EXHIBIT 10.1.3
THE FEDERAL HOME LOAN BANK OF
BOSTON
PENSION BENEFIT EQUALIZATION PLAN
(effective January 1,
2009)
Federal Home Loan Bank of Boston
(the “Bank”) adopted the Federal Home Loan Bank of
Boston Pension Benefit Equalization Plan (the “Plan”),
as a component of the Federal Home Loan Bank of Boston Benefit
Equalization Plan, effective January 1, 1993. The Plan
is herein amended and restated in order to comply with Code
Section 409A, as enacted by the American Jobs Creation Act of
2004 and applicable regulations thereunder. This amendment
and restatement shall be effective January 1, 2009; provided,
however, that any provision required to be effective on and after
January 1, 2005 in order for the Plan to comply with Code
Section 409A shall become effective as of January 1, 2005
(or such later date as shall be permitted under applicable Code
Section 409A transition rules); and provided further, that if
the application of any amended or restated provision below to a
Member’s Grandfathered Supplemental Benefit (as defined
below) would constitute a “material modification” for
purposes of Treasury Regulation Section 1.409A-6(a)(4), the
corresponding provision of the Prior Plan shall apply in lieu of
such amended or restated provision.
The Plan is established and
maintained by the Bank in order to provide designated Eligible
Executives with the benefits which would have been provided under
the Pentegra Defined Benefit Plan for Financial Institutions (the
“Qualified Plan”) if (a) their benefits under the
Qualified Plan were not limited by certain limitations imposed by
the Internal Revenue Code applicable to the Qualified Plan;
(b) “Salary” as defined in the Qualified Plan took
into account amounts paid under the Bank’s incentive
compensation plan(s) and elective deferrals to the Federal
Home Loan Bank of Boston Thrift Benefit Equalization Plan; and
(c) certain benefit adjustments were provided to Executive
Officers as described herein.
The Plan is a governmental plan
under Section 4(b) of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”), and is
therefore exempt from coverage under ERISA. The Plan is
unfunded and maintained primarily for the purpose of providing
deferred compensation to a select group of management or highly
compensated employees, and is not intended to be qualified under
Section 401(a) of the Internal Revenue Code.
SECTION 1 -
DEFINITIONS
Each word used herein not defined
below that begins with a capital letter and is defined in the
Qualified Plan shall have the same definition as the definition
given to that word in the Qualified Plan. Wherever used
herein, the following terms shall have the meanings hereinafter set
forth:
1.1
“ Administrator ” means the Committee or
such person or persons as may be appointed by the Committee to be
responsible for those functions assigned to the Administrator under
the Plan.
1.2
“ Affiliate ” means any entity that is a
member of a “controlled group” of corporations with the
Bank under Code Section 414(b) or a trade or business
under common control with the Bank under Code Section 414(c);
provided, however, that in applying Code
Sections 1563(a)(1), (2) and (3) for
purposes of Code Section 414(b), the language “at least
50 percent” will be used instead of “at least 80
percent” each place it appears, and in applying Treasury
Regulation Section 1.414(c)-2 for purposes of Code
Section 414(c), the language “at least 50 percent”
will be used instead of “at least 80 percent” each
place it appears. In addition, to the extent that the
Administrator determines that legitimate business criteria exist to
use a reduced ownership percentage to determine whether an entity
is an Affiliate for purposes of determining whether a Termination
of Employment has occurred, the Administrator may designate an
entity that would meet the definition of “Affiliate”
substituting 20 percent in place of 50 percent in the preceding
sentence as an Affiliate in Appendix A hereto. Such
designation shall be made by December 31, 2008 or, if later,
at the time a 20 percent or more ownership interest in such entity
is acquired.
1.3
“ Bank ” means the Federal Home Loan Bank
of Boston.
1.4
“ Beneficiary ” means the person, persons
or trust designated by a Member as direct or contingent beneficiary
in the manner prescribed by the Administrator. The
Beneficiary of a Member who has not effectively designated a
beneficiary shall be his or her estate.
1.5
“ Board of Directors ” means the Board of
Directors of the Bank.
1.6
“ Code ” means the Internal Revenue Code
of 1986, as amended from time to time, or any successor
thereto.
1.7
“ Code Limitations ” means (a) the
cap on compensation taken into account by the Qualified Plan under
Code Section 401(a)(17); and (b) the overall limitation
on benefits imposed by Code Section 415(b), as such provisions
may be amended from time to time, and any similar successor
provisions of federal tax law.
1.8
“ Committee ” means the Personnel
Committee of the Board of Directors, which is authorized to perform
the functions described in Article V.
1.9
“ Disability ” means that the Member
(a) is unable to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment
that can be expected to result in death or can be expected to last
for a continuous period of not less than 12 months; (b) is, by
reason of any medically determinable physical or mental impairment
that can be expected to result in death or can be expected to last
for a continuous period of not less than 12 months, receiving
income replacement benefits for a period of not less than 3 months
under an accident and health plan covering employees of the Bank;
or (c) has been determined to be totally disabled by the
Social Security Administration. Notwithstanding the
foregoing,
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whether a Member has incurred a Disability with
respect to his or her Grandfathered Supplemental Benefit shall be
determined under the provisions of the Prior Plan.
1.10
“ Effective Date ” means January 1,
2009. The Plan was initially effective January 1, 1993
and was restated effective January 1, 1997. Any
provision of this amendment and restatement required to be
effective on and after January 1, 2005 in order for the Plan
to comply with Code Section 409A shall become effective as of
January 1, 2005 (or such later date up to January 1, 2008
as shall be permitted under applicable Code Section 409A
transition rules).
1.11
“ Eligible Executive ” or “
Executive ” means an employee of the Bank who
is a corporate officer and (a) is eligible to participate in
the Thrift BEP, or (b) has been selected to be an Eligible
Executive by the Committee.
1.12
“ Executive Officer ” means an Eligible
Executive who is designated as an Executive Officer by the Board of
Directors or the Committee.
1.13
“ Grandfathered Supplemental Benefit ”
means, for any Member in the Plan on or before December 31,
2004, the present value of the amount to which the Member would
have been entitled under the Plan if he or she had voluntarily
terminated service without cause on December 31, 2004 (or his
or her earlier termination of employment), and received a payment
of the benefits available from the Plan on the earliest possible
date allowed under the Plan in the form with the maximum
value. Notwithstanding the foregoing, for any subsequent Plan
Year, the Grandfathered Supplemental Benefit may increase to equal
the present value of the benefit the Member actually becomes
entitled to, in the form and at the time actually paid, determined
under the terms of the Plan (including applicable Code limits), as
in effect on October 3, 2004, without regard to any further
services rendered by the service provider after December 31,
2004, or any other events affecting the amount of or the
entitlement to benefits (other than the Member’s election
with respect to the time or form of an available benefit).
For purposes of calculating the present value of the Grandfathered
Supplemental Benefit, reasonable actuarial assumptions and methods
must be used. The Grandfathered Supplemental Benefit shall be
calculated in accordance with the rules and regulations
promulgated under Code Section 409A in order to treat the
greatest proportion of accrued benefit possible as not subject to
Section 409A because it was vested and accrued prior to
January 1, 2005.
1.14
“ Incentive Compensation ” means annual
bonus under the Bank’s Executive Incentive Plan and, if
applicable, any long-term incentive compensation payable to a
Member under the Bank’s incentive compensation
plan(s).
1.15
“ Member ” means a participant in this
Plan, unless it is clear from the context that participation in the
Qualified Plan is referenced.
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1.16
“ Non-Grandfathered Supplemental Benefit
” means the amount of the Member’s accrued benefit
under the Plan, other than his or her Grandfathered Supplemental
Benefit, if any.
1.17
“ Pension Commencement Date ” means the
first day of the first period for which a Supplemental Benefit is
paid as an annuity or lump sum. The Pension Commencement Date
is determined separately for Grandfathered and Non-Grandfathered
Supplemental Benefits.
1.18
“ Plan ” means The Federal Home Loan Bank
of Boston Pension Benefit Equalization Plan, as set forth herein or
as it may be amended or restated from time to time.
1.19
“ Plan Year ” means the calendar
year.
1.20
“ Prior Plan ” means the Plan as in
effect on October 3, 2004.
1.21
“ Qualified Plan ” means the Pentegra
Defined Benefit Plan for Financial Institutions, as from time to
time amended. Any reference to a section of the Qualified
Plan herein shall be deemed to refer to any successor provision of
the Qualified Plan which may govern the subject matter of the
referenced section in the future.
1.22
“ Qualified Plan Retirement Benefit ”
means the benefit payable to a Member pursuant to the Qualified
Plan.
1.23
“ Qualified Plan Survivor Benefit ” means
the death benefit payable under the Qualified Plan upon the death
of a Member prior to his or her Pension Commencement Date,
including (if applicable) any “Active Service Death
Benefit” (as described in Article V, Section 4, of
the Qualified Plan).
1.24
“ Supplemental Benefit ” means a
Supplemental Retirement Benefit or Supplemental Survivor Benefit
payable under the terms of the Plan.
1.25
“ Supplemental Retirement Benefit ” means
the benefit payable to a Plan Member pursuant to the
Plan.
1.26
“ Supplemental Survivor Benefit ” means
the benefit payable under the Plan with respect to the death of a
Member prior to the Pension Commencement Date.
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1.27
“ Thrift BEP ” means the Federal Home
Loan Bank of Boston Thrift Benefit Equalization Plan, as it may be
amended or restated from time to time.
1.28
“ Termination of Employment ” means the
severing of employment with the Bank and any Affiliates,
voluntarily or involuntarily, for any reason. A Termination
of Employment will be deemed to have occurred if the facts and
circumstances indicate that the Bank and the Member reasonably
anticipate that no further services will be performed after a
certain date or that the level of bona fide services the
Member will perform for the Bank and its Affiliates after such date
(whether as an employee or as an independent contractor) will
permanently decrease to no more than 20% of the average level of
bona fide services performed (whether as an employee or an
independent contractor) over the immediately preceding 36-month
period (or the full period of services to the employer if the
Member has been providing services to the Bank and its Affiliates
less than 36 months). A Member will not be deemed to have
incurred a Termination of Employment while he or she is on military
leave, sick leave, or other bona fide leave of absence (such
as temporary employment by the government) if the period of such
leave does not exceed six months or such longer period as the
Member’s right to reemployment with the Bank is provided
either by statute or by contract. For this purpose, a leave
of absence is bona fide only if there is a reasonable
expectation that the Member will return to employment at the
conclusion of the leave. If the period of leave exceeds six
months and the Member’s right to reemployment is not provided
either by statute or by contract, the Termination of Employment
will be deemed to occur on the first date immediately following
such six-month period. Whether a Member incurs a Termination
of Employment will be determined in accordance with the
requirements of Code Section 409A.
Words in the masculine gender shall
include the feminine and the singular shall include the plural, and
vice versa, unless qualified by the context. Any headings
used herein are included for ease of reference only and are not to
be construed so as to alter the terms hereof.
SECTION 2 - ELIGIBILITY AND
PARTICIPATION
2.1
Participation . Each Member of the Plan on
December 31, 2007 will continue as a Member on the effective
date of the amendment and restatement of this Plan and thereafter
to the extent eligible. Each other Eligible Executive who is
a participant in the Qualified Plan shall become a Member on the
earlier of (a) the effective date of the Eligible
Executive’s election to participate in the Thrift BEP or
January 1, 2008, if later; or (b) the effective date as
of which he or she is designated as a Member in the Plan by the
Committee. Within thirty (30) days of becoming a Member (or a
participant in any similar non-account balance, non-qualified
deferred compensation plan maintained by the Bank), the Member
shall file an election with the Administrator designating how his
or her Supplemental Benefit shall be paid. If an Eligible
Executive became a Member under clause (a) above and is
subsequently designated as eligible for enhanced benefits under
clause (b) above, the distribution election made in connection
with his or her initial participation shall continue to
apply. The Surviving Spouse of a Member
5
described above who dies prior to the
Member’s Pension Commencement Date shall be eligible to
receive a Supplemental Survivor Benefit, as set forth
below.
2.2
Elections under Section 409A Transition Rules
. Pursuant to Internal Revenue Service (“IRS”)
Notice 2005-1, Q&A-19(c), as extended by Notice of Proposed
Rulemaking REG-158080-04 and IRS Notice 2007—86, a Member who
(a) has not incurred a Termination of Employment or
(b) has incurred a Termination of Employment but has neither
entered pay status under the Plan nor had an annuity purchased in
connection with his or her benefits under the Plan, may, in 2008,
modify or make a new election regarding distribution of his or her
Non-Grandfathered Supplemental Benefit at such time and in such
form as the Administrator shall designate; provided, however, that
no such distribution election made in 2008 may affect payments that
the Member would otherwise receive in 2008 or cause payments to be
made in 2008. In addition, pursuant to Internal Revenue
Service Notice 2005-1, Q&A-23, as extended, in the case of a
distribution commencing on or before December 31, 2008 (or
such later date as shall be permitted by the Administrator
consistent with Code Section 409A and regulations thereunder),
an election as to the time and form of payment of the
Member’s benefit under the Qualified Plan shall govern
distribution of the Member’s Non-Grandfathered Supplemental
Benefit under this Plan, to the extent provided under the terms of
the Prior Plan.
2.3
Cessation of Participation . An Executive shall
cease to be a Member in the Plan if (a) he or she incurs a
Termination of Employment for any reason, (b) he or she
remains in the service of a Bank but ceases to be an Eligible
Executive as described in Section 1.11 due to a change in
employment status, except to the extent that the Committee
determines otherwise, or (c) the Plan is terminated or
otherwise amended so that the Executive ceases to be eligible for
participation; provided, however, that such individual shall
continue to be a Member solely with respect to his or her benefits
accrued through the date of such cessation, to the extent that such
benefits are or become vested prior to the Member’s
Termination of Employment. Such cessation of participation
shall be effective upon the date of the change in status described
in clause (a) or (b) above, or upon the effective date of
an amendment or termination of the Plan described in clause
(c) above.
2.4
Vesting . A Member (or his or her Beneficiary,
as the case may be) shall be or become vested in his or her
Supplemental Benefit as and to the same extent that he or she is
vested under the terms of the Qualified Plan.
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SECTION 3 - SUPPLEMENTAL
RETIREMENT BENEFIT
3.1
Amount
. The Supplemental Retirement
Benefit payable to a Member on or after his or her Normal
Retirement Date shall be a monthly amount equal to the difference
between either (a) or (b) below, as applicable, minus
(c) below, adjusted as determined in accordance with
Section 3.2 or 3.3, as applicable, where:
(a)
in the case of an Eligible Executive
described in clause (a) of Section 1.11 who becomes a
Member under clause (a) of Section 2.1 as a result of
participation in the Thrift BEP, the monthly amount of the
Qualified Plan Retirement Benefit to which the Member would have
been entitled under the terms of the Qualified Plan if such benefit
were computed by including in the definition of
“Salary” any amounts voluntarily deferred by the Member
under the Thrift BEP; or
(b)
in the case of an Eligible Executive
described in clause (b) of Section 1.11 who becomes a
Member under clause (b) of Section 2.1, the monthly
amount of the Qualified Plan Retirement Benefit to which the Member
would have been entitled under the terms of the Qualified Plan if
such benefit were computed:
(i)
including in the definition of “Salary” any amounts
voluntarily deferred by the Member under the Thrift BEP;
(ii)
without regard to Code Limitations;
(iii)
including in the definition of “Salary” any Incentive
Compensation paid during the applicable Plan Year (determined prior
to any deferral under the Thrift BEP);
(iv)
by recognizing the Member’s years of service from his or her
initial date of employment with any employer participating in the
Qualified Plan to his or her date of membership in the Qualified
Plan as benefit service under the Qualified Plan; and
(v)
solely with respect to Executive Officers hired by the Bank prior
to January 9, 2006 and appointed as an Executive Officer
effective on or prior to January 1, 2008, by applying an
increased annual pension accrual rate of two and three-eighths
percent (2.375%); provided, however, that aggregate pension
benefits payable to such Executive Officers (taking into account
benefits determined under this Plan and the Qualified Plan, and
from any other defined benefit pension plan in which the Member
participated during any period of service taken into account in
calculating the Member’s benefit hereunder) shall not exceed
a percentage of the Member’s “High-3 Salary”
(taking into account compensation described in clauses (i),
(ii) and (iii) above) equal to sixty-five
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percent (65%) for Senior Vice
Presidents, seventy percent (70%) for Executive Vice Presidents and
eighty percent (80%) for the President;
MINUS
(c)
the monthly amount of the Qualified
Plan Retirement Benefit payable to the Plan Member under the terms
of the Qualified Plan.
Notwithstanding the foregoing, the amount of a
Member’s Supplemental Retirement Benefit shall not be less
than zero. Subject to Section 6.1 and the provisions of
Code Section 409A, the method for calculating a Member’s
Non-Grandfathered Supplemental Benefit may be modified from time to
time in an offer letter or employment agreement approved by the
Committee and accepted by the Member, or other writing specifically
approved by the Committee and making specific reference to this
Plan.
3.2
Adjustment and Payment of
Grandfathered Supplemental Retirement Benefits
. The amount of Grandfathered
Supplemental Retirement Benefit to which a Member may be entitled,
if any, shall be determined under the terms of the Prior Plan, and
shall be subject to such adjustments to reflect the time and method
of payment, and any “Active Service Death Benefit” (as
defined in Article V, Section 4 (or successor provision)
of the Qualified Plan), “Retirement Adjustment Payment”
(as defined in Article V, Section 5 (or successor
provision) of the Qualified Plan), or “Annual
Increment” (as defined in Article V,
Section 6(A) (or successor provision) of the Qualified
Plan) as may apply under the terms of the Prior Plan and are both
earned and vested prior to January 1, 2005. An ad
hoc cost of living adjustment (referred to as a “Single
Purchase Fixed Percentage Adjustment” as defined in
Article V, Section 6(B) (or successor provision) of
the Qualified Plan) applicable under the Qualified Plan shall be
taken into account solely to the extent provided by the
Administrator consistent with Code Section 409A. Under
Section 3.02(a) of the Prior Plan, if a Member’s
Grandfathered Supplemental Retirement Benefit is not paid in the
“Regular Form” under the Qualified Plan, the benefit
payable in an optional form shall be of equivalent actuarial value
to the benefit otherwise payable in the Regular Form, determined
using the same actuarial factors and assumptions then used to
determine actuarial equivalence under the Qualified Plan.
Except as otherwise provided in Section 7.3, Grandfathered
Supplemental Retirement Benefits to which a Member may be entitled,
if any, shall be paid in accordance with the terms of the Prior
Plan. Under Section 3.02(a) of the Prior Plan, such
benefit shall be paid in the same form as elected by the Member
under the Qualified Plan; provided, however, that an election to
receive a lump sum payment
8
under the Plan must be filed at least twelve
(12) calendar months prior to the Member’s
retirement.
3.3
Adjustment of Non-Grandfathered Supplemental Retirement
Benefits . The amount of Non-Grandfathered
Supplemental Retirement Benefit described in Section 3.1 above
shall be calculated based upon the Member’s Qualified Plan
Retirement Benefit determined as of the earlier of (a) the
Member’s actual “Commencement Date” under the
Qualified Plan, or (b) the Member’s Pension Commencement
Date under this Plan (including the Pension Commencement Date of
any Grandfathered Supplemental Benefit). To the extent that
the Member’s Commencement Date under the Qualified Plan is
used as the calculation date, the Member’s Non-Grandfathered
Supplemental Retirement Benefit payable upon the Pension
Commencement Date shall be (i) the amount determined under
Section 3.1 (including for this purpose any Grandfathered
Supplemental Retirement Benefit) with regard to