EXHIBIT 10.26
DIME BANCORP, INC.
VOLUNTARY DEFERRED COMPENSATION PLAN
(As Amended and Restated Effective October 1, 1996)
1. Establishment and Purpose of the Plan. This Voluntary
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Deferred Compensation Plan (the "Plan") is established to enable certain
management and highly compensated employees of Dime Bancorp, Inc. (the
"Company") and its subsidiaries to defer a portion of their income and to,
instead, receive such income at a later date. The Plan provides a means to
attract and retain the executive talent needed to achieve the Company's long-
term growth and profitability objectives. Effective as of January 1, 1996, the
Anchor Bancorp, Inc. Voluntary Deferred Compensation Plan (the "Anchor Plan")
was merged into this Plan.
2. Administration. The Plan shall be administered by the
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Compensation Committee of the Board of Directors of Dime Bancorp, Inc. or such
other committee appointed either by the Board of Directors of the Company (the
"Board") or by such Compensation Committee (the "Committee"); provided, however,
to the extent determined necessary to satisfy the requirements for exemption
from Section 16(b) of the Securities Exchange Act of 1934, as amended (the
"Act"), with respect to investments deemed made hereunder in phantom stock of
the Company, action by the Committee may be by a committee composed solely of
two or more "non-employee directors," within the meaning of Rule 16b-3 as
promulgated under Section 16(b) of the Act, appointed by the Board or by the
Compensation Committee of the Board. The Committee shall be authorized to
interpret the Plan and make decisions regarding any questions arising
thereunder, and any such interpretation or decision of the Committee shall,
unless overruled or modified by the Board, be final, conclusive and binding upon
all employees of the Company and its subsidiaries and upon any person claiming
benefits or rights under the Plan by or through any such employee. No member of
the Committee shall be entitled to act on or decide any matter relating solely
to himself or herself or any of his or her rights or benefits under the Plan.
The Committee may, in its discretion, designate a person or persons to carry out
such duties or functions as the Committee so determines, and to the extent
provided under the Company's fiduciary delegation policy (and not inconsistent
with the requirements of Section 16(b) of the Act) shall be deemed to have so
designated the Benefits Committee of the Company. Notwithstanding any provision
of the Plan to the contrary, any duty or function which may be performed by the
Committee or its delegatee under the Plan may instead be performed by the Board
if the Board so determines in its sole discretion.
3. Eligibility. With respect to each opportunity to defer
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compensation hereunder, officers and full-time salaried employees of the Company
and its subsidiaries (including members of the Board or members of the boards of
directors of any of its subsidiaries who are otherwise employees of the Company
or any of its subsidiaries) shall be permitted to participate if and to the
extent that they are designated, by name or classification, for participation by
the Committee in its sole discretion. In all events, it is intended that this
program be limited to a select
management or highly compensated employees, within the meaning of the Employee
Retirement Income Security Act of 1974, as amended.
4. (a) Voluntary Deferrals of Compensation. With respect to
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each year as to which an individual has been designated as eligible to
participate in this Plan, the individual may elect to become a Participant in
the Plan by submitting to the Committee or its designee a written election to
defer receipt of a specified dollar amount (with respect to basic salary) or
either a specified dollar amount or a percentage (with respect to incentive
compensation) of the amounts that would otherwise be earned by the Participant
in connection with his or her employment by the Company or one or more of its
subsidiaries in the next following calendar year. Except as otherwise provided
by the Committee in accordance with law, such election shall be made on or
before the last day of the calendar year preceding the calendar year with
respect to which the election relates. Notwithstanding the foregoing, elections
may be made with respect to compensation to be earned after the date of the
election and during the period July 1, 1994 through December 31, 1994, no later
than July 29, 1994, and, with respect to each individual who is first designated
as eligible hereunder after July 29, 1994, elections may be made to defer
receipt of such compensation to be earned after the date of election through the
end of the calendar year of the election within 30 days after the individual is
so designated. The Committee may provide that certain Participants are only
permitted to elect deferrals of incentive compensation or of basic salary. No
election for a deferral of compensation shall apply to an amount (of both salary
and incentive compensation) that totals less than $5,000, and no deferral of
salary with respect to any period shall apply to more than 50% of the salary of
the Participant for such period.
(b) Automatic Deferrals of Compensation. Whether or not an individual
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otherwise participates in the Plan pursuant to subparagraph (a) above, an
individual shall automatically participate in the Plan to the extent any
compensation that would otherwise be payable to such individual (including
amounts otherwise payable under this Plan) is required to be deferred in
accordance with a policy adopted by the Compensation Committee of any of the
Company or any of its subsidiaries with regard to the limitation on
deductibility of compensation payments under Section 162(m) of the Internal
Revenue Code of 1986, as amended, and to such extent, for purposes of this Plan
and other benefit arrangements of the Company and each of its subsidiaries, the
individual shall be deemed to have timely elected that payment of such amounts
be deferred hereunder.
5. Accounts under the Plan. Amounts deferred by a Participant
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pursuant to Paragraph 4(a) hereof, or otherwise automatically deemed deferred
pursuant to Paragraph 4(b) hereof, shall be maintained in an Account for such
Participant by the Company or by the subsidiary of the Company responsible to
pay the compensation so deferred. Each Account shall constitute a bookkeeping
account, the records with respect to which shall reflect the amounts of
compensation that have been deferred and the amount of deemed earnings or
losses, if any, that relate to such amounts. Accounts shall include amounts
previously deferred under the Anchor Plan, and deemed earnings or losses on such
amounts with respect to periods prior to January 1, 1996, the date as of which
the Anchor Plan was merged into this Plan.
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6. Deemed Investment of Accounts. The Account maintained on
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behalf of each Participant with respect to the amounts deferred by that
Participant hereunder (and, with respect to periods prior to January 1, 1996
during which amounts were deferred under the Anchor Plan, under the Anchor Plan)
with respect to each year of participation by the Participant shall be deemed to
be invested in, and shall be adjusted to reflect earnings and losses of, such
investments or investment funds as is designated as available from time to time
by the Committee. To the extent the Committee makes available alternative
deemed investment vehicles with respect to amounts eligible to be deferred under
the Plan, each Participant shall, upon making a deferral election hereunder,
designate, in the form and manner prescribed by the Committee, that the amounts
to be credited to his or her Account be applied in such proportions as he or she
may designate, in such multiples as is permitted by the Committee, in each
deemed investment made available by the Committee. The Committee may make
available different deemed investments for amounts deferred at different times
under the Plan, and may change the available deemed investments under the Plan
from time to time. The Committee may also designate that only one deemed
investment be available with respect to any amounts deferred hereunder, in which
event that deemed investment shall apply to all such amounts without regard to
any other election that a Participant may desire.
7. (a) Change in Investment Directions. A Participant may, by
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filing a notice in the form and manner prescribed by the Committee, elect to
change his or her investment direction with respect to all or a portion of the
amounts then held, or to be held, in such Participant's Account, with such
election and the new investment direction becoming effective as of the first day
of any calendar quarter (i.e. January 1, April 1, July 1 or October 1), provided
such investment direction election is made, and not revoked, prior to 10:00 a.m.
on the first day of such calendar quarter. Such direction may relate solely to
amounts already allocated to the Participant's Account (in which event it shall
constitute a direction to transfer amounts in the Participant's Account among
the various available deemed investments) or may relate solely to amounts to be
deferred in the future, or may relate to both amounts already allocated to the
Participant's Account and amounts to be deferred in the future. Any investment
direction election made by a Participant shall remain in effect until changed,
to the extent such change is permitted under the Plan. Elections previously
made with respect to amounts allocated to accounts under the Anchor Plan prior
to January 1, 1996 and allocated to Accounts under this Plan as of such date
shall continue in effect under this Plan unless changed pursuant to this
Paragraph 7.
(b) Securities Law Limitations. Notwithstanding anything
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in the Plan to the contrary, if at any time a Participant who is an Insider (as
defined below) is prohibited by the Section 16 Rules (as defined below) from
directing that his or her Account be (i) deemed invested in an investment fund
that invests in common stock of the Company, (ii) deemed transferred to a deemed
investment in common stock of the Company or (iii) to the extent of any deemed
investment in common stock of the Company, deemed redeemed for whatever reason,
any such direction shall be disregarded and not given effect. For purposes of
this Paragraph 7, an Insider shall mean, with respect to the Company or any of
its subsidiaries, (i) any Participant who is subject to the Section 16 Rules,
determined in accordance with Rule 16a-2 thereof, and (ii) solely with respect
to certain trading restrictions with respect to common stock of the Company
imposed from time to time by the
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Company or any of its subsidiaries, any Participant who is subject to such
trading restrictions. For purposes of this Paragraph 7, the Section 16 Rules
mean those rules (as from time to time amended) promulgated by the Securities
and Exchange Commission ("SEC") under Section 16 of the Act. For purposes of the
Plan, an action shall be deemed to be prohibited by the Section 16 Rules, if it
could, if permitted or occurring, result in a transaction not being exempt from
the provisions of Section 16(b) of the Act. An action in violation of certain
trading restrictions with respect to common stock of the Company imposed from
time to time by the Company or any of its subsidiaries shall be deemed to be
prohibited by the Section 16 Rules solely for purposes of the Plan.
8. Crediting of Accounts. Each Participant's Account shall be
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deemed credited at the end of each calendar quarter (or on such other dates as
is designated by the Committee) with the earnings or losses that the amount in
the Account would have experienced had the Account actually been invested in the
deemed investment designated by the Participant or, as appropriate, the
Committee.
9. Investment in Phantom Stock of Dime Bancorp, Inc. In
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accordance with such administrative rules and procedures as may be prescribed by
the Committee, phantom investments in Dime Bancorp, Inc. common stock shall be
offered for the investment of Participant Accounts. In accordance with Rule
16b-3 (as in effect pursuant to rules issued by the SEC under Section 16(b) of
the Act on May 31, 1996) and relevant interpretations of the SEC thereunder, it
is intended that approval of the Plan by the Board shall satisfy the condition
for approval under Rule 16b-3 with respect to the investment of new deferrals in
phantom stock of Dime Bancorp, Inc.
10. Status of Investments. All investments actually made by the
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Company or any subsidiary pursuant to this Plan will be deemed made solely for
the purpose of aiding such entity in measuring and meeting its obligations under
the Plan. Further, the Company and its subsidiaries are not limited to the
investments described in the provisions set forth above but are merely obligated
to provide payments pursuant to the terms of this Plan that reflect the
investment returns offered by the deemed investments made available under the
Plan. The Company or, as applicable, one or more of its subsidiaries, will be
named sole owner of all such investments and of all rights and privileges
conferred by the terms of the instruments evidencing such investments. This
Plan places no obligation upon the Company or any of its subsidiaries to invest
any portion of the amount in a Participant's Account, to invest or continue to
invest in any specific asset, to liquidate any particular investment, or to
apply in any specific manner the proceeds from the sale, liquidation, or
maturity of any particular investment. Nothing stated herein shall cause such
investments to be treated as anything but the general assets of the Company or,
as applicable, its subsidiaries, nor will anything stated herein cause such
investments to represent the vested, secured or preferred interest of the
Participant or his or her beneficiaries designated under this Plan.
Participants hereunder have the status of unsecured creditors with respect to
their Accounts, and it is intended that the Plan be unfunded for tax purposes
and for purposes of Title I of the Employee Retirement Income Security Act of
1974, as amended.
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11. Vesting. Participants shall be fully vested in all amounts
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in their Accounts at all times.
12. (a) Payment of Accounts. At the time a Participant elects
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to defer compensation pursuant to Paragraph 4(a) hereunder, the Participant
shall designate the time and the manner for the payment of the amounts to be
thereby allocated to such Participant's Account with respect to such deferral of
compensation. Except as otherwise provided below, and subject to the provisions
of Paragraph 4(b) hereunder, payment of such amounts, along with deemed earnings
thereon, to a Participant shall commence upon a fixed date selected by the
Participant at the time of the deferral chosen from the following dates:
(i) The last day of a calendar quarter ending at least three years
from the end of the calendar year in which the deferred compensation would
otherwise be payable, but occurring on or before the March 31st that follows the
Participant's attaining age 70 1/2.
(ii) The last day of any one of the four calendar quarters ending
after the employment of the participant with the Company or any of its
subsidiaries terminates (as designated by the participant at the time of
deferral).
Except as otherwise provided below, payment of amounts in a Participant's
Account in connection with deferrals pursuant to Paragraph 4(a) hereunder shall
be either in a lump sum or such number of quarterly or annual installments
(limited in such manner as is determined by the Committee) that is designated by
the Participant at the time the compensation is deferred. Except as otherwise
provided below, and subject to the provisions of Paragraph 4(b) hereunder, a
Participant may elect (at the time of deferral of compensation pursuant to
Paragraph 4(a) hereunder) to receive a designated dollar amount (to the extent
such amount is allocated to the Participant's Account with respect to the
deferral of compensation in question) or percentage of the Participant's Account
at the end of one or more calendar quarters otherwise available for election for
the commencement of distributions as described above, with the remainder of the
amount subject to such designation to be distributed commencing at such other
date chosen from clause (i) or (ii) above. A Participant may also, solely to
the extent permitted by the Committee, and subject to the provisions of
Paragraph 4(b) hereunder, direct that all of the amounts then allocated to the
Participant's Account in connection with deferrals pursuant to Paragraph 4(a)
hereunder be distributable to the Participant upon a Change in Control of the
Company (as defined below), or that all or a portion of such amounts otherwise
payable to the Participant be distributable in the event of a Hardship (as
defined below), in which event the amount of any further scheduled distribution
shall be reduced by the amount previously distributed on account of such event.
To the extent permitted by the Committee, a Participant may elect that if the
Participant dies before payments of a deferred amount have otherwise commenced
to the Participant, the amount allocated to the Participant's Account in
connection with deferrals pursuant to Paragraph 4(a) hereunder be distributed to
the Participant's Beneficiary (as defined below) either on the last day of the
calendar quarter in which the Participant dies (or as soon as practicable
thereafter) or on the last day of the first calendar quarter in the calendar
year immediately following the date of the Participant's death; provided,
however that if no such election is made, payment shall be made in a
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single lump sum at the end of the calendar quarter in which the Participant
died, or as soon as practicable thereafter. If payments of a deferred amount in
the form of installments have already commenced to the Participant, they shall
continue to be made after the Participant's death to the Participant's
Beneficiary, who shall otherwise be granted the same rights as were held by the
Participant hereunder. Each Participant's Account under the Plan shall be
reduced by the amount of any distribution hereunder.
(b) Additional Payment Elections. Notwithstanding the
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preceding provisions of this Paragraph 12 to the contrary, and subject to the
provisions of Paragraph 4(b) hereunder, a Participant may subsequently elect, in
such form and manner as may be prescribed by the Committee, that the amounts
credited to his or her Account be distributed commencing on one of the dates
described in clause (a)(i) or (a)(ii) above in lieu of the date(s) initially
selected, provided that any such election is made at least twenty-four (24)
months prior to the earlier of the date payments would otherwise commence (other
than on account of Hardship or a Change in Control) or the Participant's
termination of service for any reason with the Company and, as applicable, all
subsidiaries of the Company. Further, notwithstanding the preceding provisions
of this Paragraph 12 to the contrary, and subject to the provisions of Paragraph
4(b) hereunder, a Participant may also subsequently elect, in such form and
manner as may be prescribed by the Committee, that the amounts credited to his
or her Account be paid in any one of the forms of benefit payment provided under
this Paragraph 12 in lieu of the form of payment initially selected, provided
that any such election is made at least twenty-four (24) months prior to the
earlier of the date payments would otherwise commence (other than on account of
Hardship or a Change in Control) or the Participant's termination of service for
any reason with the Company and, as applicable, all subsidiaries of the Company.
(c) Payment of Automatic Deferrals of Compensation. All
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amounts in a Participant's Account in connection with deferrals pursuant to
Paragraph 4(b) hereunder shall be paid in a lump sum (or such other form of
benefit elected in accordance with clause (b) above) commencing on the later of
(i) last day of the first calendar quarter in the calendar year immediately
following the date of the Participant's termination of employment with the
Company and all subsidiaries of the Company (or such earlier date that the
Committee directs) or (ii) the date such amounts would otherwise be paid
pursuant to the terms of the Plan.
13. Change in Control. Unless otherwise determined by the
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Committee at the time of a Participant's deferral hereunder, for purposes of
this Plan, a Change in Control means the earliest of (i) the occurrence of a
Terminating Event (as defined below), or (ii) the dissemination of a proxy
statement soliciting proxies from stockholders of the Company or The Dime
Savings Bank of New York, FSB (the "Bank"), by someone other than the Company or
the Bank, seeking stockholder approval of a Terminating Event of the type
described in clause (a) below, or (iii) the publication or dissemination of an
announcement of action intended to result in a Terminating Event of the type
described in clauses (b) or (c) below. For these purposes, a "Terminating
Event" means:
(a) the reorganization, merger or consolidation of the Company or
the Bank with one or more corporations as a result of which the outstanding
shares of common stock of the
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Company or the Bank are exchanged or converted into cash or property or
securities not issued by the Company or the Bank, unless the reorganization,
merger or consolidation shall have been affirmatively recommended to the
Company's or the Bank's stockholders by a majority of the members of the Board
or the board of directors of the Bank;
(b) the acquisition of substantially all of the property or of more
than 35% of the voting power of the Company or the Bank by any person or entity;
or
(c) the occurrence of any circumstance having the effect that
directors who were nominated for election as directors by the Nominating
Committee of the Board or the board of directors of the Bank shall cease to
constitute a majority of the authorized number of directors of the Company or
the Bank.
14. Hardship. Unless otherwise determined by the Committee, for
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purposes of this Plan, a Participant shall be deemed to have incurred a Hardship
in the event the Participant experiences severe financial difficulties resulting
from a sudden and unexpected illness or accident of the Participant or of a
dependent (as defined in Section 152(a) of the Internal Revenue Code) of the
Participant, loss of the Participant's property due to casualty, or another
similar extraordinary and unforeseeable circumstance arising as a result of
events beyond the control of the Participant. The determination of whether or
not a Participant has incurred a Hardship shall be made by the Committee, and no
distribution on account of a Hardship shall be in excess of the amount necessary
to meet the emergency.
15. Designation of Beneficiaries. In the event that a
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Participant dies prior to the receipt of all amounts payable to him or her
pursuant to the Plan, all remaining amounts credited to his Account shall be
paid to such one or more beneficiaries and in such proportions as the
Participant may designate, in accordance with the provisions of Paragraph 12.
If no Beneficiary has been named by the Participant, or if a named Beneficiary
has predeceased the Participant and no successor beneficiary has been named or
if a beneficiary designation is otherwise ineffective, payment shall be made to
the estate of the Participant, and if any Beneficiary shall die after payments
to that Beneficiary have commenced, if any remaining payments would otherwise be
made to such Beneficiary, they shall instead be made to the estate of the
Beneficiary. A Beneficiary designation pursuant to this Paragraph 15 shall not
be effective unless it is in writing and is received by the Committee prior to
the death of the Participant making the designation.
16. Withholding. Taxes (including income and employment taxes)
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shall be withheld from payments under the Plan to the extent required by law,
and to the extent that any withholding or other taxes are required to be paid
prior to the payment of deferred amounts hereunder, amounts shall be withheld
from other amounts otherwise payable to the Participant, or the Company (or the
subsidiary of the Company responsible to pay the compensation deferred
hereunder) may require the Participant to make other arrangements for the
payment of such obligations, or both.
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17. Nonalienation. The right to receive a benefit under the Plan
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shall not be subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, attachment, or garnishment by creditors of the
Participant or the Participant's beneficiaries.
18. Indemnification. The Company shall indemnify, hold harmless
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and defend each member of the Board, each member of the Committee, each member
of the Benefits Committee, and each of their designees who are employees of the
Company or any of its subsidiaries, against their reasonable costs, including
legal fees, incurred by them, or arising out of any action, suit or proceeding
in which they may be involved, as a result of their efforts, in good faith, to
defend or enforce the terms of the Plan.
19. Severability. A determination that any provision of the Plan
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is invalid or unenforceable shall not affect the validity or enforceability of
any other provision hereof.
20. Waiver. Failure to insist upon strict compliance with any of
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the terms, covenants or conditions of the Plan shall not be deemed a waiver of
such term, covenant or condition. A waiver of any provision of the Plan must be
made in writing, designated as a waiver, and signed by the party against whom
its enforcement is sought. Any waiver or relinquishment of any right or power
hereunder at any one or more times shall not be deemed a waiver or
relinquishment of such right or power at any other time or times.
21. Notices. Any notice or other communication required or
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permitted to be given to a party under the Plan shall be deemed given if
personally delivered or if mailed, postage prepaid, by certified mail, return
receipt requested, to the party at the address listed below, or at such other
address as one such party may by written notice specify to the other:
(a) if to the Committee:
Dime Bancorp, Inc.
589 Fifth Avenue
New York, New York 10017
Attention: Chief Human Resources Officer
(b) if to any party other than the Committee, to such party at the
address last furnished by such party by written notice to the
Committee.
22. Governing Law. The Plan shall be construed, administered and
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enforced according to the laws of the State of New York, except to the extent
that such laws are preempted by federal law.
23. Construction of Language. Wherever appropriate in the Plan,
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words used in the singular may be read in the plural, words in the plural may be
read in the singular, and
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words importing the masculine gender shall be deemed equally to refer to the
feminine or the neuter. Any reference to an Article or Section shall be to an
Article or Section of the Plan, unless otherwise indicated.
24. Amendment or Discontinuance. The Board, the Committee, or
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any duly designated delegatee of the Board or the Committee may amend,
discontinue or terminate the Plan at any time; provided, however, that no
amendment or discontinuance shall affect the rights of Participants to amounts
already allocated to their Accounts under the Plan or that shall be allocated in
accordance with deferral elections already made under the terms of the Plan.
The Benefits Committee of the Company may make any amendment to the Plan that
may be necessary or appropriate to facilitate the administration, management,
and interpretation of the plan or to conform the Plan thereto or that may be
necessary or appropriate to satisfy requirements of law, provided that any such
amendment does not significantly affect the cost to the Company or any of its
subsidiaries of maintaining the Plan.
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