Attached files
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10-Q - EXHIBIT 10-Q - Federal Home Loan Bank of New York | c16796e10vq.htm |
EX-32.01 - EXHIBIT 32.01 - Federal Home Loan Bank of New York | c16796exv32w01.htm |
EX-32.02 - EXHIBIT 32.02 - Federal Home Loan Bank of New York | c16796exv32w02.htm |
EX-10.02 - EXHIBIT 10.02 - Federal Home Loan Bank of New York | c16796exv10w02.htm |
EX-31.02 - EXHIBIT 31.02 - Federal Home Loan Bank of New York | c16796exv31w02.htm |
EX-31.01 - EXHIBIT 31.01 - Federal Home Loan Bank of New York | c16796exv31w01.htm |
Exhibit 10.01
THE FEDERAL HOME LOAN BANK
OF NEW YORK
AMENDED AND RESTATED BENEFIT EQUALIZATION PLAN
Effective as of January 1, 2011
BENEFIT EQUALIZATION PLAN
INTRODUCTION
INTRODUCTION
The purpose of this Benefit Equalization Plan is to provide to certain employees of the Bank
the benefits which would have been payable under the Comprehensive Retirement Program of the
Financial Institutions Retirement Fund, but for the limitations placed on benefits and
contributions for such employees by Sections 401(a)(17) and 415 of the Internal Revenue Code of
1986.
The Plan is unfunded and all benefits payable under this Plan shall be paid solely out of the
general assets of the Bank. No benefits under this Plan shall be payable by the Financial
Institutions Retirement Fund or its assets or by the Financial Institutions Thrift Plan or its
assets.
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Article 1. Definitions
When used in the Plan, the following terms shall have the following
meanings:
1.01 Actuary means the independent consulting actuary retained by the Bank to
assist the Committee in its administration of the Plan.
1.02 Bank means the Federal Home Loan Bank of New York and each subsidiary or
affiliated company thereof which participates in the Plan.
1.03 Beneficiary means the beneficiary or beneficiaries designated in accordance
with Article 5 of the Plan to receive the benefit, if any, payable upon the death of a Member of
the Plan.
1.04 Board of Directors means the Board of Directors of the Bank.
1.05 Committee means the Nonqualified Plan Committee appointed by the
Board of Directors pursuant to Section 7.01 to administer the Plan.
1.06 IRC means the Internal Revenue Code of 1986, as amended from time to time,
or any successor thereto.
1.07 IRC Limitations mean the cap on compensation taken into account by a plan under IRC
Section 401(a)(17) and the overall limitations on contributions and benefits imposed on qualified
plans by IRC Section 415, as such provisions may be amended from time to time, and any similar
successor provisions of federal tax law.
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1.08 Member means any person included in the membership of the Plan as provided in Article
2.
1.09 Plan means The Federal Home Loan Bank of New York Benefit Equalization Plan, as set
forth herein and as amended from time to time.
1.10 Retirement means and refers to the Separation from Service of a Member under
circumstances entitling the Member to a benefit from and under the terms of the Retirement Fund.
1.11 Retirement Fund means the Pentegra Defined Benefit Plan for Financial Institutions, a
qualified and tax-exempt defined benefit pension plan and trust under IRC Sections 401(a) and
501(a), and the governing Retirement Fund thereof, as adopted by the Bank.
1.12 Separation from Service has the meaning set forth in Section 1.409A-1(h) of the
Regulations promulgated under IRC Section 409A.
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Article 2. Membership
2.01 Each employee of the Bank who is included in the membership of the Retirement Fund shall
become a Member of the Plan on the later of (i) the date on which the Committee shall determine, in
its sole and absolute discretion, that he is entitled to membership in the Plan and (ii) the
earliest date on which a benefit under the Retirement Fund is limited by IRC Section 401(a)(17) or
415. If, on the date that payment of a Members benefit from the Retirement Fund commences, the
Member is not entitled to receive a benefit under Article 3.01 of the Plan, his membership in the
Plan shall terminate on such date.
2.02 Notwithstanding any other provision of this Plan to the contrary, the Committee, in its
sole and absolute discretion, shall exclude from membership and participation in the Plan any
employee who is not one of a select group of management and highly compensated employees, or who
does not meet such criteria and requirements for membership in the Plan as the Committee shall fix
and determine.
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Article 3. Amount and Payment of Pension Benefits
3.01 The amount, if any, of the annual benefit payable to or on account of a Member pursuant
to the Plan shall equal (i) minus (ii), but not less than zero, as determined by the Committee,
where:
(i) is the annual benefit (as calculated by the Retirement Fund on the basis of the form of
payment elected under the Retirement Fund by the Member) that would otherwise be payable to or on
account of the Member by the Retirement Fund under the Retirement Fund if the provisions of the
Retirement Fund were administered without regard to the limitations imposed by Sections 401(a)(17)
and 415 of the IRC; and
(ii) is the annual benefit (as calculated by the Retirement Fund on the basis of the
form of payment elected under the Retirement Fund by the Member) that is payable to or on account
of the Member by the Retirement Fund under the Retirement Fund after giving effect to any reduction
of such benefit required by the limitations imposed by Sections 401(a)(17) and 415 of the IRC.
For purposes of this Section 3.01, annual benefit includes any Active Service Death
Benefit, Retirement Adjustment Payment, Annual Increment and Single Purchase Fixed Percentage
Adjustment which the Bank has elected to provide its employees under the Retirement Fund and shall
be in the form of a life annuity within the meaning of Section 1.409A-2(b)(2)(ii) of the
Regulations promulgated under IRC Section 409A.
3.02 Unless the Member elects an optional form of payment under this Article 3 pursuant to
Section 3.03 of the Plan, the annual benefit, if any, payable to or on account of a Member under
Section 3.01 of the Plan shall be converted by the Actuary and shall be payable to or on account of
the Member in the Regular Form of payment, utilizing for that purpose the same actuarial factors
and assumptions then used by the Retirement Fund to determine actuarial equivalence under the
Retirement Fund. For purposes of the Plan, the Regular Form of
payment means an annual benefit payable for the Members lifetime and the death benefit described
in Section 3.04 of the Plan.
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3.03 (a) A Member may, with the prior written consent of the Committee, elect in writing
prior to the making of any annuity payment under this Article 3 to have the annual benefit, if any,
payable to or on account of a Member under Section 3.02 of the Plan converted by the Actuary to any
optional form of payment then permitted under the Retirement Fund that is a life annuity within the
meaning of Section 1.409A-2(b)(2)(ii) of the Regulations promulgated under IRC Section 409A other
than the Regular Form of payment and that is actuarially equivalent to the Regular Form of
payment. The Actuary shall utilize for the purpose of that conversion the same actuarial factors
and assumptions then used by the Retirement Fund to determine actuarial equivalence under the
Retirement Fund.
(b) If a Member who had elected an optional form of payment under this Section 3.03 dies
after the date his benefit payments under the Plan had commenced, the only death benefit, if any,
payable under the Plan in respect of said Member shall be the amount, if any, payable under the
optional form of payment which the Member had elected under the Plan. If a Member who had elected
an optional form of payment under this Section 3.03 dies before the date his benefit payments under
the Plan commence, his election of an optional form of benefit shall be inoperative.
(c) An election of an optional form of payment under this Section 3.03 may be made only on a
form prescribed by the Committee and filed by the Member with the Committee prior to the
commencement of payment of his benefit under Section 3.02 of the Plan.
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3.04 Upon the death of a Member who had not elected an optional form of payment under Section
3.03 of the Plan, a death benefit shall be paid to the Members beneficiary in a lump sum equal to
the excess, if any, of (i) over (ii), where:
(i) is an amount equal to twelve (12) times the annual benefit, if any, payable under Section
3.02 of the Plan; and
(ii) is the sum of the benefit payments, if any, which the Member had received under this
Article 3.
3.05 If a Member to whom an annual benefit is payable under this Article 3 dies before
commencement of the payment of his benefit, the death benefit payable under Section 3.02 of the
Plan shall be payable to the Members beneficiary as if the payment of the Members benefit had
commenced on the first day of the month in which his death occurred.
3.06 The annual benefit, if any, payable to or on account of a Member under this Article 3
shall commence to be paid no earlier than (i) the Members Separation from Service, (ii) the date
the Member becomes disabled, within the meaning of IRC Section 409A(a)(2)(c), or (iii) the Members
death, and the time or schedule of payments shall not be accelerated except as provided in
Regulations promulgated pursuant to IRC Section 409A, nor shall any payment of benefits be deferred
to a date other than the date fixed for such payment. Such annual benefit shall be paid in monthly
installments commencing on the first day of the month next following the Members Separation from
Service constituting the Members Retirement under the Retirement Fund, except that no benefits
shall be paid prior to the date such annual benefit can be definitely determined by the Committee.
Nothing in this Plan shall be deemed to make the payment of benefits to a Member under this Article
3 dependent upon the commencement of the payment of benefits to the Member under the Retirement
Fund.
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Article 4. OMITTED INTENTIONALLY
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Article 5. Source and Method of Payments
All payments of benefits under the Plan shall be paid from, and shall only be a general claim
upon, the general assets of the Bank, notwithstanding that the Bank, in its discretion, may
establish a bookkeeping reserve or a grantor trust (as such term is used in IRC Sections 611
through 677) to reflect or to aid it in meeting its obligations under the Plan with respect to any
Member or prospective Member or beneficiary; provided, that no contributions to such a grantor
trust shall be made by the Bank during any restricted period as such term is defined in IRC
Section 409(A)(b)(3)(B). No benefit whatever provided by the Plan shall be payable from the assets
of the Retirement Fund or the Thrift Plan. No Member shall have any right, title or interest
whatever in or to any investments which the Bank may make or any specific assets which the Bank may
reserve to aid it in meeting its obligations under the Plan.
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Article 6. Designation of Beneficiaries
6.01 Each Member of the Plan may file with the Committee a written designation of one or more
persons as the beneficiary who shall be entitled to receive the amount, if any, payable under the
Plan upon his death. A Member may, from time to time, revoke or change his beneficiary designation
without the consent of any prior beneficiary by filing a new designation with the Committee. The
last such designation received by the Committee shall be controlling; provided, however, that no
designation, or change or revocation thereof, shall be effective unless received by the Committee
prior to the Members death, and in no event shall it be effective as of a date prior to such
receipt.
6.02 If no such beneficiary designation is in effect at the time of a Members death, or if no
designated beneficiary survives the Member, or if, in the opinion of the Committee, such
designation conflicts with applicable law, the Members estate shall be deemed to have been
designated as his beneficiary and shall be paid the amount, if any, payable under the Plan upon the
Members death. If the Committee is in doubt as to the right of any person to receive such amount,
the Committee may retain such amount, without liability for any interest thereon, until the rights
thereto are determined, or the Committee may pay such amount into any court of appropriate
jurisdiction and such payment shall be a complete discharge of the liability of the Plan and the
Bank therefor.
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Article 7. Administration of the Plan
7.01 The Board of Directors has delegated to the Nonqualified Plan Committee, subject to those
powers which the Board has reserved as described in Article 8 of the Plan, general authority over
and responsibility for the administration and interpretation of the Plan. The Committee shall have
full power and authority to interpret and construe the Plan, and to make all determinations
considered necessary or advisable for the administration of the Plan and any trust referred to in
Article 5 of the Plan, and the calculation of the amount of benefits payable thereunder, and to
review claims for benefits under the Plan. The Committees interpretations and constructions of the
Plan and its decisions or actions thereunder shall be binding and conclusive on all persons for all
purposes.
7.02 If the Committee deems it advisable, it shall arrange for the engagement of the Actuary
and legal counsel and certified public accountants (who may be counsel to or accountants for the
Bank), and other consultants, and make use of agents and clerical or other personnel, for purposes
of the Plan. The Committee may rely upon the written opinions of such Actuary, counsel, accountants
and consultants, and upon any information supplied by the Retirement Fund for purposes of Article 3
of the Plan, and delegate to any agent or to any subcommittee or Committee member its authority to
perform any act hereunder, including, without limitation, those matters involving the exercise of
discretion; provided, however, that such delegation shall be subject to revocation at any time at
the discretion of the Committee. The Committee shall report to the Board of Directors, or to a
committee designated by the Board, at such intervals as shall be specified by the Board or such
designated committee, with regard to the matters for which it is responsible under the Plan.
7.03 The Committee shall consist of at least three individuals, each of whom shall be
appointed by, shall remain in office at the will of, and may be removed, with or without cause, by,
the Board of Directors. Any Committee member may resign at any time. No Committee member shall be
entitled to act on or decide any matters relating solely to such member or any of
his rights or benefits under the Plan. The Committee member shall not receive any special
compensation for serving in such capacity but shall be reimbursed for any reasonable expenses
incurred in connection therewith. No bond or other security need be required of the Committee or
any member thereof in any jurisdiction.
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7.04 The Committee shall elect or designate its own Chairman, establish its own procedures and
the time and place for its meetings and provide for the keeping of minutes of all meetings. Any
action of the Committee may be taken upon the affirmative vote of a majority of the members at a
meeting or, at the direction of its Chairman, without a meeting by mail or telephone, provided that
all of the Committee members are informed in writing of the vote.
7.05 All claims for benefits under the Plan shall be submitted in writing to the Chairman of
the Committee. Written notice of the decision on each such claim shall be furnished with reasonable
promptness to the Member or his beneficiary (the claimant). The claimant may request a review by
the Committee of any decision denying the claim in whole or in part. Such request shall be made in
writing and filed with the Committee within 30 days of such denial. Written notice of the decision
on review shall be furnished to the claimant not later than 90 days following the Committees
receipt of the request for review. The Committee may hold any hearing or conduct any independent
investigation which it deems desirable to render its decision and the decision on review shall be
made as soon as feasible after the Committees receipt of the request for review. Written notice of
the decision on review shall be furnished to the claimant. For all purposes under the Plan, such
decisions on claims (where no review is requested) and decisions on review (where review is
requested) shall be final, binding and conclusive on all interested persons as to all matters
relating to the Plan.
7.06 All expenses incurred by the Committee in its administration of the Plan shall be paid
by the Bank.
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Article 8. Amendment and Termination
The Board of Directors may amend, suspend or terminate, in whole or in part, the Plan
without the consent of the Committee or any Member, beneficiary or other person, except that no
amendment, suspension or termination shall retroactively impair or otherwise adversely affect
the rights of any Member, beneficiary or other person to benefits under the Plan which have
accrued prior to the date of such action, as determined by the Committee in its sole discretion.
The Committee may adopt any amendment or take any other action which may be necessary or
appropriate to facilitate the administration, management and interpretation of the Plan or to
conform the Plan thereto, provided any such amendment or action does not have a material effect
on the then currently estimated cost to the Bank of maintaining the Plan.
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Article 9. General Provisions
9.01 The Plan shall be binding upon and inure to the benefit of the Bank, and its successors
and assigns, and the Members, and their successors, assigns, designees and estates. The Plan shall
also be binding upon and inure to the benefit of any successor organization succeeding to
substantially all of the assets and business of the Bank, but nothing in the Plan shall preclude
the Bank from merging or consolidating into or with, or transferring all or substantially all of
its assets to, another organization which assumes the Plan and all obligations of the Bank
hereunder. The Bank agrees that it will make appropriate provision for the preservation of Members
rights under the Plan in any agreement or plan which it may enter into to effect any merger,
consolidation, reorganization or transfer of assets. Upon such a merger, consolidation,
reorganization or transfer of assets and assumption of Plan obligations of the Bank, the term
Bank shall refer to such other organization and the Plan shall continue in full force and effect.
9.02 Neither the Plan nor any action taken thereunder shall be construed as giving to a Member
the right to be retained in the employ of the Bank or as affecting the right of the Bank to dismiss
any Member from its employ.
9.03 The Bank shall withhold or cause to be withheld from all benefits payable under the Plan
all federal, state, local or other taxes required by applicable law fo be withheld with respect to
such payments.
9.04 No right or interest of a Member under the Plan may be assigned, sold, encumbered,
transferred or otherwise disposed of and any attempted disposition of such right or interest shall
be null and void.
9.05 If the Committee shall find that any person to whom any amount is or was payable under
the Plan is unable to care for his affairs because of illness or accident, or is a minor, or has
died, then any payment, or any part thereof, due to such person or his estate (unless a prior claim
therefor has been made by a duly appointed legal representative), may, if the
Committee is so inclined, be paid to such persons spouse, child or other relative, an institution
maintaining or having custody of such person, or any other person deemed by the Committee to be a
proper recipient on behalf of such person otherwise entitled to payment. Any such payment shall be
in complete discharge of the liability of the Plan and the Bank therefor.
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9.06 To the extent that any person acquires a right to receive payments from the Bank under
the Plan, such right shall be no greater than the right of an unsecured general creditor of the
Bank.
9.07 All elections, designations, requests, notices, instructions and other communications
from a Member, beneficiary or other person to the Committee required or permitted under the Plan
shall be in such form as is prescribed from time to time by the Committee and shall be mailed by
first-class mail or delivered to such location as shall be specified by the Committee and shall be
deemed to have been given and delivered only upon actual receipt thereof at such location.
9.08 The benefits payable under the Plan shall be in addition to all other benefits provided
for employees of the Bank and shall not be deemed salary or other compensation by the Bank for the
purpose of computing benefits to which he may be entitled under any other plan or arrangement of
the Bank.
9.09 No Committee member shall be personally liable by reason of any instrument executed by
him or on his behalf, or action taken by him, in his capacity as a Committee member nor for any
mistake of judgment made in good faith. The Bank shall indemnify and hold harmless the Retirement
Fund and each Committee member and each employee, officer or director of the Bank or the Retirement
Fund, to whom any duty, power, function or action in respect of the Plan may be delegated or
assigned, or from whom any information is requested for Plan purposes, against any cost or expense
(including fees of legal counsel) and liability (including any sum paid in settlement of a claim or
legal action with the approval of the Bank) arising out of anything done or omitted to be done in
connection with the Plan, unless arising out of such persons fraud or bad faith.
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9.10 As used in the Plan, the masculine gender shall be deemed to refer to the feminine, and
the singular person shall be deemed to refer to the plural, wherever appropriate.
9.11 The captions preceding the sections of the Plan have been inserted solely as a matter of
convenience and shall not in any manner define or limit the scope or intent of any provisions of
the Plan.
9.12 The Plan shall be construed according to the laws of the State of New York in effect from
time to time.
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Pursuant to the authority granted to the Nonqualified Plan Committee of the Federal Home Loan
Bank of New York by Article 8 of the Benefit Equalization Plan and by said Nonqualified Plan
Committee to the undersigned, the attached instrument is hereby adopted as the Amended and Restated
Benefit Equalization Plan of the Federal Home Loan Bank of New York, effective on and as of January
1, 2011.
/s/ Edwin Artuz
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Director of Human Resources |
Dated: As of January 1, 2011
Attest:
/s/ Barbara Sperrazza
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Corporate Secretary |
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