Exhibit 10.7
AMENDED AND
RESTATED
BAY-VANGUARD FEDERAL SAVINGS
BANK
SUPPLEMENTAL EXECUTIVE RETIREMENT
PLAN
As of December 17,
2008
Amended and
Restated
Bay-Vanguard Federal Savings
Bank
Supplemental Executive Retirement
Plan
Table of Contents
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Article
I
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Introduction
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1
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Article
II
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Definitions
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1
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Article
III
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Eligibility and
Participation
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3
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Article
IV
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Benefits
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3
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Article
V
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Accounts
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5
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Article
VI
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Supplemental
Benefit Payments
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5
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Article
VII
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Claims
Procedures
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6
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Article
VIII
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Amendment and
Termination
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7
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Article
IX
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General
Provisions
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8
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Article I
Introduction
Section 1.01 Purpose,
Design and Intent .
(a) The purpose of the Bay-Vanguard
Federal Savings Bank Supplemental Executive Retirement Plan (the
“Plan”) is to assist Bay-Vanguard Federal Savings Bank
(the “Bank”) and its affiliates in retaining the
services of key employees until their retirement, to induce such
employees to use their best efforts to enhance the business of the
Bank and its affiliates, and to provide certain supplemental
retirement benefits to such employees.
(b) The Plan, in relevant part, is
intended to constitute an unfunded “excess benefit
plan” as defined in Section 3(36) of the Employee
Retirement Income Security Act of 1974, as amended. In this
respect, the Plan is specifically designed to provide certain key
employees with retirement benefits that would have been provided
under various tax-qualified retirement plans sponsored by the Bank
but for the applicable limitations placed on benefits and
contributions under such plans by various provisions of the
Internal Revenue Code of 1986, as amended (the
“Code”).
(c) The Bank is amending and
restating the Plan in its entirety effective as of January 1,
2005, to comply with Section 409A of the Code.
Article II
Definitions
Section 2.01
Definitions . In
this Plan, whenever the context so indicates, the singular or the
plural number and the masculine or feminine gender shall be deemed
to include the other, the terms “he,”
“his,” and “him,” shall refer to a
Participant or a beneficiary of a Participant, as the case may be,
and, except as otherwise provided, or unless the context otherwise
requires, the capitalized terms shall have the following
meanings:
(a)
“Affiliate” means any corporation, trade
or business, which, at the time of reference, is together with the
Bank, a member of a controlled group of corporations, a group of
trades or businesses (whether or not incorporated) under common
control, or an affiliated service group, as described in Sections
414(b), 414(c), and 414(m) of the Code, respectively, or any other
organization treated as a single employer with the Bank under
Section 414(o) of the Code.
(b) “Applicable
Limitations” means one or more of the following, as
applicable:
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(i)
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the maximum
limitations on annual additions to a tax-qualified defined
contribution plan under Section 415(c) of the Code;
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(ii)
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the maximum
limitation on the annual amount of compensation that may, under
Section 401(a)(17) of the Code, be taken into account in
determining contributions to and benefits under tax-qualified
plans; and
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(iii)
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the maximum
limitations, under Sections 401(k), 401(m), or 402(g) of the Code,
on pre-tax contributions that may be made to a qualified defined
contribution plan.
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(c) “Bank”
means Bay-Vanguard Federal Savings Bank, and its
successors.
(d) “Board of
Directors” means the Board of Directors of the
Bank.
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(e) “Change in
Control” means the earliest occurrence of a
“change in ownership,” “change in effective
control,” or “change in ownership of a substantial
portion of assets” for purposes of Section 409A of the
Code, but excluding reorganization 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).
(f) “Code”
means the Internal Revenue Code of 1986, as amended.
(g)
“Committee” means the person(s)
designated by the Board of Directors, pursuant to Section 9.02
of the Plan, to administer the Plan.
(h) “Common
Stock” means the common stock of the
Company.
(i)
“Company” means BV Financial, Inc. and
its successors.
(j) “Eligible
Individual” means any Employee who participates in
the ESOP or the 401(k) Plan, as the case may be, and whom the Board
of Directors determines is one of a “select group of
management or highly compensated employees,” as such phrase
is used for purposes of Sections 101, 201, and 301 of
ERISA.
(k)
“Employee” means any person employed by
the Bank or an Affiliate.
(l)
“Employer” means the Bank or Affiliate
thereof that employs the Employee.
(m)
“ERISA” means the Employee Retirement
Income Security Act of 1974, as amended.
(n) “ESOP”
means the Bay-Vanguard Federal Savings Bank Employee Stock
Ownership Plan, as amended from time to time.
(o) “ESOP Acquisition
Loan” means a loan or other extension of credit
incurred by the trustee of the ESOP in connection with the purchase
of Common Stock on behalf of the ESOP.
(p) “ESOP Valuation
Date” means any day as of which the investment
experience of the trust fund of the ESOP is determined and
individuals’ accounts under the ESOP are adjusted
accordingly.
(q) “Effective
Date” means July 1, 2004.
(r)
“Participant” means an Eligible Employee
who is entitled to benefits under the Plan.
(s) “Plan”
means this Bay-Vanguard Federal Savings Bank Supplemental Executive
Retirement Plan.
(t) “401(k)
Plan” means the Bay-Vanguard Federal Savings Bank
401(k) Profit Sharing Plan, as amended from time to
time.
(u) “Separation from
Service” means a Participant’s separation from
service with the Bank, within the meaning of Section 409A of
the Code.
(v) “Specified
Employee” means, as of a given date, a
“specified employee” as of such date for purposes of
Section 409A of the Code.
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(w) “Supplemental ESOP
Account” means an account established by an Employer,
pursuant to Section 5.01 of the Plan, with respect to a
Participant’s Supplemental ESOP Benefit.
(x) “Supplemental ESOP
Benefit” means the benefit credited to a Participant
pursuant to Section 4.01 of the Plan.
(y) “Supplemental
Savings Benefit” means the benefit credited to a
Participant pursuant to Section 4.03 of the Plan.
(z) “Supplemental
Savings Account” means an account established by an
Employer, pursuant to Section 5.03 of the Plan, with respect
to a Participant’s Supplemental Savings Benefit.
(aa) “Supplemental Stock
Ownership Account” means an account established by an
Employer, pursuant to Section 5.02 of the Plan, with respect
to a Participant’s Supplemental Stock Ownership
Benefit.
(bb) “Supplemental Stock
Ownership Benefit” means the benefit credited to a
Participant pursuant to Section 4.02 of the Plan.
Article III
Eligibility and
Participation
Section 3.01 Eligibility
and Participation .
(a) Each Eligible Employee may
participate in the Plan. An Eligible Employee shall become a
Participant in the Plan upon designation as such by the Board of
Directors. An Eligible Employee whom the Board of Directors
designates as a Participant in the Plan shall commence
participation as of the date established by the Board of Directors.
The Board of Directors shall establish an Eligible Employee’s
date of participation at the same time it designates the Eligible
Employee as a Participant in the Plan.
(b) The Board of Directors may, at
any time, designate an Eligible Employee as a Participant for any
or all supplemental benefits provided for under Article IV of the
Plan.
Article IV
Benefits
Section 4.01 Supplemental
ESOP Benefit .
As of the last day of each plan year
of the ESOP, the Employer shall credit the Participant’s
Supplemental ESOP Account with a Supplemental ESOP Benefit equal to
the excess of (a) over (b), where:
(a) Equals the annual contributions
made by the Employer and/or the number of shares of Common Stock
released for allocation in connection with the repayment of an ESOP
Acquisition Loan that would otherwise be allocated to the accounts
of the Participant under the ESOP for the applicable plan year, if
the provisions of the ESOP were administered without regard to any
of the Applicable Limitations; and
(b) Equals the annual contributions
made by the Employer and/or the number of shares of common stock
released for allocation in connection with the repayment of an ESOP
Acquisition Loan that are actually allocated to the accounts of the
Participant under the provisions of the ESOP for that
particular
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plan year, after giving effect to any reduction
of such allocation required by any of the Applicable
Limitations.
Section 4.02 Supplemental
Stock Ownership Benefit .
(a) Upon a Change in Control, the
Employer shall credit to the Participant’s Supplemental Stock
Ownership Account a Supplemental Stock Ownership Benefit equal to
(i) less (ii), the result of which is multiplied by (iii),
where:
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(i)
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Equals the
total number of shares of Common Stock acquired with the proceeds
of all ESOP Acquisition Loans (together with any dividends, cash
proceeds, or other medium related to such ESOP Acquisition Loans)
that would have been allocated or credited for the benefit of the
Participant under the ESOP and/or this Plan, as the case may be,
had the Participant continued in the employ of the Employer through
the first ESOP Valuation Date following the last scheduled payment
of principal and interest on all ESOP Acquisition Loans outstanding
at the time of the Change in Control; and
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(ii)
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Equals the
total number of shares of Common Stock acquired with the proceeds
of all ESOP Acquisition Loans (together with any dividends, cash
proceeds, or other medium related to such ESOP Acquisition Loans)
and allocated for the benefit of the Participant under the ESOP
and/or this Plan, as the case may be, as of the first ESOP
Valuation Date following the Change in Control; and
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(iii)
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Equals the fair
market value of the Common Stock immediately preceding the Change
in Control.
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(b) For purposes of clause
(i) of subsection (a) of this Section 4.02, the
total number of shares of Common Stock shall be determined by
multiplying the sum of (i) and (ii) by (iii),
where:
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(i)
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equals the
average of the total shares of Common Stock acquired with the
proceeds of an ESOP Acquisition Loan and allocated for the benefit
of the Participant under the ESOP as of the three most recent ESOP
Valuation Dates preceding the Change in Control (or lesser number
if the Participant has not participated in the ESOP for three full
years);
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(ii)
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equals the
average number of shares of Common Stock credited to the
Participant’s Supplemental ESOP Account for the three most
recent plan years of the ESOP (such that the three most recent plan
years coincide with the three most recent ESOP Valuation Dates
referred to in (i) above); and
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(iii)
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equals the
original number of scheduled annual payments on the ESOP
Acquisition Loans.
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Section 4.03 Supplemental
Savings Benefit .
A Participant’s Supplemental
Savings Benefit under the Plan shall be equal to the excess of
(a) over (b), where:
(a) is the sum of the matching
contributions and other contributions of the Employer that would
otherwise be allocated to an account of the Participant under the
401(k) Plan for a particular year, if the provisions of the 401(k)
Plan were administered without regard to any of the Applicable
Limitations; and
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(b) is the sum of the matching contributions and
other contributions of the Employer that are actually allocated on
account of the Participant under the provisions of the 401(k) Plan
for that particular year, after giving effect to any reduction of
such allocation required by any of the Applicable L