 Adjustment of Accounts
The amount of each Participant's Elective Deferral for a Plan Year
shall be credited to the Participant's Account as of the Deferral
Date or Deferral Dates for such Elective Deferral as described in
Section 4.1 hereof. The Account shall be adjusted from time to
time to reflect: (a) subsequent Elective Deferrals, if any; (b)
interest on the amount credited to the Account from time to time,
which interest shall be credited from the date as of which an
amount first is credited to the Account to and including the last
day of the month immediately preceding the month in which all
amounts credited to the Account are distributed to the Participant
and (c) forfeitures described in Section 6.1(b) hereof. The rate
at which interest is credited to all Accounts during a Plan Year
pursuant to Section 5.2(b) shall be the Interest Rate for such Plan
Year.
The Plan Administrator may, in its sole discretion, from time to
time, modify or amend the basis for crediting interest to a
Participant's Account, including a modification that would reduce
the rate or increase the periods between which the rate would be
reset, provided, however, no such modification or amendment shall
reduce an amount previously credited to a Participant's Account.
ARTICLE 6
VESTING
6.1 General
(a) Accounts Generally Vested. Without limitation on Section 11.1,
but subject to Paragraph (b) of this Section 6.1, each Participant
shall be immediately vested in and shall have a nonforfeitable
right to the balance credited to the Participant's Account.
(b) Forfeit of Interest for Termination for Cause. If a
Participant's employment is (or is deemed to have been) terminated
for Cause, in addition to any other rights or remedies the Company
may have at law or in equity, the Participant shall forfeit forty
percent (40%) of any amount credited (or to be credited) to the
Participant's Account as interest pursuant to Section 5.2(b).
ARTICLE 7
PAYMENTS
7.1 Time and Form of Payment
Unless sooner distributed in accordance with the terms hereof, each
Participant shall receive a distribution in a single lump sum of
the entire amount credited to the Participant's Account as of the
Participant's Distribution Date within 30 business days after the
Participant's Distribution Date.
7.2 Death
If a Participant dies prior to the distribution of the amount
credited to his or her Account, the amount credited to his or her
Account shall be paid as soon as practicable to the Participant's
designated beneficiary or beneficiaries in effect on the date of
the Participant's death.
Any designation of a beneficiary shall be made by the Participant
on an appropriate beneficiary election form filed with the Plan
Administrator and may be changed by the Participant at any time by
filing another beneficiary election form containing the revised
instructions. If no beneficiary is designated or no designated
beneficiary survives the Participant, payment shall be made to the
Participant's surviving spouse, or, if none, to the representative
of the Participant's estate. No payment shall be made to the
representative of a Participant's estate until the Plan
Administrator shall have been furnished with such evidence and
other documentation as it shall deem necessary or appropriate to
establish the validity of the payment.
7.3 Unforeseeable Emergency
If a Participant suffers an Unforeseeable Emergency, the Plan
Administrator, in its sole discretion, may pay to the Participant
only that portion, if any, of the Participant's Account that the
Plan Administrator determines is necessary to satisfy the emergency
need, including any amounts necessary to pay any Federal, State or
local income taxes reasonably anticipated to result from the
distribution. A Participant requesting an emergency payment shall
apply for the payment in writing in a form approved by the Plan
Administrator and shall provide such additional information as the
Plan Administrator may require.
7.4 Taxes
All Federal, State or local taxes that the Plan Administrator
determines are required to be withheld in respect of any Elective
Deferrals hereunder or from any distributions made pursuant to this
Article 7 shall be withheld from amounts payable hereunder or from
any other amounts payable to a Participant.
ARTICLE 8
PLAN AND APPEAL ADMINISTRATOR
8.1 Plan and Appeal Administration and Interpretation
The Plan shall be administered by the Plan Administrator, except as
provided in this Section 8.1 and Section 10.3 hereof. Subject to
Section 10.3 hereof, the Plan Administrator shall have complete
control and authority to administer the Plan, including, without
limitation, determining the rights and benefits and all claims,
demands and actions arising out of the provisions of the Plan of
any Participant, beneficiary, representative of a deceased
Participant's estate, or any other person having or claiming to
have any interest under the Plan. Subject to Section 10.3 hereof,
the Plan Administrator shall have complete discretion and power to
interpret the Plan and to decide all matters under the Plan.
Subject to Section 10.3, any interpretation or decision by the Plan
Administrator shall be final, conclusive and binding on all
Participants and any person claiming under or through any
Participant. The Appeal Committee shall have complete control and
authority with respect to any appeal requested by a Participant
pursuant to Section 10.3 hereof, including, without limitation,
determining the rights and benefits and all claims, demands and
actions arising out of the provisions of the Plan of any
Participant, beneficiary, representative of a deceased
Participant's estate, or any other person having or claiming to
have any interest under the Plan in connection with any such
appeal. In connection with any matter subject to an appeal under
Section 10.3 hereof, the Appeal Committee shall have complete
discretion and power to interpret the Plan and to decide all
matters under the Plan. With respect to any matter subject to
appeal pursuant to Section 10.3 hereof, any interpretation or
decision by the Appeal Committee shall be final, conclusive and
binding on all Participants and any person claiming under or
through any Participant. Any individual serving as Plan
Administrator or who is a member of the Appeal Committee who also
is a Participant shall not vote or act on any matter relating
solely to himself or herself. When making a determination or
calculation, the Plan Administrator or the Appeal Committee, as the
case may be, shall be entitled to rely on information furnished by
a Participant, a beneficiary or the Company. The Plan
Administrator shall have the responsibility for complying with any
reporting and disclosure requirements under ERISA.
8.2 Powers, Duties, Procedures, Etc.
In exercising its powers and duties, each of the Plan Administrator
and the Appeal Committee may adopt such rules and procedures,
appoint such officers or agents, delegate such powers and duties
and receive such reimbursements and compensation, in each case, as
it may establish or determine from time to time consistent with the
provisions of the Plan.
8.3 Indemnification of Plan Administrator and Appeal Committee
No individual who serves at any time as Plan Administrator and no
individual who is a member of the Appeal Committee shall be liable
for any action, omission, or determination relating to the Plan,
and the Company shall indemnify and hold harmless each individual
who serves as Plan Administrator or who is a member of the Appeal
Committee, and each other director or employee of the Company to
whom any duty or power relating to the administration or
interpretation of the Plan has been delegated, against any cost or
expense (including counsel fees) or liability (including any sum
paid in settlement of a claim with the approval of the Plan
Administrator) unless such cost, expense or liability arises out of
any action, omission or determination that was taken or made by
such individual, director or employee in bad faith and without
reasonable belief that it was in or not opposed to the best
interests of the Company, and with respect to any criminal action
or proceeding, provided such individual, director or employee had
no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its
equivalent shall not, of itself, create a presumption that the
person acted in bad faith and without reasonable belief that such
action was in or not opposed to the best interests of the Company
or, with respect to any criminal proceeding, that the person had
reasonable cause to believe the person's conduct was unlawful.
ARTICLE 9
AMENDMENT AND TERMINATION
9.1 Amendments
Subject only to Section 9.3 hereof, the Company shall have the
right, in its sole discretion, to amend the Plan in any respect
from time to time.
9.2 Termination of Plan
This Plan is a strictly voluntary undertaking on the part of the
Company, and shall not be deemed to constitute a contract between
the Company and any Eligible Individual (or any other person) or
consideration for, or an inducement or condition of employment for,
the performance of the services by any Eligible Individual (or
other person). Subject only to Section 9.3 hereof, the Company
reserves the right to terminate the Plan at any time with respect
to any or all Participants, in whole or in part, by an instrument
in writing that has been executed on the Company's behalf by its
duly authorized officer. Upon termination, the Company may with
respect to each Participant affected by any termination (an
"Affected Participant") on a Participant-by-Participant basis,
(a) elect to continue to maintain part or all of the Affected
Participant's Account and pay benefits hereunder as they become due
as if the Plan had not terminated or (b) pay promptly to each
Affected Participant (or such Affected Participant's beneficiary or
beneficiaries) part or all of the balance of the Affected
Participant's Account (or combine, in any manner, the alternatives
described in Sections 9.2(a) and 9.2(b) hereof).
9.3 Existing Rights
No amendment or modification to, or termination of, the Plan shall
be effective to the extent that it would reduce the amount credited
to a Participant's Account immediately prior to the amendment,
modification or termination, without the Participant's prior
written consent.
ARTICLE 10
CLAIM PROCEDURES
10.1 Initial Determination of Benefits
Each Participant shall be notified not later than 30 business days
after such Participant's Distribution Date (or after the
Participant applies for a distribution upon an Unforeseeable
Emergency) whether and the extent to which such Participant is
entitled to a benefit under the Plan. All benefits shall be
computed by the Plan Administrator.
10.2 Denial of Benefits
If the Plan Administrator determines that a Participant is not
entitled to benefits under the Plan, the Participant will receive
a written notice of denial of benefits. Any such written notice of
denial of benefits shall include:
(a) the reason or reasons for the denial;
(b) reference to pertinent Plan provisions on which the denial is
based;
(c) a description of any additional material or information
necessary for the Participant to perfect the claim, together with
an explanation of why the material or information is necessary; and
(d) an explanation of the Plan's claim review procedure, described
below.
10.3 Review of Denied Benefit
(a) Opportunity to Appeal. Each Participant who receives a
written notice of denial of benefits shall have a reasonable
opportunity to appeal a determination that such Participant is not
entitled to benefits under the Plan to the Appeal Committee for a
full and fair review. Each such Participant (or the Participant's
duly authorized representative):
(i) shall have 60 calendar days, after receipt of written
notification of the denial of benefits in which to request a
review;
(ii) may request a review upon written application to the Appeal
Committee;
(iii) may submit issues and comments in writing;
(iv) may review pertinent documents of the Plan; and
(v) may, upon request, meet with the Appeal Committee for the
purpose of reviewing the Participant's claim for benefits.
(b) Expenses of Appeal. Each Participant shall be responsible for
paying any expenses incurred in connection with the any appeal
described in this Section 10.3.
(c) Notice of Time and Location of Review. The Appeal Committee
shall notify a Participant who requests to meet with the Appeal
Committee under Section 10.3(a)(v) of the time and location for the
review, which shall be on reasonable notice and at a reasonable
time and location.
(d) Review Procedure. The review procedure provided for in this
Article 10 shall be deemed to provide for the review and final
decision for a claim for benefits provided under the Plan.
(e) Written Decision. The Appeal Committee shall issue a decision
on each reviewed claim for benefits promptly, to the extent
practicable, no later than 60 calendar days after receipt of the
review request or, if the Appeal Committee determines additional
time is necessary to make a decision and so notifies the
Participant, up to an additional 60 calendar days. The Appeal
Committee's decision shall be in writing and shall include: (i)
the reason for the decision; and (ii) references to the Plan
provisions on which the decision is based. If the Appeal Committee
does not provide a written decision on the review within the period
described herein, the claim shall be deemed to have been denied.
ARTICLE 11
MISCELLANEOUS
11.1 No Funding
The Plan constitutes a mere promise by the Company to make payments
in accordance with the terms of the Plan, and Participants and
beneficiaries shall have the status with respect to the amounts
credited to the Account from time to time only of general unsecured
creditors of the Company. Nothing in the Plan will be construed to
give any employee or any other person rights to any specific assets
of the Company or of any other person. In all events, it is the
intent of the Company that the Plan be treated as unfunded for tax
purposes and for purposes of Title I of ERISA, and the Plan shall
be interpreted accordingly.
11.2 Non-Assignability
None of the benefits, payments, proceeds or claims of any
Participant or beneficiary hereunder shall be subject to any claim
of any creditor of any Participant or beneficiary and, in
particular, such benefits, payments, proceeds or claims shall not
be subject to attachment or garnishment or other legal process by
any creditor of such Participant or beneficiary, nor shall any
Participant or beneficiary have any right to alienate, participate,
commute, pledge, encumber or assign any of the benefits, payments,
proceeds or claims that he or she may expect to receive,
contingently or otherwise, under the Plan.
11.3 Limitation of Participants' Rights
Nothing contained in the Plan shall confer upon any person a right
to be employed or to continue in the employ of the Company, or
interfere in any way with the right of the Company to terminate the
employment of a Participant at any time, with or without cause. In
addition, nothing shall confer on any individual a right to
participate in the Plan in any Plan Year. The fact that an
individual is an Eligible Individual in one year shall not give the
individual a right to participate in the Plan in any other year.
11.4 Participants Bound
Any action with respect to the Plan taken by the Plan Adminis-
trator, the Appeal Committee or the Company or any action
authorized by or taken at the direction of the Plan Administrator,
the Appeal Committee or the Company shall be conclusive upon all
Participants and beneficiaries (and any other persons) entitled to
benefits under the Plan.
11.5 Receipt and Release
Any payment to any Participant or beneficiary made in accordance
with the provisions of the Plan shall, to the extent thereof, be in
full satisfaction of all claims against the Company, the Plan, the
Plan Administrator and the Appeal Committee. The Plan
Administrator may require a Participant or beneficiary, as a
condition precedent to any payment hereunder, to execute a receipt
and release to such effect. If any Participant or beneficiary is
determined by the Plan Administrator to be incompetent by reason of
physical or mental disability (including minority) to give a valid
receipt and release, the Plan Administrator may cause the payment
or payments becoming due to such person to be made to another
person for his or her benefit without responsibility on the part of
the Plan Administrator, the Company or any other person to follow
the application or use of such funds.
11.6 Governing Law
The Plan shall be construed, administered, and governed in all
respects under and by the laws of the State of New York without
reference to the principles of conflicts of law (except if and to
the extent preempted by applicable Federal law). If any provision
of the Plan shall be held by a court of competent jurisdiction to
be invalid or unenforceable, the remaining provisions hereof shall
continue to be fully effective.
11.7 Headings and Subheadings
Headings and subheadings in this Plan are inserted for convenience
only and are not to be considered in the construction of the
provisions hereof.