NorthEast Community Bank Directors Deferred Compensation Plan, as amended and restated
NORTHEAST COMMUNITY BANK
DIRECTORS’ DEFERRED COMPENSATION PLAN, AS AMENDED AND RESTATED
The Northeast Community Bank Directors’ Deferred Compensation Plan (as it may be amended from time to time, the “Plan”) has been adopted by Northeast Community Bank, a federally-chartered financial institution (the “Bank”), effective as of March 16, 2006 (the “Effective Date”), for the benefit of its eligible directors. This Plan is hereby amended and restated in its entirety effective February 18, 2021.
Account means the bookkeeping account created by the Bank pursuant to Article III of this Plan in accordance with an election by a Director to receive deferred compensation under Article II hereof.
Board means the Board of Directors of the Bank.
Change in Control means any change in the ownership or effective control of the Bank, or in the ownership of a substantial portion of the assets of the Bank, as described in Section 409A(a)(2)(A)(v) of the Code or any other “Change in Control Event” as defined in accordance with Department of Treasury guidance promulgated pursuant to Section 409A, including, without limitation, Notice 2005-1 and such other interpretive guidance as may be issued after the Effective Date. Notwithstanding anything in this Plan to the contrary, in no event shall the conversion of the Bank from the mutual holding company form of organization to the full stock holding company form of organization (including the elimination of the mutual holding company) constitute a “Change in Control” for purposes of this Plan.
Code means the Internal Revenue Code of 1986, as amended.
Deferral Election Form shall have the meaning set forth in Section 2.3.
Deferred Fee Account means the bookkeeping account created by the Bank for each participating Director pursuant to Article III of this Plan.
Deferred Fees shall have the meaning set forth in Section 3.1.
Director means a member of the Board of Directors of the Bank or any of its affiliates.
Disabled. A Director shall be considered Disabled, if, based on the provisions of Section 409A and any guidelines established by the plan administrator for this purpose, the Participant:
|(a)||Is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months.|
|(b)||Solely for those Directors who are otherwise eligible for Social Security, a Director who is determined to be totally disabled by the Social Security Administration will be deemed to satisfy the requirements of subsection (a), and a Director who has not been determined to be totally disabled by the Social Security Administration will be deemed to not meet the requirements of subsection (a).|
Effective Date shall have the meaning set forth in the recitals hereto.
Fees mean amounts payable to a Director for serving as a member of the Board or the Board of Directors of the Bank and any affiliate of the Bank, including without limitation any: (a) annual or other periodic retainer payments; (b) fees payable for meeting attendance; (c) fees payable for committee membership; and (d) fees payable for Board or committee chairmanship.
Interest means simple interest credited to a Director’s Deferred Fee Account as of each Interest Credit Date. The rate of Interest shall be equal to the prevailing rate payable by the Bank on its 60 month certificate of deposit as of the Interest Credit Date.
Interest Credit Date means the first business day of each calendar year as of which Interest is credited to each Director’s Account.
Plan Year means the calendar year.
Section 409A means Section 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder, including, without limitation, Notice 2005-1 and any regulations or other interpretive guidance that may be issued after the Effective Date.
Separation from Service of a Director means his or her “separation from service,” with respect to the Bank, within the meaning of Section 409A(a)(2)(A)(i) of the Code, as determined by the Secretary of the Treasury. The Board shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Director has had a “Separation from Service,” and the date of such “Separation from Service.”
Unforeseeable Emergency means a severe financial hardship to the Director resulting from an illness or accident of the Director, the Director’s spouse, or a dependent (as defined in Section 152(a) of the Code) of the Director, loss of the Director’s property due to casualty, or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Director. The Board shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Director has experienced an “Unforeseeable Emergency,” and shall make such determination consistent with Section 409A of the Code.
ELECTION TO DEFER
Section 2.1 Initial Elections. A Director may elect, on or before December 31 of any Plan Year, to defer payment of all or a specified part of all Fees earned during the Plan Year following such election (and, to the extent set forth in Section 2.2, in any succeeding Plan Years until the Director ceases to be a Director); provided, however, that with respect to the first Plan Year a Director may elect, within thirty (30) days after the Effective Date, to defer all or a specified part of all Fees payable with respect to services rendered after the date of the Director’s initial election. Any person who shall become a Director during any Plan Year, and who was not a Director of the Bank on the preceding December 31, may elect, no later than thirty (30) days after the Director’s term begins, to defer payment of all or a specified part of such Fees payable with respect to services rendered during the remainder of such Plan Year (and, to the extent set forth in Section 2.2, for any succeeding Plan Years until the Director ceases to be a Director). Any Fees deferred pursuant to this Paragraph shall be paid to the Director at the time(s) and in the manner specified in Article IV hereof, as designated by the Director.
Section 2.2 Subsequent Elections. With respect to Plan Years following Plan Year 2006, if a Director fails to submit a Deferral Election Form by December 31 of the Plan Year immediately prior to such Plan Year, the amount of the deferral election for such Plan Year shall be zero; provided, however, that, to the extent permitted by Section 409A, a Deferral Election Form may provide that the election shall continue from Plan Year to Plan Year unless the Director terminates it by written request delivered to the Bank’s Secretary prior to the commencement of the Plan Year for which the termination is first effective.
Section 2.3 Deferral Election Form. The election to participate in the Plan and form of payment election shall be made by submitting a deferral election form in substantially the form attached hereto as Exhibit A (as it may be revised from time to time, the “Deferral Election Form”) to the Bank’s Secretary.
Section 2.4 Limitations on Re-Deferrals. In the event that a Deferral Election Form permits, upon a subsequent election by the Director to delay a distribution, or to change the form of distribution, such subsequent election shall satisfy the requirements of Section 409A (including, without limitation, Section 409A(a)(4)(C) of the Code), and:
|(a)||the subsequent election may not take effect until at least twelve (12) months after the date on which the election is made;|
|(b)||If the subsequent election relates to a distribution or payment not described in Section 4.1(b), (c) or (f), the first payment with respect to such election shall be deferred for a period of not less than five (5) years from the date such distribution or payment otherwise would have been made; and|
|(c)||If the subsequent election relates to a distribution or payment described in Section 4.1(d), such election may not be made less than twelve (12) months prior to the date of the first scheduled distribution or payment under Section 4.1(d).|
DEFERRED COMPENSATION ACCOUNTS
Section 3.1 Bookkeeping Accounts. The Bank shall maintain separate bookkeeping accounts for the Fees deferred by each Director (the “Deferred Fees”). A Director shall at all times be fully vested in amounts credited to such account.
Section 3.2 Deferred Fee Account.
|(a)||As of the date that any Deferred Fees would otherwise have been payable to a Director, the Bank shall credit the Director’s Deferred Fee Account with the aggregate value of the Fees that the Director elects to be deemed to be invested in such Deferred Fee Account.|
|(b)||As of each Interest Credit Date, the balance of each Director’s Deferred Fee Account shall be credited with Interest.|
Section 3.3 Unsecured General Creditor; Fund. Deferred Fees and any deemed earnings with respect thereto shall be held in the general assets of the Bank and no separate fund or trust shall be created or monies set aside with respect to the Account. To the extent that any person acquires a right to receive distributions from the Bank under the Plan, such right shall be no greater than the right of any unsecured general creditor of the Bank. Notwithstanding the foregoing, the Board, in its discretion, may elect to establish a fund (the “Fund”) containing assets equal to the amounts credited to Directors’ Accounts, and may elect in its discretion to designate a trustee to hold the Fund in trust; provided, however, that such Fund shall remain a general asset of the Bank subject to the rights of creditors of the Bank in the event of the Bank’s bankruptcy or insolvency as defined in any such trust.
PAYMENT OF DEFERRED COMPENSATION
Section 4.1 Distributions. Subject to Sections 4.1(a)-(f) and 4.2, amounts credited to a Director’s Deferred Fee Account shall be distributed as the Director’s election (made pursuant to Section 2.3) shall provide. Notwithstanding the foregoing, all amounts credited to a Director’s Deferred Fee Account shall be distributed in accordance with the requirements of Section 409A (including, without limitation, Section 409A(a)(2) of the Code), and shall not be distributed earlier than:
(a) The date of the Director’s Separation from Service;
(b) The date the Director becomes Disabled;
(c) The date of the Director’s death;
(d) A time (or pursuant to a fixed schedule) specified under the Deferral Election Form at the date of the deferral of compensation;
(e) A Change in Control has occurred; or
(f) The occurrence of an Unforeseeable Emergency with respect to the Director. The requirement of this Section 4.1(f) shall be met only if, as determined under Treasury Regulations under Section 409A(a)(2)(B)(ii) of the Code, the amounts distributed with respect to the Unforeseeable Emergency do not exceed the amounts necessary to satisfy such Unforeseeable Emergency plus amounts necessary to pay taxes reasonably anticipated as a result of the distribution, after taking into account the extent to which such Unforeseeable Emergency is or may be relieved through reimbursement or compensation by insurance or otherwise or by liquidation of the Director’s assets (to the extent the liquidation of such assets would not itself cause severe financial hardship).
Section 4.2 Form of Distribution. All distributions from the Plan shall be paid in cash.
Section 4.3 Payment of Interest. At the time of each installment payment or lump sum payment made pursuant to Section 4.1, Interest which has been deemed to have accrued since the previous Interest Credit Date shall be paid with respect to each applicable Director’s Deferred Fee Account. Interest shall be calculated using the methodology set forth in Section 3.2.
Section 4.4 Beneficiary Designation. Each Director shall have the right to designate a beneficiary who is to succeed to his or her right to receive payments hereunder in the event of death. Except as may otherwise be provided in any Deferral Election Form, in the event of the Director’s death, the balance of the amounts contained in the Director’s Deferred Fee Account shall be paid, in accordance with Section 4.1, to the Director’s or former Director’s beneficiary (or if no beneficiary has been designated, to his estate) in full on the first day of the Plan Year following the Plan Year in which he or she dies. No designation of beneficiary or change in beneficiary shall be valid unless it is in writing signed by the Director and filed with the Bank’s Secretary.
Section 5.1 Administration. The Plan shall be administered by the Board. The Board may delegate certain administrative authority to a committee or subcommittee of the Board or to one or more employees of the Bank, but shall retain the ultimate responsibility for the interpretation of, and amendments to, the Plan. Members of the Board shall not be liable for any of their actions or determinations made in good faith with respect to the administration of the Plan. Except to the extent superseded by the laws of the United States, the laws of the State of New York, without regard to its conflict of laws principles, shall govern in all matters relating to the Plan. All expenses related to plan administration shall be paid by the Bank. All decisions made by the Board with respect to issues hereunder shall be final and binding on all parties.
Section 5.2 Nonassignability. Except to the extent required by law, the right of any Director or any beneficiary to any benefit or to any payment hereunder shall not be subject in any manner to attachment or other legal process for the debts of such Director or beneficiary, and any such benefit or payment shall not be subject to alienation, sale, transfer, assignment or encumbrance.
Section 5.3 Amendment and Termination. The Plan may be amended, suspended or terminated in whole or in part from time to time by the Board; provided, however, that no amendment, suspension, or termination shall apply to the payment to any Director or beneficiary of a deceased Director of any amounts previously credited to a Director’s Deferred Fee Account.
Section 5.4 Section 409A Compliance. The Plan and Deferral Election Form shall be interpreted in accordance with, and shall comply in form and operation with, Section 409A of the Code. Notwithstanding any provision of the Plan to the contrary, the Board may adopt such amendments to the Plan and the applicable Deferral Election Form or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Board determines are necessary or appropriate to (a) exempt the deferral from Section 409A of the Code and/or preserve the intended tax treatment of the benefits provided with respect to the deferral, or (b) comply with the requirements of Section 409A (including, without limitation, any related Department of Treasury guidance).
Section 5.5 One-Time Election. Each Participant may make a one-time voluntary election to transfer all or a portion of his or her Plan account balances to the NorthEast Community Bancorp, Inc. Stock-Based Deferral Plan. This election must be made no later than the date specified on the form prescribed by the plan administrator for this purpose. All account balances transferred from this Plan to the NorthEast Community Bancorp, Inc. Stock-Based Deferral Plan generally will be subject to the terms and conditions of the NorthEast Community Bancorp, Inc. Stock-Based Deferral Plan; provided, however, that notwithstanding the foregoing or any other provision of the NorthEast Community Bancorp, Inc. Stock-Based Deferral Plan, all amounts transferred from this Plan to the NorthEast Community Bancorp, Inc. Stock-Based Deferral Plan will be subject to the time and form of payment (i.e. upon death and lump sum) in effect for the transferred amounts at the time of the corresponding original deferral election under this Plan.