SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
10-KSB
þ
ANNUAL
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
For
the Fiscal Year Ended September 30, 2006
OR
o
TRANSITION
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
For
the
transition period from _______________ to _______________
Commission
File Number: 000-51726
Magyar
Bancorp, Inc.
(Name
of
Small Business Issuer in its Charter)
Delaware
|
|
20-4154978
|
(State
or Other Jurisdiction of Incorporation or Organization)
|
|
(I.R.S.
Employer Identification Number)
|
400
Somerset Street, New Brunswick, New Jersey
|
|
08901
|
(Address
of Principal Executive Office)
|
|
(Zip
Code)
|
(732)
342-7600
|
(Issuer’s
Telephone Number including area
code)
|
Securities
Registered Pursuant to Section 12(b) of the Act:
|
|
Name
of Each Exchange
|
Title
of Class
|
|
On
Which Registered
|
|
|
|
Common
Stock, par value $0.01 per share
|
|
The
NASDAQ Stock Market, LLC
|
Securities
Registered Pursuant to Section 12(g) of the Act:
Check
whether the issuer is not required to file reports pursuant to Section 13 or
15(d) of the Exchange Act.
o
Check
whether the issuer: (1) filed all reports required to be filed by Section 13
or
15(d) of the Exchange Act during the past twelve months (or for such shorter
period that the Registrant was required to file reports) and (2) has been
subject to such filing requirements for the past 90 days.
(1)
Yes
þ
No
o
Check
if
there is no disclosure of delinquent filers in response to Item 405 of
Regulation S-B contained in this form, and no disclosure will be contained,
to
the best of Registrant’s knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-KSB or any
amendments to this Form 10-KSB.
o
Indicate
by check mark whether the Registrant is a shell company (as defined in Rule
12b-2 of the Exchange Act).
Yes
o
No
þ
The
Registrant’s revenues for the fiscal year ended September 30, 2006 were $24.7
million.
The
aggregate value of the voting stock held by non-affiliates of the Registrant,
computed by reference to the closing price of the Common Stock as of December
15, 2006 was $33.8 million. As of December 15, 2006, there were 5,923,742 shares
issued and outstanding of the Registrant’s Common Stock, including 3,200,450
shares owned by Magyar Bancorp, MHC.
DOCUMENTS
INCORPORATED BY REFERENCE
1.
|
Proxy
Statement for the 2007 Annual Meeting of Stockholders (Part
III)
|
Transitional
Small Business Disclosure Format (check one):
Yes
o
No
þ
Annual
Report On Form 10-KSB
For
The Fiscal Year Ended
September
30, 2006
Table
Of Contents
PART
I
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ITEM
1.
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1
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ITEM
2.
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37
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ITEM
3.
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37
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ITEM
4.
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37
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PART
II
|
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ITEM
5.
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37
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ITEM
6.
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38
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ITEM
7.
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51
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ITEM
8.
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83
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ITEM
8A.
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83
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ITEM
8B.
|
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83
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PART
III
|
|
|
|
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ITEM
9.
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83
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ITEM
10.
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83
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ITEM
11.
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83
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ITEM
12.
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84
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ITEM
13.
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84
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ITEM
14.
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84
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Signatures
|
85
|
PART
I
Forward
Looking Statements
This
Annual Report contains certain “forward-looking statements” which may be
identified by the use of words such as “believe,” “expect,” “anticipate,”
“should,” “planned,” “estimated” and “potential.” Examples of forward-looking
statements include, but are not limited to, estimates with respect to our
financial condition, results of operations and business that are subject to
various factors which could cause actual results to differ materially from
these
estimates and most other statements that are not historical in nature. These
factors include, but are not limited to, general and local economic conditions,
changes in interest rates, deposit flows, demand for mortgage, and other loans,
real estate values, competition, changes in accounting principles, policies,
or
guidelines, changes in legislation or regulation, and other economic,
competitive, governmental, regulatory, and technological factors affecting
our
operations, pricing products and services.
Magyar
Bancorp, MHC
Magyar
Bancorp, MHC is the New Jersey-chartered mutual holding company of Magyar
Bancorp, Inc. Magyar Bancorp, MHC’s only business is the ownership of 54.03% of
the outstanding shares of common stock of Magyar Bancorp, Inc. So long as Magyar
Bancorp, MHC exists, it will be required to own a majority of the voting stock
of Magyar Bancorp, Inc. The executive office of Magyar Bancorp, MHC is located
at 400 Somerset Street, New Brunswick, New Jersey 08903, and its telephone
number is (732) 342-7600. Magyar Bancorp, MHC is subject to comprehensive
regulation and examination by the Board of Governors of the Federal Reserve
System, and the New Jersey Department of Banking and Insurance.
Magyar
Bancorp, Inc.
Magyar
Bancorp, Inc. is the mid-tier stock holding company of Magyar Bank. Magyar
Bancorp, Inc. is a Delaware chartered corporation and owns 100% of the
outstanding shares of common stock of Magyar Bank. Magyar Bancorp, Inc. has
not
engaged in any significant business activity other than owning all of the shares
of common stock of Magyar Bank. At September 30, 2006, Magyar Bancorp, Inc.
had
consolidated assets of $434.2 million, total deposits of $325.6 million and
stockholders’ equity of $48.2 million. Magyar Bancorp, Inc.’s net income for the
fiscal year ended September 30, 2006 was $5,000. The executive offices of Magyar
Bancorp, Inc. are located at 400 Somerset Street, New Brunswick, New Jersey
08903, and its telephone number is (732) 342-7600. Magyar Bancorp, Inc. is
subject to comprehensive regulation and examination by the Board of Governors
of
the Federal Reserve System, and the New Jersey Department of Banking and
Insurance.
On
September 16, 2005, Magyar Bancorp, Inc. filed a Registration Statement on
Form
SB-2 with the Securities and Exchange Commission in connection with Magyar
Bancorp, Inc.’s offer and sale of shares of its common stock in a public
offering. The Registration Statement was declared effective by the Securities
and Exchange Commission on November 14, 2005. The offering was completed on
January 23, 2006. In the offering, Magyar Bancorp, Inc. sold 2,618,550 shares
of
its common stock at a price of $10.00 per share, issued an additional 3,200,450
shares of its common stock to Magyar Bancorp, MHC, and contributed 104,742
shares to MagyarBank Charitable Foundation.
Magyar
Bank
Magyar
Bank is a New Jersey-chartered savings bank headquartered in New Brunswick,
New
Jersey that was originally founded in 1922 as a New Jersey building and loan
association. In 1954, Magyar Bank converted to a New Jersey savings and loan
association, before converting to the New Jersey savings bank charter in 1993.
We conduct business from our main office located at 400 Somerset Street, New
Brunswick, New Jersey, and our three branch offices located in North Brunswick,
South Brunswick, and Branchburg, New Jersey. We opened our third branch office
located in Branchburg, New Jersey on September 29, 2006. The telephone number
at
our main office is (732) 342-7600.
General
Our
principal business consists of attracting retail deposits from the general
public in the areas surrounding our main office in New Brunswick, New Jersey
and
our branch offices located in Middlesex and Somerset Counties, New Jersey,
and
investing those deposits, together with funds generated from operations and
wholesale funding, in residential mortgage loans, home equity loans, home equity
lines of credit, commercial real estate loans, commercial business loans,
construction loans and securities. We also originate consumer loans, primarily
secured demand loans. We originate loans primarily for our loan portfolio.
However, from time to time we have sold some of our long-term fixed-rate
residential mortgage loans into the secondary market, while retaining the
servicing rights for such loans. Our revenues are derived principally from
interest on loans and securities. Our investment securities consist primarily
of
mortgage-backed securities and U.S. Government and Federal Agency obligations.
We also generate revenues from fees and service charges. Our primary sources
of
funds are deposits, borrowings and principal and interest payments on loans
and
securities. We are subject to comprehensive regulation and examination by both
the New Jersey Department of Banking and Insurance and the Federal Deposit
Insurance Corporation.
Market
Area
We
are
headquartered in New Brunswick, New Jersey, and our primary deposit market
area
is concentrated in the communities surrounding our headquarters branch and
our
branch offices located in Middlesex and Somerset County, New Jersey. Our primary
lending market area is broader than our deposit market area and includes all
of
New Jersey. At September 30, 2006, 35.6% of our mortgage loan portfolio
consisted of loans secured by real estate located in Middlesex and Somerset
Counties in New Jersey.
The
economy of our primary market area is diverse. It is largely urban and suburban
with a broad economic base that is typical for counties surrounding the New
York
metropolitan area. Middlesex and Somerset Counties are projected to experience
moderate population and household growth through 2010. These counties have
an
aging population base with the strongest growth projected in the 55-and-older
age group and $50,000 or greater household income category.
Competition
We
face
intense competition within our market area both in making loans and attracting
deposits. Our market area has a high concentration of financial institutions
including large money center and regional banks, community banks and credit
unions. Some of our competitors offer products and services that we currently
do
not offer, such as trust services and private banking. According to the Federal
Deposit Insurance Corporation’s annual
Summary
of Deposit
report,
at June 30, 2006 our market share of deposits was 0.16% of deposits in the
State
of New Jersey.
Our
competition for loans and deposits comes principally from commercial banks,
savings institutions, mortgage banking firms and credit unions. We face
additional competition for deposits from short-term money market funds,
brokerage firms, mutual funds and insurance companies. Our primary focus is
to
build and develop profitable customer relationships across all lines of business
while maintaining our role as a community bank.
Lending
Activities
We
originate residential mortgage loans to purchase or refinance residential real
property. Residential mortgage loans represented $143.2 million, or 40.7% of
our
total loans at September 30, 2006. Historically, we have not originated a
significant number of loans for the purpose of reselling them in the secondary
market. In the future, however, to help manage interest rate risk and to
increase fee income, we intend to increase our origination and sale of 15-
to
30-year, fixed-rate residential mortgage loans. No loans were held for sale
at
September 30, 2006. We also originate commercial real estate, commercial
business and construction loans. At September 30, 2006, these loans totaled
$68.6 million, $24.5 million and $90.3 million, respectively. We also offer
consumer loans, which consist primarily of home equity lines of credit and
stock-secured demand loans. At September 30, 2006, home equity lines of credit
and stock-secured demand loans totaled $10.8 million and $14.3 million,
respectively.
Loan
Portfolio Composition.
The
following table sets forth the composition of our loan portfolio by type of
loan, at the dates indicated.
|
|
At
September 30,
|
|
|
|
2006
|
|
2005
|
|
2004
|
|
2003
|
|
2002
|
|
|
|
Amount
|
|
Percent
|
|
Amount
|
|
Percent
|
|
Amount
|
|
Percent
|
|
Amount
|
|
Percent
|
|
Amount
|
|
Percent
|
|
|
|
|
|
|
|
(Dollars
in thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
One-to
four-family residential
|
|
$
|
143,245
|
|
|
40.65
|
%
|
$
|
126,269
|
|
|
46.64
|
%
|
$
|
108,722
|
|
|
55.50
|
%
|
$
|
107,531
|
|
|
61.08
|
%
|
$
|
119,876
|
|
|
65.81
|
%
|
Commercial
real estate
|
|
|
68,567
|
|
|
19.46
|
%
|
|
57,366
|
|
|
21.19
|
%
|
|
19,935
|
|
|
10.18
|
%
|
|
19,354
|
|
|
10.99
|
%
|
|
17,574
|
|
|
9.65
|
%
|
Construction
|
|
|
90,342
|
|
|
25.64
|
%
|
|
44,418
|
|
|
16.41
|
%
|
|
5,526
|
|
|
2.82
|
%
|
|
5,188
|
|
|
2.95
|
%
|
|
1,883
|
|
|
1.03
|
%
|
Home
equity lines of credit
|
|
|
10,843
|
|
|
3.08
|
%
|
|
10,398
|
|
|
3.84
|
%
|
|
9,065
|
|
|
4.63
|
%
|
|
7,301
|
|
|
4.15
|
%
|
|
6,963
|
|
|
3.82
|
%
|
Commercial
business
|
|
|
24,510
|
|
|
6.96
|
%
|
|
17,413
|
|
|
6.43
|
%
|
|
27,698
|
|
|
14.14
|
%
|
|
9,630
|
|
|
5.47
|
%
|
|
7,985
|
|
|
4.38
|
%
|
Other
|
|
|
14,846
|
|
|
4.21
|
%
|
|
14,862
|
|
|
5.49
|
%
|
|
24,964
|
|
|
12.74
|
%
|
|
27,042
|
|
|
15.36
|
%
|
|
27,882
|
|
|
15.31
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
loans receivable
|
|
$
|
352,353
|
|
|
100.00
|
%
|
$
|
270,726
|
|
|
100.00
|
%
|
$
|
195,910
|
|
|
100.00
|
%
|
$
|
176,046
|
|
|
100.00
|
%
|
$
|
182,163
|
|
|
100.00
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deferred
loan costs (fees)
|
|
|
(492
|
)
|
|
|
|
|
(280
|
)
|
|
|
|
|
(19
|
)
|
|
|
|
|
(128
|
)
|
|
|
|
|
21
|
|
|
|
|
Allowance
for loan losses
|
|
|
(3,892
|
)
|
|
|
|
|
(3,129
|
)
|
|
|
|
|
(2,341
|
)
|
|
|
|
|
(2,150
|
)
|
|
|
|
|
(1,926
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
loans receivable, net
|
|
$
|
347,969
|
|
|
|
|
$
|
267,317
|
|
|
|
|
$
|
193,550
|
|
|
|
|
$
|
173,768
|
|
|
|
|
$
|
180,258
|
|
|
|
|
Loan
Portfolio Maturities and Yields.
The
following table summarizes the scheduled repayments of our loan portfolio at
September 30, 2006. Demand loans, loans having no stated repayment schedule
or
maturity, and overdraft loans are reported as being due in one year or less.
|
|
One-to-Four
Family
|
|
Commercial
|
|
|
|
|
|
Home
Equity
|
|
|
|
Residential
|
|
Real
Estate
|
|
Construction
|
|
Lines
of Credit
|
|
Due
During
|
|
|
|
Weighted
|
|
|
|
Weighted
|
|
|
|
Weighted
|
|
|
|
Weighted
|
|
The
Fiscal Years
|
|
|
|
Average
|
|
|
|
Average
|
|
|
|
Average
|
|
|
|
Average
|
|
Ending
September 30,
|
|
Amount
|
|
Rate
|
|
Amount
|
|
Rate
|
|
Amount
|
|
Rate
|
|
Amount
|
|
Rate
|
|
|
|
(Dollars
in thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2007
|
|
$
|
3,573
|
|
|
8.66
|
%
|
$
|
6,344
|
|
|
8.91
|
%
|
$
|
63,256
|
|
|
9.00
|
%
|
$
|
1,020
|
|
|
9.36
|
%
|
2008
|
|
|
2,755
|
|
|
6.61
|
%
|
|
1,199
|
|
|
8.46
|
%
|
|
23,278
|
|
|
9.00
|
%
|
|
570
|
|
|
7.92
|
%
|
2009
|
|
|
1,238
|
|
|
5.48
|
%
|
|
642
|
|
|
7.54
|
%
|
|
3,310
|
|
|
8.25
|
%
|
|
0
|
|
|
-
|
|
2010
to 2011
|
|
|
1,995
|
|
|
5.76
|
%
|
|
1,304
|
|
|
7.21
|
%
|
|
498
|
|
|
7.61
|
%
|
|
18
|
|
|
9.75
|
%
|
2012
to 2016
|
|
|
16,020
|
|
|
5.77
|
%
|
|
4,031
|
|
|
7.21
|
%
|
|
-
|
|
|
-
|
|
|
639
|
|
|
6.71
|
%
|
2017
to 2020
|
|
|
22,586
|
|
|
5.12
|
%
|
|
5,514
|
|
|
6.54
|
%
|
|
-
|
|
|
-
|
|
|
0
|
|
|
-
|
|
2021
and beyond
|
|
|
95,078
|
|
|
5.63
|
%
|
|
49,533
|
|
|
6.87
|
%
|
|
-
|
|
|
-
|
|
|
8,596
|
|
|
7.77
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
143,245
|
|
|
5.66
|
%
|
$
|
68,567
|
|
|
7.10
|
%
|
$
|
90,342
|
|
|
8.96
|
%
|
$
|
10,843
|
|
|
7.87
|
%
|
|
|
Commercial
Business
|
|
Other
|
|
Total
|
|
Due
During
|
|
|
|
Weighted
|
|
|
|
Weighted
|
|
|
|
Weighted
|
|
The
Fiscal Years
|
|
|
|
Average
|
|
|
|
Average
|
|
|
|
Average
|
|
Ending
September 30,
|
|
Amount
|
|
Rate
|
|
Amount
|
|
Rate
|
|
Amount
|
|
Rate
|
|
|
|
(Dollars
in thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2007
|
|
$
|
15,280
|
|
|
8.78
|
%
|
$
|
12,997
|
|
|
7.39
|
%
|
$
|
102,470
|
|
|
8.75
|
%
|
2008
|
|
|
2,280
|
|
|
8.43
|
%
|
|
1,357
|
|
|
7.31
|
%
|
|
31,439
|
|
|
8.64
|
%
|
2009
|
|
|
300
|
|
|
8.14
|
%
|
|
24
|
|
|
8.44
|
%
|
|
5,514
|
|
|
7.54
|
%
|
2010
to 2011
|
|
|
965
|
|
|
7.76
|
%
|
|
49
|
|
|
12.46
|
%
|
|
4,829
|
|
|
6.82
|
%
|
2012
to 2016
|
|
|
4,536
|
|
|
7.38
|
%
|
|
153
|
|
|
4.78
|
%
|
|
25,379
|
|
|
6.30
|
%
|
2017
to 2020
|
|
|
-
|
|
|
-
|
|
|
1
|
|
|
13.00
|
%
|
|
28,101
|
|
|
5.40
|
%
|
2021
and beyond
|
|
|
1,149
|
|
|
7.69
|
%
|
|
265
|
|
|
6.09
|
%
|
|
154,621
|
|
|
6.16
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
24,510
|
|
|
8.39
|
%
|
$
|
14,846
|
|
|
7.35
|
%
|
$
|
352,353
|
|
|
7.11
|
%
|
The
following table sets forth the scheduled repayments of fixed- and
adjustable-rate loans at September 30, 2006 that are contractually due after
September 30, 2007.
|
|
Due
After September 30, 2007
|
|
|
|
Fixed
|
|
Adjustable
|
|
Total
|
|
|
|
(In
thousands)
|
|
|
|
|
|
|
|
|
|
One-to
four-family residential
|
|
$
|
92,421
|
|
$
|
47,251
|
|
$
|
139,672
|
|
Commercial
real estate
|
|
|
9,323
|
|
|
52,900
|
|
|
62,223
|
|
Construction
|
|
|
-
|
|
|
27,086
|
|
|
27,086
|
|
Home
equity lines of credit
|
|
|
-
|
|
|
9,823
|
|
|
9,823
|
|
Commercial
Business
|
|
|
2,772
|
|
|
6,458
|
|
|
9,230
|
|
Other
|
|
|
256
|
|
|
1,593
|
|
|
1,849
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
104,772
|
|
$
|
145,111
|
|
$
|
249,883
|
|
Residential
Mortgage Loans.
We
originate residential mortgage loans, most of which are secured by properties
located in our primary market area and most of which we hold in portfolio.
At
September 30, 2006, $143.2 million, or 40.7% of our total loan portfolio,
consisted of residential mortgage loans (including home equity loans).
Residential mortgage loan originations are generally obtained from our in-house
loan representatives, from existing or past customers, through advertising,
and
through referrals from local builders, real estate brokers and attorneys, and
are underwritten pursuant to Magyar Bank’s policies and standards. Generally,
residential mortgage loans are originated in amounts up to 80% of the lesser
of
the appraised value or purchase price of the property, with private mortgage
insurance required on loans with a loan-to-value ratio in excess of 80%. We
generally will not make loans with a loan-to-value ratio in excess of 97%,
which
is the upper limit that has been established by the Board of Directors. Mortgage
loans have been originated for terms of up to 30 years and are currently offered
for terms up to 40 years.
We
also
originate home equity loans secured by residences located in our market area.
The underwriting standards we use for home equity loans include a determination
of the applicant’s credit history, an assessment of the applicant’s ability to
meet existing obligations, the ongoing payments on the proposed loan and the
value of the collateral securing the loan. The maximum combined (first and
second mortgage liens) loan-to-value ratio for home equity loans and home equity
lines of credit is 90%. Home equity loans are generally offered with fixed
rates
of interest with the loan amount not to exceed $500,000 and with terms of up
to
30 years.
Generally,
all fixed-rate residential mortgage loans are underwritten according to Freddie
Mac guidelines, policies and procedures. Historically, we have not originated
a
significant number of loans for the purpose of reselling them in the secondary
market. In the future, however, to help manage interest rate risk and to
increase fee income, we intend to increase our origination and sale of
fixed-rate residential mortgage loans. No loans were held for sale at September
30, 2006.
We
generally do not purchase residential mortgage loans, except for loans to
low-income borrowers to enhance our Community Reinvestment Act performance.
At
September 30, 2006, we had $6.5 million of purchased one-to four-family
residential mortgage loans. No loans were purchased in the fiscal year ended
September 30, 2006.
At
September 30, 2006, we had $94.4 million of fixed-rate residential mortgage
loans, which represented 65.9% of our total residential mortgage loan portfolio.
At September 30, 2006, our largest fixed-rate residential mortgage loan was
for
$1.1 million. The loan was performing in accordance with its terms at September
30, 2006.
We
also
offer adjustable-rate residential mortgage loans with interest rates based
on
the weekly average yield on U.S. Treasuries adjusted to a constant maturity
of
one year, which adjusts either annually from the outset of the loan or which
adjusts annually after a one-, three-, five- or seven-year initial fixed-rate
period. Our adjustable-rate mortgage loans generally provide for maximum rate
adjustments of 2% per adjustment, with a lifetime maximum adjustment up to
5%,
regardless of the initial rate. We also offer adjustable-rate mortgage loans
with an interest rate based on the prime rate as published in
The
Wall Street Journal
or the
Federal Home Loan Bank of New York advance rates.
Adjustable-rate
mortgage loans decrease the risk associated with changes in market interest
rates by periodically repricing. However, these loans have other risks because,
as interest rates increase, the underlying payments by the borrower increase,
which increases the potential for default by the borrower. At the same time,
the
marketability of the underlying collateral may be adversely affected by higher
interest rates. The maximum periodic and lifetime interest rate adjustments
also
may limit the effectiveness of adjustable-rate mortgage loans during periods
of
rapidly rising interest rates.
At
September 30, 2006, adjustable-rate residential mortgage loans totaled $48.8
million, or 34.1% of our total residential mortgage loan portfolio. Of these
loans, $15.9 million were interest-only loans originated with an average
loan-to-value of 69.1%. At September 30, 2006, our largest adjustable-rate
residential mortgage loan was for $1.2 million. The loan was performing in
accordance with its terms at September 30, 2006.
In
an
effort to provide financing for low- and moderate-income home buyers, we offer
low-to-moderate income residential mortgage loans. These loans are offered
with
fixed rates of interest and terms of up to 40 years, and are secured by one-to
four-family residential properties. All of these loans are originated using
underwriting guidelines of U.S. government sponsored agencies such as Freddie
Mac or Fannie Mae. These loans are originated with maximum loan-to-value ratios
of 97%, which is higher than the maximum loan-to-value ratios of our standard
one- to four-family mortgage loans. In addition, we have a small portfolio
of
Veterans Administration (VA) and Federal Housing Administration (FHA)
loans.
Private
mortgage insurance is required on all such loans. At September 30, 2006, we
had
$18,000 of VA loans and $2,000 in FHA loans.
All
residential mortgage loans we originate include “due-on-sale” clauses, which
give us the right to declare a loan immediately due and payable if the borrower
sells or otherwise disposes of the real property securing the mortgage loan.
All
borrowers are required to obtain title insurance, fire and casualty insurance
and, if warranted, flood insurance on properties securing real estate loans.
Commercial
Real Estate Loans.
As
part
of our strategy to add to and diversify our loan portfolio, we have continued
our focus on increasing our originations of commercial real estate loans. At
September 30, 2006, $68.6 million, or 19.5%, of our total loan portfolio
consisted of these types of loans. Commercial real estate loans are generally
secured by five-or-more-unit apartment buildings, industrial properties and
properties used for business purposes such as small office buildings and retail
facilities primarily located in our market area. We generally originate
adjustable-rate commercial real estate loans with a maximum term of 25 years,
provided adjustable rate periods limit the initial payment period to no more
than five years. The maximum loan-to-value ratio for our commercial real estate
loans is 75%, based on the appraised value of the property.
We
consider a number of factors when we originate commercial real estate loans.
During the underwriting process we evaluate the business qualifications and
financial condition of the borrower, including credit history, profitability
of
the property being financed, as well as the value and condition of the mortgaged
property securing the loan. When evaluating the business qualifications of
the
borrower, we consider the financial resources of the borrower, the borrower’s
experience in owning or managing similar property and the borrower’s payment
history with us and other financial institutions. In evaluating the property
securing the loan, we consider the net operating income of the mortgaged
property before debt service and depreciation, the ratio of the loan amount
to
the appraised value of the mortgaged property and the debt service coverage
ratio (the ratio of net operating income to debt service) to ensure it is at
least 120% of the monthly debt service. We require personal guarantees on all
commercial real estate loans made to individuals. Generally, commercial real
estate loans made to corporations, partnerships and other business entities
require personal guarantees by the principals. All borrowers are required to
obtain title, fire and casualty insurance and, if warranted, flood insurance.
Loans
secured by commercial real estate generally are larger than residential mortgage
loans and involve greater credit risk. Commercial real estate loans often
involve large loan balances to single borrowers or groups of related borrowers.
Repayment of these loans depends to a large degree on the results of operations
and management of the properties securing the loans or the businesses conducted
on such property, and may be affected to a greater extent by adverse conditions
in the real estate market or the economy in general. Accordingly, the nature
of
these loans makes them more difficult for management to monitor and evaluate.
The
maximum amount of a commercial real estate loan is limited by our
Board-established loans-to-one-borrower limit, which is currently 15% of Magyar
Bank’s capital, or $5.9 million. At September 30, 2006, our largest commercial
real estate loan was $3.0 million and was secured by a medical daycare facility.
At September 30, 2006, with the exception of one $1.9 million loan 90 days
past
due and still accruing, all loans secured by commercial real estate were
performing in accordance with their terms.
Construction
Loans.
We
also
originate construction loans for the development of one-to four-family homes,
townhomes, condominiums, apartment buildings and commercial properties.
Construction loans are generally offered to experienced local developers
operating in our primary market area and to individuals for the construction
of
their personal residences.
At
September 30, 2006, construction loans for the development of one-to four-family
residential properties totaled $53.1 million, or 15.1% of total loans. These
construction loans have a maximum term of 24 months. We provide financing for
land acquisition, site improvement and construction of individual homes. Land
acquisition funds are limited to 50% to 75% of the sale price of the land.
Site
improvement funds are limited to 100% of the bonded site improvement costs.
Construction funds are limited to 75% of the lesser of the contract sale price
or appraised value of the property (less funds already advanced for land
acquisition and site improvement).
At
September 30, 2006, construction loans for the development of townhomes,
condominiums and apartment buildings totaled $26.8 million, or 7.6% of total
loans. These construction loans also have a maximum term of 24 months. We
generally require that a commitment for permanent financing be in place prior
to
closing construction loans. The maximum loan-to-value ratio limit applicable
to
these loans is 75% of the appraised value of the property. In addition, the
property must maintain a debt service coverage ratio of 120%. Finally, we may
retain up to 10% of each loan advance until the property attains a 90% occupancy
level.
At
September 30, 2006, construction loans for the development of commercial
properties totaled $10.5 million, or 3.0% of total loans. These construction
loans also have a maximum term of 36 months. The maximum loan-to-value ratio
limit applicable to these loans is 75% of the appraised value of the property.
In addition, the property must maintain a debt service coverage ratio of 120%.
The
maximum amount of a construction loan is limited by our loans-to-one-borrower
limit, which is currently 15% of Magyar Bank’s capital, or $5.9 million. At
September 30, 2006, our largest outstanding construction loan balance was for
$4.2 million. The loan was secured by seven unimproved residential lots located
in Rumson, New Jersey. This loan was performing according to its terms at
September 30, 2006. At September 30, 2006, with the exception of four
residential construction loans to builder Kara Homes, Inc. in the aggregate
amount of $5.1 million (see Item 7. Management’s Discussion and Analysis or Plan
of Operations), all of our construction loans were performing in accordance
with
their terms.
Before
making a commitment to fund a construction loan, we require an appraisal of
the
property by an independent licensed appraiser. We generally also engage an
outside engineering firm to review and inspect each property before disbursement
of funds during the term of a construction loan. Loan proceeds are disbursed
after inspection based on the percentage of completion method. We require a
personal guaranty from each principal of all of our construction loan borrowers.
Construction
lending is generally considered to involve a higher degree of credit risk than
long-term financing on improved, owner-occupied real estate. Risk of loss on
a
construction loan depends largely upon the accuracy of the initial estimate
of
the value of the property at completion of construction compared to the
estimated cost (including interest) of construction and other assumptions.
If
the estimate of construction cost is inaccurate, we may be required to advance
funds beyond the amount originally committed in order to protect the value
of
the property. Additionally, if our estimate of the value of the completed
property is inaccurate, our construction loan may exceed the value of the
collateral.
Commercial
Business Loans.
At
September 30, 2006, our commercial business loans totaled $24.5 million, or
7.0%
of total loans. We make commercial business loans primarily in our market area
to a variety of professionals, sole proprietorships and small and mid-sized
businesses. Our commercial business loans include term loans and revolving
lines
of credit. The maximum term of a commercial business loan is 15 years. Such
loans are generally used for longer-term working capital purposes such as
purchasing equipment or furniture. Commercial business loans are made with
either adjustable or fixed rates of interest. The interest rates for adjustable
commercial business loans are based on the prime rate as published in
The
Wall Street Journal
.
When
making commercial business loans, we consider the financial strength of the
borrower, our lending history with the borrower, the debt service capabilities
of the borrower, the projected cash flows of the business and the value and
type
of the collateral. Commercial business loans generally are secured by a variety
of collateral, primarily accounts receivable, inventory, equipment, savings
instruments and readily marketable securities. In addition, we generally require
the business principals to execute personal guarantees.
Commercial
business loans generally have greater credit risk than residential mortgage
loans. Unlike residential mortgage loans, which generally are made on the basis
of the borrower’s ability to repay the loan from his or her employment income,
and which are secured by real property with ascertainable value, commercial
business loans generally are made on the basis of the borrower’s ability to
repay the loan from the cash flow of the borrower’s business. As a result, the
repayment of commercial business loans may depend substantially on the success
of the borrower’s business. Further, any collateral securing commercial business
loans may depreciate over time, may be difficult to appraise and may fluctuate
in value. We try to minimize these risks through our underwriting standards.
The
maximum amount of a commercial business loan is limited by our
loans-to-one-borrower limit, which is 15% of Magyar Bank’s capital, or $5.9
million currently. At September 30, 2006, our largest commercial business loan
was a $2.8 million loan to a manufacturing company and was secured by business
assets and real estate located in our primary market area. This loan was
performing according to its terms at September 30, 2006. At September 30, 2006,
all of our commercial business loans were performing in accordance with their
terms with the exception of a $165,000 loan to a wholesale supply company and
a
$23,000 credit line to an event planner.
Home
Equity Lines of Credit and Other Loans.
We
originate home equity lines of credit secured by residences located in our
market area. At September 30, 2006, these loans totaled $10.8 million, or 3.1%
of our total loan portfolio.
The
underwriting standards we use for home equity lines of credit include a
determination of the applicant’s credit history, an assessment of the
applicant’s ability to meet existing obligations, the ongoing payments on the
proposed loan and the value of the collateral securing the loan. The maximum
combined (first and second mortgage liens) loan-to-value ratio for home equity
lines of credit is 90%. Home equity lines of credit have adjustable rates of
interest, indexed to the prime rate, as reported in
The
Wall Street Journal
,
with
terms of up to 25 years.
We
also
originate loans secured by the common stock of publicly traded companies,
provided their shares are listed on the New York Stock Exchange, the American
Stock Exchange or the Nasdaq Stock Market, and provided the company is not
a
banking company. Stock-secured loans are interest-only and are offered for
terms
up to twelve months and for adjustable rates of interest indexed to the prime
rate, as reported in
The
Wall Street Journal.
The
loan
amount is not to exceed 70% of the value of the stock securing the loan at
any
time.
At
September 30, 2006, stock-secured consumer demand loans totaled $14.3 million,
or 4.1% of our total loan portfolio.
Generally,
we limit the aggregate amount of loans secured by the common stock of any one
corporation to 15% of Magyar Bank’s capital, with the exception of Johnson &
Johnson, for which the collateral concentration limit is 150% of Magyar Bank’s
capital. At September 30, 2006, $14.0 million, or 4.0% of our loan portfolio,
was secured by the common stock of Johnson & Johnson, a New York Stock
Exchange company that operates a number of facilities in our market area and
employs a substantial number of residents. Although these loans are underwritten
based on the ability of the individual borrower to repay the loan, the
concentration of our portfolio secured by this stock subjects us to the risk
of
a decline in the market price of the stock and, therefore, a reduction in the
value of the collateral securing these loans. As of September 30, 2006, the
aggregate loan-to-value ratio of the stock-secured portfolio was
32.0%.
Loan
Originations, Purchases, Participations and Servicing of Loans.
Lending
activities are conducted primarily by our loan personnel operating at our main
and branch office locations. All loans originated by us are underwritten
pursuant to our policies and procedures. We originate both adjustable rate
and
fixed rate loans. Our ability to originate fixed or adjustable rate loans is
dependent upon the relative customer demand for such loans, which is affected
by
the current and expected future levels of market interest rates.
Generally,
we retain in our portfolio substantially all loans that we originate.
Historically, we have not originated a significant number of loans for the
purpose of reselling them in the secondary market. In the future, however,
to
help manage our interest rate risk and to increase fee income, we intend to
increase our origination and sale of fixed-rate residential loans. All one-to
four-family residential mortgage loans that we sell in the secondary market
are
sold with servicing rights retained pursuant to master commitments negotiated
with Freddie Mac. We sell our loans without recourse. No loans were held for
sale at September 30, 2006.
At
September 30, 2006, we were servicing loans sold in the amount of $12.3 million.
Loan servicing includes collecting and remitting loan payments, accounting
for
principal and interest, contacting delinquent mortgagors, supervising
foreclosures and property dispositions in the event of unremedied defaults,
making certain insurance and tax payments on behalf of the borrowers and
generally administering the loans.
From
time-to-time, we will also participate in loans, sometimes as the “lead lender.”
Whether we are the lead lender or not, we underwrite our participation portion
of the loan according to our own underwriting criteria and procedures. At
September 30, 2006, we had $19.3 million of loan participation interests in
which we were the lead lender, and $6.7 million in loan participations in which
we were not the lead lender. We have entered into loan participations when
the
aggregate outstanding balance of a particular customer relationship exceeds
our
loan-to-one-borrower limit. We have the right to repurchase any or all portions
of the participations at our discretion. All loan participations are loans
secured by real estate or stock certificates that adhere to our loan policies.
We have not experienced any loan losses in our loan participations
portfolio.
During
the fiscal year ended September 30, 2006, we originated $29.7 million of
fixed-rate and adjustable-rate one- to four-family residential mortgage loans,
of which $29.3 million were retained by us. The fixed-rate loans retained by
us
consisted primarily of loans with terms of 30 years or less. We also originated
$24.3 million of commercial real estate, $77.8 million of construction loans,
and $15.4 million of commercial business loans during the fiscal year ended
September 30, 2006.
We
generally do not purchase residential mortgage loans, except for loans to
low-income borrowers as part of our Community Reinvestment Act lenders program.
At September 30, 2006, we had $6.5 million of one-to four-family residential
mortgage loans that were purchased from other lenders. No loans were purchased
in the fiscal year ended September 30, 2006.
Loan
Approval Procedures and Authority
.
Our
lending activities follow written, non-discriminatory underwriting standards
and
loan origination procedures established by our Board of Directors. In the
approval process for loans, we assess the borrower’s ability to repay the loan
and the value of the property securing the loan. To assess an individual
borrower’s ability to repay, we review income and expense, employment and credit
history. To assess a business entity’s ability to repay, we review financial
statements (including balance sheets, income statements and cash flow
statements), rent rolls, other debt service, and projected income and expense.
We
generally require appraisals for all real estate securing loans. Appraisals
are
performed by independent licensed appraisers who are approved annually by our
Board of Directors. We require borrowers to obtain title, fire and casualty,
general liability, and, if warranted, flood insurance in amounts at least equal
to the principal amount of the loan. For construction loans, we require a
detailed plan and cost review, to be reviewed by an outside engineering firm,
and all construction-related state and local approvals necessary for a
particular project.
Our
loan
approval policies and limits are established by our Board of Directors. All
loans are approved in accordance with the loan approval policies and limits.
Lending authorities are approved annually by the Board of Directors, and Magyar
Bank lending staff members are authorized to approve loans up to their lending
authority limits, provided the loan meets all of our underwriting
guidelines.
Loan
requests for aggregate borrowings up to $1.5 million must be approved by Magyar
Bank’s Chief Lending Officer or President. Other members of our lending staff
have lesser amounts of lending authority based on their experience as lending
officers. Loan requests for aggregate borrowings up to $2.0 million must be
approved by Magyar Bank’s Management Loan Committee. The Management Loan
Committee is comprised of the President, Chief Lending Officer, Chief Financial
Officer and various bank officers appointed by the Board of Directors. A quorum
of three members including either the President or the Chief Lending Officer
is
required for all Management Loan Committee meetings. The Directors Loan
Committee and the Board of Directors must approve all loan requests for
aggregate borrowings in excess of $2.0 million.
Asset
Quality
We
commence collection efforts when a loan becomes 15 days past due with
system-generated reminder notices. Subsequent late charge and delinquent notices
are issued and the account is monitored on a regular basis thereafter. Personal,
direct contact with the borrower is attempted early in the collection process
as
a courtesy reminder and later to determine the reason for the delinquency and
to
safeguard our collateral. When a loan is more than 60 days past due, the credit
file is reviewed and, if deemed necessary, information is updated or confirmed
and collateral re-evaluated. We make every effort to contact the borrower and
develop a plan of repayment to cure the delinquency. Loans are placed on
non-accrual status when they are delinquent for more than three months. When
loans are placed on non-accrual status, unpaid accrued interest is fully
reversed, and further income is recognized only to the extent
received.
A
summary
report of all loans 30 days or more past due is provided to the Board of
Directors on a monthly basis. If no repayment plan is in process, the file
is
referred to counsel for the commencement of foreclosure or other collection
efforts.
Non-Performing
Assets.
The
table
below sets forth the amounts and categories of our non-performing assets at
the
dates indicated. At each date presented, we had no troubled debt restructurings
(loans for which a portion of interest or principal has been forgiven and loans
modified at interest rates materially less than current market rates).
|
|
At
September 30,
|
|
|
|
2006
|
|
2005
|
|
2004
|
|
2003
|
|
2002
|
|
|
|
(Dollars
in thousands)
|
|
Non-accrual
loans:
|
|
|
|
|
|
|
|
|
|
|
|
One-to
four-family residential
|
|
$
|
56
|
|
$
|
188
|
|
$
|
153
|
|
$
|
178
|
|
$
|
155
|
|
Commercial
real estate
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Construction
|
|
|
5,135
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Home
equity lines of credit
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Commercial
Business
|
|
|
188
|
|
|
387
|
|
|
94
|
|
|
-
|
|
|
-
|
|
Other
|
|
|
-
|
|
|
2
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
5,379
|
|
|
577
|
|
|
247
|
|
|
178
|
|
|
155
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accruing
loans three months or more past due:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
One-to
four-family residential
|
|
|
88
|
|
|
205
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Commercial
real estate
|
|
|
1,933
|
|
|
257
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Construction
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Home
equity lines of credit
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Commercial
Business
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Other
|
|
|
-
|
|
|
1
|
|
|
-
|
|
|
3
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
loans three months or more past due
|
|
|
2,021
|
|
|
463
|
|
|
-
|
|
|
3
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
non-performing loans
|
|
$
|
7,400
|
|
$
|
1,040
|
|
$
|
247
|
|
$
|
181
|
|
$
|
155
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Foreclosed
real estate
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Other
non-performing assets
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
non-performing assets
|
|
$
|
7,400
|
|
$
|
1,040
|
|
$
|
247
|
|
$
|
181
|
|
$
|
155
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ratios:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
non-performing loans to total loans
|
|
|
2.10
|
%
|
|
0.38
|
%
|
|
0.13
|
%
|
|
0.10
|
%
|
|
0.09
|
%
|
Total
non-performing loans to total assets
|
|
|
1.70
|
%
|
|
0.29
|
%
|
|
0.09
|
%
|
|
0.07
|
%
|
|
0.06
|
%
|
Total
non-performing assets to total assets
|
|
|
1.70
|
%
|
|
0.29
|
%
|
|
0.09
|
%
|
|
0.07
|
%
|
|
0.06
|
%
|
At
September 30, 2006, our portfolio of commercial business, commercial real estate
and construction loans totaled $183.4 million, or 52.1% of our total loans,
compared to $119.2 million, or 44.0% of our total loans, at September 30, 2005.
Commercial business, commercial real estate and construction loans generally
have more risk than one-to four-family residential mortgage loans. As shown
in
the table above, at September 30, 2006, our non-performing loans increased
to
$7.4 million from $1.0 million at September 30, 2005 and $247,000 at September
30, 2004, reflecting our increased originations of these loans (See Item 6.
-
Management’s Discussion and Analysis or Plan of Operation).
Additional
interest income of approximately $
49,000
and
$26,000
would
have been recorded during the fiscal years ended September 30, 2006 and 2005,
respectively, if the non-accrual loans summarized in the above table had
performed in accordance with their original terms. No interest income was
recorded on non-accrual loans more than three months delinquent for the fiscal
years ended September 30, 2006 and 2005, respectively.
Delinquent
Loans
.
The
following table sets forth certain information with respect to our loan
portfolio delinquencies at the dates indicated. Loans delinquent more than
three
months are generally classified as non accrual loans.
|
|
Loans
Delinquent For
|
|
|
|
|
|
|
|
60-89
Days
|
|
90
Days and Over
|
|
Total
|
|
|
|
Number
|
|
Amount
|
|
Number
|
|
Amount
|
|
Number
|
|
Amount
|
|
|
|
(Dollars
in thousands)
|
|
At
September 30, 2006
|
|
|
|
|
|
|
|
|
|
|
|
|
|
One-to
four-family residential
|
|
|
-
|
|
$
|
-
|
|
|
3
|
|
$
|
144
|
|
|
3
|
|
$
|
144
|
|
Commercial
real estate
|
|
|
-
|
|
|
-
|
|
|
1
|
|
|
1,933
|
|
|
1
|
|
|
1,933
|
|
Construction
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Home
equity lines of credit
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Commercial
business
|
|
|
-
|
|
|
-
|
|
|
3
|
|
|
188
|
|
|
3
|
|
|
188
|
|
Other
|
|
|
-
|
|
|
-
|
|
|
1
|
|
|
0
|
|
|
1
|
|
|
0
|
|
Total
|
|
|
-
|
|
$
|
-
|
|
|
8
|
|
$
|
2,265
|
|
|
8
|
|
$
|
2,265
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At
September 30, 2005
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
One-to
four-family residential
|
|
|
2
|
|
$
|
50
|
|
|
6
|
|
$
|
393
|
|
|
8
|
|
$
|
443
|
|
Commercial
real estate
|
|
|
-
|
|
|
-
|
|
|
1
|
|
$
|
257
|
|
|
1
|
|
|
257
|
|
Construction
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Home
equity lines of credit
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Commercial
business
|
|
|
-
|
|
|
-
|
|
|
4
|
|
|
387
|
|
|
4
|
|
|
387
|
|
Other
|
|
|
1
|
|
|
220
|
|
|
4
|
|
|
3
|
|
|
5
|
|
|
223
|
|
Total
|
|
|
3
|
|
$
|
270
|
|
|
15
|
|
$
|
1,040
|
|
|
18
|
|
$
|
1,310
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At
September 30, 2004
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
One-to
four-family residential
|
|
|
5
|
|
$
|
586
|
|
|
3
|
|
$
|
153
|
|
|
8
|
|
$
|
739
|
|
Commercial
real estate
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Construction
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Home
equity lines of credit
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Commercial
business
|
|
|
3
|
|
|
1,628
|
|
|
1
|
|
|
94
|
|
|
4
|
|
|
1,722
|
|
Other
|
|
|
3
|
|
|
70
|
|
|
-
|
|
|
-
|
|
|
3
|
|
|
70
|
|
Total
|
|
|
11
|
|
$
|
2,284
|
|
|
4
|
|
$
|
247
|
|
|
15
|
|
$
|
2,531
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At
September 30, 2003
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
One-to
four-family residential
|
|
|
2
|
|
$
|
466
|
|
|
3
|
|
$
|
178
|
|
|
5
|
|
$
|
644
|
|
Commercial
real estate
|
|
|
-
|
|
|
-
|
|
|
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Construction
|
|
|
-
|
|
|
-
|
|
|
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Home
equity lines of credit
|
|
|
-
|
|
|
-
|
|
|
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Commercial
business
|
|
|
1
|
|
|
106
|
|
|
|
|
|
-
|
|
|
1
|
|
|
106
|
|
Other
|
|
|
1
|
|
|
5
|
|
|
1
|
|
|
3
|
|
|
2
|
|
|
8
|
|
Total
|
|
|
4
|
|
$
|
577
|
|
|
4
|
|
$
|
181
|
|
|
8
|
|
$
|
758
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At
September 30, 2002
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
One-to
four-family residential
|
|
|
1
|
|
$
|
96
|
|
|
3
|
|
$
|
155
|
|
|
4
|
|
$
|
251
|
|
Commercial
real estate
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Construction
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Home
equity lines of credit
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Commercial
business
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Other
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Total
|
|
|
1
|
|
$
|
96
|
|
|
3
|
|
$
|
155
|
|
|
4
|
|
$
|
251
|
|
Real
Estate Owned
.
Real
estate we acquire as a result of foreclosure or by deed in lieu of foreclosure
is classified as real estate owned until sold. When property is acquired it
is
recorded at fair market value at the date of foreclosure, establishing a new
cost basis. Holding costs and declines in fair value result in charges to
expense after acquisition. At September 30, 2006, we held no real estate owned.
Classified
Assets.
Federal
banking regulations provide that loans and other assets of lesser quality should
be classified as “substandard,” “doubtful” or “loss” assets. An asset is
considered “substandard” if it is inadequately protected by the current net
worth and paying capacity of the obligor or of the collateral pledged, if any.
“Substandard” assets include those characterized by the “distinct possibility”
we will sustain “some loss” if the deficiencies are not corrected. Assets
classified as “doubtful” have all of the weaknesses inherent in those classified
“substandard,” with the added characteristic that the weaknesses present make
“collection or liquidation in full,” on the basis of currently existing facts,
conditions, and values, “highly questionable and improbable.” Assets classified
as “loss” are those considered “un-collectible” and of such little value their
continuance as assets without the establishment of a specific loss reserve
is
not warranted. We classify an asset as “special mention” if the asset has a
potential weakness that warrants management’s close attention. While such assets
are not impaired, management has concluded that if the potential weakness in
the
asset is not addressed, the value of the asset may deteriorate, adversely
affecting the repayment of the asset. On the basis of our review of assets
at
September 30, 2006, classified assets consisted of $938,000 of special mention
assets, $5.4 million of substandard assets, $20,000 of doubtful assets and
$165,000 of loss assets.
We
are
required to establish an allowance for loan losses in an amount deemed prudent
by management for loans classified substandard or doubtful, as well as for
other
problem loans. General allowances represent loss allowances which have been
established to recognize the inherent losses associated with lending activities,
but which, unlike specific allowances, have not been allocated to particular
problem assets. When we classify problem assets as “loss,” we are required
either to establish a specific allowance for losses equal to 100% of the amount
of the asset so classified or to charge off such amount. Our determination
as to
the classification of our assets and the amount of our valuation allowances
is
subject to review by the New Jersey Department of Banking and Insurance and
the
Federal Deposit Insurance Corporation which can direct us to establish
additional general or specific loss allowances.
The
loan
portfolio is reviewed on a regular basis to determine whether any loans require
classification in accordance with applicable regulations. Not all classified
assets constitute non-performing assets.
Allowance
for Loan Losses
Our
allowance for loan losses is maintained at a level necessary to absorb loan
losses that are both probable and reasonably estimable. Management, in
determining the allowance for loan losses, considers the losses in our loan
portfolio both probable and reasonably estimable, and changes in the nature
and
volume of loan activities, along with the general economic and real estate
market conditions. The allowance for loan losses as of September 30, 2006 was
maintained at a level that represents management’s best estimate of losses in
the loan portfolio both probable and reasonably estimable. However, this
analysis process is inherently subjective, as it requires us to make estimates
that are susceptible to revisions as more information becomes available.
Although we believe we have established the allowance at levels to absorb
probable and estimable losses, future additions may be necessary if economic
or
other conditions in the future differ from the current environment.
In
addition, as an integral part of their examination process, the New Jersey
Department of Banking and Insurance and the Federal Deposit Insurance
Corporation will periodically review our allowance for loan losses. Such
agencies may require us to recognize additions to the allowance based on their
judgments of information available to them at the time of their
examination.
Allowance
for Loan Losses.
The
following table sets forth activity in our allowance for loan losses for the
periods indicated.
|
|
For
the Fiscal Years Ended September 30,
|
|
|
|
2006
|
|
2005
|
|
2004
|
|
2003
|
|
2002
|
|
|
|
(Dollars
in thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance
at beginning of period
|
|
$
|
3,129
|
|
$
|
2,341
|
|
$
|
2,150
|
|
$
|
1,926
|
|
$
|
1,649
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Charge-offs:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
One-to
four-family residential
|
|
|
13
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Commercial
real estate
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Construction
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Home
equity lines of credit
|
|
|
2
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Commercial
business
|
|
|
180
|
|
|
94
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Other
|
|
|
3
|
|
|
9
|
|
|
11
|
|
|
6
|
|
|
-
|
|
Total
charge-offs
|
|
|
198
|
|
|
103
|
|
|
11
|
|
|
6
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Recoveries:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
One-to
four-family residential
|
|
|
-
|
|
|
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Commercial
real estate
|
|
|
-
|
|
|
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Construction
|
|
|
-
|
|
|
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Home
equity lines of credit
|
|
|
-
|
|
|
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Commercial
business
|
|
|
-
|
|
|
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Other
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Total
recoveries
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
charge-offs
|
|
|
198
|
|
|
103
|
|
|
11
|
|
|
6
|
|
|
-
|
|
Provision
for loan losses
|
|
|
961
|
|
|
891
|
|
|
202
|
|
|
230
|
|
|
277
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance
at end of period
|
|
$
|
3,892
|
|
$
|
3,129
|
|
$
|
2,341
|
|
$
|
2,150
|
|
$
|
1,926
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ratios:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
charge-offs to average loans outstanding
|
|
|
0.06
|
%
|
|
0.05
|
%
|
|
0.01
|
%
|
|
0.00
|
%
|
|
0.00
|
%
|
Allowance
for loan losses to non-performing loans at end of period
(1)
|
|
|
52.59
|
%
|
|
NM
|
|
|
NM
|
|
|
NM
|
|
|
NM
|
|
Allowance
for loan losses to total loans at end of period
|
|
|
1.11
|
%
|
|
1.16
|
%
|
|
1.20
|
%
|
|
1.22
|
%
|
|
1.06
|
%
|
|
(1)
|
“NM”
indicates ratio is not meaningful.
|
Allocation
of Allowance for Loan Losses.
The
following table sets forth the allowance for loan losses allocated by loan
category, the percent of the allowance to the total allowance and the percent
of
loans in each category to total loans at the dates indicated. The allowance
for
loan losses allocated to each category is not necessarily indicative of future
losses in any particular category and does not restrict the use of the allowance
to absorb losses in other categories.
|
|
|
|
Percent
of
|
|
|
|
|
|
Loans
in
|
|
|
|
|
|
Category
to
|
|
|
|
Amount
|
|
Total
Loans
|
|
|
|
(Dollars
in thousands)
|
|
At
September 30, 2006
|
|
|
|
|
|
One-to
four-family residential
|
|
$
|
327
|
|
|
40.65
|
%
|
Commercial
real estate
|
|
|
601
|
|
|
19.46
|
%
|
Construction
|
|
|
1,519
|
|
|
25.64
|
%
|
Home
equity lines of credit
|
|
|
82
|
|
|
3.08
|
%
|
Commercial
business
|
|
|
1,153
|
|
|
6.96
|
%
|
Other
|
|
|
210
|
|
|
4.21
|
%
|
Unallocated
|
|
|
-
|
|
|
0.00
|
%
|
Total
allowance for loan losses
|
|
$
|
3,892
|
|
|
100
|
%
|
|
|
|
|
|
|
|
|
At
September 30, 2005
|
|
|
|
|
|
|
|
One-to
four-family residential
|
|
$
|
312
|
|
|
46.64
|
%
|
Commercial
real estate
|
|
|
615
|
|
|
21.19
|
%
|
Construction
|
|
|
845
|
|
|
16.41
|
%
|
Home
equity lines of credit
|
|
|
82
|
|
|
3.84
|
%
|
Commercial
business
|
|
|
815
|
|
|
6.43
|
%
|
Other
|
|
|
193
|
|
|
5.49
|
%
|
Unallocated
|
|
|
267
|
|
|
0.00
|
%
|
Total
allowance for loan losses
|
|
$
|
3,129
|
|
|
100
|
%
|
|
|
|
|
|
|
|
|
At
September 30, 2004
|
|
|
|
|
|
|
|
One-to
four-family residential
|
|
$
|
281
|
|
|
55.50
|
%
|
Commercial
real estate
|
|
|
857
|
|
|
10.17
|
%
|
Construction
|
|
|
56
|
|
|
2.82
|
%
|
Home
equity lines of credit
|
|
|
222
|
|
|
4.63
|
%
|
Commercial
business
|
|
|
721
|
|
|
14.14
|
%
|
Other
|
|
|
170
|
|
|
12.74
|
%
|
Unallocated
|
|
|
34
|
|
|
0.00
|
%
|
Total
allowance for loan losses
|
|
$
|
2,341
|
|
|
100
|
%
|
|
|
|
|
|
|
|
|
At
September 30, 2003
|
|
|
|
|
|
|
|
One-to
four-family residential
|
|
$
|
196
|
|
|
61.08
|
%
|
Commercial
real estate
|
|
|
822
|
|
|
10.99
|
%
|
Construction
|
|
|
301
|
|
|
2.95
|
%
|
Home
equity lines of credit
|
|
|
190
|
|
|
4.15
|
%
|
Commercial
business
|
|
|
426
|
|
|
5.47
|
%
|
Other
|
|
|
164
|
|
|
15.36
|
%
|
Unallocated
|
|
|
51
|
|
|
0.00
|
%
|
Total
allowance for loan losses
|
|
$
|
2,150
|
|
|
100
|
%
|
|
|
|
|
|
|
|
|
At
September 30, 2002
|
|
|
|
|
|
|
|
One-to
four-family residential
|
|
$
|
230
|
|
|
65.81
|
%
|
Commercial
real estate
|
|
|
717
|
|
|
9.65
|
%
|
Construction
|
|
|
102
|
|
|
1.03
|
%
|
Home
equity lines of credit
|
|
|
180
|
|
|
3.82
|
%
|
Commercial
business
|
|
|
268
|
|
|
4.38
|
%
|
Other
|
|
|
146
|
|
|
15.31
|
%
|
Unallocated
|
|
|
283
|
|
|
0.00
|
%
|
Total
allowance for loan losses
|
|
$
|
1,926
|
|
|
100
|
%
|
Investments
Our
Board
of Directors has adopted our Investment Policy. This policy determines the
types
of securities in which we may invest. The Investment Policy is reviewed annually
by the Board of Directors and changes to the policy are recommended to and
subject to approval by our Board of Directors. While general investment
strategies are developed by the Asset and Liability Committee, the execution
of
specific actions rests primarily with our President and our Chief Financial
Officer. They are responsible for ensuring the guidelines and requirements
included in the Investment Policy are followed and all prudent securities are
considered for investment. They are authorized to execute transactions that
fall
within the scope of the established Investment Policy up to $2.5 million per
transaction individually or $5.0 million per transaction jointly. Investment
transactions in excess of $5.0 million must be approved by the Asset and
Liability Committee. Investment transactions are reviewed and ratified by the
Board of Directors at their regularly scheduled meetings.
Our
investments portfolio may include U.S. Treasury obligations, debt and equity
securities issued by various federal agencies, including Fannie Mae and Freddie
Mac, mortgage-backed securities, certain certificates of deposit of insured
financial institutions, overnight and short-term loans to other banks,
investment grade corporate debt instruments, and municipal securities. In
addition, we may invest in equity securities subject to certain limitations
and
not in excess of Magyar Bank’s Tier 1 capital.
The
Investment Policy requires that securities transactions be conducted in a safe
and sound manner, and purchase and sale decisions be based upon a thorough
analysis of each security to determine its quality and inherent risks and fit
within our overall asset/liability management objectives. The analysis must
consider the effect of an investment or sale on our risk-based capital and
prospects for yield and appreciation.
At
September 30, 2006, our securities portfolio totaled $42.1 million, or 9.7%
of
our total assets. Securities are classified as held-to-maturity or
available-for-sale when purchased. At September 30, 2006, $23.9 million of
our
securities were classified as held-to-maturity and reported at amortized cost,
and $18.2 million were classified as available-for-sale and reported at fair
value. At September 30, 2006, we held no investment securities classified as
held-for-trading.
U.S.
Government and Federal Agency Obligations.
At
September 30, 2006, our U.S. Government and Federal Agency securities portfolio
totaled $2.2 million, or 5.1% of our total securities portfolio. While these
securities generally provide lower yields than other securities in our
securities portfolio, we hold these securities, to the extent appropriate,
for
liquidity purposes and as collateral for certain borrowings. We invest in these
securities to achieve positive interest rate spreads with minimal administrative
expense, and to lower our credit risk as a result of the guarantees provided
by
these issuers.
Mortgage-Backed
Securities.
We
purchase mortgage-backed pass through and collateralized mortgage obligation
(“CMO”) securities insured or guaranteed by Fannie Mae, Freddie Mac or Ginnie
Mae. To a lesser extent, we also invest in mortgage-backed securities issued
or
sponsored by private issuers. At September 30, 2006, the fair market value
of
our mortgage-backed securities, including CMOs, was $37.1 million, or 89.3%
of
our total securities portfolio. Included in this balance was $1.7 million of
mortgage-backed securities issued by private issuers. Our policy is to limit
purchases of privately issued mortgage-backed securities to non-high risk
securities rated “AAA” by a nationally recognized credit rating agency. High
risk securities generally are defined as those exhibiting significantly greater
volatility of estimated average life and price due to changes in interest rates
than 30-year fixed rate securities.
Mortgage-backed
pass through securities are created by pooling mortgages and issuing a security
with an interest rate less than the interest rate on the underlying mortgages.
Mortgage-backed pass through securities represent a participation interest
in a
pool of single-family or multi-family mortgages. As loan payments are made
by
the borrowers, the principal and interest portion of the payment is passed
through to the investor as received. CMOs are also backed by mortgages. However
they differ from mortgage-backed pass through securities because the principal
and interest payments on the underlying mortgages are structured so that they
are paid to the security holders of pre-determined classes or tranches at a
faster or slower pace. The receipt of these principal and interest payments,
which depends on the estimated average life for each class, is contingent on
a
prepayment speed assumption assigned to the underlying mortgages. Variances
between the assumed payment speed and actual payments can significantly alter
the average lives of such securities. Mortgage-backed securities and CMOs
generally yield less than the loans that underlie such securities because of
the
cost of payment guarantees and credit enhancements. However, mortgage-backed
securities are usually more liquid than individual mortgage loans and may be
used to collateralize borrowings and other liabilities.
Mortgage-backed
securities present a risk that actual prepayments may differ from estimated
prepayments over the life of the security, which may require adjustments to
the
amortization of any premium or accretion of any discount relating to such
instruments that can change the net yield on the securities. There is also
reinvestment risk associated with the cash flows from such securities or if
the
securities are redeemed by the issuer. In addition, the market value of such
securities may be adversely affected by changes in interest rates.
Our
mortgage-backed securities portfolio had a weighted average yield of 4.57%
at
September 30, 2006. The estimated fair value of our mortgage-backed securities
portfolio at September 30, 2006 was $37.1 million, which was $0.8 million less
than the amortized cost of $37.9 million.
Corporate
Notes
.
At
September 30, 2006, we held no corporate notes. Our Investment Policy allows
for
the purchase of such instruments and requires that corporate debt obligations
be
rated in one of the four highest categories by a nationally recognized rating
service. We may invest up to 25% of Magyar Bank’s investment portfolio in
corporate debt obligations and up to 15% of Magyar Bank’s capital in any one
issuer.
Equity
Securities.
At
September 30, 2006, our equity securities totaled $142,000, or 0.3%, of our
total securities portfolio and consisted of a mutual fund which invests
primarily in mortgage-backed securities. All of our equity securities were
classified as available-for-sale at September 30, 2006. Equity securities are
not insured or guaranteed investments and are affected by market interest rates
and stock market fluctuations. Such investments are carried at their fair value
and fluctuation in the fair value of such investments, including temporary
declines in value, directly affect our net capital position.
Municipal
Securities.
At
September 30, 2006, we held $2.2 million in bonds issued as general obligation
or revenue bonds by states and political subdivisions, $2.1 million of which
were classified as available for sale at fair value and $137,000 of which were
classified as held to maturity at amortized cost. Although municipal bonds
may
offer a higher yield than a U.S. Treasury or agency security of comparable
duration, these securities also have a higher risk of default due to adverse
changes in the creditworthiness of the issuer. In recognition of this potential
risk, we generally limit investments in municipal bonds to issues that are
insured.
Securities
Portfolios.
The
following table sets forth the composition of our securities portfolio
(excluding Federal Home Loan Bank of New York common stock) at the dates
indicated.
|
|
At
September 30,
|
|
|
|
2006
|
|
2005
|
|
2004
|
|
|
|
Amortized
|
|
Fair
|
|
Amortized
|
|
Fair
|
|
Amortized
|
|
Fair
|
|
|
|
Cost
|
|
Value
|
|
Cost
|
|
Value
|
|
Cost
|
|
Value
|
|
|
|
(In
thousands)
|
|
Securities
available for sale:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
U.S.
government and agency obligations
|
|
$
|
-
|
|
$
|
-
|
|
$
|
4,000
|
|
$
|
3,894
|
|
$
|
5,498
|
|
$
|
5,516
|
|
Municipal
bonds
|
|
|
2,049
|
|
|
2,066
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Corporate
notes
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
2,002
|
|
|
2,007
|
|
Equity
Securities
|
|
|
142
|
|
|
142
|
|
|
142
|
|
|
142
|
|
|
142
|
|
|
142
|
|
Mortgage-backed
securities
|
|
|
16,258
|
|
|
15,961
|
|
|
17,047
|
|
|
16,566
|
|
|
23,841
|
|
|
23,506
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
securities available for sale
|
|
$
|
18,449
|
|
$
|
18,169
|
|
$
|
21,189
|
|
$
|
20,602
|
|
$
|
31,483
|
|
$
|
31,171
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Securities
held to maturity:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
U.S.
government and agency obligations
|
|
$
|
2,157
|
|
$
|
2,105
|
|
$
|
4,313
|
|
$
|
4,266
|
|
$
|
7,423
|
|
$
|
7,445
|
|
Municipal
bonds
|
|
|
137
|
|
|
145
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Corporate
notes
|
|
|
-
|
|
|
-
|
|
|
2,001
|
|
|
2,015
|
|
|
2,005
|
|
|
2,097
|
|
Mortgage-backed
securities
|
|
|
21,601
|
|
|
21,108
|
|
|
27,955
|
|
|
27,572
|
|
|
33,187
|
|
|
33,315
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
securities held to maturity
|
|
$
|
23,895
|
|
$
|
23,358
|
|
$
|
34,269
|
|
$
|
33,853
|
|
$
|
42,615
|
|
$
|
42,857
|
|
Portfolio
Maturities and Yields.
The
composition and maturities of the investment debt securities portfolio and
the
mortgage-backed securities portfolio at September 30, 2006 are summarized in
the
following table. Maturities are based on the final contractual payment dates,
and do not reflect the impact of prepayments or early redemptions that may
occur. State and municipal bond yields have been adjusted to a tax-equivalent
basis.
|
|
|
|
|
|
More
Than One
|
|
More
Than Five
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year
Through
|
|
Years
Through
|
|
More
Than
|
|
|
|
|
|
|
|
One
Year or Less
|
|
Five
Years
|
|
Ten
Years
|
|
Ten
Years
|
|
Total
Securities
|
|
|
|
|
|
Weighted
|
|
|
|
Weighted
|
|
|
|
Weighted
|
|
|
|
Weighted
|
|
|
|
Weighted
|
|
|
|
Amortized
|
|
Average
|
|
Amortized
|
|
Average
|
|
Amortized
|
|
Average
|
|
Amortized
|
|
Average
|
|
Amortized
|
|
Average
|
|
|
|
Cost
|
|
Yield
|
|
Cost
|
|
Yield
|
|
Cost
|
|
Yield
|
|
Cost
|
|
Yield
|
|
Cost
|
|
Yield
|
|
|
|
(Dollars
in thousands)
|
|
Securities
available for sale:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
U.S.
government and agency obligations
|
|
$
|
-
|
|
|
-
|
%
|
$
|
-
|
|
|
-
|
%
|
$
|
-
|
|
|
-
|
%
|
$
|
-
|
|
|
-
|
%
|
$
|
-
|
|
|
-
|
%
|
Municipal
Bonds
|
|
|
-
|
|
|
-
|
%
|
|
-
|
|
|
-
|
%
|
|
2,049
|
|
|
5.18
|
%
|
|
|
|
|
-
|
%
|
|
2,049
|
|
|
5.18
|
%
|
Equity
securities
|
|
|
142
|
|
|
5.13
|
%
|
|
-
|
|
|
-
|
%
|
|
-
|
|
|
-
|
%
|
|
|
|
|
-
|
%
|
|
142
|
|
|
5.13
|
%
|
Mortgage-backed
securities
|
|
|
-
|
|
|
-
|
%
|
|
-
|
|
|
-
|
%
|
|
5,277
|
|
|
4.67
|
%
|
|
10,981
|
|
|
4.69
|
%
|
|
16,257
|
|
|
4.69
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
securities available for sale
|
|
$
|
142
|
|
|
5.13
|
%
|
$
|
-
|
|
|
0.00
|
%
|
$
|
7,326
|
|
|
4.81
|
%
|
$
|
10,981
|
|
|
4.69
|
%
|
$
|
18,449
|
|
|
4.74
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Securities
held to maturity:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
U.S.
government and agency obligations
|
|
$
|
-
|
|
|
-
|
%
|
$
|
2,000
|
|
|
4.11
|
%
|
$
|
-
|
|
|
-
|
%
|
$
|
157
|
|
|
6.18
|
%
|
$
|
2,157
|
|
|
4.26
|
%
|
Municipal
Bonds
|
|
|
-
|
|
|
-
|
%
|
|
-
|
|
|
-
|
%
|
|
137
|
|
|
8.04
|
%
|
|
-
|
|
|
-
|
%
|
|
137
|
|
|
8.04
|
%
|
Equity
securities
|
|
|
-
|
|
|
-
|
%
|
|
-
|
|
|
-
|
%
|
|
-
|
|
|
-
|
%
|
|
-
|
|
|
-
|
%
|
|
-
|
|
|
-
|
%
|
Mortgage-backed
securities
|
|
|
109
|
|
|
5.01
|
%
|
|
9,363
|
|
|
4.46
|
%
|
|
3,183
|
|
|
4.39
|
%
|
|
8,946
|
|
|
4.52
|
%
|
|
21,601
|
|
|
4.48
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
securities held to maturity
|
|
$
|
109
|
|
|
5.01
|
%
|
$
|
11,363
|
|
|
3.67
|
%
|
$
|
3,319
|
|
|
4.54
|
%
|
$
|
9,103
|
|
|
4.45
|
%
|
$
|
23,895
|
|
|
4.48
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
securities
|
|
$
|
251
|
|
|
5.08
|
%
|
$
|
11,363
|
|
|
4.39
|
%
|
$
|
10,645
|
|
|
4.73
|
%
|
$
|
20,084
|
|
|
4.63
|
%
|
$
|
42,344
|
|
|
4.59
|
%
|
Sources
of Funds
General.
Deposits,
primarily certificates of deposit, have traditionally been the primary source
of
funds used for our lending and investment activities. We obtain certificates
of
deposit primarily through our branch network and to a lesser extent via the
brokered CD market. We also use borrowings, primarily Federal Home Loan Bank
advances, to supplement cash flow needs, to lengthen the maturities of
liabilities for interest rate risk management and to manage our cost of funds.
Additional sources of funds include principal and interest payments from loans
and securities, loan and security prepayments and maturities, income on other
earning assets and stockholders’ equity. While cash flows from loans and
securities payments can be relatively stable sources of funds, deposit inflows
and outflows can vary widely and are influenced by prevailing interest rates,
market conditions and levels of competition.
Deposits.
Our
deposits are generated primarily from residents within our primary market area.
We offer a selection of deposit accounts, including demand accounts, NOW
accounts, money market accounts, savings accounts, retirement accounts and
certificates of deposit.
Deposit
account terms vary, with the principal differences being the minimum balance
required, the amount of time the funds must remain on deposit and the interest
rate. We also have the authority to accept brokered deposits and do so when
attractive rates are available. At September 30, 2006, we had $11.6 million
in
brokered deposits.
Interest
rates, maturity terms, service fees and withdrawal penalties are established
on
a periodic basis. Deposit rates and terms are based primarily on current
operating strategies and market rates, liquidity requirements, rates paid by
competitors and growth goals. Personalized customer service, long-standing
relationships with customers and an active marketing program are relied upon
to
attract and retain deposits.
The
flow
of deposits is influenced significantly by general economic conditions, changes
in money market and other prevailing interest rates and competition. The variety
of deposit accounts offered allows us to be competitive in obtaining funds
and
responding to changes in consumer demand. Based on experience, we believe that
our deposits are relatively stable. However, the ability to attract and maintain
deposits, and the rates paid on these deposits, has been and will continue
to be
significantly affected by market conditions. At September 30, 2006, $175.4
million, or 53.9% of our deposit accounts, were certificates of deposit
(including individual retirement accounts). We monitor activity in these
accounts and, based on historical experience and our current pricing strategy,
we believe we will retain a large portion of these accounts upon
maturity.
The
following table sets forth the distribution of total deposit accounts, by
account type, at the dates indicated.
|
|
At
September 30,
|
|
|
|
2006
|
|
2005
|
|
2004
|
|
|
|
|
|
|
|
Weighted
|
|
|
|
|
|
Weighted
|
|
|
|
|
|
Weighted
|
|
|
|
|
|
|
|
Average
|
|
|
|
|
|
Average
|
|
|
|
|
|
Average
|
|
Deposit
Types:
|
|
Balance
|
|
Percent
|
|
Rate
|
|
Balance
|
|
Percent
|
|
Rate
|
|
Balance
|
|
Percent
|
|
Rate
|
|
|
|
(Dollars
in thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Demand
accounts
|
|
$
|
20,491
|
|
|
6.29
|
%
|
|
0.00
|
%
|
$
|
14,566
|
|
|
5.24
|
%
|
|
0.00
|
%
|
$
|
9,925
|
|
|
4.43
|
%
|
|
0.00
|
%
|
Savings
accounts
|
|
|
43,127
|
|
|
13.25
|
%
|
|
1.14
|
%
|
|
53,819
|
|
|
19.35
|
%
|
|
1.05
|
%
|
|
51,985
|
|
|
23.21
|
%
|
|
0.50
|
%
|
NOW
accounts
|
|
|
30,519
|
|
|
9.37
|
%
|
|
1.95
|
%
|
|
28,149
|
|
|
10.12
|
%
|
|
0.79
|
%
|
|
24,548
|
|
|
10.96
|
%
|
|
0.31
|
%
|
Money
market accounts
|
|
|
56,107
|
|
|
17.23
|
%
|
|
4.09
|
%
|
|
30,499
|
|
|
10.97
|
%
|
|
1.97
|
%
|
|
25,164
|
|
|
11.24
|
%
|
|
0.88
|
%
|
Certificates
of deposit
|
|
|
149,811
|
|
|
46.01
|
%
|
|
4.29
|
%
|
|
126,165
|
|
|
45.37
|
%
|
|
3.05
|
%
|
|
89,487
|
|
|
39.95
|
%
|
|
2.15
|
%
|
Retirement
accounts
|
|
|
25,547
|
|
|
7.85
|
%
|
|
4.09
|
%
|
|
24,892
|
|
|
8.95
|
%
|
|
3.72
|
%
|
|
22,865
|
|
|
10.21
|
%
|
|
3.45
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
deposits
|
|
$
|
325,602
|
|
|
100.00
|
%
|
|
3.33
|
%
|
$
|
278,090
|
|
|
100.00
|
%
|
|
2.21
|
%
|
$
|
223,974
|
|
|
100.00
|
%
|
|
1.46
|
%
|
As
of
September 30, 2006, the aggregate amount of outstanding certificates of deposit
in amounts greater than or equal to $100,000 was $59.2 million. The following
table sets forth the maturity of these certificates as of September 30, 2006
(in
thousands):
Three
months or less
|
|
$
|
16,977
|
|
Over
three months through six months
|
|
|
14,435
|
|
Over
six months through one year
|
|
|
15,478
|
|
Over
one year to three years
|
|
|
12,080
|
|
Over
three years
|
|
|
208
|
|
|
|
|
|
|
Total
|
|
$
|
59,177
|
|
At
September 30, 2006, $141.8 million of our certificates of deposit had maturities
of one year or less. We monitor activity on these accounts and, based on
historical experience and our current pricing strategy, we believe we will
retain a large portion of these accounts upon maturity. The following table
sets
forth the interest-bearing deposit activities for the periods indicated.
|
|
For
The Years Ended September 30,
|
|
|
|
2006
|
|
2005
|
|
2004
|
|
|
|
(In
thousands)
|
|
|
|
|
|
|
|
|
|
Beginning
balance
|
|
$
|
263,524
|
|
$
|
214,049
|
|
$
|
217,426
|
|
Net
deposits (withdrawals) before interest credited
|
|
|
33,644
|
|
|
44,903
|
|
|
(6,705
|
)
|
Interest
credited
|
|
|
7,944
|
|
|
4,572
|
|
|
3,328
|
|
|
|
|
|
|
|
|
|
|
|
|
Ending
balance
|
|
$
|
305,111
|
|
$
|
263,524
|
|
$
|
214,049
|
|
Borrowings.
Our
borrowings consist of short- and long-term advances from and securities sold
under agreements to repurchase with the Federal Home Loan Bank of New York.
As
of September 30, 2006, we had short-term and long-term advances from the Federal
Home Loan Bank in the amount of $28.9 million and $19.1 million, respectively.
In addition, our repurchase agreements totaled $5.0 million at September 30,
2006. These aggregate advances represented 13.7% of total liabilities and had
a
weighted average rate of 5.08%. As a member of the Federal Home Loan Bank of
New
York, we had an aggregate borrowing capacity of $80.7 million including
repurchase agreements with the Federal Home Loan Bank. Our repurchase agreements
are recorded as financing transactions as we maintain effective control over
the
transferred or pledged securities. The dollar amount of the securities
underlying the agreements continues to be carried in our securities portfolio
while the obligations to repurchase the securities are reported as liabilities
in our consolidated balance sheets. The securities underlying the agreements
are
delivered to the party with whom each transaction is executed. Those parties
agree to resell to us the identical securities we delivered to them at the
maturity or call period of the agreement.
Long
term
Federal Home Loan Bank of New York advances as of September 30, 2006 mature
as
follows (in thousands):
2007
|
|
$
|
6,579
|
|
2008
|
|
|
1,022
|
|
2009
|
|
|
6,064
|
|
2010
|
|
|
456
|
|
2011
|
|
|
5,000
|
|
|
|
|
|
|
|
|
$
|
19,121
|
|
Information
concerning short term advances with the Federal Home Loan Bank of New York
is
summarized as follows:
|
|
At
September 30,
|
|
|
|
2006
|
|
2005
|
|
2004
|
|
|
|
(Dollars
in thousands)
|
|
|
|
|
|
|
|
|
|
Balance
at end of year
|
|
$
|
28,875
|
|
$
|
17,800
|
|
$
|
-
|
|
Weighted
average balance during the year
|
|
|
11,727
|
|
|
9,409
|
|
|
4,900
|
|
Weighted
average interest rate at the end of year
|
|
|
5.51
|
%
|
|
4.11
|
%
|
|
1.25
|
%
|
Maximum
month-end balance during the year
|
|
|
28,875
|
|
|
22,100
|
|
|
11,500
|
|
Average
interest rate during the year
|
|
|
4.81
|
%
|
|
2.85
|
%
|
|
1.52
|
%
|
The
outstanding securities sold under agreements to repurchase totaling $5.0 million
at September 30, 2006 mature in 2008.
Subsidiary
Activities
Magyar
Bank organized Magbank Investment Company on August 15, 2006 as a New Jersey
investment corporation subsidiary for the purpose of buying, selling and holding
investment securities. The income earned on Magbank Investment Company’s
investment securities is subject to a significantly lower state tax than that
assessed on income earned on investment securities maintained at Magyar Bank.
Hungaria
Urban Renewal, LLC is a Delaware limited-liability corporation established
in
2002 as a qualified intermediary operating for the purpose of acquiring and
developing Magyar Bank’s new main office. On January 24, 2006, Magyar Bank
exercised a purchase option within its lease from Hungaria Urban Renewal, LLC
allowing Magyar Bank to purchase the land and building from this entity. Magyar
Bank acquired a 100% interest in Hungaria Urban Renewal, LLC, which will have
no
other business other than owning Magyar Bank’s main office site. As part of a
tax abatement agreement with the City of New Brunswick, Magyar Bank’s new office
will remain in Hungaria Urban Renewal, LLC’s name.
Magyar
Service Corp., a New Jersey corporation, is a wholly owned subsidiary of Magyar
Bank. Magyar Service Corp. offers Magyar Bank customers and others a complete
range of non-deposit investment products and financial planning services,
including insurance products, fixed and variable annuities, and retirement
planning for individual and commercial customers.
Personnel
At
September 30, 2006, we employed 89 full-time employees and 19 part-time
employees. Our employees are not represented by any collective bargaining group.
Management believes that we have good relations
with
our
employees.
FEDERAL
AND STATE TAXATION
Federal
Taxation
General
.
Magyar
Bancorp, Inc. and Magyar Bank are subject to federal income taxation in the
same
general manner as other corporations, with some exceptions discussed below.
Magyar Bank’s federal tax returns are not currently under audit, and Magyar Bank
has not been audited during the past five years. The following discussion of
federal taxation is intended only to summarize certain pertinent federal income
tax matters and is not a comprehensive description of the tax rules applicable
to Magyar Bancorp, Inc. or Magyar Bank.
Method
of Accounting
.
For
federal income tax purposes, Magyar Bancorp, Inc. reports its income and
expenses on the accrual method of accounting and will use a tax year ending
September 30 for filing its federal and state income tax returns.
Bad
Debt Reserves
.
Historically,
Magyar Bank has been subject to special provisions in the tax law regarding
allowable tax bad debt deductions and related reserves. Tax law changes were
enacted in 1996, pursuant to the Small Business Protection Act of 1996 (the
“1996 Act”), that eliminated the use of the percentage of taxable income method
for computing tax bad debt deductions for tax years after 1995, and required
recapture into taxable income over a six-year period all applicable excess
bad
debt reserves accumulated after 1988.
Currently,
Magyar Bank uses the reserve method to account for bad debt deductions for
income tax purposes.
Taxable
Distributions and Recapture
.
Prior
to
the 1996 Act, bad debt reserves created prior to January 1, 1988 (pre-base
year
reserves) were subject to recapture into taxable income if Magyar Bank failed
to
meet certain thrift asset and definitional tests.
At
September 30, 2006, our total federal pre-base year reserve was approximately
$1.3 million. However, under current law, pre-base year reserves remain subject
to recapture if Magyar Bank makes certain non-dividend distributions,
repurchases any of its stock, pays dividends in excess of tax earnings and
profits, or ceases to maintain a bank charter.
Alternative
Minimum Tax
.
The
Internal
Revenue Code
imposes
an alternative minimum tax (“AMT”) at a rate of 20% on a base of regular taxable
income plus certain tax preferences (“alternative minimum taxable income” or
“AMTI”). The AMT is payable to the extent such AMTI is in excess of an exemption
amount and the AMT exceeds the regular income tax. Net operating losses can
offset no more than 90% of AMTI. Certain payments of AMT may be used as credits
against regular tax liabilities in future years. Magyar Bancorp, Inc. and Magyar
Bank have not been subject to the AMT and have no such amounts available as
credits for carryover.
Net
Operating Loss Carryovers
.
A
financial institution may carry back net operating losses to the preceding
two
taxable years and forward to the succeeding 20 taxable years. Magyar Bank had
no
loss carry forwards for federal income tax purposes that were generated in
the
tax year ended September 30, 2006.
Corporate
Dividends-Received Deduction
.
Magyar
Bancorp, Inc. may exclude from its federal taxable income 100% of dividends
received from Magyar Bank as a wholly owned subsidiary. The corporate
dividends-received deduction is 80% when the dividend is received from a
corporation having at least 20% of its stock owned by the recipient corporation.
A 70% dividends-received deduction is available for dividends received from
corporations owning less than 20% by the recipient corporation.
State
Taxation
New
Jersey State Taxation.
The
income of savings institutions in New Jersey, which is calculated based on
federal taxable income, subject to certain adjustments, is subject to New Jersey
tax. Magyar Bank, Magyar Service Corporation, and MagBank Investment Company
file New Jersey corporate income tax returns. Magyar Bank, Magyar Service
Corporation, and MagBank Investment Company are not currently under audit with
respect to their New Jersey income tax returns nor have their respective state
tax returns been audited for the past five years.
New
Jersey tax law does not and has not allowed for a taxpayer to file a tax return
on a combined or consolidated basis with another member of the affiliated group
where there is common ownership. However, under recent tax legislation, if
the
taxpayer cannot demonstrate by clear and convincing evidence that the tax filing
discloses the true earnings of the taxpayer on its business carried on in the
State of New Jersey, the New Jersey Director of the Division of Taxation may,
at
the director’s discretion, require the taxpayer to file a consolidated return of
the entire operations of the affiliated group or controlled group, including
its
own operations and income.
Delaware
and New Jersey State Taxation.
As a
Delaware holding company not earning income in Delaware, Magyar Bancorp, Inc.
is
exempt from Delaware corporate income tax, but is required to file annual
returns and pay annual fees and a franchise tax to the State of
Delaware.
Magyar
Bancorp, Inc. is subject to New Jersey corporate income taxes in the same manner
as described above for Magyar Bank.
S
UPERVISION
AND
REGULATION
General
Magyar
Bank is a New Jersey-chartered savings bank, and its deposit accounts are
insured up to applicable limits by the Federal Deposit Insurance Corporation
under the Deposit Insurance Fund (“DIF”). Magyar Bank is subject to extensive
regulation, examination and supervision by the Commissioner of the New Jersey
Department of Banking and Insurance (the “Commissioner”) as the issuer of its
charter, and by the Federal Deposit Insurance Corporation as deposit insurer
and
its primary federal regulator. Magyar Bank must file reports with the
Commissioner and the Federal Deposit Insurance Corporation concerning its
activities and financial condition, and it must obtain regulatory approval
prior
to entering into certain transactions, such as mergers with, or acquisitions
of,
other depository institutions and opening or acquiring branch offices. The
Commissioner and the Federal Deposit Insurance Corporation conduct periodic
examinations to assess Magyar Bank’s compliance with various regulatory
requirements. This regulation and supervision establishes a comprehensive
framework of activities in which a savings bank can engage and is intended
primarily for the protection of the deposit insurance fund and depositors.
The
regulatory structure also gives the regulatory authorities extensive discretion
in connection with their supervisory and enforcement activities and examination
policies, including policies with respect to the classification of assets and
the establishment of adequate loan loss reserves for regulatory
purposes.
Magyar
Bancorp, Inc., as a bank holding company controlling Magyar Bank, is subject
to
the Bank Holding Company Act of 1956, as amended (“BHCA”), and the rules and
regulations of the Federal Reserve Board under the BHCA and to the provisions
of
the New Jersey Banking Act of 1948 (the “New Jersey Banking Act”), and to the
regulations of the Commissioner under the New Jersey Banking Act applicable
to
bank holding companies. Magyar Bank and Magyar Bancorp, Inc. are required to
file reports with, and otherwise comply with the rules and regulations of the
Federal Reserve Board and the Commissioner. Magyar Bancorp, Inc. is required
to
file certain reports with, and otherwise comply with, the rules and regulations
of the Securities and Exchange Commission under the federal securities
laws.
Any
change in such laws and regulations, whether by the Commissioner, the Federal
Deposit Insurance Corporation, the Federal Reserve Board or through legislation,
could have a material adverse impact on Magyar Bank and Magyar Bancorp, Inc.
and
their operations and stockholders.
Certain
of the laws and regulations applicable to Magyar Bank and Magyar Bancorp, Inc.
are summarized below. These summaries do not purport to be complete and are
qualified in their entirety by reference to such laws and
regulations.
New
Jersey Banking Regulation
Activity
Powers.
Magyar
Bank derives its lending, investment and other activity powers primarily from
the applicable provisions of the New Jersey Banking Act and its related
regulations. Under these laws and regulations, savings banks, including Magyar
Bank, generally may invest in:
|
·
|
consumer
and commercial loans;
|
|
·
|
specific
types of debt securities, including certain corporate debt securities
and
obligations of federal, state and local governments and
agencies;
|
|
·
|
certain
types of corporate equity securities;
and
|
A
savings
bank may also make other investments pursuant to “leeway” authority that permits
investments not otherwise permitted by the New Jersey Banking Act. “Leeway”
investments must comply with a number of limitations on the individual and
aggregate amounts of “leeway” investments. A savings bank may also exercise
trust powers upon approval of the Commissioner. New Jersey savings banks may
exercise those powers, rights, benefits or privileges authorized for national
banks or out-of-state banks or for federal or out-of-state savings banks or
savings associations, provided that before exercising any such power, right,
benefit or privilege, prior approval by the Commissioner by regulation or by
specific authorization is required. The exercise of these lending, investment
and activity powers are limited by federal law and regulations. See “Federal
Banking Regulation-Activity Restrictions on State-Chartered Banks”
below.
Loans-to-One-Borrower
Limitations.
With
certain specified exceptions, a New Jersey-chartered savings bank may not make
loans or extend credit to a single borrower or to entities related to the
borrower in an aggregate amount that would exceed 15% of the bank’s capital
funds. A savings bank may lend an additional 10% of the bank’s capital funds if
secured by collateral meeting the requirements of the New Jersey Banking Act.
Magyar Bank currently complies with applicable loans-to-one-borrower
limitations.
Dividends.
Under
the New Jersey Banking Act, a stock savings bank may declare and pay a dividend
on its capital stock only to the extent that the payment of the dividend would
not impair the capital stock of the savings bank. In addition, a stock savings
bank may not pay a dividend unless the savings bank would, after the payment
of
the dividend, have a surplus of not less than 50% of its capital stock, or
alternatively, the payment of the dividend would not reduce the surplus. Federal
law may also limit the amount of dividends that may be paid by Magyar Bank.
See
“Federal Banking Regulation-Prompt Corrective Action” below.
Minimum
Capital Requirements.
Regulations of the Commissioner impose on New Jersey-chartered depository
institutions, including Magyar Bank, minimum capital requirements similar to
those imposed by the Federal Deposit Insurance Corporation on insured state
banks. See “Federal Banking Regulation-Capital Requirements.”
Examination
and Enforcement.
The New
Jersey Department of Banking and Insurance may examine Magyar Bank whenever
it
deems an examination advisable. The New Jersey Department of Banking and
Insurance examines Magyar Bank at least every two years. The Commissioner may
order any savings bank to discontinue any violation of law or unsafe or unsound
business practice and may direct any director, officer, attorney or employee
of
a savings bank engaged in an objectionable activity, after the Commissioner
has
ordered the activity to be terminated, to show cause at a hearing before the
Commissioner why such person should not be removed.
Federal
Banking Regulation
Capital
Requirements.
Federal
Deposit Insurance Corporation regulations require banks to maintain minimum
levels of capital. The Federal Deposit Insurance Corporation regulations define
two tiers, or classes, of capital.
Tier
1
capital is comprised of the sum of:
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common
stockholders’ equity, excluding the unrealized appreciation or
depreciation, net of tax, from available-for-sale
securities;
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non-cumulative
perpetual preferred stock, including any related retained earnings;
and
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minority
interests in consolidated subsidiaries minus all intangible assets,
other
than qualifying servicing rights and any net unrealized loss on marketable
equity securities.
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The
components of Tier 2 capital currently include:
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cumulative
perpetual preferred stock;
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certain
perpetual preferred stock for which the dividend rate may be reset
periodically;
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hybrid
capital instruments, including mandatory convertible
securities;
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term
subordinated debt;
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intermediate
term preferred stock;
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allowance
for loan losses; and
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up
to 45% of pretax net unrealized holding gains on available-for-sale
equity
securities with readily determinable fair market
values.
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The
allowance for loan losses includible in Tier 2 capital is limited to a maximum
of 1.25% of risk-weighted assets (as discussed below). Overall, the amount
of
Tier 2 capital that may be included in total capital cannot exceed 100% of
Tier
1 capital. The Federal Deposit Insurance Corporation regulations establish
a
minimum leverage capital requirement for banks in the strongest financial and
managerial condition, with a rating of 1 (the highest examination rating of
the
Federal Deposit Insurance Corporation for banks) under the Uniform Financial
Institutions Rating System, of not less than a ratio of 3.0% of Tier 1 capital
to total assets. For all other banks, the minimum leverage capital requirement
is 4.0%, unless a higher leverage capital ratio is warranted by the particular
circumstances or risk profile of the depository institution.
The
Federal Deposit Insurance Corporation regulations also require that banks meet
a
risk-based capital standard. The risk-based capital standard requires the
maintenance of a ratio of total capital, which is defined as the sum of Tier
1
capital and Tier 2 capital, to risk-weighted assets of at least 8% and a ratio
of Tier 1 capital to risk-weighted assets of at least 4%. In determining the
amount of risk-weighted assets, all assets, plus certain off balance sheet
items, are multiplied by a risk-weight of 0% to 100%, based on the risks the
Federal Deposit Insurance Corporation believes are inherent in the type of
asset
or item.
The
federal banking agencies, including the Federal Deposit Insurance Corporation,
have also adopted regulations to require an assessment of an institution’s
exposure to declines in the economic value of a bank’s capital due to changes in
interest rates when assessing the bank’s capital adequacy. Under such a risk
assessment, examiners evaluate a bank’s capital for interest rate risk on a
case-by-case basis, with consideration of both quantitative and qualitative
factors. According to the agencies, applicable considerations
include:
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the
quality of the bank’s interest rate risk management
process;
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the
overall financial condition of the bank;
and
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the
level of other risks at the bank for which capital is
needed.
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Institutions
with significant interest rate risk may be required to hold additional capital.
The agencies also issued a joint policy statement providing guidance on interest
rate risk management, including a discussion of the critical factors affecting
the agencies’ evaluation of interest rate risk in connection with capital
adequacy.
As
of
September 30, 2006, Magyar Bank was considered “well-capitalized” under Federal
Deposit Insurance Corporation guidelines.
Activity
Restrictions on State-Chartered Banks.
Federal
law and Federal Deposit Insurance Corporation regulations generally limit the
activities and investments of state-chartered Federal Deposit Insurance
Corporation-insured banks and their subsidiaries to those permissible for
national banks and their subsidiaries, unless such activities and investments
are specifically exempted by law or consented to by the Federal Deposit
Insurance Corporation.
Before
making a new investment or engaging in a new activity that is not permissible
for a national bank or otherwise permissible under federal law or the Federal
Deposit Insurance Corporation regulations, an insured bank must seek approval
from the Federal Deposit Insurance Corporation to make such investment or engage
in such activity. The Federal Deposit Insurance Corporation will not approve
the
activity unless the bank meets its minimum capital requirements and the Federal
Deposit Insurance Corporation determines that the activity does not present
a
significant risk to the Federal Deposit Insurance Corporation insurance funds.
Certain activities of subsidiaries that are engaged in activities permitted
for
national banks only through a “financial subsidiary” are subject to additional
restrictions.
Federal
law permits a state-chartered savings bank to engage, through financial
subsidiaries, in any activity in which a national bank may engage through a
financial subsidiary and on substantially the same terms and conditions. In
general, the law permits a national bank that is well-capitalized and
well-managed to conduct, through a financial subsidiary, any activity permitted
for a financial holding company other than insurance underwriting, insurance
investments, real estate investment or development or merchant banking. The
total assets of all such financial subsidiaries may not exceed the lesser of
45%
of the bank’s total assets or $50 million. The bank must have policies and
procedures to assess the financial subsidiary’s risk and protect the bank from
such risk and potential liability, must not consolidate the financial
subsidiary’s assets with the bank’s and must exclude from its own assets and
equity all equity investments, including retained earnings, in the financial
subsidiary. State-chartered savings banks may retain subsidiaries in existence
as of March 11, 2000 and may engage in activities that are not authorized under
federal law. Although Magyar Bank meets all conditions necessary to establish
and engage in permitted activities through financial subsidiaries, it has not
yet determined whether or the extent to which it will seek to engage in such
activities.
Federal
Home Loan Bank System.
Magyar
Bank is a member of the Federal Home Loan Bank system, which consists of twelve
regional federal home loan banks, each subject to supervision and regulation
by
the Federal Housing Finance Board (“FHFB”). The federal home loan banks provide
a central credit facility primarily for member thrift institutions as well
as
other entities involved in home mortgage lending. It is funded primarily from
proceeds derived from the sale of consolidated obligations of the federal home
loan banks. The federal home loan banks make loans to members (i.e., advances)
in accordance with policies and procedures, including collateral requirements,
established by the respective boards of directors of the federal home loan
banks. These policies and procedures are subject to the regulation and oversight
of the FHFB. All long-term advances are required to provide funds for
residential home financing. The FHFB has also established standards of community
or investment service that members must meet to maintain access to such
long-term advances. Magyar Bank, as a member of the Federal Home Loan Bank
of
New York, is required to purchase and hold shares of capital stock in the
Federal Home Loan Bank of New York in an amount at least equal to the greater
of:
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(i)
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1%
of the aggregate principal amount of its unpaid mortgage loans, home
purchase contracts and similar obligations at the beginning of each
year;
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(ii)
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0.3%
of its assets; or
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(iii)
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5%
(or such greater fraction as established by the Federal Home Loan
Bank of
New York) of its advances from the Federal Home Loan Bank of New
York.
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As
of
September 30, 2006, Magyar Bank was in compliance with these
requirements.
Enforcement.
The
Federal Deposit Insurance Corporation has extensive enforcement authority over
insured savings banks, including Magyar Bank. This enforcement authority
includes, among other things, the ability to assess civil money penalties,
to
issue cease and desist orders and to remove directors and officers. In general,
these enforcement actions may be initiated in response to violations of laws
and
regulations and to unsafe or unsound practices.
Prompt
Corrective Action.
The
Federal Deposit Improvement Act also established a system of prompt corrective
action to resolve the problems of undercapitalized institutions. The Federal
Deposit Insurance Corporation, as well as the other federal banking regulators,
adopted regulations governing the supervisory actions that may be taken against
undercapitalized institutions. The regulations establish five categories,
consisting of “well capitalized,” “adequately capitalized,” “undercapitalized,”
“significantly undercapitalized” and “critically undercapitalized.” The Federal
Deposit Insurance Corporation’s regulations define the five capital categories
as follows:
An
institution will be treated as “well-capitalized” if:
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its
ratio of total capital to risk-weighted assets is at least
10%;
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its
ratio of Tier 1 capital to risk-weighted assets is at least 6%;
and
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its
ratio of Tier 1 capital to total assets is at least 5%, and it is
not
subject to any order or directive by the Federal Deposit Insurance
Corporation to meet a specific capital
level.
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An
institution will be treated as “adequately capitalized” if:
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its
ratio of total capital to risk-weighted assets is at least 8%; or
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its
ratio of Tier 1 capital to risk-weighted assets is at least 4%;
and
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its
ratio of Tier 1 capital to total assets is at least 4% (3% if the
bank
receives the highest rating under the Uniform Financial Institutions
Rating System) and it is not a well-capitalized
institution.
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An
institution will be treated as “undercapitalized” if:
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its
total risk-based capital is less than 8%;
or
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its
Tier 1 risk-based-capital is less than 4%;
and
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its
leverage ratio is less than 4% (or less than 3% if the institution
receives the highest rating under the Uniform Financial Institutions
Rating System).
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An
institution will be treated as “significantly undercapitalized” if:
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its
total risk-based capital is less than
6%;
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its
Tier 1 capital is less than 3%; or
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its
leverage ratio is less than 3%.
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An
institution that has a tangible capital to total assets ratio equal to or less
than 2% would be deemed to be “critically undercapitalized.”
The
Federal Deposit Insurance Corporation is required, with some exceptions, to
appoint a receiver or conservator for an insured state bank if that bank is
“critically undercapitalized.” For this purpose, “critically undercapitalized”
means having a ratio of tangible capital to total assets of less than 2%. The
Federal Deposit Insurance Corporation may also appoint a conservator or receiver
for a state bank on the basis of the institution’s financial condition or upon
the occurrence of certain events, including:
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insolvency,
or when the assets of the bank are less than its liabilities to depositors
and others;
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substantial
dissipation of assets or earnings through violations of law or unsafe
or
unsound practices;
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existence
of an unsafe or unsound condition to transact
business;
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likelihood
that the bank will be unable to meet the demands of its depositors
or to
pay its obligations in the normal course of business;
and
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insufficient
capital, or the incurring or likely incurring of losses that will
deplete
substantially all of the institution’s capital with no reasonable prospect
of replenishment of capital without federal
assistance.
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As
of
September 30, 2006, Magyar Bank was in compliance with the Prompt Corrective
Action rules.
Deposit
Insurance.
Deposit
accounts at Magyar Bank are insured by the Deposit Insurance Fund of the Federal
Deposit Insurance Corporation. Magyar Bank’s deposits, therefore, are subject to
Federal Deposit Insurance Corporation deposit insurance assessments and the
Federal Deposit Insurance Corporation has adopted a risk-based system for
determining deposit insurance assessments.
On
February 15, 2006, federal legislation to reform federal deposit insurance
was
signed into law. This new legislation requires, among other things, an increase
in the amount of federal deposit insurance coverage from $100,000 to $130,000
(with a cost of living adjustment to become effective in five years), and the
reserve ratio to be modified to provide for a range between 1.15% and 1.50%
of
estimated insured deposits. The Federal Deposit Insurance Corporation is
authorized to raise the assessment rates as necessary to maintain the required
ratio of reserves. If the Deposit Insurance Fund’s reserves exceed the
designated reserve ratio, the Federal Deposit Insurance Corporation is required
to pay out all or, if the reserve ratio is less than 1.5%, a portion of the
excess as a dividend to insured depository institutions based on the percentage
of insured deposits held on December 31, 1996 adjusted for subsequently paid
premiums. Insured depository institutions that were in existence on December
31,
1996 and paid assessments prior to that date (or their successors) are entitled
to a one-time credit against future assessments based on their past
contributions to the Bank Insurance Fund or Savings Association Insurance
Fund.
Effective
March 31, 2006, the Federal Deposit Insurance Corporation merged the Bank
Insurance Fund and the Savings Association Insurance Fund into a single fund
called the Deposit Insurance Fund. As a result of merger, the Bank Insurance
Fund and the Savings Association Insurance Fund were abolished. The merger
of
the Bank Insurance Fund and the Savings Association Insurance Fund into the
Deposit Insurance Fund does not affect the authority of the Financing
Corporation to impose and collect, with the approval of the Federal Deposit
Insurance Corporation, assessments for anticipated payments, issuance costs
and
custodial fees on bonds issued by the Financing Corporation in the 1980s to
recapitalize the Federal Savings and Loan Insurance Corporation. The bonds
issued by the Financing Corporation are due to mature in 2017 through 2019.
On
November 2, 2006, the Federal Deposits Insurance Corporation adopted final
regulations that assess insurance premiums based on risk. As a result, the
new
regulation will enable the Federal Deposit Insurance Corporation to more closely
tie each financial institution’s deposits insurance premiums to the risk it
poses to the deposit insurance fund. Under the new risk-based assessment system,
which becomes effective in the beginning of 2007, the Federal Deposit Insurance
Corporation will evaluate the risk of each financial institution based on its
supervisory rating, its financial ratios, and its long-term debt issuer rating.
The new rate for nearly all of the financial institution industry will vary
between five and seven cents for every $100 of domestic deposits. The assessment
to be paid during the fiscal year ending September 30, 2007 will be offset
by a
credit from the Federal Deposit Insurance Corporation to Magyar Bank of
$203,000. At the same time, the Federal Deposit Insurance Corporation also
adopted final regulations designating the reserve ratio for the deposit
insurance fund during 2007 as 1.25% of estimated insured deposits.
Transactions
with Affiliates of Magyar Bank.
Transactions
between an insured bank, such as Magyar Bank, and any of its affiliates is
governed by Sections 23A and 23B of the Federal Reserve Act and implementing
regulations. An affiliate of a bank is any company or entity that controls,
is
controlled by or is under common control with the bank. Generally, a subsidiary
of a bank that is not also a depository institution or financial subsidiary
is
not treated as an affiliate of the bank for purposes of Sections 23A and 23B.
Section
23A:
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limits
the extent to which the bank or its subsidiaries may engage in “covered
transactions” with any one affiliate to an amount equal to 10% of such
bank’s capital stock and retained earnings, and limits all such
transactions with all affiliates to an amount equal to 20% of such
capital
stock and retained earnings; and
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requires
that all such transactions be on terms that are consistent with safe
and
sound banking practices.
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The
term
“covered transaction” includes the making of loans, purchase of assets, issuance
of guarantees and other similar types of transactions. Further, most loans
by a
bank to any of its affiliates must be secured by collateral in amounts ranging
from 100 to 130 percent of the loan amounts. In addition, any covered
transaction by a bank with an affiliate and any purchase of assets or services
by a bank from an affiliate must be on terms that are substantially the same,
or
at least as favourable to the bank, as those that would be provided to a
non-affiliate.
Prohibitions
Against Tying Arrangements.
Banks
are
subject to the prohibitions of 12 U.S.C. Section 1972 on certain tying
arrangements. A depository institution is prohibited, subject to some
exceptions, from extending credit to or offering any other service, or fixing
or
varying the consideration for such extension of credit or service, on the
condition that the customer obtain some additional service from the institution
or its affiliates or not obtain services of a competitor of the institution.
Privacy
Standards.
Federal
Deposit Insurance Corporation regulations require Magyar Bank to disclose their
privacy policy, including identifying with whom they share “non-public personal
information” to customers at the time of establishing the customer relationship
and annually thereafter.
The
regulations also require Magyar Bank to provide their customers with initial
and
annual notices that accurately reflect its privacy policies and practices.
In
addition, Magyar Bank is required to provide its customers with the ability
to
“opt-out” of having Magyar Bank share their non-public personal information with
unaffiliated third parties before they can disclose such information, subject
to
certain exceptions.
The
Federal Deposit Insurance Corporation and other federal banking agencies adopted
guidelines establishing standards for safeguarding customer information. The
guidelines describe the agencies’ expectations for the creation, implementation
and maintenance of an information security program, which would include
administrative, technical and physical safeguards appropriate to the size and
complexity of the institution and the nature and scope of its activities. The
standards set forth in the guidelines are intended to insure the security and
confidentiality of customer records and information, protect against any
anticipated threats or hazards to the security or integrity of such records,
and
protect against unauthorized access to or use of such records or information
that could result in substantial harm or inconvenience to any customer.
On
March
29, 2005, the federal banking regulators jointly issued guidance stating that
financial institutions, such as Magyar Bank, should develop and implement a
response program to address security breaches involving customer information,
including customer notification procedures.
Community
Reinvestment Act and Fair Lending Laws.
All
Federal Deposit Insurance Corporation insured institutions have a responsibility
under the Community Reinvestment Act and related regulations to help meet the
credit needs of their communities, including low- and moderate-income
neighbourhoods. In connection with its examination of a state chartered savings
bank, the Federal Deposit Insurance Corporation is required to assess the
institution’s record of compliance with the Community Reinvestment Act. Among
other things, the current Community Reinvestment Act regulations replace the
prior process-based assessment factors with a new evaluation system that rates
an institution based on its actual performance in meeting community needs.
In
particular, the current evaluation system focuses on three tests:
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a
lending test, to evaluate the institution’s record of making loans in its
service areas;
|
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·
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an
investment test, to evaluate the institution’s record of investing in
community development projects, affordable housing, and programs
benefiting low or moderate income individuals and businesses;
and
|
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·
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a
service test, to evaluate the institution’s delivery of services through
its branches, ATMs and other
offices.
|
An
institution’s failure to comply with the provisions of the Community
Reinvestment Act could, at a minimum, result in regulatory restrictions on
its
activities. We received a “satisfactory” Community Reinvestment Act rating in
our most recently completed federal examination, which was conducted by the
Federal Deposit Insurance Corporation in 2001.
In
addition, the Equal Credit Opportunity Act and the Fair Housing Act prohibit
lenders from discriminating in their lending practices on the basis of
characteristics specified in those statutes. The failure to comply with the
Equal Credit Opportunity Act and the Fair Housing Act could result in
enforcement actions by the Federal Deposit Insurance Corporation, as well as
other federal regulatory agencies and the Department of Justice.
Loans
to a Bank’s Insiders
Federal
Regulation.
A
bank’s
loans to its executive officers, directors, any owner of 10% or more of its
stock (each, an insider) and any of certain entities affiliated with any such
person (an insider’s related interest) are subject to the conditions and
limitations imposed by Section 22(h) of the Federal Reserve Act and its
implementing regulations. Under these restrictions, the aggregate amount of
the
loans to any insider and the insider’s related interests may not exceed the
loans-to-one-borrower limit applicable to national banks, which is comparable
to
the loans-to-one-borrower limit applicable to Magyar Bank’s loans. See “New
Jersey Banking Regulation—Loans-to-One Borrower Limitations.” All loans by a
bank to all insiders and insiders’ related interests in the aggregate may not
exceed the bank’s unimpaired capital and unimpaired surplus. With certain
exceptions, loans to an executive officer, other than loans for the education
of
the officer’s children and certain loans secured by the officer’s residence, may
not exceed the lesser of (1) $100,000 or (2) the greater of $25,000 or 2.5%
of
the bank’s unimpaired capital and surplus. Federal regulation also requires that
any proposed loan to an insider or a related interest of that insider be
approved in advance by a majority of the Board of Directors of the bank, with
any interested directors not participating in the voting, if such loan, when
aggregated with any existing loans to that insider and the insider’s related
interests, would exceed either (1) $250,000 or (2) the greater of $25,000 or
5%
of the bank’s unimpaired capital and surplus. Generally, such loans must be made
on substantially the same terms as, and follow credit underwriting procedures
that are not less stringent than, those that are prevailing at the time for
comparable transactions with other persons.
An
exception is made for extensions of credit made pursuant to a benefit or
compensation plan of a bank that is widely available to employees of the bank
and that does not give any preference to insiders of the bank over other
employees of the bank.
In
addition, federal law prohibits extensions of credit to a bank’s insiders and
their related interests by any other institution that has a correspondent
banking relationship with the bank, unless such extension of credit is on
substantially the same terms as those prevailing at the time for comparable
transactions with other persons and does not involve more than the normal risk
of repayment or present other unfavourable features.
New
Jersey Regulation.
Provisions of the New Jersey Banking Act impose conditions and limitations
on
the liabilities to a savings bank of its directors and executive officers and
of
corporations and partnerships controlled by such persons, that are comparable
in
many respects to the conditions and limitations imposed on the loans and
extensions of credit to insiders and their related interests under federal
law,
as discussed above. The New Jersey Banking Act also provides that a savings
bank
that is in compliance with federal law is deemed to be in compliance with such
provisions of the New Jersey Banking Act.
Federal
Reserve System
Federal
Reserve Board regulations require all depository institutions to maintain
non-interest-earning reserves at specified levels against their transaction
accounts (primarily NOW and regular checking accounts). At September 30, 2006,
Magyar Bank was in compliance with the Federal Reserve Board’s reserve
requirements. Savings associations, such as Magyar Bank, are authorized to
borrow from the Federal Reserve Bank “discount window.” Magyar Bank is deemed by
the Federal Reserve Board to be generally sound and thus is eligible to obtain
primary credit from its Federal Reserve Bank. Generally, primary credit is
extended on a very short-term basis to meet the liquidity needs of the
institution. Loans must be secured by acceptable collateral and carry a rate
of
interest of 100 basis points above the Federal Open Market Committee’s federal
funds target rate.
The
USA Patriot Act
The
USA
Patriot Act gives the federal government new powers to address terrorist threats
through enhanced domestic security measures, expanded surveillance powers,
increased information sharing and broadened anti-money laundering requirements.
The USA Patriot Act also requires the federal banking agencies to take into
consideration the effectiveness of controls designed to combat money laundering
activities in determining whether to approve a merger or other acquisition
application of a member institution. Accordingly, if we engage in a merger
or
other acquisition, our controls designed to combat money laundering would be
considered as part of the application process. We have established policies,
procedures and systems designed to comply with these regulations.
Sarbanes-Oxley
Act of 2002
The
Sarbanes-Oxley Act of 2002 is a law that addresses, among other issues,
corporate governance, auditing and accounting, executive compensation, and
enhanced and timely disclosure of corporate information. As directed by Section
302(a) of Sarbanes-Oxley Act of 2002, Magyar Bancorp, Inc.’s Chief Executive
Officer and Chief Financial Officer each are required to certify that its
quarterly and annual reports do not contain any untrue statement of a material
fact. The rules have several requirements, including having these officers
certify that: they are responsible for establishing, maintaining and regularly
evaluating the effectiveness of our internal controls; they have made certain
disclosures to our auditors and the audit committee of the Board of Directors
about our internal controls; and they have included information in our quarterly
and annual reports about their evaluation and whether there have been
significant changes in our internal controls or in other factors that could
significantly affect internal controls. Magyar Bancorp, Inc. is subject to
further reporting and audit requirements under the requirements of the
Sarbanes-Oxley Act. Magyar Bancorp, Inc. has existing policies, procedures
and
systems designed to comply with these regulations, and is further enhancing
and
documenting such policies, procedures and systems to ensure continued compliance
with these regulations.
Holding
Company Regulation
Federal
Regulation.
Magyar
Bancorp, Inc. is regulated as a bank holding company. Bank holding companies
are
subject to examination, regulation and periodic reporting under the Bank Holding
Company Act, as administered by the Federal Reserve Board. The Federal Reserve
Board has adopted capital adequacy guidelines for bank holding companies on
a
consolidated basis substantially similar to those of the Federal Deposit
Insurance Corporation for Magyar Bank. As of September 30, 2006, Magyar Bancorp,
Inc.’s total capital and Tier 1 capital ratios would, on a pro forma basis,
exceed these minimum capital requirements.
Regulations
of the Federal Reserve Board provide that a bank holding company must serve
as a
source of strength to any of its subsidiary banks and must not conduct its
activities in an unsafe or unsound manner. Under the prompt corrective action
provisions of the Federal Deposit Insurance Act, a bank holding company parent
of an undercapitalized subsidiary bank would be directed to guarantee, within
limitations, the capital restoration plan that is required of such an
undercapitalized bank. See “Federal Banking Regulation—Prompt Corrective
Action.” If the undercapitalized bank fails to file an acceptable capital
restoration plan or fails to implement an accepted plan, the Federal Reserve
Board may prohibit the bank holding company parent of the undercapitalized
bank
from paying any dividend or making any other form of capital distribution
without the prior approval of the Federal Reserve Board.
As
a bank
holding company, Magyar Bancorp, Inc. is required to obtain the prior approval
of the Federal Reserve Board to acquire all, or substantially all, of the assets
of any bank or bank holding company. Prior Federal Reserve Board approval is
required for Magyar Bancorp, Inc. to acquire direct or indirect ownership or
control of any voting securities of any bank or bank holding company if, after
giving effect to such acquisition, it would, directly or indirectly, own or
control more than 5% of any class of voting shares of such bank or bank holding
company.
A
bank
holding company is required to give the Federal Reserve Board prior written
notice of any purchase or redemption of its outstanding equity securities if
the
gross consideration for the purchase or redemption, when combined with the
net
consideration paid for all such purchases or redemptions during the preceding
12
months, will be equal to 10% or more of the company’s consolidated net worth.
The Federal Reserve Board may disapprove such a purchase or redemption if it
determines that the proposal would constitute an unsafe and unsound practice,
or
would violate any law, regulation, Federal Reserve Board order or directive,
or
any condition imposed by, or written agreement with, the Federal Reserve Board.
Such notice and approval is not required for a bank holding company that would
be treated as “well capitalized” under applicable regulations of the Federal
Reserve Board, that has received a composite “1” or “2” rating, as well as a
“satisfactory” rating for management, at its most recent bank holding company
inspection by the Federal Reserve Board, and that is not the subject of any
unresolved supervisory issues.
In
addition, a bank holding company that does not elect to be a financial holding
company under federal regulation, is generally prohibited from engaging in,
or
acquiring direct or indirect control of any company engaged in non-banking
activities. One of the principal exceptions to this prohibition is for
activities found by the Federal Reserve Board to be so closely related to
banking or managing or controlling banks as to be permissible. Some of the
principal activities that the Federal Reserve Board has determined by regulation
to be so closely related to banking as to be permissible are:
|
·
|
making
or servicing loans;
|
|
·
|
performing
certain data processing services;
|
|
·
|
providing
discount brokerage services, or acting as fiduciary, investment or
financial advisor;
|
|
·
|
leasing
personal or real property;
|
|
·
|
making
investments in corporations or projects designed primarily to promote
community welfare; and
|
|
·
|
acquiring
a savings and loan association.
|
Bank
holding companies that elect to be a financial holding company may engage in
activities that are financial in nature or incident to activities which are
financial in nature. Magyar Bancorp, Inc. has not elected to be a financial
holding company, although it may seek to do so in the future. Bank holding
companies may elect to become a financial holding company if:
|
·
|
each
of its depository institution subsidiaries is “well
capitalized;”
|
|
·
|
each
of its depository institution subsidiaries is “well
managed;”
|
|
·
|
each
of its depository institution subsidiaries has at least a “satisfactory”
Community Reinvestment Act rating at its most recent examination;
and
|
|
·
|
the
bank holding company has filed a certification with the Federal Reserve
Board stating that it elects to become a financial holding
company.
|
Under
federal law, depository institutions are liable to the Federal Deposit Insurance
Corporation for losses suffered or anticipated by the Federal Deposit Insurance
Corporation in connection with the default of a commonly controlled depository
institution or any assistance provided by the Federal Deposit Insurance
Corporation to such an institution in danger of default. This law would be
applicable potentially to Magyar Bancorp, Inc. if it ever acquired as a separate
subsidiary a depository institution in addition to Magyar Bank.
It
has
been the policy of many mutual holding companies to waive the receipt of
dividends declared by its subsidiary. In connection with its approval of the
reorganization, however, the Federal Reserve Board will require Magyar Bancorp,
MHC to obtain prior Federal Reserve Board approval before it may waive any
dividends. As of the date hereof, Federal Reserve Board policy is to prohibit
a
mutual holding company from waiving the receipt of dividends from its holding
company or bank subsidiary, and management is not aware of any instance in
which
the Federal Reserve Board has given its approval for a mutual holding company
to
waive dividends. Additionally, under Federal Deposit Insurance Corporation
policy, the cumulative amount of waived dividends, if any, must not be available
for distribution to public stockholders. See “Supervision and Regulation-Holding
Company Regulation.” It is not currently intended that Magyar Bancorp, MHC will
waive dividends declared by Magyar Bancorp, Inc. as long as Magyar Bancorp,
MHC
is regulated by the Federal Reserve Board.
Conversion
of Magyar Bancorp, MHC to Stock Form
.
Magyar
Bancorp, MHC is permitted to convert from the mutual form of organization to
the
capital stock form of organization (a “Conversion Transaction”). There can be no
assurance when, if ever, a Conversion Transaction will occur, and the Board
of
Directors has no current intention or plan to undertake a Conversion
Transaction. In a Conversion Transaction a new stock holding company may be
formed as the successor to Magyar Bancorp, Inc. (the “New Holding Company”),
Magyar Bancorp, MHC’s corporate existence would end, and certain depositors of
Magyar Bank would receive the right to subscribe for additional shares of the
New Holding Company. In a Conversion Transaction, each share of common stock
held by stockholders other than Magyar Bancorp, MHC (“Minority Stockholders”)
would be converted into a number of shares of common stock of the New Holding
Company determined pursuant to an exchange ratio that ensures that Minority
Stockholders own the same percentage of common stock in the New Holding Company
as they owned in Magyar Bancorp, Inc. immediately before the Conversion
Transaction, subject to any adjustment required by regulation or regulatory
policy. The Federal Deposit Insurance Corporation will require that dividends
waived by Magyar Bancorp, MHC be taken into account. The total number of shares
held by Minority Stockholders after a Conversion Transaction also would be
increased by any purchases by Minority Stockholders in the stock offering
conducted as part of the Conversion Transaction.
Any
Conversion Transaction would require the approval of a majority of the
outstanding shares of Magyar Bancorp, Inc. common stock held by Minority
Stockholders and the approval of a majority of the eligible votes of depositors
of Magyar Bank.
New
Jersey Regulation.
Under
the
New Jersey Banking Act, a company owning or controlling a savings bank is
regulated as a bank holding company. The New Jersey Banking Act defines the
terms “company” and “bank holding company” as such terms are defined under the
BHCA. Each bank holding company controlling a New Jersey-chartered bank or
savings bank must file certain reports with the Commissioner and is subject
to
examination by the Commissioner.
Acquisition
of Magyar Bancorp, Inc.
Under
federal law and under the New Jersey Banking Act, no person may acquire control
of Magyar Bancorp, Inc. or Magyar Bank without first obtaining approval of
such
acquisition of control by the Federal Reserve Board and the Commissioner. See
“Restrictions on Acquisition of Magyar Bancorp, Inc. and Magyar
Bank.”
Federal
Securities Laws.
Magyar
Bancorp, Inc. common stock is registered with the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as amended. Magyar
Bancorp, Inc. is subject to the information, proxy solicitation, insider trading
restrictions and other requirements under the Securities Exchange Act of
1934.
The
registration under the Securities Act of 1933 of shares of the common stock
sold
in the stock offering did not cover the resale of the shares. Shares of the
common stock purchased by persons who are not affiliates of Magyar Bancorp,
Inc.
may be resold without registration. Shares purchased by an affiliate of Magyar
Bancorp, Inc. will be subject to the resale restrictions of Rule 144 under
the
Securities Act of 1933. If Magyar Bancorp, Inc. meets the current public
information requirements of Rule 144 under the Securities Act of 1933, each
affiliate of Magyar Bancorp, Inc. who complies with the other conditions of
Rule
144, including those that require the affiliate’s sale to be aggregated with
those of other persons, would be able to sell in the public market, without
registration, a number of shares not to exceed, in any three month period,
the
greater of 1% of the outstanding shares of Magyar Bancorp, Inc., or the average
weekly volume of trading in the shares during the preceding four calendar weeks.
Provision may be made in the future by Magyar Bancorp, Inc. to permit affiliates
to have their shares registered for sale under the Securities Act of
1933.
Risk
Factors
Changes
in Interest Rates May Hurt our Profits and Asset Values.
Our
earnings largely depend on our net interest income, which could be negatively
affected by changes in interest rates. Net interest income is the difference
between:
|
·
|
the
interest income we earn on our interest-earning assets, such as loans
and
securities; and
|
|
·
|
the
interest expense we pay on our interest-bearing liabilities, such
as
deposits and borrowings.
|
The
rates
we earn on our assets and the rates we pay on our liabilities are generally
fixed for a contractual period of time. While we have taken steps to attempt
to
reduce our exposure to increases in interest rates, historically our liabilities
generally have shorter contractual maturities than our assets. This imbalance
can create significant earnings volatility, because market interest rates change
over time. In a period of rising interest rates, the interest income earned
on
our assets may not increase as rapidly as the interest paid on our liabilities.
Likewise, in a period of falling interest rates, the interest expense paid
on
our liabilities may not decrease as rapidly as the interest income received
on
our assets. See “Management’s Discussion and Analysis or Plan of
Operation-Management of Market Risk.”
In
addition, changes in interest rates can affect the average life of loans and
mortgage-backed securities. A reduction in interest rates causes increased
prepayments of loans and mortgage-backed securities as borrowers refinance
their
debt to reduce their borrowing costs. This creates reinvestment risk, which
is
the risk that we may not be able to reinvest the funds from faster prepayments
at rates that are comparable to the rates we earned on the prepaid loans or
securities. Additionally, increases in interest rates may decrease loan demand
and/or make it more difficult for borrowers to repay adjustable-rate
loans.
Changes
in interest rates also affect the current market value of our interest-earning
securities portfolio. Generally, the value of securities moves inversely with
changes in interest rates. At September 30, 2006, the fair value of our total
securities portfolio was $41.5 million. Unrealized net losses on securities
totaled $816,000 on a pre-tax basis at September 30, 2006.
We
evaluate interest rate sensitivity using models that estimate the change in
Magyar Bank’s net interest income over a range of interest rate scenarios. At
September 30, 2006, in the event of an immediate 200 basis point increase in
interest rates, the model projects that we would experience a $24,000, or 0.18%,
increase in net interest income in the first year following the change in
interest rates, and a $992,000, or 7.19%, decrease in net interest income in
the
second year following the change in interest rates. At September 30, 2006,
in
the event of an immediate 200 basis point decrease in interest rates, the model
projects that we would experience a $251,000, or 1.82%, decrease in net interest
income in the first year following the change in interest rates, and a $14,000,
or 0.10%, decrease in net interest income in the second year following the
change in interest rates. See “Management’s Discussion and Analysis or Plan of
Operation.”
At
September 30, 2006, our securities available-for-sale portfolio totaled $18.2
million, which included $16.0 million of mortgage-backed securities. To the
extent interest rates increase and the value of our available-for-sale portfolio
decreases, our stockholders’ equity will be adversely affected.
A
Significant Portion of Our Commercial Business, Commercial Real Estate and
Construction Loan Portfolio Has Been Originated in the Last Three
Years.
Our
portfolio of commercial business, commercial real estate and construction loans
has grown from $34.2 million at September 30, 2003 to $183.4 million at
September 30, 2006. Accordingly, a large portion of this loan portfolio does
not
provide a significant payment history pattern that can be used to evaluate
ongoing credit risk. Therefore, it is difficult to predict the future
performance of this part of our loan portfolio. These loans may have delinquency
or charge-off levels above our historical experience, which could adversely
affect our future performance.
Because
We Intend to Continue our Emphasis on the Origination of Commercial Business,
Commercial Real Estate and Construction Loans, Our Lending Risk Will Increase.
At
September 30, 2006, our portfolio of commercial business, commercial real estate
and construction loans totaled $183.4 million, or 52.1% of our total loans,
compared to $119.2 million or 44.0% of our total loans at September 30, 2005,
$53.2 million or 27.1% of our total loans at September 30, 2004, and $34.2
million, or 19.4% of our total loans at September 30, 2003. It is our intent
to
continue to emphasize the origination of these loans. Commercial business,
commercial real estate and construction loans generally have more risk than
one-to four-family residential mortgage loans. At September 30, 2006, our
non-performing loans increased to $7.4 million from $1.0 million at September
30, 2005, reflecting our increased originations of these loans. In addition,
because the repayment of these loans depends on the successful management and
operation of the borrower’s properties or related businesses, repayment of these
loans can be affected by adverse conditions in the real estate market or the
local economy. Further, these loans typically have larger loan balances, and
several of our borrowers have more than one commercial business, commercial
real
estate and construction loan outstanding with us. Consequently, an adverse
development with respect to one loan or one credit relationship can expose
us to
significantly greater risk of loss compared to an adverse development with
respect to a one- to four-family residential mortgage loan. Finally, if we
foreclose on a commercial business, commercial real estate or construction
loan,
our holding period for the collateral, if any, typically is longer than for
one-
to four-family residential mortgage loans because there are fewer potential
purchasers of the collateral. Because we plan to continue to emphasize the
origination of these loans, it may be necessary to increase our allowance for
loan losses because of the increased credit risk associated with these types
of
loans. Any increase to our allowance for loan losses would adversely affect
our
earnings.
Our
Profits Have Declined over the Past Three Years, and May Not Improve in the
Foreseeable Future.
Over
the
past three years our earnings have declined as a direct result of our branch
expansion, the relocation of our headquarters office, and the addition of
experienced senior lending and administrative personnel. We plan to add
additional new branches. It is possible that our business plan will not succeed,
or that our new branches, when added, will not become profitable. Accordingly,
we may not experience any improvement in our net income in the near future
as a
result of these efforts.
A
Downturn in the New Jersey Economy or a Decline in Real Estate Values Could
Reduce Our Profits.
Virtually
all of our real estate loans are secured by real estate in New Jersey. At
September 30, 2006, loans secured by real estate, including home equity loans
and lines of credit, represented 88.8% of our total loans. As a result of this
concentration, a downturn in this market area could cause significant increases
in nonperforming loans, which would reduce our profits. Additionally, a decrease
in asset quality could require additions to our allowance for loan losses
through increased provisions for loan losses, which would reduce our profits.
In
recent years, there have been significant increases in real estate values in
our
market area. As a result of rising home prices, our seasoned loans have been
well collateralized. A decline in real estate values could cause some of our
mortgage loans to become inadequately collateralized, which would expose us
to a
greater risk of loss. For a discussion of our market area, see “Business of
Magyar Bank-Market Area.”
If
Our Allowance for Loan Losses is Not Sufficient to Cover Actual Loan Losses,
Our
Earnings Could Decrease.
Our
allowance for loan losses may not be sufficient to cover losses inherent in
our
loan portfolio, resulting in additions to our allowance, which could materially
decrease our net income. Our allowance for loan losses was 1.11% of total loans
and 52.59% of non-performing loans at September 30, 2006. We make various
assumptions and judgments about the collectibility of our loan portfolio,
including the creditworthiness of our borrowers and the value of the real estate
and other assets serving as collateral for the repayment of many of our loans.
In determining the amount of the allowance for loan losses, we review our loans
and our loss and delinquency experience, and we evaluate economic conditions.
Based on this review, we believe our allowance for loan losses is adequate
to
absorb losses in our loan portfolio as of September 30, 2006.
Bank
regulators periodically review our allowance for loan losses and may require
us
to increase our provision for loan losses or recognize further loan charge-offs.
Any increase in our allowance for loan losses or loan charge-offs as required
by
these regulatory authorities will have a material adverse effect on our
financial condition and results of operations.
Our
Return on Equity Will Be Low Compared to Other Financial Institutions. This
May
Negatively Affect the Price of Our Common Stock.
Net
income divided by average equity, known as “return on equity,” is a ratio many
investors use to compare the performance of a financial institution to its
peers. We expect our return on equity to remain below the industry average
until
we are able to leverage the additional capital we receive from our recent public
offering. Our return on equity will be reduced by the capital raised in the
stock offering, higher expenses from the costs of being a public company, and
added expenses associated with our employee stock ownership plan and the
stock-based incentive plan we intend to adopt. For the year ended
September 30, 2006, our return on average equity was 0.01%, compared to a
return on average equity of 2.33% for all publicly traded financial institutions
organized in the mutual holding company form. Until we can leverage the new
capital and increase our net interest income and other income, we expect our
return on equity to be below the industry average, which may reduce the market
value of our common stock.
Strong
Competition Within Our Market Area May Limit Our Growth and
Profitability.
Competition
in the banking and financial services industry is intense. In our market area,
we compete with commercial banks, savings institutions, mortgage brokerage
firms, credit unions, finance companies, mutual funds, insurance companies,
and
brokerage and investment banking firms operating locally and elsewhere. Some
of
our competitors have substantially greater resources and lending limits than
we,
have greater name recognition and market presence that benefit them in
attracting business, and offer certain services that we do not or cannot
provide. In addition, larger competitors may be able to price loans and deposits
more aggressively than we do. Our profitability depends upon our continued
ability to successfully compete in our market area. The greater resources and
deposit and loan products offered by some of our competitors may limit our
ability to increase our interest-earning assets. For additional information
see
“Business of Magyar Bank-Competition.”
If
We Declare Dividends on Our Common Stock, Magyar Bancorp, MHC will be Prohibited
From Waiving the Receipt of Dividends by Current Federal Reserve Board Policy,
Which May Result in Lower Dividends for All Other
Stockholders.
The
Board
of Directors of Magyar Bancorp, Inc. will have the authority to declare
dividends on its common stock, subject to statutory and regulatory requirements.
So long as Magyar Bancorp, MHC is regulated by the Federal Reserve Board, if
Magyar Bancorp, Inc. pays dividends to its stockholders, it also will be
required to pay dividends to Magyar Bancorp, MHC, unless Magyar Bancorp, MHC
is
permitted by the Federal Reserve Board to waive the receipt of dividends. The
Federal Reserve Board’s current position is to not permit a mutual holding
company to waive dividends declared by its subsidiary. Accordingly, because
dividends will be required to be paid to Magyar Bancorp, MHC along with all
other stockholders, the amount of dividends available for all other shareholders
will be less than if Magyar Bancorp, MHC were permitted to waive the receipt
of
dividends.
The
following table provides certain information with respect to our four banking
offices as of September 30, 2006:
|
|
|
|
Original
Year
|
|
Year
of
|
Location
|
|
Leased
or Owned
|
|
Leased
or Acquired
|
|
Lease
Expiration
|
Main
Office:
|
|
|
|
|
|
|
400
Somerset Street
|
|
Owned
|
|
2005
|
|
-
|
New
Brunswick, New Jersey
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Full
- Service Branches:
|
|
|
|
|
|
|
582
Milltown Road
|
|
Leased
|
|
2002
|
|
2012
|
North
Brunswick, New Jersey
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3050
Highway No. 27
|
|
Owned
|
|
1969
|
|
-
|
South
Brunswick, New Jersey
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1000
Route 202 South
|
|
Leased
|
|
2006
|
|
2031
|
Branchburg,
New Jersey
|
|
|
|
|
|
|
|
|
|
|
|
|
|
89
French Street
|
|
Leased
|
|
2006
|
|
2011
|
New
Brunswick, New Jersey
|
|
|
|
|
|
|
(Scheduled
to open during the first calendar quarter of 2007)
|
|
|
|
|
The
net
book value of our premises, land and equipment was approximately $21.7 million
at September 30, 2006.
For
information regarding Magyar Bancorp, Inc.’s investment in mortgages and
mortgage-related securities, see “Item 1. Business” herein.
From
time
to time, we are involved as plaintiff or defendant in various legal proceedings
arising in the ordinary course of business. At September 30, 2006, we were
not
involved in any legal proceedings, the outcome of which would be material to
our
financial condition or results of operations.
|
Submission
of Matters to a Vote of Security
Holders
|
No
matters were submitted to a vote of stockholders during the fourth quarter
of
the fiscal year under report.
PART
II
|
Market
for Common Equity, Related Stockholder Matters and Small Business
Issuer
Purchases of Equity
Securities
|
|
(a)
|
Market
for Common Stock
|
Our
shares of common stock are traded on the NASDAQ Global Market under the symbol
“MGYR.” Magyar Bancorp, MHC owns 3,200,450 shares, or 54.03% of our outstanding
shares of common stock. The approximate number of holders of record of Magyar
Bancorp, Inc.’s common stock as of September 30, 2006 was 1,500. Certain shares
of Magyar Bancorp, Inc. are held in “nominee” or “street” name and accordingly,
the number of beneficial owners of such shares is not known or included in
the
foregoing number. The following table presents quarterly market information
for
Magyar Bancorp, Inc. common stock for the period ended September 30, 2006.
Magyar Bancorp, Inc. began trading on the NASDAQ Global Market on January 24,
2006. Accordingly, no information prior to that date is available. The following
information was provided by the NASDAQ Stock Market.
2006
|
|
High
|
|
Low
|
|
Dividends
|
|
|
|
|
|
|
|
|
|
Quarter
ended September 30, 2006
|
|
$
|
13.60
|
|
$
|
11.13
|
|
$
|
-
|
|
Quarter
ended June 30, 2006
|
|
|
12.00
|
|
|
10.75
|
|
|
-
|
|
Quarter
ended March 31, 2006
|
|
|
12.39
|
|
|
10.35
|
|
|
-
|
|
Dividend
payments by Magyar Bancorp, Inc. are dependent primarily on dividends it
receives from Magyar Bank, because Magyar Bancorp, Inc. will have no source
of
income other than dividends from Magyar Bank, earnings from the investment
of
proceeds from the sale of shares of common stock retained by Magyar Bancorp,
Inc., and interest payments with respect to Magyar Bancorp, Inc.’s loan to the
Employee Stock Ownership Plan. For more information on regulatory restrictions
regarding the payment of dividends, see “Item 1- Description of Business-
Supervision and Regulation- New Jersey Banking Regulation-
Dividends.”
At
September 30, 2006, there were no compensation plans under which equity
securities of Magyar Bancorp, Inc. were authorized for issuance other than
the
Employee Stock Ownership Plan.
|
(c)
|
Magyar
Bancorp, Inc. did not repurchase any shares of its common stock during
the
relevant period.
|
|
Management’s
Discussion and Analysis or Plan of
Operation
|
Overview
Magyar
Bancorp, Inc. (the “Company”) is a Delaware-chartered mid-tier stock holding
company whose most significant business activity is owning 100% of the common
stock of Magyar Bank. Magyar Bank’s principal business is attracting retail
deposits from the general public and investing those deposits, together with
funds generated from operations, principal repayments on loans and securities
and borrowed funds, into one-to four-family residential mortgage loans,
multi-family and commercial real estate mortgage loans, home equity loans and
lines of credit, commercial business loans and construction loans. Our results
of operations depend primarily on our net interest income which is the
difference between the interest we earn on our interest-earning assets and
the
interest we pay on our interest-bearing liabilities. Our net interest income
is
primarily affected by the market interest rate environment, the shape of the
U.S. Treasury yield curve, the timing of the placement of interest-earning
assets and interest-bearing liabilities, and the prepayment rate on our
mortgage-related assets. Other factors that may affect our results of operations
are general and local economic and competitive conditions, government policies
and actions of regulatory authorities.
In
connection with the completion of our initial public stock offering on
January 23, 2006, Magyar Bancorp, Inc. sold 2,618,550 shares of common
stock, or 44.20% of its outstanding common stock, at a price of $10.00 per
share, to subscribers in the offering. Magyar Bancorp, MHC, the Company’s New
Jersey-chartered mutual holding company parent, holds 3,200,450 shares, or
54.03%, of the Company’s outstanding common stock. The Company also contributed
$500,000 in cash and issued 104,742 shares of common stock, or 1.77% of its
outstanding shares, to the MagyarBank Charitable Foundation. Net proceeds from
the initial offering were $25.8 million (including $1.0 million in stock
contributed to the charitable foundation) of which the Company contributed
$12.4 million to Magyar Bank.
During
the year ended September 30, 2006, we grew net loans $80.7 million, or 30.2%.
We
attribute this growth to an expanding referral network and reputation resulting
from our continued focus on originating commercial real estate, commercial
business, construction, and residential mortgage loans. Deposits increased
$47.5 million, or 17.1%, during the year ended September 30, 2006. We
attribute this growth to the attractiveness of our promotional certificates
of
deposit and money market accounts as well as the expansion of our commercial
relationships, which tend to hold larger deposit balances. In addition to an
expanding referral network for deposits, we have been implementing a strategy
to
increase deposits from our current depositor base through relationship products
and pricing and targeted marketing campaigns.
We
reported net income of $5,000 for the year ended September 30, 2006. Net income
was adversely affected by a $1.5 million pre-tax charitable contribution we
made
to the MagyarBank Charitable Foundation.
Our
net
interest margin increased to 3.62% for the year ended September 30, 2006 from
3.36% for the year ended September 30, 2005 and our net interest spread
increased to 3.34% for the year ended September 30, 2006 from 3.26% for the
year
ended September 30, 2005. We attribute the increase in margin and spread to
the
growth in our loan portfolio, specifically in prime-based loans, the capital
we
raised in the stock offering, and the redeployment of investment amortizations,
maturities and sales into higher-yielding loans.
Throughout
2007, we expect to continue with our strategy of diversifying our balance sheet
with higher concentrations in commercial real estate, construction, and
commercial business loans.
Critical
Accounting Policies
Critical
accounting policies are defined as those that are reflective of significant
judgments and uncertainties, and could potentially result in materially
different results under different assumptions and conditions. We believe that
the most critical accounting policy upon which our financial condition and
results of operation depend, and which involves the most complex subjective
decisions or assessments, is the allowance for loan losses.
The
allowance for loan losses is the amount estimated by management as necessary
to
cover credit losses in the loan portfolio both probable and reasonably estimable
at the balance sheet date. The allowance is established through the provision
for loan losses which is charged against income. In determining the allowance
for loan losses, management makes significant estimates and has identified
this
policy as one of our most critical. Due to the high degree of judgment involved,
the subjectivity of the assumptions utilized and the potential for changes
in
the economic environment that could result in changes to the amount of the
recorded allowance for loan losses, the methodology for determining the
allowance for loan losses is considered a critical accounting policy by
management
As
a
substantial amount of our loan portfolio is collateralized by real estate,
appraisals of the underlying value of property securing loans and discounted
cash flow valuations of properties are critical in determining the amount of
the
allowance required for specific loans. Assumptions for appraisals and discounted
cash flow valuations are instrumental in determining the value of properties.
Overly optimistic assumptions or negative changes to assumptions could
significantly affect the valuation of a property securing a loan and the related
allowance determined. The assumptions supporting such appraisals and discounted
cash flow valuations are carefully reviewed by management to determine that
the
resulting values reasonably reflect amounts realizable on the related
loans.
Management
performs a quarterly evaluation of the adequacy of the allowance for loan
losses. We consider a variety of factors in establishing this estimate
including, but not limited to, current economic conditions, delinquency
statistics, geographic and industry concentrations, the adequacy of the
underlying collateral, the financial strength of the borrower, results of
internal loan reviews and other relevant factors. This evaluation is inherently
subjective as it requires material estimates by management that may be
susceptible to significant change based on changes in economic and real estate
market conditions.
The
evaluation has a specific and general component. The specific component relates
to loans that are delinquent or otherwise identified as a problem loan through
the application of our loan review process and our loan grading system. All
such
loans are evaluated individually, with principal consideration given to the
value of the collateral securing the loan and discounted cash flows. Specific
allowances are established as required by this analysis. The general component
is determined by segregating the remaining loans by type of loan, risk weighting
(if applicable) and payment history. We also analyze historical loss experience,
delinquency trends, general economic conditions and geographic and industry
concentrations. This analysis establishes factors that are applied to the loan
groups to determine the amount of the general component of the allowance for
loan losses.
Actual
loan losses may be significantly greater than the allowances we have
established, which could have a material negative effect on our financial
results.
Comparison
of Financial Condition at September 30, 2006 and September 30,
2005
Total
Assets.
Total
assets increased $74.5 million, or 20.7%, to $434.2 million at September 30,
2006 from $359.7 million at September 30, 2005, due to significant growth in
loans receivable, partially offset by a decrease in securities
available-for-sale and securities held-to-maturity.
Loans
Receivable.
Net
loans
receivable increased $80.7 million, or 30.2%, to $348.0 million at September
30,
2006 from $267.3 million at September 30, 2005. During the year ended September
30, 2006, construction loans led the increase in net loans receivable with
growth of 103.4% or $45.9 million to $90.3 million from $44.4 million at
September 30, 2005. One-to four-family residential mortgage loans and commercial
real estate loans increased $17.0 million, or 13.4%, and $11.2 million, or
19.5%, during the period to $143.2 million and $68.6 million, respectively.
In
addition, commercial business loans increased $7.1 million, or 40.8%, to $24.5
million. The increase in loans receivable was partially offset by $2.8 million
in sales of one-to four-family residential mortgage loans and provisions for
loan losses of $961,000.
At
September 30, 2006, the significant loan categories in terms of the percent
of
total loans were 40.7% in one-to four-family residential mortgage loans, 25.6%
in construction loans and 19.5% in commercial real estate loans. The recent
expansion of our construction lending department led to an increase in the
percentage of construction loans from 16.4% at September 30, 2005 to 25.6%
at
September 30, 2006.
Our
interest in loans on the Dwek Properties and Sugar Maple Estates (reported
in
our Current Report on Form 8-K dated June 27, 2006) remained at $721,000 and
$4.2 million, respectively, at September 30, 2006. The purpose of the smaller
loan was for the acquisition and development of an approved building lot located
in Farmingdale, New Jersey into a commercial retail center. The total mortgage
loan was approved for $1.2 million and the outstanding principal balance on
this
loan was $721,000 as of September 30, 2006. We have entered into an agreement
with the fiduciary agent handling Dwek’s affairs to complete the minor items
necessary to proceed with a pending sale of the property to an unrelated third
party. The larger of the two loans is collateralized by six real estate lots
located in Rumson, New Jersey. It was a $13.1 million participation loan with
$5.5 million advanced of which our participation interest was $4.2 million
as of
September 30, 2006.
Payments
on the Dwek Properties and Sugar Maple Estates loans were current at September
30, 2006 and as such, no reserve for uncollected interest had been established
for the period. The loans have been classified by management as “Special
Mention” and a portion of the existing reserves for loan loss equal to 5% of the
principal outstanding on the loans has been allocated. Although we believe
that
these loans are well collateralized, there can be no assurance that losses
will
not occur or that significant additional expenses will not be incurred in the
process of the resolution of the loans.
In
October 2006, Kara Homes, Inc. (Kara Homes), one of our largest construction
loan borrowers, filed for Chapter 11 bankruptcy (reported in our Current Report
on Form 8-K dated October 10, 2006). Kara Homes' lending relationship with
us
consists of four construction loans with total outstanding balances of
$7,575,000. Two of the four loans were participated with other banks, limiting
our total lending relationship with Kara Homes to $5.1 million. The projects
financed by us were for the completion of single family residential homes and
were at various stages of completion at September 30, 2006.
Payments
on the Kara Homes’ loans were current at September 30, 2006 and as such, no
reserve for uncollected interest had been established for the period. However,
the loans were designated non-accrual at September 30, 2006. The loans have
been
classified by management as “Substandard” and a portion of the existing reserves
for loan loss equal to 11% of the principal outstanding on the loans has been
allocated for potential losses on the projects. Although we believe that the
reserve will be sufficient to absorb potential losses, there can be no assurance
that additional losses will not occur or that significant additional expenses
will not be incurred in the process of the resolution of the loans.
Total
non-performing loans increased by $6.4 million to $7.4 million at September
30,
2006 from $1.0 million at September 30, 2005, primarily due to the four Kara
Homes, Inc. loans. Non-accrual loans increased $4.8 million while loans past
due
three months increased $1.6 million at September 30, 2006. The ratio of
non-performing loans to total loans was 2.1% at September 30, 2006 compared
with
0.4% at September 30, 2005. The allowance for loan losses was $3.9 million
or 52.6% of non-performing loans at September 30, 2006 compared with
$3.1 million or 300.9% of non-performing loans at September 30, 2005. The
allowance for loan losses was $3.9 million, or 1.1% of gross loans outstanding
at September 30, 2006, as compared to $3.1 million, or 1.2% of gross loans
outstanding at September 30, 2005.
Investment
Securities.
Investment securities decreased $12.8 million, or 23.3%, to $42.1 million at
September 30, 2006 from $54.9 million at September 30, 2005. The decrease in
our
investment portfolio reflected the deployment of investment proceeds into new
higher-yielding loans.
Securities
available-for-sale decreased $2.4 million, or 11.8%, to $18.2 million at
September 30, 2006 from $20.6 million at September 30, 2005. The decrease was
the result of $3.9 million in sales of fixed-rate investment securities earning
an average yield of 2.73%, $3.6 million in principal amortization and $2.5
million in maturities of mortgage-backed securities, offset by $7.6 million
in
purchases of mortgage-backed and investment securities.
In
addition, securities held-to-maturity decreased $10.4 million, or 30.3%, to
$23.9 million at September 30, 2006 from $34.3 million at September 30, 2005,
resulting from $6.4 million in principal amortization and $4.0 million in
maturities.
Bank-Owned
Life Insurance.
The cash
surrender value of life insurance held for directors and executive officers
of
Magyar Bank increased $3.8 million, or 65.3% to $9.6 million at September 30,
2006 from $5.8 million at September 30, 2005. The increase was the result of
$3.6 million in additional purchases and a $223,000 increase in the cash
surrender value of existing policies.
Deposits.
Total
deposits increased $47.5 million, or 17.1%, to $325.6 million at September
30,
2006. The increase was primarily the result of money market and certificate
of
deposit accounts, which increased $25.6 million, or 84.0%, to $56.1 million
and
$23.6 million, or 18.7%, to $149.8 million, respectively, at September 30,
2006.
In addition, non-interest bearing demand accounts increased $5.9 million, or
40.7%, to $20.5 million. The growth in deposit accounts was partially offset
by
a $10.7 million, or 19.9%, decrease in savings accounts. The balance
fluctuations within the deposits were attributable to higher interest rates
offered on money market and certificate of deposit accounts than savings
accounts.
Borrowed
Funds.
Borrowings
from the Federal Home Loan Bank of New York increased $4.1 million, or 8.4%
to
$53.0 million at September 30, 2006 from $48.9 million at September 30, 2005.
Proceeds from the additional borrowings were used to help fund the growth in
loans.
Stockholders’
Equity.
Stockholders’
equity increased $23.8 million, or 97.7%, to $48.2 million at September 30,
2006
from $24.4 million at September 30, 2005. The increase was attributable to
a net
increase in capital (net of stock acquired by our employee stock ownership
plan)
of $23.7 million in connection with the Company's initial public offering and
a
decrease in accumulated other comprehensive loss of $107,000. Other
comprehensive losses due to unrealized losses on securities available-for-sale
were due to increases in interest rates since the securities were purchased.
Management has concluded that their investment securities, minimum pension
liability, and interest rate derivatives do not have impairments that are
considered other than temporary.
Comparison
of Operating Results for the Years Ended September 30, 2006 and
2005
Net
Income.
Net
income decreased $1.6 million to $5,000 for the year ended September 30, 2006
from $1.6 million for the year ended September 30, 2005. The current period’s
results were negatively affected by a $1.5 million contribution to the Magyar
Bank Charitable Foundation as part of the Company’s initial public offering. The
net income for the year ended September 30, 2005 included a $2.9 million pre-tax
gain resulting from the sale of our old main office.
Net
Interest and Dividend Income.
Net
interest and dividend income increased $3.6 million, or 38.2%, to $13.2
million for the year ended September 30, 2006 from $9.6 million for the
year ended September 30, 2005. Total interest and dividend income increased
$8.0
million, or 51.5%, to $23.6 million for the year ended September 30, 2006 while
total interest expense increased $4.4 million, or 72.5%, to $10.4 million.
Average
Balance Sheet.
The
table
on the following page presents certain information regarding our financial
condition and net interest income for the years ended September 30, 2006 and
2005. The table presents the annualized average yield on interest-earning assets
and the annualized average cost of interest-bearing liabilities. We derived
the
yields and costs by dividing annualized income or expense by the average balance
of interest-earning assets and interest-bearing liabilities, respectively,
for
the periods shown. We derived average balances from daily balances over the
periods indicated. Interest income includes fees that we consider adjustments
to
yields.
|
|
For
the Years Ended September 30,
|
|
|
|
2006
|
|
2005
|
|
2004
|
|
|
|
Average
Balance
|
|
Interest
Income/
Expense
|
|
Yield
/
Cost
|
|
Average
Balance
|
|
Interest
Income/
Expense
|
|
Yield
/
Cost
|
|
Average
Balance
|
|
Interest
Income/
Expense
|
|
Yield
/
Cost
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Dollars
in thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest-earning
assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest-earning
deposits
|
|
$
|
2,441
|
|
$
|
106
|
|
|
4.34
|
%
|
$
|
750
|
|
$
|
18
|
|
|
2.40
|
%
|
$
|
5,578
|
|
$
|
33
|
|
|
0.59
|
%
|
Loans
|
|
|
311,706
|
|
|
21,520
|
|
|
6.90
|
%
|
|
217,955
|
|
|
13,029
|
|
|
5.98
|
%
|
|
178,304
|
|
|
9,627
|
|
|
5.40
|
%
|
Securities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Taxable
|
|
|
47,048
|
|
|
1,801
|
|
|
3.83
|
%
|
|
63,421
|
|
|
2,427
|
|
|
3.83
|
%
|
|
75,824
|
|
|
2,888
|
|
|
3.81
|
%
|
Tax-exempt
|
|
|
1,214
|
|
|
69
|
|
|
5.68
|
%
|
|
149
|
|
|
13
|
|
|
8.52
|
%
|
|
159
|
|
|
13
|
|
|
8.52
|
%
|
FHLB
of NY stock
|
|
|
2,408
|
|
|
119
|
|
|
4.94
|
%
|
|
2,008
|
|
|
94
|
|
|
4.68
|
%
|
|
1,641
|
|
|
27
|
|
|
1.65
|
%
|
Total
interest-earning assets
|
|
|
364,817
|
|
|
23,615
|
|
|
6.47
|
%
|
|
284,284
|
|
|
15,581
|
|
|
5.48
|
%
|
|
261,506
|
|
|
12,588
|
|
|
4.81
|
%
|
Noninterest-earning
assets
|
|
|
30,693
|
|
|
|
|
|
|
|
|
26,989
|
|
|
|
|
|
|
|
|
12,088
|
|
|
|
|
|
|
|
Total
assets
|
|
$
|
395,510
|
|
|
|
|
|
|
|
$
|
311,272
|
|
|
|
|
|
|
|
$
|
273,594
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest-bearing
liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Savings
accounts (1)
|
|
$
|
55,623
|
|
|
621
|
|
|
1.12
|
%
|
$
|
51,625
|
|
|
340
|
|
|
0.66
|
%
|
$
|
52,522
|
|
|
305
|
|
|
0.58
|
%
|
NOW
accounts (2)
|
|
|
70,470
|
|
|
1,681
|
|
|
2.39
|
%
|
|
57,551
|
|
|
633
|
|
|
1.10
|
%
|
|
50,990
|
|
|
238
|
|
|
0.47
|
%
|
Time
deposits (3)
|
|
|
166,118
|
|
|
6,192
|
|
|
3.73
|
%
|
|
123,412
|
|
|
3,406
|
|
|
2.76
|
%
|
|
111,988
|
|
|
2,677
|
|
|
2.39
|
%
|
Total
interest-bearing deposits
|
|
|
292,211
|
|
|
8,494
|
|
|
2.91
|
%
|
|
232,588
|
|
|
4,379
|
|
|
1.88
|
%
|
|
215,500
|
|
|
3,220
|
|
|
1.49
|
%
|
Federal
Home Loan Bank borrowings
|
|
|
39,172
|
|
|
1,829
|
|
|
4.67
|
%
|
|
37,340
|
|
|
1,574
|
|
|
4.22
|
%
|
|
22,833
|
|
|
1,039
|
|
|
4.55
|
%
|
Loan
payable
|
|
|
807
|
|
|
64
|
|
|
7.93
|
%
|
|
965
|
|
|
67
|
|
|
6.94
|
%
|
|
-
|
|
|
-
|
|
|
0.00
|
%
|
Total
interest-bearing liabilities
|
|
|
332,190
|
|
|
10,387
|
|
|
3.13
|
%
|
|
270,893
|
|
|
6,020
|
|
|
2.22
|
%
|
|
238,333
|
|
|
4,259
|
|
|
1.79
|
%
|
Noninterest-bearing
liabilities
|
|
|
24,509
|
|
|
|
|
|
|
|
|
16,582
|
|
|
|
|
|
|
|
|
12,541
|
|
|
|
|
|
|
|
Total
liabilities
|
|
|
356,699
|
|
|
|
|
|
|
|
|
287,475
|
|
|
|
|
|
|
|
|
250,874
|
|
|
|
|
|
|
|
Retained
earnings
|
|
|
38,811
|
|
|
|
|
|
|
|
|
23,797
|
|
|
|
|
|
|
|
|
22,720
|
|
|
|
|
|
|
|
Total
liabilities and retained earnings
|
|
$
|
395,510
|
|
|
|
|
|
|
|
$
|
311,272
|
|
|
|
|
|
|
|
$
|
273,594
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax-equivalent
basis adjustment
|
|
|
|
|
|
(20
|
)
|
|
|
|
|
|
|
|
(4
|
)
|
|
|
|
|
|
|
|
(4
|
)
|
|
|
|
Net
interest income
|
|
|
|
|
$
|
13,208
|
|
|
|
|
|
|
|
$
|
9,557
|
|
|
|
|
|
|
|
$
|
8,325
|
|
|
|
|
Interest
rate spread
|
|
|
|
|
|
|
|
|
3.34
|
%
|
|
|
|
|
|
|
|
3.26
|
%
|
|
|
|
|
|
|
|
3.02
|
%
|
Net
interest-earning assets
|
|
$
|
32,627
|
|
|
|
|
|
|
|
$
|
13,391
|
|
|
|
|
|
|
|
$
|
23,173
|
|
|
|
|
|
|
|
Net
interest margin
|
|
|
|
|
|
|
|
|
3.62
|
%
|
|
|
|
|
|
|
|
3.36
|
%
|
|
|
|
|
|
|
|
3.18
|
%
|
Average
interest-earning assets to average interest-bearing liabilities
|
|
|
109.82
|
%
|
|
|
|
|
|
|
|
104.94
|
%
|
|
|
|
|
|
|
|
109.72
|
%
|
|
|
|
|
|
|
(1)
|
Includes
passbook savings, money market passbook and club
accounts.
|
(2)
|
Includes
interest-bearing checking and money market
accounts.
|
(3)
|
Includes
certificates of deposits and individual retirement
accounts.
|
Rate/Volume
Analysis.
The
following table presents the effects of changing rates and volumes on our net
interest income for the periods indicated. The rate column shows the effects
attributable to changes in rate (changes in rate multiplied by average volume).
The volume column shows the effects attributable to changes in volume (changes
in average volume multiplied by prior rate). The net column represents the
sum
of the prior columns. For purposes of this table, changes attributable to both
rate and volume, which cannot be segregated, have been allocated
proportionately, based on the changes due to rate and the changes due to volume.
|
|
For
the Years Ended September 30,
|
|
|
|
2006
vs. 2005
|
|
2005
vs. 2004
|
|
|
|
Increase
(decrease)
|
|
|
|
Increase
(decrease)
|
|
|
|
|
|
due
to
|
|
|
|
due
to
|
|
|
|
|
|
Volume
|
|
Rate
|
|
Net
|
|
Volume
|
|
Rate
|
|
Net
|
|
|
|
(In
thousands)
|
|
|
|
|
|
|
|
|
|
|
|
Interest-earning
assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest-earning
deposits
|
|
$
|
41
|
|
$
|
47
|
|
$
|
88
|
|
$
|
(28
|
)
|
$
|
13
|
|
$
|
(15
|
)
|
Loans
|
|
|
5,606
|
|
|
2,885
|
|
|
8,491
|
|
|
2,141
|
|
|
1,261
|
|
|
3,402
|
|
Securities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Taxable
|
|
|
(627
|
)
|
|
1
|
|
|
(626
|
)
|
|
(473
|
)
|
|
12
|
|
|
(461
|
)
|
Tax-exempt
|
|
|
91
|
|
|
(35
|
)
|
|
56
|
|
|
-
|
|
|
-
|
|
|
-
|
|
FHLB
of NY stock
|
|
|
19
|
|
|
6
|
|
|
25
|
|
|
6
|
|
|
61
|
|
|
67
|
|
Total
interest-earning assets
|
|
|
5,130
|
|
|
2,904
|
|
|
8,034
|
|
|
1,646
|
|
|
1,347
|
|
|
2,993
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest-bearing
liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Savings
accounts
(1)
|
|
|
26
|
|
|
255
|
|
|
281
|
|
|
(5
|
)
|
|
40
|
|
|
35
|
|
NOW
accounts
(2)
|
|
|
142
|
|
|
906
|
|
|
1,048
|
|
|
31
|
|
|
364
|
|
|
395
|
|
Time
deposits
(3)
|
|
|
1,179
|
|
|
1,607
|
|
|
2,786
|
|
|
273
|
|
|
456
|
|
|
729
|
|
Total
interest-bearing deposits
|
|
|
1,347
|
|
|
2,768
|
|
|
4,115
|
|
|
299
|
|
|
860
|
|
|
1,159
|
|
Federal
Home Loan Bank borrowings
|
|
|
77
|
|
|
178
|
|
|
255
|
|
|
660
|
|
|
(125
|
)
|
|
535
|
|
Loan
payable
|
|
|
(11
|
)
|
|
8
|
|
|
(3
|
)
|
|
67
|
|
|
-
|
|
|
67
|
|
Total
interest-bearing liabilities
|
|
|
1,413
|
|
|
2,954
|
|
|
4,367
|
|
|
1,026
|
|
|
735
|
|
|
1,761
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Increase/decrease
in tax equivalent
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
net
interest income
|
|
$
|
3,717
|
|
$
|
(50
|
)
|
$
|
3,667
|
|
$
|
620
|
|
$
|
612
|
|
$
|
1,232
|
|
Change
in tax-equivalent basis adjustment
|
|
|
|
|
|
|
|
|
(16
|
)
|
|
|
|
|
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Increase/decrease
in net interest income
|
|
|
|
|
|
|
|
$
|
3,651
|
|
|
|
|
|
|
|
$
|
1,232
|
|
(1)
|
Includes
passbook savings, money market passbook and club
accounts.
|
(2)
|
Includes
interest-bearing checking and money market
accounts.
|
(3)
|
Includes
certificates of deposits and individual retirement
accounts.
|
Interest
Income.
Interest
income increased $8.0 million, or 51.5%, to $23.6 million for the year ended
September 30, 2006 from $15.6 million for the prior year. The increase in
interest income was primarily due to an increase in the average balance of
interest-earning assets of $80.5 million to $364.8 million from $284.3 million.
In addition, there was an improvement of 99 basis points in the average yield
on
such assets to 6.47% from 5.48%.
Interest
income on loans increased 65.2% to $21.5 million for the year ended September
30, 2006 from $13.0 million for the prior year, reflecting a $93.8 million,
or
43.0%, increase in the average balance of loans as well as a 92 basis point
increase in the average yield on such loans to 6.90% from 5.98%. The improved
yield on loans reflected the larger balance of higher-yielding commercial
business, commercial real estate and construction loans, as well as an overall
higher interest rate environment.
Interest
earned on investment securities decreased 23.3% to $1.9 million for the year
ended September 30, 2006 from $2.4 million a year earlier. The decrease was
primarily due to a $15.3 million, or 24.1%, decrease in the average balance
of
such securities to $48.3 million from $63.6 million for the prior year. The
decreased average balance of our investment securities reflected the deployment
of proceeds from investment prepayments or repayments into higher-yielding
loans. The average yield on investment securities increased 4 basis points
from
3.84% for the year ended September 30, 2005 to 3.88% for the current year.
Interest
Expense.
Interest
expense increased $4.4 million, or 72.5%, to $10.4 million for the year ended
September 30, 2006 from $6.0 million for the year ended September 30, 2005.
The
increase in interest expense was primarily due to a $61.3 million, or 22.6%,
increase in the average balance of interest-bearing liabilities to $332.2
million from $270.9 million. In addition, the average cost of such liabilities
increased 91 basis points to 3.13% from 2.22% in the higher market interest
rate
environment.
The
average balance of interest-bearing deposits increased $59.6 million to $292.2
million for the year ended September 30, 2006 from $232.6 million for the prior
year while the average cost of such deposits increased 103 basis points to
2.91%
from 1.88%. This resulted in a 94.0% increase in interest paid on deposits
from
$4.4 million for the year ended September 30, 2005 to $8.5 million for the
year
ended September 30, 2006. Interest paid on Federal Home Loan Bank advances
increased $255,000 to $1.8 million for the year ended September 30, 2006 from
$1.6 million for the prior year. The increase in advance interest expense was
due to an increase in the average balance of such advances from $37.3 million
to
$39.2 million combined with a 45 basis point increase in the average cost of
Federal Home Loan Bank advances to 4.67% for the year ended September 30, 2006
from 4.22% for the prior year. The proceeds from the increase in the balance
of
deposits and advances were used to fund the increase in loans.
Provision
for Loan Losses.
Management made a provision of $961,000 for the year ended September 30, 2006
compared with a $891,000 provision for the prior year. The increase in the
provision in 2006 as compared to 2005 was due primarily to the overall growth
of
the loan portfolio and specifically the increase in the proportion of higher
risk construction and commercial real estate loans in our portfolio. The
allowance for loan losses increased to $3.9 million, or 1.1% of gross loans
outstanding at September 30, 2006, from $3.1 million, or 1.2% of gross loans
outstanding at September 30, 2005.
Other
Income.
Non-interest
income decreased $2.7 million to $1.0 million for the year ended September
30,
2006 from $3.7 million for the year ended September 30, 2005. The decrease
was
primarily due to a $2.9 million gain on the sale of our old main office recorded
during the year ended September 30, 2005.
Service
charge income increased $204,000, or 36.0%, to $771,000 for the year ended
September 30, 2006 from $567,000 for the year ended September 30, 2005 while
other operating income increased $103,000, or 51.8%, to $302,000 from $199,000.
The increase in service charge income reflected the addition of a consumer
overdraft payment plan in May 2005. The increase in other operating income
reflected a larger increase in the cash surrender value of Magyar Bank’s
bank-owned life insurance for the year ended September 30, 2006 compared to
the
prior year.
Losses
on
the sales of $3.9 million in securities were $104,000 during the year ended
September 30, 2006 compared with sales of $3.1 million resulting in a $6,000
loss for the year ended September 30, 2005.
Other
Expenses.
Non-interest
expense increased $3.5 million to $13.3 million for the year ended September
30,
2006 from $9.8 million for the year ended September 30, 2005. The increase
for
the current year was primarily due to a $1.5 million contribution to the Magyar
Bank Charitable Foundation in conjunction with the Company’s initial public
offering on January 23, 2006.
Compensation
and employee benefit expense rose 10.9% or $685,000 to $7.0 million from $6.3
million. This increase included $189,000 in ESOP expenses recorded during the
year ended September 30, 2006. In addition, the increase also reflected staff
additions in our commercial real estate and retail banking areas, as well as
normal merit increases and increases in employee benefit costs. The addition
of
these positions has enabled us to administer higher balances of loans and
deposits.
Occupancy
expense increased $798,000 or 67.8% to $2.0 million for the year ended September
30, 2006 from $1.2 million for the prior year period. The increase primarily
reflected additional expenses related to the operation of our new corporate
headquarters, which was completed in September 2005. Professional fees increased
$323,000, or 83.5%, to $710,000 for the year ended September 30, 2006 from
$387,000 for the year ended September 30, 2005 primarily due to additional
auditing and legal expenses associated with the reporting requirements of the
Company as a publicly-traded entity.
Income
Tax (Benefit) Expense.
The
income tax benefit of $128,000 for the year ended September 30, 2006 reflected
a
decrease in income tax expense of $1.1 million from the $1.0 million income
tax
expense recorded for the year ended September 30, 2005. The effective tax rate
was 104.1% and 37.9% for the years ended September 30, 2006 and 2005,
respectively. The difference in the effective tax rate in 2006 as compared
to
2005 was primarily a result of the relative percentage of the permanent
differences, such as increases in the cash surrender value of bank-owned life
insurance, as compared to pretax income.
Management
of Market Risk
General
.
The
majority of our assets and liabilities are monetary in nature. Consequently,
our
most significant form of market risk is interest rate risk. Our assets,
consisting primarily of mortgage loans, have longer maturities than our
liabilities, consisting primarily of deposits. As a result, a principal part
of
our business strategy is to manage interest rate risk and reduce the exposure
of
our net interest income to changes in market interest rates. Accordingly, our
Board of Directors has established an Asset and Liability Management Committee
which is responsible for evaluating the interest rate risk inherent in our
assets and liabilities, for determining the level of risk that is appropriate,
given our business strategy, operating environment, capital, liquidity and
performance objectives, and for managing this risk consistent with the
guidelines approved by the Board of Directors. Senior management monitors the
level of interest rate risk on a regular basis and the Asset and Liability
Committee meets at least on a quarterly basis to review our asset/liability
policies and interest rate risk position.
We
have
sought to manage our interest rate risk in order to minimize the exposure of
our
earnings and capital to changes in interest rates. As part of our ongoing
asset-liability management, we seek to manage our exposure to interest rate
risk
by retaining in our loan portfolio fewer fixed rate residential loans, by
originating and retaining adjustable-rate loans in the residential, construction
and commercial real estate loan portfolios, by using alternative funding
sources, such as advances from the Federal Home Loan Bank of New York, to “match
fund” longer-term residential and commercial mortgage loans, and by originating
and retaining variable rate home equity and short-term and medium-term
fixed-rate commercial business loans. We have also increased money market
account deposits as a percentage of our total deposits. Money market accounts
offer a variable rate based on market indications. Finally, we have purchased
interest rate floors to mitigate the impact of falling interest rates on our
prime-based loans. By following these strategies, we believe that we are
well-positioned to react to changes in market interest rates.
Net
Interest Income Analysis.
The
table below sets forth, as of September 30, 2006, the estimated changes in
our
net interest income for each of the next two years that would result from the
designated instantaneous changes in the United States Treasury yield curve.
These estimates require making certain assumptions including loan and
mortgage-related investment prepayment speeds, reinvestment rates, and deposit
maturities and decay rates. These assumptions are inherently uncertain and,
as a
result, we cannot precisely predict the impact of changes in interest rates
on
net interest income. Actual results may differ significantly due to timing,
magnitude and frequency of interest rate changes and changes in market
conditions. Further, certain shortcomings are inherent in the methodology used
in the interest rate risk measurement. Modeling changes in net interest income
require making certain assumptions that may or may not reflect the manner in
which actual yields and costs respond to changes in market interest rates.
Change
in Interest Rates
|
|
Estimated
Net Interest Income (NII)
|
|
Estimated
Increase (Decrease) in NII Year 1
|
|
Estimated
NII
|
|
Estimated
Increase (Decrease) in NII Year 2
|
|
(Basis
Points)
(1)
|
|
Year
1
|
|
Amount
|
|
Percent
|
|
Year
2
|
|
Amount
|
|
Percent
|
|
(Dollars
in thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
+200
|
|
$
|
13,827
|
|
$
|
24
|
|
|
0.18
|
%
|
$
|
12,810
|
|
$
|
(992
|
)
|
|
-7.19
|
%
|
Unchanged
|
|
|
13,802
|
|
|
—
|
|
|
—
|
|
|
13,627
|
|
|
(176
|
)
|
|
-1.27
|
%
|
-200
|
|
|
13,551
|
|
|
(251
|
)
|
|
-1.82
|
%
|
|
13,789
|
|
|
(14
|
)
|
|
-0.10
|
%
|
|
(1)
|
Assumes
an instantaneous uniform change in interest rates at all
maturities.
|
Liquidity
and Capital Resources
Liquidity
is the ability to meet current and future financial obligations of a short-term
nature. Our primary sources of funds consist of deposit inflows, loan repayments
and maturities and sales of securities. While maturities and scheduled
amortization of loans and securities are predictable sources of funds, deposit
flows and mortgage prepayments are greatly influenced by general interest rates,
economic conditions and competition. Our Asset/Liability Management Committee
is
responsible for establishing and monitoring our liquidity targets and strategies
in order to ensure that sufficient liquidity exists for meeting the borrowing
needs of our customers as well as unanticipated contingencies. We seek to
maintain a liquidity ratio of 3.0% of assets or greater. For the year ended
September 30, 2006, our liquidity ratio averaged 5.6% of assets.
We
regularly adjust our investments in liquid assets based upon our assessment
of
expected loan demand, expected deposit flows, yields available on
interest-earning deposits and securities, and the objectives of our
asset/liability management program. Excess liquid assets are invested generally
in interest-earning deposits and short- and intermediate-term
securities.
Our
most
liquid assets are cash and cash equivalents. The levels of these assets are
dependent on our operating, financing, lending and investing activities during
any given period. At September 30, 2006, cash and cash equivalents totaled
$6.0
million. Securities classified as available-for-sale, which provide additional
sources of liquidity, totaled $18.2 million at September 30, 2006. At
September 30, 2006, we also had the ability to borrow $80.7 million
(including securities sold under agreements to repurchase) from the Federal
Home
Loan Bank of New York. On that date, we had an aggregate of $53.0 million
in advances outstanding. Finally, the brokered certificate of deposit market
offers an additional option for wholesale funding.
Our
cash
flows are derived from operating activities, investing activities and financing
activities as reported in our Statements of Cash Flows included in our Financial
Statements.
At
September 30, 2006, we had $39.1 million in loan commitments outstanding. In
addition to commitments to originate loans, we had $31.0 million in unused
lines
of credit to borrowers. Certificates of deposit due within one year of September
30, 2006 totaled $141.8 million, or 43.6% of total deposits. If these deposits
do not remain with us, we will be required to seek other sources of funds,
including other deposits and Federal Home Loan Bank advances. Depending on
market conditions, we may be required to pay higher rates on such deposits
or
other borrowings than we currently pay on the certificates of deposit due on
or
before September 30, 2006. We believe, however, that based on past experience
a
significant portion of our certificates of deposit will remain with us. We
have
the ability to attract and retain deposits by adjusting the interest rates
offered.
Our
primary investing activities are the origination of loans and the purchase
of
securities. For the year ended September 30, 2006, we originated
$147.0 million of loans and purchased $7.6 million of securities.
Financing
activities consist primarily of activity in deposit accounts and Federal Home
Loan Bank advances. We experienced a net increase in total deposits of
$47.5 million for the year months ended September 30, 2006 and a net
increase in total deposits of $54.1 million for the year ended September 30,
2005. Deposit flows are affected by the overall level of interest rates, the
interest rates and products offered by us and our local competitors and other
factors.
Liquidity
management is both a daily and long-term function of business management. If
we
require funds beyond our ability to generate them internally, borrowing
agreements exist with the Federal Home Loan Bank of New York, which provide
an
additional source of funds. Federal Home Loan Bank advances totaled $53.0
million and $48.9 million at September 30, 2006 and September 30, 2005,
respectively. Federal Home Loan Bank advances have primarily been used to fund
loan demand. Our current asset/liability management strategy has been to fund
variable, prime-based loans with Federal Home Loan Bank overnight advances.
Magyar
Bank is subject to various regulatory capital requirements, including a
risk-based capital measure. The risk-based capital guidelines include both
a
definition of capital and a framework for calculating risk-weighted assets
by
assigning balance sheet assets and off-balance sheet items to broad risk
categories. At September 30, 2006, Magyar Bank exceeded all regulatory capital
requirements. Magyar Bank is considered “well capitalized” under regulatory
guidelines. See “Supervision and Regulation-Federal Banking Regulation-Capital
Requirements.”
The
net
proceeds from the offering significantly increased our liquidity and capital
resources. Over time, the initial level of liquidity will be reduced as net
proceeds from the offering are used for general corporate purposes, including
the funding of loans. Our financial condition and results of operations will
be
enhanced by the net proceeds from the offering, resulting in increased net
interest-earning assets and net income. However, due to the increase in equity
resulting from the net proceeds raised in the offering, return on equity has
and
will continue to be adversely affected following the offering.
Bank
owned life insurance is a tax-advantaged financing transaction that is used
to
offset employee benefit plan costs. Policies are purchased insuring directors
and officers of Magyar Bank using a single premium method of payment. Magyar
Bank is the owner and beneficiary of the policies and records tax-free income
through cash surrender value accumulation. We have minimized our credit exposure
by choosing carriers that are highly rated. The investment in bank owned life
insurance has no significant impact on our capital and liquidity.
Off-Balance
Sheet Arrangements and Aggregate Contractual Obligations
Commitments.
As
a
financial services provider, we routinely are a party to various financial
instruments with off-balance-sheet risks, such as commitments to extend credit,
standby letters of credit and unused lines of credit. While these contractual
obligations represent our future cash requirements, a significant portion of
commitments to extend credit may expire without being drawn upon. Such
commitments are subject to the same credit policies and approval process
accorded to loans made by us. We consider commitments to extend credit in
determining our allowance for loan losses. For additional information, see
Note
P, “Lease Commitments,” and Note Q, “Financial Instruments with Off-Balance
Sheet Risk” to our Financial Statements.
Contractual
Obligations.
In the
ordinary course of our operations, we enter into certain contractual
obligations. Such obligations include operating leases for premises and
equipment.
The
following table summarizes our significant fixed and determinable contractual
obligations and other funding needs by payment date at September 30, 2006.
The
payment amounts represent those amounts due to the recipient and do not include
any unamortized premiums or discounts or other similar carrying amount
adjustments.
|
|
Payments
Due by Period
|
|
|
|
Less
Than
|
|
One
to
|
|
Three
to
|
|
More
Than
|
|
|
|
|
|
One
Year
|
|
Three
Years
|
|
Five
Years
|
|
Five
Years
|
|
Total
|
|
|
|
(In
thousands)
|
|
Certificates
of deposit
|
|
$
|
141,818
|
|
$
|
29,922
|
|
$
|
3,618
|
|
$
|
-
|
|
$
|
175,358
|
|
Federal
Home Loan Bank advances
(1)
|
|
|
6,579
|
|
|
7,086
|
|
|
5,456
|
|
|
-
|
|
|
19,121
|
|
Repurchase
agreements
|
|
|
-
|
|
|
5,000
|
|
|
-
|
|
|
-
|
|
|
5,000
|
|
Available
lines of credit
|
|
|
17,776
|
|
|
1,439
|
|
|
-
|
|
|
11,762
|
|
|
30,977
|
|
Operating
leases
|
|
|
283
|
|
|
572
|
|
|
572
|
|
|
3,058
|
|
|
4,485
|
|
Total
|
|
$
|
166,456
|
|
$
|
44,019
|
|
$
|
9,646
|
|
$
|
14,820
|
|
$
|
234,941
|
|
Commitments
to extend credit
|
|
$
|
39,133
|
|
$
|
-
|
|
$
|
-
|
|
$
|
-
|
|
$
|
39,133
|
|
New
Accounting Pronouncements
In
February 2006, the FASB issued SFAS No. 155, “Accounting for Certain
Hybrid Financial Instruments-an amendment of FASB statements No. 133 and
140.” This statement permits fair value remeasurement of certain hybrid
financial instruments, clarifies the scope of SFAS No. 133,
“Accounting for Derivative Instruments and Hedging Activities” regarding
interest-only and principal-only strips, and provides further guidance on
certain issues regarding beneficial interests in securitized financial assets,
concentrations of credit risk and qualifying special purpose entities.
SFAS No. 155 is effective as of the beginning of the first fiscal year
that begins after September 15, 2006
and does
not have a material impact on the Company’s consolidated financial statements
for the year ended September 30, 2006.
In
March
2006, the Financial Accounting Standards Board (FASB) issued Statement
No. 156 (SFAS 156), “Accounting for Servicing of Financial Assets.” SFAS
156 amends SFAS No. 140, “Accounting for Transfers and Servicing of
Financial Assets and Extinguishments of Liabilities.” SFAS 156 permits, but does
not require, an entity to choose either the amortization method or the fair
value measurement method for measuring each class of separately recognized
servicing assets and servicing liabilities. SFAS 156 is effective for fiscal
years beginning after September 15, 2006 and does not have a material impact
on
the Company’s consolidated financial statements for the year ended September 30,
2006.
In
July
2006, FASB issued FASB Interpretation (FIN) 48, “Accounting for Uncertainty in
Income Taxes: an interpretation of FASB Statement No. 109, “Accounting for
Income Taxes.” FIN 48 clarifies FASB 109, to indicate a criterion that an
individual tax position would have to meet for some or all of the benefit of
that position to be recognized in an entity’s financial statements. In
applying FIN 48, an entity is required to evaluate a tax position using a
two-step process. First, the entity should evaluate the position for
recognition. An entity should recognize the financial statement benefit of
a tax
position if it determines that it is more likely than not that the position
will
be sustained on examination. The term “more likely than not” means “a likelihood
of more than 50 percent.” In assessing whether the more-likely-than-not
criterion is met, the entity should assume that the tax position will be
reviewed by the applicable taxing authority. Additionally, if past
administrative practices and precedents of the taxing authority are widely
understood, those practices and precedents should be considered in an entity’s
assessment of the more-likely-than-not criterion.
The
second step is measurement: a tax position that meets the more-likely-than-not
recognition threshold is measured to determine the amount of benefit to
recognize in the financial statements. The tax position is measured at the
largest amount of benefit that is greater than 50 percent likely of being
realized upon ultimate settlement. FIN 48 is effective for fiscal years
beginning after December 15, 2006 and is currently under evaluation by the
Company to determine the impact on the Company’s consolidated financial
statements.
In
September 2006, the FASB issued SFAS No. 157, “Fair Value
Measurements.” This Statement defines fair value, establishes a framework for
measuring fair value in accordance with generally accepted accounting
principles, and expands disclosures about fair value measurements. This
Statement applies to other accounting pronouncements that require or permit
fair
value measurements, but does not require any new fair value measurements. The
Statement is effective for fiscal years beginning after November 15, 2007
and interim periods within those fiscal years. The Company does not expect
the
adoption of SFAS No. 157 to have a material impact on its financial
statements.
In
September 2006, FASB issued SFAS No. 158, “Employers’ Accounting for
Defined Benefit Pension and Other Postretirement Plans,” which requires
employers to recognize on their balance sheets the funded status of pension
and
other postretirement benefit plans. For public companies, this requirement
is
effective as of the end of the first fiscal year ending after December 31,
2006 (as of September 30, 2007 for the Company). Statement 158 will also
require fiscal-year-end measurements of plan assets and benefit obligations,
eliminating the use of earlier measurement dates currently permissible. The
new
measurement-date requirement will not be effective until fiscal years ending
after December 15, 2008. The Statement amends Statements 87, 88, 106 and
132R, but retains most of their measurement and disclosure guidance and will
not
change the amounts recognized in the income statement as net periodic benefit
cost. The Company is evaluating the effect of SFAS No. 158 on its financial
statements.
In
September 2006, the SEC issued Staff Accounting Bulletin No. 108,
“
Considering
the
Effects of Prior Year Misstatements when Quantifying Misstatements in Current
Year Financial Statements
”
(SAB 108),
to
address diversity in practice in quantifying financial statement misstatements.
SAB 108 requires that registrants use a dual approach in quantifying
missatements based on their impact on the financial statements and related
disclosures. SAB 108 is effective as of the end of the Company
’
s 2007
fiscal
year, allowing a one-time transitional cumulative effect adjustment to retained
earnings as of July 1, 2006 for errors (if any) that were not previously deemed
material, but are material under the guidance in SAB 108. The Company is
currently evaluating the impact of adopting SAB 108 on its financial
statements.
TABLE
OF CONTENTS
Consolidated
Financial Statements:
|
|
|
|
Report
of Independent Registered Public Accounting Firm
|
52
|
|
|
Consolidated
Balance Sheets as of September 30, 2006 and 2005
|
53
|
|
|
Consolidated
Statements of Income for the Years ended September 30, 2006 and
2005
|
54
|
|
|
Consolidated
Statements of Changes in Shareholders
’
Equity for the Years ended September 30, 2005 and 2005
|
55
|
|
|
Consolidated
Statements of Cash Flows for the Years ended September 30, 2006 and
2005
|
56
|
|
|
Notes
to Consolidated Financial Statements
|
57
|
|
|
Signatures
|
|
|
|
Exhibit
31.1
|
|
Certification
Pursuant to Section 302 of the Sarbanes-Oxley Act of
2002
|
|
|
|
Exhibit
31.2
|
|
Certification
Pursuant to Section 302 of the Sarbanes-Oxley Act of
2002
|
|
|
|
Exhibit
32
|
|
Certification
Pursuant to Section 906 of the Sarbanes-Oxley Act of
2002
|
|
Report
of Independent Registered Public Accounting Firm
Board
of
Directors
Magyar
Bancorp, Inc.
We
have
audited the accompanying consolidated balance sheets of Magyar Bancorp, Inc.
(previously Magyar Bank) and subsidiary as of September 30, 2006 and 2005 and
the related consolidated statements of income, changes in stockholders’ equity
and cash flows for the years then ended. These financial statements are the
responsibility of the Bank’s management. Our responsibility is to express an
opinion on these financial statements based on our audits.
We
conducted our audits in accordance with the standards of the Public Company
Accounting Oversight Board (United States). Those standards require that we
plan
and perform the audits to obtain reasonable assurance about whether the
financial statements are free of material misstatement. An audit includes
consideration of internal control over financial reporting as a basis for
designing audit procedures that are appropriate in the circumstances but not
for
the purpose of expressing an opinion on the effectiveness of the Company’s
internal control over financial reporting. Accordingly, we express no such
opinion. An audit also includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements, assessing the
accounting principles used and significant estimates made by management, as
well
as evaluating the overall financial statement presentation. We believe that
our
audits provide a reasonable basis for our opinion.
In
our
opinion, the financial statements referred to above present fairly, in all
material respects, the consolidated financial position of Magyar Bancorp, Inc.
(previously Magyar Bank) and subsidiary as of September 30, 2006 and 2005 and
the consolidated results of their operations and cash flows for the years then
ended, in conformity with accounting principles generally accepted in the United
States of America.
Additionally,
as discussed in Note C to the consolidated financial statements, effective
October 1, 2005, the Company adopted the fair value method of accounting
provisions of Statement of Financial Accounting Standards (SFAS) No. 123R,
Share-Based Payment.
/s/
Grant Thornton LLP
Philadelphia,
Pennsylvania
November
17, 2006
MAGYAR
BANCORP, INC. AND SUBSIDIARY
CONSOLIDATED
BALANCE SHEETS
(In
Thousands, except Per Share Data)
|
|
September
30,
|
|
|
|
2006
|
|
2005
|
|
ASSETS
|
|
|
|
|
|
Cash
|
|
$
|
5,912
|
|
$
|
897
|
|
Interest
earning deposits with banks
|
|
|
105
|
|
|
2,312
|
|
Total
cash and cash equivalents
|
|
|
6,017
|
|
|
3,209
|
|
Investment
securities - available for sale, at fair value
|
|
|
18,169
|
|
|
20,602
|
|
Investment
securities - held to maturity, at cost (fair value of $23,358 and
$33,853
at September 30, 2006 and 2005, respectively)
|
|
|
23,895
|
|
|
34,269
|
|
Federal
Home Loan Bank of New York stock, at cost
|
|
|
2,870
|
|
|
2,444
|
|
Loans
receivable, net of allowance for loan losses of $3,892 and $3,129
at
September 30, 2006 and 2005, respectively
|
|
|
347,969
|
|
|
267,317
|
|
Bank
owned life insurance
|
|
|
9,606
|
|
|
5,813
|
|
Accrued
interest receivable
|
|
|
2,218
|
|
|
1,556
|
|
Premises
and equipment, net
|
|
|
21,690
|
|
|
19,463
|
|
Other
assets
|
|
|
1,770
|
|
|
5,032
|
|
|
|
|
|
|
|
|
|
Total
assets
|
|
$
|
434,204
|
|
$
|
359,705
|
|
|
|
|
|
|
|
|
|
LIABILITIES
AND STOCKHOLDERS' EQUITY
|
|
|
|
|
|
|
|
Liabilities
|
|
|
|
|
|
|
|
Deposits
|
|
$
|
325,602
|
|
$
|
278,090
|
|
Escrowed
funds
|
|
|
1,158
|
|
|
1,195
|
|
Federal
Home Loan Bank of New York advances
|
|
|
47,996
|
|
|
38,872
|
|
Securities
sold under agreements to repurchase
|
|
|
5,000
|
|
|
10,000
|
|
Loans
payable
|
|
|
-
|
|
|
2,497
|
|
Accrued
interest payable
|
|
|
1,141
|
|
|
496
|
|
Accounts
payable and other liabilities
|
|
|
5,095
|
|
|
4,167
|
|
|
|
|
|
|
|
|
|
Total
liabilities
|
|
|
385,992
|
|
|
335,317
|
|
|
|
|
|
|
|
|
|
Stockholders'
equity
|
|
|
|
|
|
|
|
Preferred
stock: $.01 Par Value, 1,000,000 shares authorized; no shares
issued
|
|
|
-
|
|
|
-
|
|
Common
stock: $.01 Par Value, 8,000,000 shares authorized; 5,923,742 issued
at
September 30, 2006, no shares issued at September 30,
2005.
|
|
|
59
|
|
|
-
|
|
Additional
paid-in capital
|
|
|
25,786
|
|
|
-
|
|
Unearned
shares held by Employee Stock Ownership Plan
|
|
|
(2,133
|
)
|
|
-
|
|
Retained
earnings
|
|
|
25,001
|
|
|
24,996
|
|
Accumulated
other comprehensive loss, net
|
|
|
(501
|
)
|
|
(608
|
)
|
|
|
|
|
|
|
|
|
Total
stockholders' equity
|
|
|
48,212
|
|
|
24,388
|
|
|
|
|
|
|
|
|
|
Total
liabilities and stockholders' equity
|
|
$
|
434,204
|
|
$
|
359,705
|
|
The
accompanying notes are an integral part of these statements.
MAGYAR
BANCORP, INC. AND SUBSIDIARY
CONSOLIDATED
STATEMENTS OF INCOME
(In
Thousands, Except Per Share Data)
|
|
Years
Ended September 30,
|
|
|
|
2006
|
|
2005
|
|
Interest
and dividend income
|
|
|
|
|
|
Loans,
including fees
|
|
$
|
21,519
|
|
$
|
13,029
|
|
Investment
securities
|
|
|
1,957
|
|
|
2,454
|
|
Federal
Home Loan Bank of New York stock
|
|
|
119
|
|
|
94
|
|
|
|
|
|
|
|
|
|
Total
interest and dividend income
|
|
|
23,595
|
|
|
15,577
|
|
|
|
|
|
|
|
|
|
Interest
expense
|
|
|
|
|
|
|
|
Deposits
|
|
|
8,494
|
|
|
4,379
|
|
Borrowed
money
|
|
|
1,893
|
|
|
1,641
|
|
|
|
|
|
|
|
|
|
Total
interest expense
|
|
|
10,387
|
|
|
6,020
|
|
|
|
|
|
|
|
|
|
Net
interest and dividend income
|
|
|
13,208
|
|
|
9,557
|
|
|
|
|
|
|
|
|
|
Provision
for loan losses
|
|
|
961
|
|
|
891
|
|
|
|
|
|
|
|
|
|
Net
interest and dividend income after provision for loan
losses
|
|
|
12,247
|
|
|
8,666
|
|
|
|
|
|
|
|
|
|
Other
income
|
|
|
|
|
|
|
|
Service
charges
|
|
|
771
|
|
|
567
|
|
Other
operating income
|
|
|
302
|
|
|
199
|
|
Gains
on sales of loans
|
|
|
9
|
|
|
-
|
|
Losses
on the sales of investment securities
|
|
|
(104
|
)
|
|
(6
|
)
|
Gain
on sale of premises and equipment
|
|
|
-
|
|
|
2,891
|
|
|
|
|
|
|
|
|
|
Total
other income
|
|
|
978
|
|
|
3,651
|
|
|
|
|
|
|
|
|
|
Other
expenses
|
|
|
|
|
|
|
|
Compensation
and employee benefits
|
|
|
6,951
|
|
|
6,266
|
|
Occupancy
expenses
|
|
|
1,975
|
|
|
1,177
|
|
Advertising
|
|
|
329
|
|
|
371
|
|
Professional
fees
|
|
|
710
|
|
|
387
|
|
Service
fees
|
|
|
438
|
|
|
395
|
|
Contribution
to charitable foundation
|
|
|
1,547
|
|
|
-
|
|
Other
expenses
|
|
|
1,398
|
|
|
1,210
|
|
|
|
|
|
|
|
|
|
Total
other expenses
|
|
|
13,348
|
|
|
9,806
|
|
|
|
|
|
|
|
|
|
Income
(loss) before income tax (benefit) expense
|
|
|
(123
|
)
|
|
2,511
|
|
|
|
|
|
|
|
|
|
Income
tax expense (benefit) expense
|
|
|
(128
|
)
|
|
951
|
|
|
|
|
|
|
|
|
|
Net
income
|
|
$
|
5
|
|
$
|
1,560
|
|
|
|
|
|
|
|
|
|
Basic
and diluted earnings per share
|
|
|
NM
|
|
|
N/A
|
|
The
accompanying notes are an integral part of these statements.
MAGYAR
BANCORP, INC. AND SUBSIDIARY
Consolidated
Statement of Changes in Stockholders' Equity
Years
ended September 30, 2006 and 2005
(In
Thousands, Except for Share Amounts)
|
|
|
|
|
|
|
|
|
|
|
|
Accumulated
|
|
|
|
|
|
Common
Stock
|
|
Additional
|
|
Unearned
|
|
|
|
Other
|
|
|
|
|
|
Shares
|
|
Par
|
|
Paid-In
|
|
ESOP
|
|
Retained
|
|
Comprehensive
|
|
|
|
|
|
Issued
|
|
Value
|
|
Capital
|
|
Shares
|
|
Earnings
|
|
Loss
|
|
Total
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance,
September 30, 2004
|
|
|
-
|
|
$
|
-
|
|
$
|
-
|
|
$
|
-
|
|
$
|
23,436
|
|
$
|
(324
|
)
|
$
|
23,112
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
income for the year ended September 30, 2005
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
1,560
|
|
|
-
|
|
|
1,560
|
|
Other
comprehensive loss, net of reclassification adjustments and
taxes
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
(284
|
)
|
|
(284
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
comprehensive income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
1,276
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance,
September 30, 2005
|
|
|
-
|
|
$
|
-
|
|
$
|
-
|
|
$
|
-
|
|
$
|
24,996
|
|
$
|
(608
|
)
|
$
|
24,388
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Issuance
of common stock, net of offering expenses of $1.4 million
|
|
|
5,923,742
|
|
|
59
|
|
|
25,770
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
25,829
|
|
Common
stock acquired by ESOP
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
(2,306
|
)
|
|
-
|
|
|
-
|
|
|
(2,306
|
)
|
Allocation
of ESOP stock
|
|
|
-
|
|
|
-
|
|
|
16
|
|
|
173
|
|
|
-
|
|
|
-
|
|
|
189
|
|
Net
income for the year ended September 30, 2006
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
5
|
|
|
-
|
|
|
5
|
|
Other
comprehensive income, net of reclassification adjustments and
taxes
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
107
|
|
|
107
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
comprehensive income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
112
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance,
September 30, 2006
|
|
|
5,923,742
|
|
$
|
59
|
|
$
|
25,786
|
|
$
|
(2,133
|
)
|
$
|
25,001
|
|
$
|
(501
|
)
|
$
|
48,212
|
|
The
accompanying notes are an integral part of this statement.
MAGYAR
BANCORP, INC. AND SUBSIDIARY
CONSOLIDATED
STATEMENTS OF CASH FLOWS
(In
Thousands)
|
|
Year
Ended September 30,
|
|
|
|
2006
|
|
2005
|
|
Operating
activities
|
|
|
|
|
|
Net
income
|
|
$
|
5
|
|
$
|
1,560
|
|
Adjustments
to reconcile net income to net cash provided by (used in) operating
activities:
|
|
|
|
|
|
|
|
Contribution
of stock to charitable foundation
|
|
|
1,047
|
|
|
-
|
|
Depreciation
expense
|
|
|
1,000
|
|
|
519
|
|
Premium
amortization on investment securities, net
|
|
|
166
|
|
|
166
|
|
Gain on
sale of premise and equipment
|
|
|
-
|
|
|
(2,891
|
)
|
Proceeds
from mortgage loan sales
|
|
|
2,817
|
|
|
-
|
|
Provision
for loan losses
|
|
|
961
|
|
|
891
|
|
Gains
on sale of loans
|
|
|
(9
|
)
|
|
-
|
|
Losses
on sale of investment securities
|
|
|
104
|
|
|
6
|
|
Allocation
of ESOP shares
|
|
|
189
|
|
|
-
|
|
Deferred
income tax provision
|
|
|
(477
|
)
|
|
389
|
|
Increase
in accrued interest receivable
|
|
|
(662
|
)
|
|
(282
|
)
|
Increase in
bank owned life insurance
|
|
|
(223
|
)
|
|
(177
|
)
|
Decrease
(increase) in other assets
|
|
|
3,874
|
|
|
(3,566
|
)
|
Increase
in accrued interest payable
|
|
|
645
|
|
|
297
|
|
Increase
in accounts payable and other liabilities
|
|
|
593
|
|
|
376
|
|
|
|
|
|
|
|
|
|
Net
cash provided by (used in) operating activities
|
|
|
10,030
|
|
|
(2,712
|
)
|
|
|
|
|
|
|
|
|
Investing
activities
|
|
|
|
|
|
|
|
Net
increase in loans receivable
|
|
|
(84,421
|
)
|
|
(79,732
|
)
|
Purchases
of investment securities held to maturity
|
|
|
-
|
|
|
(2,000
|
)
|
Purchases
of investment securities available for sale
|
|
|
(7,612
|
)
|
|
-
|
|
Sales
of investment securities available for sale
|
|
|
3,896
|
|
|
3,103
|
|
Proceeds
from maturities/calls of investment securities held to
maturity
|
|
|
4,010
|
|
|
3,000
|
|
Proceeds
from maturities/calls of investment securities available for
sale
|
|
|
2,519
|
|
|
2,002
|
|
Principal
repayments on investment securities held to maturity
|
|
|
6,293
|
|
|
7,282
|
|
Principal
repayments on investment securities available for sale
|
|
|
3,738
|
|
|
5,080
|
|
Purchases
of bank owned life insurance
|
|
|
(3,570
|
)
|
|
-
|
|
Purchases
of premises and equipment
|
|
|
(3,227
|
)
|
|
(11,673
|
)
|
Proceeds
from sale of premises and equipment
|
|
|
-
|
|
|
3,905
|
|
Purchase
of Federal Home Loan Bank of New York stock
|
|
|
(426
|
)
|
|
(698
|
)
|
|
|
|
|
|
|
|
|
Net
cash used in investing activities
|
|
|
(78,800
|
)
|
|
(69,731
|
)
|
|
|
|
|
|
|
|
|
Financing
activities
|
|
|
|
|
|
|
|
Net
increase in deposits
|
|
|
47,512
|
|
|
54,116
|
|
Net
proceeds from issuance of common stock
|
|
|
24,782
|
|
|
-
|
|
Net
purchase of common stock for ESOP
|
|
|
(2,306
|
)
|
|
-
|
|
Net
increase (decrease) in escrowed funds
|
|
|
(37
|
)
|
|
94
|
|
Proceeds
from long-term Federal Home Loan Bank advances
|
|
|
-
|
|
|
10,000
|
|
Repayments
of long-term Federal Home Loan Bank advances
|
|
|
(1,951
|
)
|
|
-
|
|
Proceeds
from short-term Federal Home Loan Bank advances
|
|
|
11,075
|
|
|
5,130
|
|
Repayments
of short-term Federal Home Loan Bank advances
|
|
|
-
|
|
|
(1,660
|
)
|
Proceeds
of securities sold under agreements to repurchase
|
|
|
-
|
|
|
500
|
|
Repayments
of securities sold under agreements to repurchase
|
|
|
(5,000
|
)
|
|
-
|
|
(Repayments
of) proceeds from loans payable
|
|
|
(2,497
|
)
|
|
2,497
|
|
|
|
|
|
|
|
|
|
Net
cash provided by financing activities
|
|
|
71,578
|
|
|
70,677
|
|
|
|
|
|
|
|
|
|
Net
increase (decrease) in cash and cash equivalents
|
|
|
2,808
|
|
|
(1,766
|
)
|
|
|
|
|
|
|
|
|
Cash
and cash equivalents, beginning of year
|
|
|
3,209
|
|
|
4,975
|
|
|
|
|
|
|
|
|
|
Cash
and cash equivalents, end of year
|
|
$
|
6,017
|
|
$
|
3,209
|
|
|
|
|
|
|
|
|
|
Supplemental
disclosures of cash flow information
|
|
|
|
|
|
|
|
Cash
paid for
|
|
|
|
|
|
|
|
Interest
|
|
$
|
9,742
|
|
$
|
5,656
|
|
Income
taxes
|
|
$
|
30
|
|
$
|
-
|
|
The
accompanying notes are an integral part of these statements.
MAGYAR
BANCORP, INC. AND SUBSIDIARY
Notes
to
Consolidated Financial Statements
September
30, 2006 and 2005
NOTE
A -
ORGANIZATION
On
September 16, 2005, Magyar Bancorp, Inc. filed a Registration Statement on
Form
SB-2 with the Securities and Exchange Commission in connection with Magyar
Bancorp, Inc.’s offer and sale of shares of its common stock in a public
offering. The Registration Statement was declared effective by the Securities
and Exchange Commission on November 14, 2005. On January 23, 2006, Magyar Bank
completed a reorganization involving a series of transactions by which our
corporate structure was changed from a mutual savings bank to the mutual holding
company form of ownership. Magyar Bank became a New Jersey-chartered stock
savings bank subsidiary of Magyar Bancorp, Inc., a Delaware-chartered mid-tier
stock holding company. Magyar Bancorp, Inc. (the Company) owns 100% of the
outstanding shares of common stock of Magyar Bank. Magyar Bancorp, Inc. is
a
majority-owned subsidiary of Magyar Bancorp, MHC, a New Jersey-chartered mutual
holding company.
As
a
result of the reorganization and stock offering,
Magyar
Bancorp, MHC, owns 54.03%, or 3,200,450, of the outstanding shares of common
stock of Magyar Bancorp, Inc. The remaining 45.97%, or 2,723,292 shares, is
held
by public stockholders, including 1.77%, or 104,742 shares, held by the
MagyarBank Charitable Foundation. So long as Magyar Bancorp, MHC exists, it
will
be required to own a majority of the voting stock of Magyar Bancorp, Inc. Magyar
Bancorp, MHC is subject to comprehensive regulation and examination by the
Board
of Governors of the Federal Reserve System and the New Jersey Department of
Banking and Insurance.
Magyar
Bank (the Bank) is subject to regulations issued by the New Jersey Department
of
Banking and Insurance and the Federal Deposit Insurance Corporation. The Bank’s
administrative offices are located in New Brunswick, New Jersey. The Bank has
four branch offices which are located in New Brunswick (main branch), North
Brunswick, South Brunswick and Branchburg, New Jersey. The Bank’s savings
deposits are insured by the FDIC through the Deposit Insurance Fund (DIF);
also,
the Bank is a member of the Federal Home Loan Bank of New York.
Magyar
Bank organized Magbank Investment Company as a New Jersey investment corporation
subsidiary for the purpose of buying, selling and holding investment securities
on August 15, 2006.
Hungaria
Urban Renewal, LLC is a Delaware limited-liability corporation established
in
2002 as a qualified intermediary operating for the purpose of acquiring and
developing Magyar Bank’s new main office. On January 24, 2006, the Bank acquired
a 100% interest in Hungaria Urban Renewal, LLC, which will have no other
business other than owning the Bank’s main office site.
Magyar
Service Corporation, a New Jersey corporation, is a wholly owned, non-bank
subsidiary of Magyar Bank. Magyar Service Corporation, which also operates
under
the name Magyar Financial Services, and receives commissions from annuity and
life insurance sales referred to a licensed, non-bank financial planner.
The
Bank
competes with other banking and financial institutions in its primary market
areas. Commercial banks, savings banks, savings and loan associations, credit
unions and money market funds actively compete for savings and time certificates
of deposit and all types of loans. Such institutions, as well as consumer
financial and insurance companies, may be considered competitors of the Bank
with respect to one or more of the services it renders.
The
Bank
is subject to regulations of certain state and federal agencies and,
accordingly, the Bank is periodically examined by such regulatory authorities.
As a consequence of the regulation of commercial banking activities, the Bank’s
business is particularly susceptible to future state and federal legislation
and
regulations.
MAGYAR
BANCORP, INC. AND SUBSIDIARY
Notes
to
Consolidated Financial Statements - Continued
September
30, 2006 and 2005
NOTE
B -
SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
|
1.
|
Basis
of Financial Statement
Presentation
|
The
accounting and reporting policies of the Company conform to accounting
principles generally accepted in the United States of America (US GAAP) and
predominant practices within the banking industry. The financial statements
include the accounts of the Company, its wholly owned subsidiaries, the Bank,
MagBank Investment Company, Magyar Service Corporation, and Hungaria Urban
Renewal, LLC. All intercompany balances and transactions have been eliminated
in
the financial statements.
In
preparing financial statements in conformity with US GAAP, management is
required to make estimates and assumptions that affect the reported amounts
of
assets and liabilities, the disclosure of contingent assets and liabilities
at
the date of the financial statements, and the reported amounts of revenues
and
expenses during the reporting period. Actual results could differ from those
estimates.
The
principal estimate that is particularly susceptible to significant change in
the
near term relates to the allowance for loan losses. The evaluation of the
adequacy of the allowance for loan losses includes an analysis of the individual
loans and overall risk characteristics and size of the different loan
portfolios, and takes into consideration current economic and market conditions,
the capability of specific borrowers to pay specific loan obligations, as well
as current loan collateral values. However, actual losses on specific loans,
which also are encompassed in the analysis, may vary from estimated
losses.
The
Company uses the asset and liability method of accounting for income taxes.
Under the asset and liability method, deferred income taxes are recognized
for
the tax consequences of temporary differences by applying enacted statutory
tax
rates applicable to future years to temporary differences between the financial
statement carrying amounts and tax bases of existing assets and liabilities.
The
effect on deferred taxes of a change in tax rates is recognized in income tax
expense in the period that includes the enactment date.
|
2.
|
Cash
and Cash Equivalents
|
For
purposes of reporting cash flows, cash and cash equivalents include cash on
hand, amounts due from banks, time deposits with original maturities less than
three months and overnight deposits.
The
Company classifies investment securities as either held-to-maturity or
available-for-sale.
Investment
securities held-to-maturity are carried at cost adjusted for amortization of
premium and accretion of discount over the term of the related investments
using
the interest method. The Company has the ability and positive intent to hold
these securities to maturity and, accordingly, adjustments are not made for
temporary declines in fair value below amortized cost. A decline in the fair
value of any held-to-maturity security that is deemed other than temporary
is
charged to earnings. The investment in Federal Home Loan Bank of New York stock
is carried at cost.
Investment
securities classified as available-for-sale are carried at fair value with
unrealized gains and losses excluded from earnings and reported in a separate
component of stockholders’ equity, net of related income tax effects. Gains and
losses on sales of investment securities are recognized upon realization
utilizing the specific identification method.
Premium
or discount on investment securities is recognized as an adjustment of yield
by
use of the interest method over the expected life of the investment
security.
MAGYAR
BANCORP, INC. AND SUBSIDIARY
Notes
to
Consolidated Financial Statements - Continued
September
30, 2006 and 2005
The
Company follows Statement of Financial Accounting Standards (SFAS) No. 133,
which was amended by SFAS No. 138, “Accounting for Certain Derivative
Instruments and Certain Hedging Activities”, SFAS No. 149, “Amendment of
Statement 133 on Derivative Instruments and Hedging Activities”, and SFAS No.
150, “Accounting for Certain Financial Instruments with Characteristics of both
Liabilities and Equity”, (collectively SFAS No. 133). SFAS No. 133, as amended,
requires that entities recognize all derivatives as either assets or liabilities
in the statement of financial condition and measure those instruments at fair
value.
In
November 2005, the Financial Accounting Standards Board (FASB) issued FASB
Staff
Position (FSP) 115-1,
The
Meaning of Other-Than-Temporary Impairment and Its Application to Certain
Investments.
This
FSP
provides additional guidance on when an investment in a debt or equity security
should be considered impaired and when that impairment should be considered
other-than-temporary and recognized as a loss in earnings. Specifically, the
guidance clarifies that an investor should recognize an impairment loss no
later
than when the impairment is deemed other-than-temporary, even if a decision
to
sell has not been made. The FSP also requires certain disclosures about
unrealized losses that have not been recognized as other-than-temporary
impairments.
Management
applied the guidance in this FSP in 2006. At September 30, 2006 and 2005, the
Company had no investments that would be defined as impaired under FSP 115-1.
|
4.
|
Loans
and Allowance for Loan Losses
|
Loans
that management has the intent and ability to hold for the foreseeable future
or
until maturity or payoff are stated at the amount of unpaid principal and
reduced by an allowance for loan losses. Interest on loans is accrued and
credited to operations based upon the principal amounts outstanding. The
allowance for loan losses is established through a provision for possible loan
losses charged to operations. Loans are charged against the allowance for loan
losses when management believes that the collectibility of the principal is
unlikely.
Income
recognition of interest is discontinued when, in the opinion of management,
the
collectibility of such interest becomes doubtful. A loan is generally classified
as nonaccrual when the scheduled payment(s) due on the loan is delinquent more
than three months. Loan origination fees and certain direct origination costs
are deferred and amortized over the life of the related loans as an adjustment
to the yield on loans receivable using the effective interest
method.
The
allowance for loan losses is maintained at an amount management deems adequate
to cover estimated losses. In determining the level to be maintained, management
evaluates many factors, including current economic trends, industry experience,
historical loss experience, industry loan concentrations, the borrowers’ ability
to repay and repayment performance, and estimated collateral values. In the
opinion of management, the present allowance is adequate to absorb reasonable,
foreseeable loan losses. While management uses the best information available
to
make such evaluations, future adjustments to the allowance may be necessary
based on changes in economic conditions or any of the other factors used in
management’s determination. In addition, various regulatory agencies, as an
integral part of their examination process, periodically review the Company’s
allowance for losses on loans. Such agencies may require the Company to
recognize additions to the allowance based on their judgments about information
available to them at the time of their examination. Charge-offs to the allowance
are made when the loan is transferred to other real estate owned or other
determination of impairment.
The
Company accounts for its impaired loans in accordance with SFAS No. 114,
“Accounting by Creditors for Impairment of a Loan,” as amended by SFAS
No. 118, “Accounting by Creditors for Impairment of a Loan - Income
Recognition and Disclosures.” This standard requires that a creditor measure
impairment based on the present value of expected future cash flows discounted
at the loan’s effective interest rate except that, as a practical expedient, a
creditor may measure impairment based on a loan’s observable market price, or
the fair value of the collateral if the loan is collateral dependent. Regardless
of the measurement method, a creditor may measure impairment based on the fair
value of the collateral when the creditor determines that foreclosure is
probable.
MAGYAR
BANCORP, INC. AND SUBSIDIARY
Notes
to
Consolidated Financial Statements - Continued
September
30, 2006 and 2005
The
Company accounts for its transfers of financial assets, including sales and
loan
participations and servicing assets, in accordance with SFAS No. 140,
“Accounting for Transfers and Servicing of Financial Assets and Extinguishments
of Liabilities.” Transfers of financial assets, including sales of loans and
loan participations are accounted for as sales when control over the assets
has
been surrendered. Control over transferred assets is deemed to be surrendered
when (1) the assets have been isolated from the Company, (2) the transferee
obtains the right (free of conditions that constrain it from taking advantage
of
that right) to pledge or exchange the transferred assets, and (3) the Company
does not maintain effective control over the transferred assets through an
agreement to repurchase them before their maturity.
The
Company follows Financial Accounting Standards Board (FASB) Interpretation
(FIN)
45, “Guarantor’s Accounting and Disclosure Requirements for Guarantees,
including Indirect Guarantees of Indebtedness of Others.” FIN 45 requires a
guarantor entity, at the inception of a guarantee covered by the measurement
provisions of the interpretation, to record a liability for the fair value
of
the obligation undertaken in issuing the guarantee. At September 30, 2006 and
2005, the Company did not hold any guarantees subject to FIN 45.
In
October 2003, the AICPA issued Statement of Position (SOP) 03-3, “Accounting for
Loans or Certain Debt Securities Acquired in a Transfer.” SOP 03-3 applies to a
loan with the evidence of deterioration of credit quality since origination
acquired by completion of a transfer for which it is probable, at acquisition,
that the Company will be unable to collect all contractually required payments
receivable. SOP 03-3 is effective for loans acquired in fiscal years beginning
after December 31, 2004. The Company has no such loans at September 30, 2006
and
2005.
|
5.
|
Premises
and Equipment
|
Premises
and equipment are carried at cost less accumulated depreciation, and include
expenditures for new facilities, major betterments and renewals. Expenditures
for maintenance and repairs are charged to expense as incurred. Depreciation
is
computed using the straight-line method based upon the estimated useful lives
of
the related assets. Leasehold improvements are depreciated using the
straight-line method based upon the initial term of the lease.
The
Company accounts for the impairment of long-lived assets in accordance with
SFAS
No. 144, “Accounting for the Impairment or Disposal of Long-Lived Assets.” The
standard requires recognition and measurement for the impairment of long-lived
assets to be held and used or to be disposed of by sale. The Company had no
impaired long-lived assets at September 30, 2006 and 2005.
Real
estate properties acquired through loan foreclosures are recorded at estimated
fair value less cost to sell at the time of foreclosure with any write-downs
charged against the allowance for loan losses. Subsequent valuations are
periodically performed by management and the carrying value is adjusted by
a
charge to expense to reflect any subsequent declines in the estimated fair
value. For the years ended September 30, 2006 and 2005, the Company did not
incur any write downs on foreclosed properties. Further declines in real estate
values may result in increased foreclosed real estate expense in the future.
Routine holding costs are charged to expense as incurred and improvements to
real estate owned that enhance the value of the real estate are capitalized.
At
September 30, 2006 and 2005, the Company did not hold any real estate owned
properties.
MAGYAR
BANCORP, INC. AND SUBSIDIARY
Notes
to
Consolidated Financial Statements - Continued
September
30, 2006 and 2005
Under
the
liability method, deferred tax assets and liabilities are determined based
on
the difference between the financial statement and the tax basis of assets
and
liabilities as measured by the enacted tax rates, which will be in effect when
these temporary differences are estimated to reverse. Deferred tax expense
is
the result of changes in deferred tax assets and liabilities.
The
Company expenses advertising costs as incurred.
SFAS
No.
107, “Disclosures about Fair Value of Financial Instruments,” requires the
Company to disclose the estimated fair value of their assets and liabilities
considered to be financial instruments. Financial instruments requiring
disclosure consist primarily of investment securities, loans and
deposits.
Earnings
per share was not meaningful for the year ended September 30, 2006, as the
Company did not have publicly held shares outstanding during each day of the
period. Earnings per share was not meaningful for the year ended September
30,
2005 as the Company had no publicly held shares during the period.
|
11.
|
Comprehensive
Income (Loss)
|
SFAS
No.
130, “Reporting Comprehensive Income,” established standards for reporting
comprehensive income, which includes net income as well as certain other items
which result in a change to equity during the period.
The
income tax effects allocated to comprehensive income (loss) are as
follows:
|
|
Year
Ended September 30, 2006
|
|
Year
Ended September 30, 2005
|
|
|
|
|
|
|
|
Net
of
|
|
|
|
|
|
Net
of
|
|
|
|
Before
Tax
|
|
Tax
|
|
Tax
|
|
Before
Tax
|
|
Tax
|
|
Tax
|
|
|
|
Amount
|
|
Expense
|
|
Amount
|
|
Amount
|
|
Expense
|
|
Amount
|
|
|
|
(In
thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Unrealized
holding gains (losses) arising during period on:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Available-for-sale
investments
|
|
$
|
411
|
|
$
|
(191
|
)
|
$
|
220
|
|
$
|
(282
|
)
|
$
|
118
|
|
$
|
(164
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Less
reclassification adjustment for losses realized in net
income
|
|
|
(104
|
)
|
|
45
|
|
|
(59
|
)
|
|
6
|
|
|
(2
|
)
|
|
4
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Minimum
pension liability
|
|
|
(336
|
)
|
|
134
|
|
|
(202
|
)
|
|
(161
|
)
|
|
37
|
|
|
(124
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest
rate derivative
|
|
|
148
|
|
|
-
|
|
|
148
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other
comprehensive income (loss), net
|
|
$
|
119
|
|
$
|
(12
|
)
|
$
|
107
|
|
$
|
(437
|
)
|
$
|
153
|
|
$
|
(284
|
)
|
MAGYAR
BANCORP, INC. AND SUBSIDIARY
Notes
to
Consolidated Financial Statements - Continued
September
30, 2006 and 2005
Certain
2005 amounts have been reclassified to conform to the 2006 financial statement
presentation.
|
13.
|
Bank
Owned Life Insurance
|
The
Company has purchased Bank Owned Life Insurance policies (“BOLI”). BOLI involves
the purchasing of life insurance by the Company on directors and executive
officers. The proceeds are used to help defray the costs of benefit plans.
The
Company is the owner and beneficiary of the policies. BOLI is recorded on the
consolidated Balance Sheet at its cash surrender value and changes in the cash
surrender value are recorded in non-interest income.
|
14.
|
New
Accounting Pronouncements
|
In
February 2006, the FASB issued SFAS No. 155, “Accounting for Certain
Hybrid Financial Instruments-an amendment of FASB statements No. 133 and
140.” This statement permits fair value remeasurement of certain hybrid
financial instruments, clarifies the scope of SFAS No. 133,
“Accounting for Derivative Instruments and Hedging Activities” regarding
interest-only and principal-only strips, and provides further guidance on
certain issues regarding beneficial interests in securitized financial assets,
concentrations of credit risk and qualifying special purpose entities.
SFAS No. 155 is effective as of the beginning of the first fiscal year
that begins after September 15, 2006
and does
not have a material impact on the Company’s consolidated financial statements
ended September 30, 2006.
In
March
2006, the Financial Accounting Standards Board (FASB) issued Statement
No. 156 (SFAS 156), “Accounting for Servicing of Financial Assets.” SFAS
156 amends SFAS No. 140, “Accounting for Transfers and Servicing of
Financial Assets and Extinguishments of Liabilities.” SFAS 156 permits, but does
not require, an entity to choose either the amortization method or the fair
value measurement method for measuring each class of separately recognized
servicing assets and servicing liabilities. SFAS 156 is effective for fiscal
years beginning after September 15, 2006 and does not have a material impact
on
the Company’s consolidated financial statements ended September 30,
2006.
In
July
2006, FASB issued FASB Interpretation (FIN) 48, “Accounting for Uncertainty in
Income Taxes: an interpretation of FASB Statement No. 109, “Accounting for
Income Taxes.” FIN 48 clarifies FASB 109, to indicate a criterion that an
individual tax position would have to meet for some or all of the benefit of
that position to be recognized in an entity’s financial statements. In
applying FIN 48, an entity is required to evaluate a tax position using a
two-step process. First, the entity should evaluate the position for
recognition. An entity should recognize the financial statement benefit of
a tax
position if it determines that it is more likely than not that the position
will
be sustained on examination. The term “more likely than not” means “a likelihood
of more than 50 percent.” In assessing whether the more-likely-than-not
criterion is met, the entity should assume that the tax position will be
reviewed by the applicable taxing authority. Additionally, if past
administrative practices and precedents of the taxing authority are widely
understood, those practices and precedents should be considered in an entity’s
assessment of the more-likely-than-not criterion
The
second step is measurement: a tax position that meets the more-likely-than-not
recognition threshold is measured to determine the amount of benefit to
recognize in the financial statements. The tax position is measured at the
largest amount of benefit that is greater than 50 percent likely of being
realized upon ultimate settlement. FIN 48 is effective for fiscal years
beginning after December 15, 2006 and is currently under evaluation by the
Company to determine the impact on the Company’s consolidated financial
statements.
MAGYAR
BANCORP, INC. AND SUBSIDIARY
Notes
to
Consolidated Financial Statements - Continued
September
30, 2006 and 2005
In
September 2006, the FASB issued SFAS No. 157, “Fair Value
Measurements.” This Statement defines fair value, establishes a framework for
measuring fair value in accordance with generally accepted accounting
principles, and expands disclosures about fair value measurements. This
Statement applies to other accounting pronouncements that require or permit
fair
value measurements, but does not require any new fair value measurements. The
Statement is effective for fiscal years beginning after November 15, 2007
and interim periods within those fiscal years. The Company does not expect
the
adoption of SFAS No. 157 to have a material impact on its financial
statements.
In
September 2006, FASB issued SFAS No. 158, “Employers’ Accounting for
Defined Benefit Pension and Other Postretirement Plans,” which requires
employers to recognize on their balance sheets the funded status of pension
and
other postretirement benefit plans. For public companies, this requirement
is
effective as of the end of the first fiscal year ending after December 31,
2006 (as of September 30, 2007 for the Company). Statement 158 will also
require fiscal-year-end measurements of plan assets and benefit obligations,
eliminating the use of earlier measurement dates currently permissible. The
new
measurement-date requirement will not be effective until fiscal years ending
after December 15, 2008. The Statement amends Statements 87, 88, 106 and
132R, but retains most of their measurement and disclosure guidance and will
not
change the amounts recognized in the income statement as net periodic benefit
cost. The Company is evaluating the effect of SFAS No. 158 on its financial
statements.
In
September 2006, the SEC issued Staff Accounting Bulletin No. 108,
“
Considering
the
Effects of Prior Year Misstatements when Quantifying Misstatements in Current
Year Financial Statements
”
(SAB 108),
to
address diversity in practice in quantifying financial statement
misstatements. SAB 108 requires that registrants use a dual approach in
quantifying misstatements based on their impact on the financial statements
and
related disclosures. SAB 108 is effective as of the end of the Company
’
s 2007
fiscal
year, allowing a one-time transitional cumulative effect adjustment to retained
earnings as of July 1, 2006 for errors (if any) that were not previously deemed
material, but are material under the guidance in SAB 108. The Company is
currently evaluating the impact of adopting SAB 108 on its financial
statements.
NOTE
C -
STOCK-BASED COMPENSATION
In
December 2004, the FASB revised SFAS No. 123,
Share-Based
Payment.
SFAS No.
123(R) addresses the accounting for share-based payment transactions in which
an
enterprise receives employee services in exchange for (a) equity instruments
of
the enterprise or (b) liabilities that are based on the fair value of the
enterprise’s equity instruments or that may be settled by the issuance of such
equity instruments. SFAS No. 123(R) requires an entity to recognize the
grant-date fair-value of stock options and other equity-based compensation
issued to employees in the income statement. The revised Statement generally
requires that an entity account for those transactions using the
fair-value-based method; and eliminates an entity’s ability to account for
share-based compensation transactions using the intrinsic value method of
accounting in APB Opinion No. 25. Management is in the process of evaluating
SFAS No. 123(R) and does not anticipate an affect on the consolidated results
of
operations until the adoption of a stock-based incentive program. Although
the
Company has no share-based plans, they did adopt SFAS No. 123(R) effective
October 1, 2005.
The
Company had no stock-based compensation plans as of September 30, 2006 or 2005,
except as described below.
The
Company has an Employee Stock Ownership Plan ("ESOP") for the benefit of
employees who meet the eligibility requirements as defined in the plan. The
ESOP
trust purchased 217,863 shares of common stock in the open market using proceeds
of a loan from the Company. The total cost of shares purchased by the ESOP
trust
was $2.3 million, reflecting an average cost per share of $10.58. The Bank
will
make cash contributions to the ESOP on an annual basis sufficient to enable
the
ESOP to make the required loan payments to the Company. The loan bears a
variable interest rate equal to Prime (currently 8.25%) with principal and
interest payable annually in equal installments over thirty years. The loan
is
secured by the shares of the stock purchased.
As
the
debt is repaid, shares are released as collateral and allocated to qualified
employees. Accordingly, the shares pledged as collateral are reported as
unearned ESOP shares in the Consolidated Balance Sheet. The Company accounts
for
its ESOP in accordance with Statement of Position (“SOP”) 93-6, “Employer’s
Accounting for Employee Stock Ownership Plans”, issued by the Accounting
Standards Division of the American Institute of Certified Public Accountants
(“AICPA”). As shares are released from collateral, the Company reports
compensation expense equal to the current market price of the shares, and the
shares become outstanding for earnings per share computations. The Company's
contribution expense for the ESOP was $189,000 and $0 for the years ended
September 30, 2006 and 2005.
MAGYAR
BANCORP, INC. AND SUBSIDIARY
Notes
to
Consolidated Financial Statements - Continued
September
30, 2006 and 2005
The
following table presents the components of the ESOP shares:
|
|
September
30,
|
|
|
|
2006
|
|
Shares
released for allocation
|
|
|
-
|
|
Unreleased
shares
|
|
|
217,863
|
|
|
|
|
|
|
Total
ESOP shares
|
|
|
217,863
|
|
NOTE
D -
INVESTMENT SECURITIES
The
unamortized cost, gross unrealized gains or losses and the fair value of the
Bank’s investment securities available-for-sale and held-to-maturity are as
follows:
|
|
September
30, 2006
|
|
|
|
|
|
Gross
|
|
Gross
|
|
|
|
|
|
Amortized
|
|
Unrealized
|
|
Unrealized
|
|
Fair
|
|
|
|
Cost
|
|
Gain
|
|
Losses
|
|
Value
|
|
|
|
(In
thousands)
|
|
Securities
available for sale
|
|
|
|
|
|
|
|
|
|
|
|
|
|
U.S.
government and agency obligations
|
|
$
|
-
|
|
$
|
-
|
|
$
|
-
|
|
$
|
-
|
|
Municipal
bonds
|
|
|
2,049
|
|
|
17
|
|
|
-
|
|
|
2,066
|
|
Equity
securities
|
|
|
142
|
|
|
-
|
|
|
-
|
|
|
142
|
|
Mortgage-backed
securities
|
|
|
16,258
|
|
|
34
|
|
|
(331
|
)
|
|
15,961
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
18,449
|
|
$
|
51
|
|
$
|
(331
|
)
|
$
|
18,169
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Securities
held to maturity
|
|
|
|
|
|
|
|
|
|
|
|
|
|
U.S.
government and agency obligations
|
|
|
2,157
|
|
|
4
|
|
|
(56
|
)
|
$
|
2,105
|
|
Municipal
bonds
|
|
|
137
|
|
|
8
|
|
|
-
|
|
|
145
|
|
Corporate
notes
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Mortgage-backed
securities
|
|
|
21,601
|
|
|
39
|
|
|
(532
|
)
|
|
21,108
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
23,895
|
|
$
|
51
|
|
$
|
(588
|
)
|
$
|
23,358
|
|
MAGYAR
BANCORP, INC. AND SUBSIDIARY
Notes
to
Consolidated Financial Statements - Continued
September
30, 2006 and 2005
|
|
September
30, 2005
|
|
|
|
|
|
Gross
|
|
Gross
|
|
|
|
|
|
Amortized
|
|
Unrealized
|
|
Unrealized
|
|
Fair
|
|
|
|
Cost
|
|
Gain
|
|
Losses
|
|
Value
|
|
|
|
(In
thousands)
|
|
Securities
available for sale
|
|
|
|
|
|
|
|
|
|
|
|
|
|
U.S.
government and agency obligations
|
|
$
|
4,000
|
|
$
|
-
|
|
$
|
(106
|
)
|
$
|
3,894
|
|
Municipal
bonds
|
|
|
-
|
|
|
|
|
|
|
|
|
-
|
|
Equity
securities
|
|
|
142
|
|
|
-
|
|
|
-
|
|
|
142
|
|
Mortgage-backed
securities
|
|
|
17,047
|
|
|
-
|
|
|
(481
|
)
|
|
16,566
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
21,189
|
|
$
|
-
|
|
$
|
(587
|
)
|
$
|
20,602
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Securities
held to maturity
|
|
|
|
|
|
|
|
|
|
|
|
|
|
U.S.
government and agency obligations
|
|
$
|
4,313
|
|
$
|
17
|
|
$
|
(64
|
)
|
$
|
4,266
|
|
Municipal
bonds
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Corporate
notes
|
|
|
2,001
|
|
|
14
|
|
|
-
|
|
|
2,015
|
|
Mortgage-backed
securities
|
|
|
27,955
|
|
|
124
|
|
|
(507
|
)
|
|
27,572
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
34,269
|
|
$
|
155
|
|
$
|
(571
|
)
|
$
|
33,853
|
|
|
The
contractual maturities of mortgage-backed securities held-to-maturity
generally exceed 20 years; however, the effective lives are expected
to be shorter due to anticipated prepayments
.
The
amortized cost and fair value of the Company’s debt securities
available-for-sale and held-to-maturity at September 30, 2006, by
contractual maturity, are shown below. Expected maturities may differ
from
contractual maturities because borrowers may have the right to call
or
prepay obligations.
|
|
|
September
30, 2006
|
|
|
|
Available
For Sale
|
|
Held
To Maturity
|
|
|
|
Amortized
|
|
Fair
|
|
Amortized
|
|
Fair
|
|
|
|
Cost
|
|
Value
|
|
Cost
|
|
Value
|
|
|
|
(In
thousands)
|
|
|
|
|
|
|
|
|
|
|
|
Due
in one year or less
|
|
$
|
142
|
|
$
|
142
|
|
$
|
-
|
|
$
|
-
|
|
Due
after one year through five years
|
|
|
-
|
|
|
-
|
|
|
2,000
|
|
|
1,950
|
|
Due
after five year through ten years
|
|
|
2,049
|
|
|
2,066
|
|
|
137
|
|
|
145
|
|
Due
after ten years
|
|
|
16,258
|
|
|
15,961
|
|
|
21,601
|
|
|
21,108
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
18,449
|
|
$
|
18,169
|
|
$
|
23,895
|
|
$
|
23,358
|
|
There
were sales of $3,896,000 of U.S. agency obligations from the available-for-sale
portfolio during the year ended September 30, 2006. The Company recognized
a
gross loss of $104,000 on the sale. There were sales of $1,536,000 of U.S.
agency obligations and $1,567,000 of mortgage-backed securities from the
available-for-sale portfolio during the year ended September 30, 2005. The
Company recognized a gross gain of $36,000 and a gross loss of $42,000 on the
sales.
As
of
September 30, 2006 and 2005, securities having an estimated fair value of
approximately $1,137,000 and $1,023,000, respectively, were pledged to secure
public deposits.
MAGYAR
BANCORP, INC. AND SUBSIDIARY
Notes
to
Consolidated Financial Statements - Continued
September
30, 2006 and 2005
Details
of securities with unrealized losses for the years ended September 30, 2006
and
2005 are as follows:
|
|
|
|
September
30, 2006
|
|
|
|
|
|
Less
Than 12 Months
|
|
12
Months Or Greater
|
|
Total
|
|
Description
Of
|
|
Number
Of
|
|
Fair
|
|
Unrealized
|
|
Fair
|
|
Unrealized
|
|
Fair
|
|
Unrealized
|
|
Securities
|
|
Securities
|
|
Value
|
|
Losses
|
|
Value
|
|
Losses
|
|
Value
|
|
Losses
|
|
|
|
|
|
(Dollars
in thousands)
|
|
U.S.
government and agency obligations
|
|
|
2
|
|
$
|
-
|
|
$
|
-
|
|
$
|
2,071
|
|
$
|
55
|
|
$
|
2,071
|
|
$
|
55
|
|
Mortgage-backed
securities
|
|
|
53
|
|
|
4,314
|
|
|
29
|
|
|
27,096
|
|
|
834
|
|
|
31,410
|
|
|
863
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
55
|
|
$
|
4,314
|
|
$
|
29
|
|
$
|
29,167
|
|
$
|
889
|
|
$
|
33,481
|
|
$
|
918
|
|
|
|
|
|
September
30, 2005
|
|
|
|
|
|
Less
Than 12 Months
|
|
12
Months Or Greater
|
|
Total
|
|
Description
Of
|
|
Number
Of
|
|
Fair
|
|
Unrealized
|
|
Fair
|
|
Unrealized
|
|
Fair
|
|
Unrealized
|
|
Securities
|
|
Securities
|
|
Value
|
|
Losses
|
|
Value
|
|
Losses
|
|
Value
|
|
Losses
|
|
|
|
|
|
(Dollars
in thousands)
|
|
U.S.
government and agency obligations
|
|
|
5
|
|
$
|
133
|
|
$
|
1
|
|
$
|
7,831
|
|
$
|
169
|
|
$
|
7,964
|
|
$
|
170
|
|
Mortgage-backed
securities
|
|
|
41
|
|
|
2,705
|
|
|
36
|
|
|
35,229
|
|
|
952
|
|
|
37,934
|
|
|
988
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
46
|
|
$
|
2,838
|
|
$
|
37
|
|
$
|
43,060
|
|
$
|
1,121
|
|
$
|
45,898
|
|
$
|
1,158
|
|
The
investment securities listed above currently have fair values less than
amortized cost and therefore contain unrealized losses. The Company evaluated
these securities and determined that the decline in value is primarily related
to fluctuations in the interest rate environment and not related to any company
or industry specific event. At September 30, 2006 and September 30, 2005, there
were approximately fifty-five and forty-six investment securities with
unrealized losses. The Company anticipates full recovery of amortized costs
with
respect to these securities. The Company has the intent and ability to hold
these investments until maturity or market price recovery. Management has
considered factors regarding other than temporarily impaired securities and
determined that there are no securities that were impaired as of September
30,
2006 and 2005.
MAGYAR
BANCORP, INC. AND SUBSIDIARY
Notes
to
Consolidated Financial Statements - Continued
September
30, 2006 and 2005
NOTE
E -
LOANS RECEIVABLE, NET
Loans
receivable are comprised of the following:
|
|
September
30,
|
|
|
|
2006
|
|
2005
|
|
|
|
(Dollars
in thousands)
|
|
|
|
|
|
|
|
One
-to-four family residential
|
|
$
|
143,245
|
|
$
|
126,269
|
|
Commercial
real estate
|
|
|
68,567
|
|
|
57,366
|
|
Construction
|
|
|
90,342
|
|
|
44,418
|
|
Home
equity lines of credit
|
|
|
10,843
|
|
|
10,398
|
|
Commercial
business
|
|
|
24,510
|
|
|
17,413
|
|
Other
|
|
|
14,846
|
|
|
14,862
|
|
|
|
|
|
|
|
|
|
Total
loans receivable
|
|
|
352,353
|
|
|
270,726
|
|
Deferred
loan costs (fees)
|
|
|
(492
|
)
|
|
(280
|
)
|
Allowance
for loan losses
|
|
|
(3,892
|
)
|
|
(3,129
|
)
|
|
|
|
|
|
|
|
|
Total
loans receivable, net
|
|
$
|
347,969
|
|
$
|
267,317
|
|
Certain
directors and executive officers of the Bank have loans with the Company. Such
loans were made in the ordinary course of business at the Company’s normal
credit terms, including interest rate and collateralization, and do not
represent more than a normal risk of collection. Total loans receivable from
directors and executive officers was approximately $3,709,000 and $2,967,000
at
September 30, 2006 and 2005, respectively. Total principal additions were
approximately $1,320,000 and total principal repayments were $578,000 for the
year ended September 30, 2006.
At
September 30, 2006 and 2005, the Company was servicing loans for others
amounting to approximately $12,278,000 and $12,698,000, respectively. Servicing
loans for others generally consist of collecting mortgage payments, maintaining
escrow accounts, disbursing payments to investors, and foreclosure processing.
Loan servicing income is recorded on the cash basis and includes servicing
fees
from investors and certain charges collected from borrowers, such as late
payment fees. In connection with loans serviced for others, the Company held
borrowers’ escrow balances of approximately $20,000 and $29,000 at September 30,
2006 and 2005, respectively.
The
following summarizes the activity in the allowance for loan losses:
|
|
Years
ended September 30,
|
|
|
|
2006
|
|
2005
|
|
|
|
(In
thousands)
|
|
|
|
|
|
|
|
Balance,
beginning of year
|
|
$
|
3,129
|
|
$
|
2,341
|
|
Provision
for loan loss charged to income
|
|
|
961
|
|
|
891
|
|
Charge
- offs
|
|
|
(198
|
)
|
|
(103
|
)
|
|
|
|
|
|
|
|
|
Balance,
end of year
|
|
$
|
3,892
|
|
$
|
3,129
|
|
MAGYAR
BANCORP, INC. AND SUBSIDIARY
Notes
to
Consolidated Financial Statements - Continued
September
30, 2006 and 2005
At
September 30, 2006 and 2005 nonaccrual loans had a total principal balance
of
approximately $5,400,000
and
$577,000, respectively. The amount of interest income not recognized on loans
more than three months delinquent was approximately $49,000 and $26,000 for
the
years ended September 30, 2006 and 2005, respectively. As of September 30,
2006
and 2005 there were no loans greater than three months past due on which the
Company continued to accrue interest income.
At
September 30, 2006 and September 30, 2005, there were no commitments to lend
additional funds to borrowers whose loans are classified as
nonaccrual.
NOTE
F -
ACCRUED INTEREST RECEIVABLE
The
following is a summary of accrued interest receivable:
|
|
September
30,
|
|
|
|
2006
|
|
2005
|
|
|
|
(In
thousands)
|
|
|
|
|
|
|
|
Loans
|
|
$
|
2,023
|
|
$
|
1,294
|
|
Investment
securities
|
|
|
41
|
|
|
94
|
|
Mortgage-backed
securities
|
|
|
154
|
|
|
168
|
|
|
|
|
|
|
|
|
|
Accrued
interest receivable
|
|
$
|
2,218
|
|
$
|
1,556
|
|
NOTE
G -
PREMISES AND EQUIPMENT
Premises
and equipment consist of the following:
|
|
Estimated
|
|
September
30,
|
|
|
|
Useful
Lives
|
|
2006
|
|
2005
|
|
|
|
|
|
(In
thousands)
|
|
|
|
|
|
|
|
|
|
Land
|
|
|
Indefinite
|
|
$
|
2,628
|
|
$
|
2,605
|
|
Buildings
and improvements
|
|
|
10-35
years
|
|
|
19,161
|
|
|
14,427
|
|
Construction
in progress
|
|
|
10-40
years
|
|
|
-
|
|
|
1,934
|
|
Furniture,
fixtures and equipment
|
|
|
5
- 7 years
|
|
|
2,923
|
|
|
2,519
|
|
|
|
|
|
|
|
24,712
|
|
|
21,485
|
|
Less
accumulated depreciation and amortization
|
|
|
|
|
|
(3,022
|
)
|
|
(2,022
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
21,690
|
|
$
|
19,463
|
|
For
the
years ended September 30, 2006 and 2005, depreciation expense included in
occupancy expense amounted to approximately $1,000,000 and $519,000,
respectively.
The
Company completed an IRC “Section 1031 Exchange” of like-kind property on
January 24, 2006. The purpose of the exchange was to defer the capital gains
tax
otherwise attributable to the sale of relinquished commercial real estate.
The
property relinquished by the Company consisted of its old main office building
located at 101 French Street, New Brunswick, New Jersey. The Company identified
400 Somerset Street, New Brunswick, New Jersey as the replacement property,
which was acquired and developed by a qualified intermediary operating as
Hungaria Urban Renewal, LLC.
Hungaria
Urban Renewal, LLC was formed in 2002 and its sole purpose was to purchase
the
land and construct the office building for which the Company would be the
primary tenant. The Company had made loans to this entity during 2003 and 2004
to finance the purchase of the land and begin construction of the building.
During the period of construction, the Company had leased the land and building
from the entity. The lease payments were structured to equal the debt service
on
the loans plus a nominal fee. The lease agreement contained an irrevocable
purchase option allowing the Company to purchase the land and building from
this
entity for the aggregated outstanding indebtedness. In conjunction with the
completion of the exchange, the Company acquired a 100% interest in Hungaria
Urban Renewal, LLC, which will have no other business other than owning the
Bank’s main office site. At September 30, 2006, Hungaria Urban Renewal, LLC
accounted for $2,628,000, $13,440,000, and $994,000 of land, building, and
furniture, fixtures and equipment, respectively.
MAGYAR
BANCORP, INC. AND SUBSIDIARY
Notes
to
Consolidated Financial Statements - Continued
September
30, 2006 and 2005
Although
the exchange was not completed until January 2006, the Company previously
identified Hungaria Urban Renewal, LLC as a variable interest entity, as defined
by Financial Interpretation No. 46 ("FIN 46"), "Consolidation of Variable
Interest Entities,” and its subsequent amendment, FIN 46-R. As the primary
beneficiary to this entity, the Company included the variable interest entity
in
the consolidated financial statements beginning October 1, 2004. At September
30, 2005, Hungaria Urban Renewal, LLC accounted for $2,605,000, $10,446,000,
$1,934,000, and $987,000 of land, building, construction in progress and
furniture, fixtures and equipment, respectively.
NOTE
H -
DEPOSITS
A
summary
of deposits by type of account follows (in thousands):
|
|
September
30,
|
|
|
|
2006
|
|
2005
|
|
|
|
(In
thousands)
|
|
|
|
|
|
|
|
Demand
accounts
|
|
$
|
20,491
|
|
$
|
14,566
|
|
Savings
accounts
|
|
|
43,127
|
|
|
53,819
|
|
NOW
accounts
|
|
|
30,519
|
|
|
28,149
|
|
Money
market accounts
|
|
|
56,107
|
|
|
30,499
|
|
Certificate
of deposit
|
|
|
149,811
|
|
|
126,165
|
|
Retirement
accounts
|
|
|
25,547
|
|
|
24,892
|
|
|
|
|
|
|
|
|
|
|
|
$
|
325,602
|
|
$
|
278,090
|
|
The
aggregate amount of deposit accounts with a minimum denomination of $100,000
was
approximately $117,336,000 and $72,300,000 at September 30, 2006 and 2005,
respectively.
At
September 30, 2006, certificates of deposit (including individual retirement
accounts) have contractual maturities as follows (in thousands):
2007
|
|
$
|
141,818
|
|
2008
|
|
|
26,682
|
|
2009
|
|
|
3,240
|
|
2010
|
|
|
2,192
|
|
2011
|
|
|
1,426
|
|
|
|
|
|
|
|
|
$
|
175,358
|
|
MAGYAR
BANCORP, INC. AND SUBSIDIARY
Notes
to
Consolidated Financial Statements - Continued
September
30, 2006 and 2005
NOTE
I -
BORROWINGS
|
1.
|
Federal
Home Loan Bank of New York Advances
|
Long
term
Federal Home Loan Bank of New York (FHLBNY) advances at September 30, 2006
and
September 30, 2005 totaled approximately $19,121,000 and $21,072,000,
respectively. The advances were collateralized by FHLBNY stock and otherwise
unencumbered qualified assets. These advances had a weighted average interest
rate of 4.59% and 4.44% for the years ended September 30, 2006 and 2005,
respectively. Advances are made pursuant to several different credit programs
offered from time to time by the FHLBNY.
Long
term
FHLBNY advances as of September 30, 2006 mature as follows (in thousands):
2007
|
|
$
|
6,579
|
|
2008
|
|
|
1,022
|
|
2009
|
|
|
6,064
|
|
2010
|
|
|
456
|
|
2011
|
|
|
5,000
|
|
|
|
|
|
|
|
|
$
|
19,121
|
|
Additionally,
the Company has established two short-term borrowing arrangements with the
FHLBNY: (1) an Overnight Line of Credit and (2) a One-Month Overnight Repricing
Line of Credit in the amount of $39,088,000 each. Each of the foregoing expires
on July 31, 2007. For the periods ended September 30, 2006 and 2005, the Company
had aggregate balances of $28,875,000 and $17,800,000, respectively, outstanding
under these short term arrangements.
Information
concerning short-term arrangements with the FHLBNY is summarized as follows:
|
|
Year
Ended September 30,
|
|
|
|
2006
|
|
2005
|
|
|
|
(Dollars
in thousands)
|
|
|
|
|
|
|
|
Balance
at end of year
|
|
$
|
28,875
|
|
$
|
17,800
|
|
Weighted
average balance during the year
|
|
|
11,727
|
|
|
9,409
|
|
Weighted
average interest rate at the end of year
|
|
|
5.51
|
%
|
|
4.11
|
%
|
Maximum
month-end balance during the year
|
|
|
28,875
|
|
|
22,100
|
|
Average
interest rate during the year
|
|
|
4.81
|
%
|
|
2.85
|
%
|
As
of
September 30, 2006, the Company had the ability to borrow $80,653,000, including
repurchase agreements from the FHLBNY, described below.
|
2.
|
Securities
Sold Under Reverse Repurchase
Agreements
|
Qualifying
repurchase agreements are treated as financings and are reflected as a liability
in the consolidated balance sheet. At September 30, 2006 and 2005, the Company
had repurchase agreements of approximately $5,000,000 and $10,000,000,
respectfully. These agreements are collateralized by securities underlying
the
agreements and are held in safekeeping with the FHLBNY. At September 30, 2006,
the fair value of the collateral for these agreements totaled approximately
$5,247,000.
Outstanding
securities sold under agreements to repurchase as of September 30, 2006 mature
in 2008.
MAGYAR
BANCORP, INC. AND SUBSIDIARY
Notes
to
Consolidated Financial Statements - Continued
September
30, 2006 and 2005
Loans
payable to other financial institutions at September 30, 2006 and September
30,
2005 totaled approximately $0 and $2,497,000, respectively. The loan at
September 30, 2005 was a participant balance of the loan to Hungaria Urban
Renewal, LLC as described in Note I.
NOTE
J -
INCOME TAXES
The
income (benefit) tax provision is comprised of the following
components:
|
|
Year
Ended September 30,
|
|
|
|
2006
|
|
2005
|
|
|
|
|
|
|
|
Current
|
|
$
|
349
|
|
$
|
562
|
|
Deferred
|
|
|
(477
|
)
|
|
389
|
|
|
|
|
|
|
|
|
|
|
|
$
|
(128
|
)
|
$
|
951
|
|
A
reconciliation of income tax at the statutory tax rate to the effective income
(benefit) tax provision is as follows:
|
|
Year
Ended September 30,
|
|
|
|
2006
|
|
2005
|
|
|
|
(Dollars
in thousands)
|
|
Income
tax at statutory rate
|
|
$
|
(41
|
)
|
$
|
854
|
|
Increase
(decrease) resulting from:
|
|
|
|
|
|
|
|
State
income taxes, net of federal income tax benefit
|
|
|
(23
|
)
|
|
141
|
|
Tax-exempt
income, net
|
|
|
(79
|
)
|
|
(55
|
)
|
Nondeductible
expenses
|
|
|
11
|
|
|
9
|
|
ESOP
|
|
|
5
|
|
|
-
|
|
Other,
net
|
|
|
(1
|
)
|
|
2
|
|
|
|
|
|
|
|
|
|
Total
income tax provision
|
|
$
|
(128
|
)
|
$
|
951
|
|
MAGYAR
BANCORP, INC. AND SUBSIDIARY
Notes
to
Consolidated Financial Statements - Continued
September
30, 2006 and 2005
The
major
sources of temporary differences and their deferred tax effect at September
30,
2006 and 2005 are as follows:
|
|
September
30,
|
|
|
|
2006
|
|
2005
|
|
|
|
(Dollars
in thousands)
|
|
|
|
|
|
|
|
Non-qualified
compensation plan
|
|
$
|
99
|
|
$
|
38
|
|
Net
unrealized holding losses on investment securities available for
sale
|
|
|
100
|
|
|
246
|
|
Unrealized
loss, minimum pension liability
|
|
|
312
|
|
|
178
|
|
Deferred
loan fees
|
|
|
(95
|
)
|
|
108
|
|
Discount
accretion on investments
|
|
|
(107
|
)
|
|
(101
|
)
|
Depreciation
|
|
|
(1,295
|
)
|
|
(1,045
|
)
|
Pension
|
|
|
74
|
|
|
19
|
|
Allowance
for loan losses
|
|
|
1,138
|
|
|
833
|
|
Charitable
Contributions
|
|
|
589
|
|
|
-
|
|
Valuation
Allowance
|
|
|
(75
|
)
|
|
-
|
|
|
|
|
|
|
|
|
|
Net
deferred tax asset, included in other assets
|
|
$
|
740
|
|
$
|
276
|
|
Management
has recorded a tax valuation allowance of $75,000 relating to the deferred
tax
asset established in connection with the Company’s contribution to the
charitable foundation established in connection with its public offering on
January 23, 2006. The Company determined that, based on its assessment of future
taxable income and expectations of charitable contributions, it is probable
that
the tax benefit of the contribution may not be fully realized.
Prior
to
1996, savings banks that met certain definitions, tests and other conditions
prescribed by the Internal Revenue Code were allowed to deduct, with
limitations, a bad debt deduction computed as a percentage of taxable income
before such deduction. Currently, the Company employs the reserve method to
account for bad debt.
The
Company is not required to provide a deferred tax liability for its tax loss
reserve as of December 31, 1987 (the Base Year). The amount of this reserve
on
which no deferred taxes have been provided is approximately $1,258,000. This
reserve could be recognized as taxable income and create a current and/or
deferred tax liability using the income tax rates then in effect if one of
the
following occur: (1) the Company’s retained earnings represented by this reserve
is used for purposes other than to absorb losses from bad debts, including
dividends or distributions in liquidation, (2) the Company fails to meet the
definitions, tests, or other conditions provided by the Internal Revenue Code
for a qualified savings and loan association, or (3) there is a change in the
Federal tax law. Deferred tax liabilities have been recorded for tax loss
reserves in excess of book reserves recorded after the Base Year.
NOTE
K -
PENSION PLAN
The
Company has a noncontributory defined benefit pension plan covering all eligible
employees. The Bank’s policy is to fund pension benefits as accrued. Plan assets
are invested in six diversified investment funds of the Pentegra Retirement
Trust (the Trust), a no load series open-ended mutual fund. The investment
funds
include four equity mutual funds, one bond mutual fund, and one money market
fund each with its own investment objectives, investment strategies and risks,
as detailed in the Trust’s prospectus. The Trust has been given discretion by
the Plan Sponsor to determine the appropriate strategic asset allocation versus
plan liabilities, as governed by the Trust’s Statement of Investment Objectives
and Guidelines (the Guidelines).
MAGYAR
BANCORP, INC. AND SUBSIDIARY
Notes
to
Consolidated Financial Statements - Continued
September
30, 2006 and 2005
The
long-term investment objective is to be invested 65% in equity securities
(equity mutual funds) and 35% in debt securities (bond mutual funds). If the
plan is underfunded under the Guidelines, the bond fund portion will be
temporarily increased to 50% in order to lessen asset value volatility. When
the
plan is no longer underfunded, the bond fund portion will be decreased back
to
35%. Asset rebalancing is performed at least annually, with interim adjustments
made when the investment mix varies more than 5% from the target (i.e., a 10%
target range).
The
investment goal is to achieve investment results that will contribute to the
proper funding of the pension plan by exceeding the rate of inflation over
the
long-term. In addition, investment managers for the Trust are expected to
provide above average performance when compared to their peer managers.
Performance volatility is also monitored.
Risk/volatility
is further managed by the distinct investment objectives of each of the Trust
funds and the diversification within each fund.
The
following table sets forth the plan’s funded status and amounts recognized in
the Company’s consolidated balance sheet:
MAGYAR
BANCORP, INC. AND SUBSIDIARY
Notes
to
Consolidated Financial Statements - Continued
September
30, 2006 and 2005
|
|
At
September 30,
|
|
|
|
2006
|
|
2005
|
|
|
|
(In
thousands)
|
|
|
|
|
|
|
|
Actuarial
present value of benefit obligations
|
|
$
|
3,313
|
|
$
|
2,736
|
|
|
|
|
|
|
|
|
|
Change
in benefit obligations
|
|
|
|
|
|
|
|
Projected
benefit obligation, beginning
|
|
$
|
3,409
|
|
$
|
2,730
|
|
Increase
due to decrease in the discount rate
|
|
|
-
|
|
|
352
|
|
Service
cost
|
|
|
48
|
|
|
153
|
|
Interest
cost
|
|
|
190
|
|
|
169
|
|
Amendments
|
|
|
(413
|
)
|
|
86
|
|
Actuarial
gain (loss)
|
|
|
198
|
|
|
(15
|
)
|
Annuity
payments and lump sum distributions
|
|
|
(119
|
)
|
|
(66
|
)
|
|
|
|
|
|
|
|
|
Projected
benefit obligation, end
|
|
$
|
3,313
|
|
$
|
3,409
|
|
|
|
|
|
|
|
|
|
Change
in plan assets
|
|
|
|
|
|
|
|
Market
value of assets, beginning
|
|
$
|
2,098
|
|
$
|
1,890
|
|
Actual
return on plan assets
|
|
|
195
|
|
|
226
|
|
Employer
contributions
|
|
|
200
|
|
|
48
|
|
Annuity
payments and lump sum distributions
|
|
|
(119
|
)
|
|
(66
|
)
|
|
|
|
|
|
|
|
|
Market
value of assets, end
|
|
$
|
2,374
|
|
$
|
2,098
|
|
|
|
|
|
|
|
|
|
Funded
Status
|
|
$
|
(939
|
)
|
$
|
(1,311
|
)
|
Unrealized
net obligation
|
|
|
-
|
|
|
50
|
|
Unrealized
net losses
|
|
|
780
|
|
|
1,118
|
|
Unrealized
prior service cost
|
|
|
-
|
|
|
120
|
|
|
|
|
|
|
|
|
|
Accrued
pension costs
|
|
$
|
(159
|
)
|
$
|
(23
|
)
|
Net
pension cost for the years ended September 30, 2006 and 2005 included the
following components:
|
|
Year
Ended September 30,
|
|
|
|
2006
|
|
2005
|
|
|
|
(Dollars
in thousands)
|
|
|
|
|
|
|
|
Service
cost benefits earned during the year
|
|
$
|
48
|
|
$
|
153
|
|
Interest
cost on projected benefit obligation
|
|
|
190
|
|
|
169
|
|
Expected
return on plan assets
|
|
|
(153
|
)
|
|
(141
|
)
|
Amortization
of transitional obligation
|
|
|
1
|
|
|
3
|
|
Amortization
of unrecognized loss
|
|
|
81
|
|
|
66
|
|
Amortization
of unrecognized past service liability
|
|
|
8
|
|
|
23
|
|
|
|
|
|
|
|
|
|
Net
Pension Cost
|
|
$
|
175
|
|
$
|
273
|
|
For
2006
and 2005, the weighted average discount rate and rate of increase in future
compensation levels used in determining the actuarial present value of the
projected benefit obligation were 5.75% and 3.25% and 5.50% and 3.25%,
respectively. The current Pentegra Retirement Services Asset Model assumes
a
5.5% - 7.5% real rate of return on U.S. equities, 1.5% - 3.5% on Debt securities
and 1.0% to 3.0% on other investments. After taking a weighted-average return
based on the plan’s asset mix and the above return assumptions, and applying a
provision for CPI of 2.50%, the expected long-term rate of return on assets
was
7.50% for 2006 and 2005.
MAGYAR
BANCORP, INC. AND SUBSIDIARY
Notes
to
Consolidated Financial Statements - Continued
September
30, 2006 and 2005
On
January 26, 2006, the Board of Directors voted to freeze future benefits payable
under the Bank’s defined benefit pension plan. Accordingly, the annual benefit
provided to Bank employees was amended to eliminate future benefit accruals
on
February 15, 2006.
In
accordance with Statement of Financial Accounting Standards No. 88 (SFAS No.88)
“Employers’ Accounting for Settlements and Curtailments of Defined Benefit
Pension Plans and for Termination Benefits,” the Bank immediately recognized the
unrecognized prior service costs associated with years of service no longer
expected to be rendered as the result of a curtailment. The Bank incurred a
charge of $161,000 for such prior service costs that were previously being
deferred over the plan’s amortization period.
Determination
of Long-Term Rate-of-Return
The
long-term rate-of-return on assets assumption was set based on historical
returns earned by equities and fixed income securities, adjusted to reflect
expectations of future returns as applied to the plan’s target allocation of
asset classes. Equities and fixed income securities were assumed to earn real
rates of return in the ranges of 5-9% and 2-6%, respectively. The long-term
inflation rate was estimated to be 3%. When these overall return expectations
are applied to the plan’s target allocation, the expected rate of return is
determined to be 7.50%.
Current
Asset Allocation
The
Bank’s pension plan weighted-average asset allocations at September 30, 2006 and
2005, by asset category are as follows:
|
|
2006
|
|
2005
|
|
|
|
|
|
|
|
Equity
securities
|
|
|
55
|
%
|
|
55
|
%
|
Debt
securities (Bond Mutual Funds)
|
|
|
38
|
%
|
|
42
|
%
|
Other
(Money Market Fund)
|
|
|
7
|
%
|
|
3
|
%
|
|
|
|
|
|
|
|
|
Total
|
|
|
100
|
%
|
|
100
|
%
|
Expected
Contributions
For
the
fiscal year ending September 30, 2007, the Bank expects to contribute
approximately
$60,000
to the
Plan.
Estimated
Future Benefit Payments
The
following benefit payments, which reflect approximate expected future service,
as appropriate, are expected to be paid as follows (in
thousands):
MAGYAR
BANCORP, INC. AND SUBSIDIARY
Notes
to
Consolidated Financial Statements - Continued
September
30, 2006 and 2005
10/01/2006
- 09/30/2007
|
|
$
|
123
|
|
10/01/2007
- 09/30/2008
|
|
$
|
134
|
|
10/01/2008
- 09/30/2009
|
|
$
|
149
|
|
10/01/2009
- 09/30/2010
|
|
$
|
157
|
|
10/01/2010
- 09/30/2011
|
|
$
|
162
|
|
Years
2011-2015
|
|
$
|
959
|
|
NOTE
L -
NONQUALIFIED COMPENSATION PLAN
During
1996, the Company adopted a Supplemental Executive Retirement Plan (SERP) for
the benefit of its senior officers. In addition, the Company also adopted
voluntary Deferred Income and Emeritus Plans on behalf of their directors and
those directors elected by the Board as “Director Emeritus.” The SERP provides
the Company with the opportunity to supplement the retirement income of selected
officers to achieve equitable wage replacement at retirement while the Deferred
Income Plan provides participating directors with an opportunity to defer all
or
a portion of their fees into a tax deferred accumulation account for future
retirement. The Director Emeritus Plan enables the Company to reward its
directors for longevity of service in consideration of their availability and
consultation at a sum equal to a fifteen year certain annuity based on
fifty-percent of their directors’ last years’ Board fee. The SERP is based upon
achieving retirement benefits equal to two percent multiplied by the number
of
service years multiplied by the final salary.
In
2001,
the Company adopted a New Director Emeritus Plan (the New Plan), which
supplemented the prior Director Emeritus Plans. Under the New Plan, the
Directors will be entitled to a Benefit upon attainment of his/her benefit
age.
The Directors will receive an annual amount in monthly installments based on
the
his/her total Board and Committee fees in the twelve month prior to attainment
of his/her benefit age. The amount will be 10% plus 2% for each year of service
with a maximum of 50%, provided that the Director has served for at least five
years with a maximum of 60%.
The
Company funded the original plans through a modified endowment contract with
a
cash premium paid of $2,468,000 during fiscal 1996 and an additional cash
premium of $800,000 during 2000. The New Plan was funded on August 1, 2001
with
a cash premium paid of $845,000. Income recorded for the plans represents life
insurance income as recorded based on the projected increases in cash surrender
values of life insurance policies. As of September 30, 2006 and 2005, the Life
Insurance Contracts have a cash surrender value of approximately $9,606,000and
$5,813,000, respectively.
The
Company is recording benefit costs so that the cost of each participant’s
retirement benefits is being expensed and accrued over the participant’s active
employment so as to result in a liability at retirement date equal to the
present value of the benefits expected to be provided. As of September 30,
2006
and 2005, the Company had accrued approximately $60,000 and $94,000,
respectively, for benefits under these Plans.
NOTE
M -
401(K) EMPLOYEE CONTRIBUTION PLAN
The
Company has a defined contribution 401(k) plan covering all employees, as
defined under the plan document. Employees may contribute to the plan, as
defined under the plan document, and the Bank can make discretionary
contributions. The Bank contributed approximately $87,000 and $81,000 to the
plan for the years ended September 30, 2006 and 2005,
respectively.
MAGYAR
BANCORP, INC. AND SUBSIDIARY
Notes
to
Consolidated Financial Statements - Continued
September
30, 2006 and 2005
NOTE
N -
COMMITMENTS
Approximate
future minimum payments under non-cancelable operating leases are due as follows
(in thousands):
Year
Ending September 30,
|
|
|
|
|
|
|
|
2007
|
|
$
|
283
|
|
2008
|
|
|
286
|
|
2009
|
|
|
286
|
|
2010
|
|
|
286
|
|
2011
|
|
|
286
|
|
Thereafter
|
|
|
3,058
|
|
|
|
|
|
|
|
|
$
|
4,485
|
|
The
total
rental expense was approximately $175,000 and $887,000 for the years ended
September 30, 2006 and 2005, respectively.
The
Company, from time to time, is a party to routine litigation that arises in
the
normal course of business. In the opinion of management, the resolution of
this
litigation, if any, would not have a material adverse effect on the Company’s
consolidated financial position or results of operations.
NOTE
O -
FINANCIAL INSTRUMENTS WITH OFF-BALANCE-SHEET RISK
On
occasion, the
Company
uses
derivative financial instruments, such as interest rate floors and collars,
as
part of its interest rate risk management. Interest rate caps and floors
are agreements whereby one party agrees to pay or receive a floating rate of
interest on a notional principal amount for a predetermined period of time
if
certain market interest rate thresholds are met. The
Company
considers
the credit risk inherent in these contracts to be negligible.
In
2006,
the
Company
entered
into one Prime-based interest rate floor transaction and one Prime-based
interest rate collar transaction. The interest rate collar involved the purchase
of an interest rate floor combined with the sale of an interest rate cap. In
accordance with FAS133 cash flow hedge accounting, the amortization of the
costs
of the derivatives flowed through the Bank’s income statement as a reduction to
loan interest income. In addition, all changes in fair value of the
derivatives are deferred in other comprehensive income.
The
table
below shows the notional amount, strike and maturity date of each interest
rate
derivative agreement as of September 30, 2006. The
Company
did
not
have any interest rate derivatives for the year ended September 30,
2005.
MAGYAR
BANCORP, INC. AND SUBSIDIARY
Notes
to
Consolidated Financial Statements - Continued
September
30, 2006 and 2005
|
|
Notional
Amount
|
|
Strike
|
|
Maturity
Date
|
|
Fair
Value
|
|
|
|
(Dollars
in thousands)
|
|
|
|
|
|
|
|
|
|
|
|
Interest
rate floor
|
|
$
|
5,000
|
|
|
7.25
|
%
|
|
December
27, 2010
|
|
$
|
53
|
|
Interest
rate floor
|
|
$
|
10,000
|
|
|
8.00
|
%
|
|
June
23, 2013
|
|
$
|
412
|
|
Interest
rate cap
|
|
$
|
(10,000
|
)
|
|
9.50
|
%
|
|
June
23, 2013
|
|
$
|
(91
|
)
|
The
Company is a party to financial instruments with off-balance-sheet risk in
the
normal course of business to meet the financing needs of its customers. These
financial instruments are commitments to extend credit. Those instruments
involve, to varying degrees, elements of credit and interest rate risk in excess
of the amounts recognized in the balance sheets.
The
Company’s exposure to credit loss in the event of nonperformance by the other
party to the financial instrument for commitments to extend credit is
represented by the contractual notional amount of those instruments. The Company
uses the same credit policies in making commitments and conditional obligations
as it does for on-balance-sheet instruments.
At
September 30, 2006 and 2005, the Company had outstanding commitments
(substantially all of which expire within one year) to originate residential
mortgage loans, construction loans, commercial real estate and consumer loans.
These commitments were comprised of fixed and variable rate loans.
|
|
September
30,
|
|
|
|
2006
|
|
2005
|
|
|
|
(In
thousands)
|
|
|
|
|
|
|
|
Financial
instruments whose contract amounts represent credit risk
|
|
|
|
|
|
Unused
line of credit
|
|
$
|
30,977
|
|
$
|
29,687
|
|
Fixed
rate loan commitments
|
|
$
|
6,499
|
|
$
|
1,983
|
|
Variable
rate loan commitments
|
|
$
|
32,634
|
|
$
|
8,745
|
|
NOTE
P -
FAIR VALUE OF FINANCIAL INSTRUMENTS
The
following methods and assumptions were used to estimate the fair value of each
class of financial instruments for which it is practicable to estimate fair
value:
Cash
on
hand and on deposit: For these short-term instruments, the carrying amount
is a
reasonable estimate of fair value.
Investment
securities: For investment securities, fair values are based on quoted market
prices.
Loans:
Fair value for the loan portfolio is estimated based on discounted cash flow
analysis using interest rates currently offered for loans with similar terms
to
borrowers of similar credit quality.
For
nonperforming loans, fair value is calculated by first reducing the carrying
value by a reserve amount based on internal and regulatory loan classifications.
Values are further adjusted according to recent appraised values on the
individual properties. If recent appraisals are not available, a discount is
applied depending on the date of the last appraisal performed on the property.
The carrying value, which is net of reserves and valuation allowances, is
therefore considered a reasonable estimate of fair value.
MAGYAR
BANCORP, INC. AND SUBSIDIARY
Notes
to
Consolidated Financial Statements - Continued
September
30, 2006 and 2005
The
fair
value of commitments to extend credit is estimated based on the amount of
unamortized deferred loan commitment fees. The fair value of letters of credit
is based on the amount of unearned fees plus the estimated costs to terminate
the letters of credit. Fair values of unrecognized financial instruments
including commitments to extend credit and the fair value of letter of credit
are considered immaterial.
Savings
deposits: The fair value of savings deposits with no stated maturity, such
as
money market deposit accounts, interest-bearing checking accounts and savings
accounts, is equal to the amount payable on demand. The fair value of
certificates of deposit is based on the discounted value of contractual cash
flows. The discount rate is equivalent to the rate currently offered by the
Bank
for deposits of similar size, type and maturity.
Accrued
interest receivable and payable: For these short-term instruments, the carrying
amount is a reasonable estimate of fair value.
Federal
Home Loan Bank of New York advances and Securities sold under reverse repurchase
agreements: The fair value of borrowings is based on the discounted value of
contractual cash flows. The discount rate is equivalent to the rate currently
offered by the Federal Home Loan Bank of New York for borrowings of similar
maturity and terms.
Loans
payable: Carrying amount is a reasonable estimate of fair value, as this is
a
variable rate instrument.
Interest
rate derivatives: The value of interest rate derivatives are based on the fair
market value using market prices provided from brokers trading in such
instruments, less their carrying value. The carrying value is the price paid
for
the derivative less prior amortization of the price paid.
MAGYAR
BANCORP, INC. AND SUBSIDIARY
Notes
to
Consolidated Financial Statements - Continued
September
30, 2006 and 2005
|
|
The
carrying amounts and estimated fair values of the Company’s financial
instruments at September 30, 2006 and 2005 are as
follows:
|
|
|
2006
|
|
2005
|
|
|
|
Carrying
|
|
Fair
|
|
Carrying
|
|
Fair
|
|
|
|
Value
|
|
Value
|
|
Value
|
|
Value
|
|
|
|
(In
thousands)
|
|
|
|
|
|
|
|
|
|
|
|
Financial
assets
|
|
|
|
|
|
|
|
|
|
Investment
securities
|
|
$
|
42,064
|
|
$
|
41,527
|
|
$
|
54,871
|
|
$
|
54,455
|
|
Loan,
net of allowance for loan losses
|
|
|
347,969
|
|
|
346,638
|
|
|
267,317
|
|
|
265,787
|
|
Bank
owned insurance policies
|
|
|
9,606
|
|
|
9,606
|
|
|
5,813
|
|
|
5,813
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Financial
liabilities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deposits
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Demand,
NOW and money market savings
|
|
|
150,244
|
|
|
150,244
|
|
|
127,033
|
|
|
127,033
|
|
Certificates
of deposit
|
|
|
175,358
|
|
|
174,493
|
|
|
151,057
|
|
|
150,075
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
deposits
|
|
|
325,602
|
|
|
324,737
|
|
|
278,090
|
|
|
277,108
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Federal
Home Loan Bank of New York Advances and securities sold under reverse
repurchase agreements
|
|
|
52,996
|
|
|
52,652
|
|
|
48,872
|
|
|
48,737
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loans
payable
|
|
|
-
|
|
|
-
|
|
|
2,497
|
|
|
2,497
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest
rate floors and caps
|
|
|
226
|
|
|
374
|
|
|
-
|
|
|
-
|
|
The
fair
value of commitments to extend credit is estimated based on the amount of
unamortized deferred loan commitment fees. The fair value of letters of credit
is based on the amount of unearned fees plus the estimated cost to terminate
the
letters of credit. Fair values of unrecognized financial instruments including
commitments to extend credit and the fair value of letters of credit are
considered immaterial.
NOTE
Q -
REGULATORY CAPITAL
The
Company is required to maintain average reserve balances with the Federal
Reserve Bank. The average amount of this balance for the year ended September
30, 2006, was approximately $730,000.
The
Company and Bank are required to maintain minimum amounts of capital to total
“risk-weighted” assets, as defined by the banking regulators. Failure to meet
minimum capital requirements can initiate certain mandatory and possibly
discretionary actions by regulators that, if undertaken, could have a direct
material effect on the Company’s financial statements. Under capital adequacy
guidelines and the regulatory framework for prompt corrective action, the
Company and Bank must meet specific capital guidelines that involve quantitative
measures of the Company’s and Bank’s assets, liabilities, and certain off
balance sheet items as calculated under regulatory accounting practices. The
capital amounts and classification are also subject to qualitative judgments
by
the regulators about components, risk weightings and other factors.
Quantitative
measures established by regulation to ensure capital adequacy require the
Company and Bank to maintain minimum ratios of Leverage Capital, Tier I and
Total Risk-based Capital. The following table sets forth the Company’s actual
and required capital levels under those measures:
MAGYAR
BANCORP, INC. AND SUBSIDIARY
Notes
to
Consolidated Financial Statements - Continued
September
30, 2006 and 2005
|
|
|
|
|
|
To
be well-
|
|
|
|
|
|
|
|
Capitalized
Under
|
|
|
|
|
|
For
Capital
|
|
Prompt
Corrective
|
|
|
|
Actual
|
|
Adequacy
Purposes
|
|
Action
Provisions
|
|
|
|
Amount
|
|
Ratio
|
|
Amount
|
|
Ratio
|
|
Amount
|
|
Ratio
|
|
|
|
(Dollars
in thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As
of September 30, 2006
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
capital (to risk-weighted assets)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Magyar
Bancorp, Inc.
|
|
$
|
52,134
|
|
|
14.81
|
%
|
$
|
28,171
|
|
|
≥
8.00
|
%
|
|
N/A
|
|
|
N/A
|
|
Magyar
Bank
|
|
|
39,663
|
|
|
11.26
|
%
|
|
28,170
|
|
|
≥
8.00
|
%
|
|
35,214
|
|
|
≥
10.00
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tier
I Capital (to risk-weighted assets)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Magyar
Bancorp, Inc.
|
|
|
48,242
|
|
|
13.70
|
%
|
|
14,085
|
|
|
≥
4.00
|
%
|
|
N/A
|
|
|
N/A
|
|
Magyar
Bank
|
|
|
35,771
|
|
|
10.16
|
%
|
|
14,085
|
|
|
≥
4.00
|
%
|
|
21,128
|
|
|
≥
6.00
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tier
I Capital (to average assets)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Magyar
Bancorp, Inc.
|
|
|
48,242
|
|
|
12.20
|
%
|
|
11,865
|
|
|
≥
3.00
|
%
|
|
N/A
|
|
|
N/A
|
|
Magyar
Bank
|
|
|
35,771
|
|
|
8.61
|
%
|
|
11,865
|
|
|
≥
3.00
|
%
|
|
19,776
|
|
|
≥
5.00
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As
of September 30, 2005 (Magyar Bank only)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
capital (to risk-weighted assets)
|
|
$
|
27,965
|
|
|
10.30
|
%
|
$
|
21,724
|
|
|
≥
8.00
|
%
|
$
|
27,155
|
|
|
≥
10.00
|
%
|
Tier
I Capital (to risk-weighted assets)
|
|
|
24,837
|
|
|
9.15
|
%
|
|
10,862
|
|
|
≥
4.00
|
%
|
|
16,293
|
|
|
≥
6.00
|
%
|
Tier
I Capital (to average assets)
|
|
|
24,837
|
|
|
7.23
|
%
|
|
10,305
|
|
|
≥
3.00
|
%
|
|
17,175
|
|
|
≥
5.00
|
%
|
As
of
September 30, 2006, the most recent notification from the Federal Deposit
Insurance Corporation categorized the Bank as well-capitalized under the
regulatory framework for prompt corrective action. There are no conditions
or
events since that notification that management believes have changed the Bank’s
category. At September 30, 2006, management believes that the Bank meets all
capital adequacy requirements to which it is subject.
NOTE
R -
REORGANIZATION
On
July
6, 2005, the Board of Directors of Magyar Bank adopted a Plan of Reorganization
from a Mutual Savings Bank to a Mutual Holding Company and Stock Issuance Plan
pursuant to which the Bank proposed to reorganize from a New Jersey-chartered
mutual savings bank into the mutual holding company structure pursuant to the
laws of the State of New Jersey, the regulations of the Commissioner, the
regulations of the FDIC, and other applicable federal laws and regulations.
On
January 23, 2006, the Company completed its Plan of Reorganization from a Mutual
Savings Bank to a Mutual Holding.
A
principal part of the Reorganization was (i) the formation of the Mutual Holding
Company as a New Jersey-chartered mutual holding company, (ii) the formation
of
the Stock Holding Company as a capital stock corporation and a wholly-owned
subsidiary of the Mutual Holding Company, and (iii) the conversion of the Bank
to the Stock Bank, which is a New Jersey-chartered stock savings bank and a
wholly-owned subsidiary of the Stock Holding Company as long as the Mutual
Holding Company is in existence. The Mutual Holding Company will always own
at
least a majority of the Stock Holding Company’s common stock so long as the
Mutual Holding Company is in existence. The Reorganization was approved by
the
Commissioner, the FDIC, and the FRB.
MAGYAR
BANCORP, INC. AND SUBSIDIARY
Notes
to
Consolidated Financial Statements - Continued
September
30, 2006 and 2005
Concurrently
with the Reorganization, the Stock Holding Company offered for sale 45.97%
of
its Common Stock in the Stock Offering on a priority basis to qualifying
depositors and Tax-Qualified Employee Plans of the Bank. The Stock Offering
was
conducted in accordance with applicable federal and state laws and
regulations.
3,200,450 shares of Common Stock of the Stock Holding Company were issued to
the
Company, and 2,618,550 shares of Common Stock of the Stock Holding Company
were
sold to depositors of the Bank at $10.00 per share (the "Stock Offering").
The
gross offering proceeds were $26,185,500 and net proceeds after offering and
conversion costs were $24,782,000.
As
part
of the Stock Offering and consistent with the Bank’s ongoing commitment to
remain an independent community-oriented savings bank, the Bank established
a
charitable foundation. The charitable foundation complements the Bank’s existing
community reinvestment and charitable activities in a manner that will allow
the
community to share in the growth and success of the Bank. Accordingly,
concurrently with the completion of the Stock Offering, the Bank contributed
104,742 shares of Common Stock and
$500,000
cash
to
the Magyar Bank Charitable Foundation.
Management
has not presented earnings per share data as it is not meaningful for the year
ended September 30, 2006, as the Company did not complete its initial public
offering until January 23, 2006. The Company did not have any shares outstanding
during the year ended September 30, 2005.
|
Changes
In and Disagreements With Accountants on Accounting and Financial
Disclosure
|
None.
Under
the
supervision and with the participation of our management, including our Chief
Executive Officer and Chief Financial Officer, we evaluated the effectiveness
of
the design and operation of our disclosure controls and procedures (as defined
in Rule 13a-15(e) under the Securities Exchange Act of 1934) as of the end
of
the period covered by this report. Based upon that evaluation, the Chief
Executive Officer and Chief Financial Officer concluded that, as of the end
of
the period covered by this report, our disclosure controls and procedures were
effective to ensure that information required to be disclosed in the reports
that Magyar Bancorp, Inc. files or submits under the Securities Exchange Act
of
1934, is recorded, processed, summarized and reported, within the time periods
specified in the SEC’s rules and forms.
There
has
been no change in Magyar Bancorp, Inc.’s internal control over financial
reporting during Magyar Bancorp, Inc.’s fourth quarter of fiscal year 2006 that
has materially affected, or is reasonably likely to materially affect, Magyar
Bancorp, Inc.’s internal control over financial reporting.
None.
PART
III
|
Directors,
Executive Officers, Promoters and Control Persons; Compliance with
Section
16(a) of the Exchange
Act
|
Magyar
Bancorp, Inc. has adopted a Code of Ethics that applies to Magyar Bancorp,
Inc.’s principal executive officer, principal financial officer, principal
accounting officer or controller or persons performing similar functions. The
Code of Ethics is available at the Company’s website located at www.magbank.com.
A copy of the Code will be furnished without charge upon written request to
the
Secretary, Magyar Bancorp, Inc., 400 Somerset Street, New Brunswick, New
Jersey.
Information
concerning Directors and executive officers of Magyar Bancorp, Inc. is
incorporated herein by reference from our definitive Proxy Statement (the “Proxy
Statement”), specifically the section captioned “Proposal I—Election of
Directors.”
Information
concerning executive compensation is incorporated herein by reference from
our
Proxy Statement, specifically the section captioned “Proposal I — Election of
Directors.”
|
Security
Ownership of Certain Beneficial Owners and Management and Related
Stockholder Matters
|
Information
concerning security ownership of certain owners and management is incorporated
herein by reference from our Proxy Statement, specifically the sections
captioned “Voting Securities and Principal Holders Thereof” and “Proposal I —
Election of Directors.”
|
Certain
Relationships and Related
Transactions
|
Information
concerning relationships and transactions is incorporated herein by reference
from our Proxy Statement, specifically the section captioned “Transactions with
Certain Related Persons.”
|
3.1
|
Certificate
of Incorporation of Magyar Bancorp,
Inc.*
|
|
3.2
|
Bylaws
of Magyar Bancorp, Inc.*
|
|
4
|
Form
of Common Stock Certificate of Magyar Bancorp,
Inc.*
|
|
10.1
|
Form
of Employee Stock Ownership Plan*
|
|
10.2
|
Restated
Executive Supplemental Retirement Income Agreement for Elizabeth
E.
Hance
|
|
10.3
|
Restated
Director Supplemental Retirement Income and Deferred Compensation
Agreement for Elizabeth E. Hance
|
|
10.4
|
Restated
Director Supplemental Retirement Income and Deferred Compensation
Agreement for Joseph J. Lukacs, Jr.
|
|
10.5
|
Restated
Director Supplemental Retirement Income and Deferred Compensation
Agreement for Salvatore J. Romano
|
|
10.6
|
Restated
Director Supplemental Retirement Income and Deferred Compensation
Agreement for Joseph A. Yelencsics
|
|
10.7
|
Restated
Director Supplemental Retirement Income and Deferred Compensation
Agreement for Edward C. Stokes, III
|
|
10.8
|
Restated
Director Supplemental Retirement Income and Deferred Compensation
Agreement for Martin A. Lukacs
|
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10.9
|
Restated
Director Supplemental Retirement Income and Deferred Compensation
Agreement for Thomas Lankey
|
|
10.10
|
Restated
Director Supplemental Retirement Income and Deferred Compensation
Agreement for Andrew G. Hodulik
|
|
10.11
|
Form
of Employment Agreement for Elizabeth E.
Hance*
|
|
10.12
|
Form
of Change in Control Agreement for Executive
Officers*
|
|
10.13
|
Executive
Supplemental Retirement Income Agreement for Jon
Ansari
|
|
10.14
|
Executive
Supplemental Retirement Income Agreement for John
Fitzgerald
|
|
21
|
Subsidiaries
of Registrant*
|
|
31.1
|
Certification
of Chief Executive Officer pursuant to Rule 13a-14(a) of the Securities
Exchange Act of 1934, as amended, as adopted pursuant to Section
302 of
the Sarbanes-Oxley Act of 2002
|
|
31.2
|
Certification
of Chief Financial Officer pursuant to Rule 13a-14(a) of the Securities
Exchange Act of 1934, as amended, as adopted pursuant to Section
302 of
the Sarbanes-Oxley Act of 2002
|
|
32
|
Certification
of Chief Executive Officer and Chief Financial Officer pursuant to
18
U.S.C. Section 1350, as adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002
|
______________________________
*
|
Incorporated
by reference to the Registration Statement on Form SB-2 of Magyar
Bancorp,
Inc. (file no. 333-128392), originally filed with the Securities
and
Exchange Commission on September 16, 2005, as
amended.
|
|
Principal
Accountant Fees and
Services
|
Information
concerning principal accountant fees and services is incorporated herein by
reference from our Proxy Statement, specifically the section captioned “Proposal
II-Ratification of Appointment of Independent Registered Public Accounting
Firm.”
Pursuant
to the requirements of Section 13 or 15 (d) of the Securities Exchange Act
of
1934, the Company has duly caused this report to be signed on its behalf by
the
undersigned, thereunto duly authorized.
|
|
|
MAGYAR
BANCORP, INC.
|
|
|
|
|
|
|
Date:
December 21, 2006
|
By:
|
/s/
Elizabeth E. Hance
|
|
|
|
Elizabeth
E. Hance
|
|
|
President
and Chief Executive Officer
|
|
|
(Duly
Authorized Representative)
|
Pursuant
to the requirements of the Securities Exchange of 1934, this report has been
signed by the following persons on behalf of the Registrant and in the
capacities and on the dates indicated.
Signatures
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/
Elizabeth E. Hance
|
|
President
and Chief Executive Officer
|
|
December
21, 2006
|
Elizabeth
E. Hance
|
|
(Principal
Executive Officer)
|
|
|
|
|
|
|
|
|
|
|
|
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/s/
Jon R. Ansari
|
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Senior
Vice President and
|
|
|
Jon
R. Ansari
|
|
Chief
Financial Officer
|
|
|
|
|
(Principal
Financial and Accounting Officer)
|
|
|
|
|
|
|
|
|
|
|
/s/
Joseph J. Lukacs, Jr.
|
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Chairman
of the Board
|
|
|
Joseph
J. Lukacs, Jr.
|
|
|
|
|
|
|
|
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|
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|
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|
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/s/
Andrew Hodulik
|
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Director
|
|
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Andrew
Hodulik
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|
|
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/s/
Thomas Lankey
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Director
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Thomas
Lankey
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/s/
Martin A. Lukacs
|
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Director
|
|
|
Martin
A. Lukacs, D.M.D.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/
Salvatore J. Romano
|
|
Director
|
|
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Salvatore
J. Romano, Ph.D.
|
|
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/s/
Edward C. Stokes, III
|
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Director
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Edward
C. Stokes, III
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/s/
Joseph A. Yelencsics
|
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Director
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Joseph
A. Yelencsics
|
|
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|
|
Exhibit
10.2
RESTATED
EXECUTIVE
SUPPLEMENTAL
RETIREMENT
INCOME AGREEMENT
FOR
ELIZABETH HANCE
MAGYAR
BANK
New
Brunswick, New Jersey
January
1, 2006
Financial
Institution Consulting Corporation
700
Colonial Road, Suite 102
Memphis,
Tennessee 38117
WATS:
1-800-873-0089
FAX:
(901) 684-7414
(901)
684-7400
RESTATED
EXECUTIVE
SUPPLEMENTAL RETIREMENT INCOME AGREEMENT
FOR
ELIZABETH HANCE
This
Restated Executive Supplemental Retirement Income Agreement for Elizabeth Hance
(the "Agreement"), effective as of the 1st day of January, 2006, amends and
restates the Executive Supplemental Retirement Income Agreement for Elizabeth
Hance dated February 1, 1996, and formalizes the understanding by and between
MAGYAR BANK (the "Bank"), a state chartered stock savings bank, and ELIZABETH
HANCE, hereinafter referred to as "Executive".
W
I T N E S S E T H :
WHEREAS
,
the
Executive is employed by the Bank; and
WHEREAS
,
the
Bank recognizes the valuable services heretofore performed by the Executive
and
wishes to encourage continued employment; and
WHEREAS
,
the
Executive wishes to be assured that he will be entitled to a certain amount
of
additional compensation for some definite period of time from and after
retirement from active service with the Bank or other termination of employment
and wishes to provide his beneficiary with benefits from and after death; and
WHEREAS
,
the
Bank and the Executive wish to provide the terms and conditions upon which
the
Bank shall pay such additional compensation to the Executive after retirement
or
other termination of employment and/or death benefits to his beneficiary after
death; and
WHEREAS
,
Section
409A of the Internal Revenue Code of 1986 (the "Code"), as amended, requires
that certain deferred compensation arrangements comply with its terms or subject
the recipient of the compensation to potential taxes and penalties;
and
WHEREAS
,
the
Bank desires that the Agreement comply with Code Section 409A and any Treasury
Regulations promulgated thereunder; and
WHEREAS
,
the
Bank has adopted this Restated Executive Supplemental Retirement Income
Agreement which controls all issues relating to benefits as described herein;
and
WHEREAS
,
the
Board of Directors of the Bank has conditionally approved the Agreement, subject
to the approval of the New Jersey Department of Banking and
Insurance.
NOW,
THEREFORE,
in
consideration of the premises and of the mutual promises herein contained,
the
Bank and the Executive agree as follows:
SECTION
I
DEFINITIONS
When
used
herein, the following words and phrases shall have the meanings below unless
the
context clearly indicates otherwise:
1.1
|
"Accrued
Benefit Account" shall be
represented
by
the bookkeeping entries required to record the Executive
=
s
(i) Phantom Contributions plus (ii) accrued interest, equal to the
Interest Factor, earned to-date on such amounts. However, neither
the
existence of such bookkeeping entries nor the Accrued Benefit Account
itself shall be deemed to create either a trust of any kind, or a
fiduciary relationship between the Bank and the Executive or any
Beneficiary.
|
1.2
|
"Act"
means the Employee Retirement Income Security Act of 1974, as amended
from
time to time.
|
1.3
|
"Bank"
means MAGYAR BANK and any successor
thereto.
|
1.4
|
"Beneficiary"
means the person or persons (and their heirs) designated as Beneficiary
in
Exhibit B of this Agreement to whom the deceased Executive
=
s
benefits are payable. If no Beneficiary is so designated, then the
Executive
=
s
Spouse, if living, will be deemed the Beneficiary. If the
Executive
=
s
Spouse is not living, then the Children of the Executive will be
deemed
the Beneficiaries and will take on a per stirpes basis. If there
are no
Children, then the Estate of the Executive will be deemed the
Beneficiary.
|
1.5
|
"Benefit
Age" means the Executive's sixty-fifth (65th) birthday
.
|
1.6
|
"Benefit
Eligibility Date" means the date on which the Executive is entitled
to
receive any benefit(s) pursuant to Section(s) III or V of this Agreement.
It shall be the first day of the month following the month in which
the
Executive attains his Benefit Age.
|
1.7
|
"Board
of Directors" means the board of directors of the
Bank.
|
1.8
|
"Cause"
means personal dishonesty, willful misconduct, willful malfeasance,
breach
of fiduciary duty involving personal profit, intentional failure
to
perform stated duties, willful violation of any law, rule, regulation
(other than traffic violations or similar offenses), or final
cease-and-desist order, material breach of any provision of this
Agreement, or gross negligence in matters of material importance
to the
Bank.
|
1.9
|
“Change
in Control” shall mean a change in the ownership of the Bank or Company
under paragraph (a) below, a change in effective control of the Bank
or
Company under paragraph (b) below, or a change in the ownership of
a
substantial portion of the assets of the Bank or Company under paragraph
(c) below. For all purposes hereunder, the definition of Change in
Control
shall be construed to be consistent with the requirements of proposed
Treasury Regulation Section 1.409A-3(g), except to the extent that
such
proposed regulations are superseded by subsequent
guidance.
|
For
this
section “persons acting as a group” is defined as follows; Persons will be
considered to be acting as a group if they are owners of a corporation that
enters into a merger, consolidation, purchase or acquisition of stock, or
similar business transaction with the corporation. Persons will not be
considered to be acting as a group solely because they purchase or own stock
of
the same corporation at the same time, or as a result of the same public
offering. If a person, including an entity, owns stock in both corporations
that
enter into a merger, consolidation, purchase or acquisition of stock, or similar
transaction, such shareholder is considered to be acting as a group with other
shareholders in a corporation only with respect to the ownership in that
corporation prior to the transaction giving rise to the change and not with
respect to the ownership interest in the other corporation.
|
(a)
|
Change
in Ownership of the Bank or Company
|
Change
in
the ownership occurs on the date that any one person, or more than one person
acting as a group (as defined above), acquires ownership of stock of the Bank
or
Company that, together with stock held by such person or group, constitutes
more
than 50 percent of the total fair market
value
or
total voting power of the stock of such corporation. However, if any one person
or more than one person acting as a group, is considered to own more than 50
percent of the total fair market value or total voting power of the stock of
a
corporation, the acquisition of additional stock by the same person or persons
is not considered to cause a change in the ownership of the corporation or
to
cause a change in the effective control of the corporation.
|
(b)
|
Change
in the Effective Control of the Bank or
Company
|
A
change
in the effective control of the Bank or Company occurs on the date that either
—
(1)
Any
one person, or more than one person acting as a group (as defined above),
acquires (or has acquired during the 12-month period ending on the date of
the
most recent acquisition by such person or persons) ownership of stock of the
Company possessing
20
percent or more of the total voting power of the stock of the Company (except
that if an individual Director’s agreement is subject to Code Section 409A, then
the required percentage of acquired ownership of stock under this Subsection
1.10 (b)(1) shall be 35 percent or more);
or
(2)
a
majority of members of the Company’s board of directors is replaced during any
12-month period by directors whose appointment or election is not endorsed
by a
majority of the members of the Company’s board of directors prior to the date of
the appointment or election.
|
(c)
|
Change
in the Ownership of a Substantial Portion of the Bank’s or Company’s
Assets.
|
Change
in
the ownership of a substantial portion of the Bank or Company’s assets occurs on
the date that any one person, or more than one person acting as a group (as
defined above), acquires (or has acquired during the 12-month period ending
on
the date of the most recent acquisition by such person or persons) assets from
the corporation that have a total gross fair market value equal to or more
than
40 percent of the total gross fair market value of all of the assets of the
Bank
or Company immediately prior to such acquisition or acquisitions. For this
purpose, gross fair market value means the value of the assets of the Bank
or
Company, or the value of the assets being disposed of, determined without regard
to any liabilities associated with such assets.
1.10
|
"Children"
means all natural or adopted children of the Executive, and issue
of any
predeceased child or children.
|
1.11
|
"Code"
means the Internal Revenue Code of 1986, as amended from time to
time.
|
1.12
|
"Contribution(s)"
means those annual contributions which the Bank is required to make
to the
Retirement Income Trust Fund on behalf of the Executive in accordance
with
Subsection 2.1(a) and in the amounts set forth in Exhibit A of the
Agreement.
|
1.13
|
“Company”
shall mean Magyar Bancorp, Inc.
|
1.14
|
(a)
"Disability Benefit" means the benefit payable to the Executive following
a determination, in accordance with Subsection 6.1(a), that he is
no
longer able, properly and satisfactorily, to perform his duties at
the
Bank.
|
(b)
"Disability Benefit-Supplemental" (if applicable) means the benefit payable
to
the Executive
=
s
Beneficiary upon the Executive
=
s
death
in accordance with Subsection 6.1(b).
1.15
|
"Effective
Date" of this Agreement shall be January 1st,
2006.
|
1.16
|
"Estate"
means the estate of the Executive.
|
1.17
|
"Interest
Factor" means monthly compounding, discounting or annuitizing, as
applicable, at a rate set forth in
Exhibit A.
|
1.18
|
"Payout
Period" means the time frame during which certain benefits payable
hereunder shall be distributed. Payments shall be made in monthly
installments commencing on the first day of the month following the
occurrence of the event which triggers distribution and continuing
for a
period of one hundred eighty (180) months. Should the Executive make
a
Timely Election to receive a lump sum benefit payment, the
Executive
=
s
Payout Period shall be deemed to be one (1) month. Notwithstanding
anything herein to the contrary, in the event that the Executive
exercises
the Executive’s withdrawal rights and the Executive is considered a
Specified Employee within the meaning of Code section 409A(a)(2)(B)(i)
at
the time of (i) any distribution due to the Executive’s termination of
employment (for reasons other than death or disability), or (ii)
any
payments to the Retirement Income Trust Fund, then such payments
shall be
delayed until the first day of the seventh full month following the
Executive’s Separation from Service. In such case, the first payment made
to the Executive will consist of an amount equal to seven (7) monthly
installments so that the
Executive
|
(or
his
Beneficiary, as applicable) will receive his full benefits hereunder over a
period of 180 months following his Separation from Service.
1.19
|
"Phantom
Contributions" means those annual Contributions which the Bank is
no
longer required to make on behalf of the Executive to the Retirement
Income Trust Fund. Rather, once the Executive has exercised the withdrawal
rights provided for in Subsection 2.2, the Bank shall be required
to
record the annual amounts set forth in Exhibit A of the Agreement
in the
Executive
=
s
Accrued Benefit Account, pursuant to Subsection 2.1.
|
1.20
|
"Plan
Year" means the twelve (12) month period commencing January 1 and
ending
December 31.
|
1.21
|
“Retirement
Income Trust Fund” means the trust fund account established by the
Executive and into which annual Contributions will be made by the
Bank on
behalf of the Executive pursuant to Subsection 2.1. he contractual
rights
of the Bank and the Executive with respect to the Retirement Income
Trust
fund shall be outlined in a separate writing known as the Elizabeth
Hance
Grantor Trust Agreement.
|
1.22
|
“Separation
from Service” means the Executive’s death, retirement or termination of
employment with the Bank. No Separation from Service shall be deemed
to
occur due to military leave, sick leave or other bona fide leave
of
absence if the period of such leave does not exceed six months or,
if
longer, so long as the Executive’s right to reemployment is provided by
law or contract. If the leave exceeds six months and the Executive’s right
to reemployment is not provided by law or by contract, then the Executive
shall be have a Separation from Service on the first date immediately
following such six-month period.
|
The
Executive shall not be treated as having a Separation from Service if the
Executive provides more than insignificant services for the Bank following
the
Executive’s actual or purported termination of employment with the Bank.
Services shall be treated as not being insignificant if such services are
performed at an annual rate that is at least equal to 20% of the services
rendered by the Executive for the Bank, on average, during the immediately
preceding three full calendar years of employment (or if employed less than
three years, such shorter period of employment) and the annual base compensation
for such services is at least equal to 20% of the average base compensation
earned during the final
three
full calendar years of employment (or if employed less than three years, such
shorter period of employment).
Where
the
Executive continues to provide services to a previous employer in a capacity
other than as an employee, a Separation from Service will not be deemed to
have
occurred if the Executive is providing services at an annual rate that is 50%
or
more of the services rendered, on average, during the immediate preceding three
full calendar years of employment (or if employed less than three years, such
lesser period) and the annual base compensation for such services is 50% or
more
of the annual base compensation earned during the final three full calendar
years of employment (or if less, such lesser period).
1.23
|
“Specified
Employee” means, in the event the Bank or any corporate parent is or
becomes publicly traded, a “key employee” as such term is defined in Code
Section 416(i) without regard to paragraph 5
thereof.
|
1.24
|
"Supplemental
Retirement Income Benefit" means (assuming the normal form of payment
is
applicable) an annual amount (
before
taking into account federal and state income taxes), payable in monthly
installments throughout the Payout Period. Such benefit is projected
pursuant to the Agreement for the purpose of determining the Contributions
to be made to the Retirement Income Trust Fund (or Phantom Contributions
to be recorded in the Accrued Benefit Account). The annual Contributions
and Phantom Contributions have been actuarially determined, using
the
assumptions set forth in Exhibit A, in order to fund for the projected
Supplemental Retirement Income Benefit. The Supplemental Retirement
Income
Benefit for which Contributions (or Phantom Contributions) are being
made
(or recorded) is set forth in Exhibit A.
|
1.25
|
"Timely
Election" means the Executive has made an election to change the
form of
his benefit payment(s) from the Retirement Income Trust Fund by filing
with the Administrator a Notice of Election to Change Form of Payment
(Exhibit C of this Agreement), such election having been made prior
to the
event which triggers distribution and at least two (2) years prior
to the
Executive's Benefit Eligibility Date. In the case of benefits payable
from
the Accrued Benefit Account, such election generally shall have been
made
prior to December 31, 2006 (i.e. the last day of the “Transition Period”
for bringing plans into compliance with Code Section 409A).
Notwithstanding any provision herein to the contrary, in the event
that
the Executive exercises his withdrawal rights pursuant to Section
2.2
|
herein,
the Executive shall only be permitted to make subsequent changes to the time
or
form of distributions under Section 3.1, 4.1 or 5.1 by meeting each of the
following requirements:
(i)
no
election may take effect until at least 12 months after the date on which the
election is made;
(ii)
other
than with respect to distributions made on account of death or disability,
the
first payment with respect to which such election is made shall be deferred
for
a period of at least five years from the date such payment would otherwise
have
been made; and
|
(iii)
|
any
such election must be made at least 12 months prior to the date of
the
first scheduled payment under such
paragraph.
|
SECTION
II
BENEFITS
- GENERALLY
2.1
|
(a)
Retirement
Income Trust Fund and Accrued Benefit Account
.
The Executive shall establish the Elizabeth Hance Grantor Trust into
which
the Bank shall be required to make annual Contributions on the
Executive
=
s
behalf, pursuant to Exhibit A and this Section II of the Agreement.
A
trustee shall be selected by the Executive. The trustee shall maintain
an
account, separate and distinct from the Executive
=
s
personal contributions, which account shall constitute the Retirement
Income Trust Fund. The trustee shall be charged with the responsibility
of
investing all contributed funds. Distributions from the Retirement
Income
Trust Fund of the Elizabeth Hance Grantor Trust shall be made by
the
trustee to the Executive, for purposes of payment of any income taxes
due
and owing on Contributions by the Bank to the Retirement Income Trust
Fund, if any, and on any taxable earnings associated with such
Contributions which the Executive shall be required to pay from year
to
year under applicable law prior to actual receipt of any benefit
payments
from the Retirement Income Trust Fund. If the Executive exercises
his
withdrawal rights pursuant to Subsection 2.2, the Bank
=
s
obligation to make Contributions to the Retirement Income Trust Fund
shall
cease and the Bank
=
s
obligation to record Phantom Contributions in the Accrued Benefit
Account
shall immediately commence pursuant to Exhibit A and this Section
II of
the Agreement. To the extent this Agreement is inconsistent with
the
Elizabeth Hance Grantor Trust agreement, this Agreement shall supersede
the Elizabeth Hance Grantor Trust
agreement.
|
The
annual Contributions (or Phantom Contributions) required to be made by the
Bank
to the Retirement Income Trust Fund (or recorded by the Bank in the Accrued
Benefit Account) have been actuarially determined and are set forth in Exhibit
A
which is attached hereto and incorporated herein by reference. Contributions
shall be made by the Bank to the Retirement Income Trust Fund (i) within thirty
(30) days of establishment of such trust, and (ii) within the first five (5)
days of the beginning of each subsequent Plan Year, unless this Section
expressly provides otherwise. Phantom Contributions, if any, shall be recorded
in the Accrued Benefit Account within the first five (5) days of the beginning
of each applicable Plan Year, unless this Section expressly provides otherwise.
Phantom Contributions shall accrue interest at a rate equal to the Interest
Factor, up to and throughout the Payout Period, until the balance of the Accrued
Benefit Account has been fully distributed. Interest on any Phantom Contribution
shall not commence until one (1) calendar year following the date such Phantom
Contribution is initially recorded in the Executive
=
s
Accrued
Benefit Account.
The
Administrator may review the schedule of annual Contributions (or Phantom
Contributions) provided for in Exhibit A within ten (10) days prior to the
close
of each Plan Year. Such review shall consist of an evaluation of the accuracy
of
all assumptions used to establish the schedule of Contributions (or Phantom
Contributions) required to provide the Supplemental Retirement Income Benefit.
The Administrator may prospectively amend the schedule of Contributions (or
Phantom Contributions) provided for in Exhibit A, should the Administrator
determine during any such review that an increase in such Contributions (or
Phantom Contributions) is necessary or desired in order to provide a benefit
equivalent to the Supplemental Retirement Income Benefit on an after-tax
basis.
(b)
Withdrawal
Rights Not Exercised.
(1)
Contributions
Made Annually
If
the
Executive does not exercise any withdrawal rights pursuant to Subsection 2.2,
the annual Contributions to the Retirement Income Trust Fund included on Exhibit
A shall continue each year, unless this Subsection 2.1(b) specifically states
otherwise, until the earlier of (i) the last Plan Year that Contributions are
required pursuant to Exhibit A, or (ii) the Plan Year of the Executive's
termination of employment.
(2)
Termination
Following a Change in Control
If
the
Executive does not exercise his withdrawal rights pursuant to Subsection 2.2
and
a Change in Control occurs at the Bank, followed within sixty (60) months by
either (i) the Executive's involuntary termination of employment, or (ii)
Executive's voluntary termination of employment after: (A) a material change
in
the Executive's function, duties, or responsibilities, which change would cause
the Executive's position to become one of lesser responsibility, importance,
or
scope from the position the Executive held at the time of the Change in Control,
(B) a relocation of the Executive's principal place of employment by more than
thirty (30) miles from its location prior to the Change in Control, or (C)
a
material reduction in the benefits and perquisites to the Executive from those
being provided at the time of the Change in Control, the Contribution set forth
below shall be required of the Bank in addition to all previous annual
Contributions. The Bank shall be required to make a final Contribution to the
Retirement Income Trust Fund within five (5) days of the Executive's termination
of employment (or if the Executive is a Specified Employee, not earlier than
the
first day of the seventh (7th) month following the Executive’s Separation from
Service), in an amount equal to the lesser of (i) the present value (using
the
Interest Factor) of all remaining Contributions which would have been required
to be made on behalf of the Executive, had the Executive remained in the employ
of the Bank until Benefit Age, or (ii) One Dollar ($1.00) less than the total
dollar amount of Contributions which would have resulted in taxation to the
Executive pursuant to sections 280G and 4999 of the Code.
(3)
Termination
For Cause
If
the
Executive (i) does not exercise his withdrawal rights pursuant to Subsection
2.2, and (ii) is terminated for Cause pursuant to Subsection 5.2, no further
Contribution(s) to the Retirement Income Trust Fund shall be required of the
Bank, and if not yet made, no Contribution shall be required for the year in
which such termination for Cause occurs.
(4)
Voluntary
or Involuntary Termination (Not For Cause) of Employment Prior to Benefit
Age
.
If
(i)
the Executive does not exercise his withdrawal rights pursuant to
Subsection 2.2, and (ii) the Executive's employment with the Bank is
voluntarily or involuntarily terminated for any reason other than a termination
related to disability, termination for Cause, or termination following a Change
in Control, within ten (10) days of such voluntary or involuntary termination
of
employment, the Bank shall be required to make a final Contribution to the
Retirement Income Trust Fund, attributable to the Plan Year in which the
termination occurs (unless such Contribution is made prior to termination),
in
an
amount
equal to the full Contribution required for such Plan Year. No further
Contribution(s) shall be required for periods subsequent to the Plan Year in
which the Executive
=
s
employment is terminated.
(5)
Death
During Employment
.
If
the
Executive (i) does not exercise any withdrawal rights pursuant to
Subsection 2.2, and (ii) dies while employed by the Bank (including
employment following a Change in Control), the Contributions included on
Exhibit A shall be required of the Bank through and including the year in
which the Executive dies. Such Contributions to the Retirement Income Trust
Fund
shall commence in the Plan Year in which the Retirement Income Trust Fund is
established and shall continue, annually, through the Plan Year in which the
Executive dies. No additional Contributions shall be required for any Plan
Year
after the year in which the Executive dies.
(6)
Termination
Due to Disability.
If
the
Executive (i) does not exercise his withdrawal rights pursuant to Subsection
2.2, and (ii) terminates service with the Bank due to a disability pursuant
to
Subsection 6.1, all annual Contributions set forth in Exhibit A for all Plan
Years preceding the year in which such termination occurs shall be required
of
the Bank as well as the final Contribution, set forth below, attributable to
the
Plan Year in which termination occurs (unless such Contribution is made prior
to
termination). The final Contribution to be made by the Bank for the Plan Year
in
which the termination occurs, shall be equal to the full Contribution required
for such Plan Year pursuant to Exhibit A and shall be made within ten (10)
days
of the disability determination. No additional Contributions to the Retirement
Income Trust Fund shall be required for periods subsequent to the Plan Year
in
which the Executive
=
s
employment is terminated.
(c)
Withdrawal
Rights Exercised.
(1)
Phantom
Contributions Made Annually
.
If
the
Executive exercises his withdrawal rights pursuant to Subsection 2.2, no further
Contributions to the Retirement Income Trust Fund shall be required of the
Bank.
Thereafter, Phantom Contributions shall be recorded annually in the Executive's
Accrued Benefit Account on or before the last day of each Plan Year, commencing
with the first Plan Year following the Plan Year in which the Executive
exercises his withdrawal rights. Such Phantom Contributions shall continue
to be
recorded annually,
unless
this Subsection 2.1(c) specifically states otherwise, until the earlier of
(i)
the last Plan Year that Phantom Contributions are required pursuant to Exhibit
A, or (ii) the Plan Year of the Executive's termination of
employment.
(2)
Termination
Following a Change in Control
If
the
Executive exercises his withdrawal rights pursuant to Subsection 2.2, Phantom
Contributions shall commence in the first Plan Year following the Plan Year
in
which the Executive first exercises his withdrawal rights. If a Change in
Control occurs at the Bank, and within sixty (60) months of such Change in
Control, the Executive's employment is either (i) involuntarily terminated,
or
(ii) voluntarily terminated by the Executive after: (A) a material change in
the
Executive's function, duties, or responsibilities, which change would cause
the
Executive's position to become one of lesser responsibility, importance, or
scope from the position the Executive held at the time of the Change in Control,
(B) a relocation of the Executive's principal place of employment by more than
thirty (30) miles from its location prior to the Change in Control, or (C)
a
material reduction in the benefits and perquisites to the Executive from those
being provided at the time of the Change in Control, the Phantom Contribution
set forth below shall be required of the Bank in addition to all previous annual
Contributions. The Bank shall be required to record a final lump sum Phantom
Contribution in the Accrued Benefit Account, within five (5) days of such
termination, in an amount equal to the lesser of (i) the present value (using
the Interest Factor) of all remaining Phantom Contributions which would have
been required had the Executive remained in the employ of the Bank until Benefit
Age, or (ii) One Dollar ($1.00) less than the total dollar amount of Phantom
Contributions which would have resulted in taxation to the Executive pursuant
to
sections 280G and 4999 of the Code.
(3)
Termination
For Cause
If
the
Executive is terminated for Cause pursuant to Subsection 5.2, the entire balance
of the Executive
=
s
Accrued
Benefit Account at the time of such termination, which shall include any Phantom
Contributions which have been recorded plus accrued interest, shall be
forfeited.
(4)
Voluntary
or Involuntary Termination (Not For Cause) of Employment Prior to Benefit
Age
.
If
(i)
the Executive exercises his withdrawal rights pursuant to Subsection 2.2, and
(ii) the Executive's employment with the Bank is voluntarily or involuntarily
terminated for any reason other than a termination related to disability,
termination for Cause, or termination following a Change in Control, within
ten
(10) days of such voluntary or involuntary termination of employment, the Bank
shall be
required
to record a final Phantom Contribution in the Executive
=
s
Accrued
Benefit Account, attributable to the Plan Year in which the termination occurs
(unless such Phantom Contribution is recorded prior to termination), in an
amount equal to the full Phantom Contribution required for such Plan Year.
No
further Phantom Contributions shall be required to be recorded for periods
subsequent to the Plan Year in which the Executive
=
s
employment is terminated.
(5)
Death
During Employment
.
If
the
Executive (i) exercises his withdrawal rights pursuant to Subsection 2.2,
and (ii) dies while employed by the Bank (including employment following a
Change in Control), the Phantom Contributions included on Exhibit A shall be
required of the Bank. Such Phantom Contributions to the Accrued Benefit Account
shall commence in the Plan Year in which the Executive exercises his withdrawal
rights and shall continue, annually, through the Plan Year in which the
Executive dies. The final Phantom Contribution, attributable to the Plan Year
of
the Executive
=
s
death,
shall be equal to (i) the full Phantom Contribution required in accordance
with
Exhibit A for all Plan Year in which the Executive dies, if not recorded prior
to death, plus (ii) the sum of the total Phantom Contributions which would
have
been required in accordance with Exhibit A for all Plan Year(s) following the
Plan Year of the Executive
=
s
death.
Such final Phantom Contribution shall be recorded in the Accrued Benefit Account
within (10) days of the Executive
=
s
death.
(6)
Termination
Due to Disability.
If
the
Executive (i) exercises his withdrawal rights pursuant to Subsection 2.2, and
(ii) terminates service with the Bank due to a disability pursuant to Subsection
6.1, the final Phantom Contribution recorded for the Plan Year in which the
termination occurs shall be required for such Plan Year pursuant to Exhibit
A
and shall be recorded in the Accrued Benefit Account within ten (10) days of
the
disability determination. No additional Phantom Contributions shall be required
to be recorded in the Accrued Benefit Account for periods subsequent to the
Plan
Year in which the Executive
=
s
employment is terminated.
2.2
|
Withdrawals
From Retirement Income Trust
Fund.
|
Exercise
of withdrawal rights by the Executive pursuant to the Elizabeth Hance Grantor
Trust agreement shall terminate the Bank's obligation to make any further
Contributions to the Retirement Income Trust Fund, and the Bank
=
s
obligation to record Phantom Contributions pursuant to Subsection
2.1(c)
shall commence. For purposes of this Subsection 2.2,
A
exercise
of withdrawal rights
@
shall
mean those withdrawal rights to which the Executive is entitled under Article
III of the Elizabeth Hance Grantor Trust agreement and shall exclude any
distributions made by the trustee of the Retirement Income Trust Fund to the
Executive for purposes of payment of income taxes in accordance with Subsection
2.1 of this Agreement, or other trust expenses properly payable from the
Elizabeth Hance Grantor Trust pursuant to the provisions of the trust
document.
2.3
Benefits
Payable From Retirement Income Trust Fund
Notwithstanding
anything else to the contrary in this Agreement, in the event that the trustee
of the Retirement Income Trust Fund purchases a life insurance policy with
the
Contributions to and, if applicable, earnings of the Trust, and such life
insurance policy is intended to continue in force beyond the Payout Period
for
the disability or retirement benefits payable from the Retirement Income Trust
Fund pursuant to this Agreement, then the Trustee shall have the absolute and
sole discretion to determine the portion of the cash value of such policy
available for purposes of annuitizing the Retirement Income Trust Fund to
provide the disability or retirement benefits payable under this Agreement,
after taking into consideration the amounts reasonably believed to be required
in order to maintain the cash value of such policy to continue such policy
in
effect until the death of the Executive and payment of death benefits
thereunder.
SECTION
III
RETIREMENT
BENEFIT
3.1
|
(a)
Normal
form of payment
.
|
If
(i)
the Executive is employed with the Bank until reaching his Benefit Age,
including employment with the Bank until Benefit Age following a Change in
Control, and (ii) the Executive has not made a Timely Election to receive a
lump
sum benefit, this Subsection 3.1(a) shall be controlling with respect to
retirement benefits.
|
The
Retirement Income Trust Fund, measured as of the Executive's Benefit
Age,
shall be annuitized (using the Interest Factor) into monthly installments
and shall be payable for the Payout Period. Such benefit payments
shall
commence on the Executive's Benefit Eligibility Date. Should Retirement
Income Trust Fund assets actually earn a rate of return, following
the
date such balance is annuitized, which is less than the rate of return
used to annuitize the Retirement Income Trust Fund, no additional
contributions to the Retirement Income Trust Fund shall be required
by the
Bank in order to fund the
|
final
benefit payment(s) and make up for any shortage attributable to the
less-than-expected rate of return. Should Retirement Income Trust Fund assets
actually earn a rate of return, following the date such balance is annuitized,
which is greater than the rate of return used to annuitize the Retirement Income
Trust Fund, the final benefit payment to the Executive (or his Beneficiary)
shall distribute the excess amounts attributable to the greater-than-expected
rate of return. In the event the Executive dies at any time after attaining
his
Benefit Age, but prior to commencement or completion of all the payments due
and
owing hereunder, (i) the trustee of the Retirement Income Trust Fund shall
pay
to the Executive's Beneficiary the monthly installments (or a continuation
of
such monthly installments if they have already commenced) for the balance of
months remaining in the Payout Period, or (ii) the Executive's Beneficiary
may
request to receive the unpaid balance of the Executive's Retirement Income
Trust
Fund in a lump sum payment. If a lump sum payment is requested by the
Beneficiary, payment of the balance of the Retirement Income Trust Fund in
such
lump sum form shall be made only if the Executive's Beneficiary (i) obtains
approval from the trustee of the Elizabeth Hance Grantor Trust and (ii) notifies
the Administrator in writing of such election within ninety (90) days of the
Executive's death. Such lump sum payment, if approved by the trustee, shall
be
payable within thirty (30) days of such trustee approval.
The
Executive
=
s
Accrued
Benefit Account (if applicable), measured as of the Executive
=
s
Benefit
Age, shall be annuitized (using the Interest Factor) into monthly installments
and shall be payable for the Payout Period. Such benefit payments shall commence
on the Executive
=
s
Benefit
Eligibility Date. In the event the Executive dies at any time after attaining
his Benefit Age, but prior to commencement or completion of all the payments
due
and owing hereunder, the Bank shall pay to the Executive
=
s
Beneficiary the same monthly installments (or a continuation of such monthly
installments if they have already commenced) for the balance of months remaining
in the Payout Period.
(b)
Alternative
Payout Option
If
(i)
the Executive is employed with the Bank until reaching his Benefit Age,
including employment with the Bank until Benefit Age following a Change in
Control, and (ii) the Executive has made a Timely Election to receive a lump
sum
benefit, this Subsection 3.1(b) shall be controlling with respect to retirement
benefits.
The
balance of the Retirement Income Trust Fund and the Accrued Benefit Account
(if
applicable), measured as of the Executive
=
s
Benefit
Age, shall be paid to the Executive in a lump sum on his Benefit Eligibility
Date. In the event the Executive dies after becoming eligible for such
payment
(upon
attainment of his Benefit Age), but before the actual payment is made, his
Beneficiary shall be entitled to receive the lump sum benefit in accordance
with
this Subsection 3.1(b) within thirty (30) days of the date the Administrator
receives notice of the Executive's death. Notwithstanding the foregoing, unless
the Executive has made a Timely Election to receive a lump sum distribution
with
respect to the Accrued Benefit Account, distributions from the Accrued Benefit
Account will be paid over the Payout Period commencing within thirty (30) days
of the Executive
=
s
Benefit
Age.
SECTION
IV
PRE-RETIREMENT
DEATH BENEFIT
4.1
|
(a)
Normal
form of payment
.
|
If
(i)
the Executive dies while employed by the Bank, including the
Executive
=
s
death
while employed by the Bank following a Change in Control, and (ii) the Executive
has not made a Timely Election to receive a lump sum benefit, this Subsection
4.1(a) shall be controlling with respect to pre-retirement death
benefits.
The
Executive
=
s
Retirement Income Trust Fund, measured as of the Executive
=
s
date of
death and including any contributions made to the Retirement Income Trust Fund
for the year in which the Executive dies, shall be annuitized (using the
Interest Factor) into monthly installments and shall be payable to the
Executive's Beneficiary for the Payout Period. Such benefit payments shall
commence within thirty (30) days of the date the Administrator receives notice
of the Executive's death. Should Retirement Income Trust Fund assets actually
earn a rate of return, following the date such balance is annuitized, which
is
less than the rate of return used to annuitize the Retirement Income Trust
Fund,
no additional contributions to the Retirement Income Trust Fund shall be
required by the Bank in order to fund the final benefit payment(s) and make
up
for any shortage attributable to the less-than-expected rate of return. Should
Retirement Income Trust Fund assets actually earn a rate of return, following
the date such balance is annuitized, which is greater than the rate of return
used to annuitize the Retirement Income Trust Fund, the final benefit payment
to
the Executive's Beneficiary shall distribute the excess amounts attributable
to
the greater-than-expected rate of return. The Executive's Beneficiary may
request to receive the unpaid balance of the Executive's Retirement Income
Trust
Fund in a lump sum payment. If a lump sum payment is requested by the
Beneficiary, payment of the balance of the Retirement Income Trust Fund in
such
lump sum form shall be made only if the Executive's Beneficiary (i) obtains
approval from the trustee of the Elizabeth Hance Grantor Trust and (ii) notifies
the Administrator in writing of such election within ninety (90) days of the
Executive's Fund in a lump sum payment. If a lump sum payment is requested
by
the Beneficiary, payment of the balance of the Retirement Income Trust Fund
in
such lump sum form shall be made only if the Executive's Beneficiary (i) obtains
approval from the trustee of the Elizabeth Hance Grantor Trust and (ii) notifies
the Administrator in writing of such election within ninety (90) days of the
Executive's
death.
Such lump sum payment, if approved by the trustee, shall be made within thirty
(30) days of such trustee approval.
The
Executive
=
s
Accrued
Benefit Account (if applicable), measured as of the Executive's death, shall
be
annuitized (using the Interest Factor) into monthly installments and shall
be
payable to the Executive's Beneficiary for the Payout Period. Such benefit
payments shall commence within thirty (30) days of the date the Administrator
receives notice of the Executive
=
s
death.
(b)
Alternative
Payout Option
If
(i)
the Executive dies while employed by the Bank, including the Executive's death
while employed by the Bank following a Change in Control, and (ii) the Executive
has made a Timely Election to receive a lump sum benefit, this Subsection 4.1(b)
shall be controlling with respect to pre-retirement death benefits.
The
balance of the Executive
=
s
Retirement Income Trust Fund and the Accrued Benefit Account (if applicable),
measured as of the Executive
=
s
death,
shall be paid to the Executive's Beneficiary in a lump sum within thirty (30)
days of the date the Administrator receives notice of the Executive's death.
Notwithstanding the foregoing, unless the Executive has made a Timely Election
to receive a lump sum distribution with respect to the Accrued Benefit Account,
distributions from the Accrued Benefit Account will be paid over the Payout
Period commencing within thirty (30) days of the date the Administrator receives
notice of the Executive
=
s
death.
SECTION
V
BENEFIT(S)
IN THE EVENT OF TERMINATION OF SERVICE
PRIOR
TO BENEFIT AGE
5.1
|
Voluntary
or Involuntary Termination of Service Other Than for Cause
.
In the event the Executive
=
s
service with the Bank is voluntarily or involuntarily terminated
prior to
Benefit Age, for any reason including a Change in Control, but excluding
(i) any termination related to disability which shall be covered
in
Section VI, (ii) the Executive's pre-retirement death, which shall
be
covered in Section IV, or (iii) termination for Cause, which shall
be
covered in Subsection 5.2, the Executive (or his Beneficiary) shall
be
entitled to receive benefits in accordance with this Subsection 5.1.
Payments of
|
benefits
pursuant to this Subsection 5.1 shall be made in accordance with Subsection
5.1
(a) or 5.1 (b) below, as applicable.
(a)
Normal
form of payment
.
(1)
Executive
Lives Until Benefit Age
If
(i)
after such termination, the Executive lives until attaining his Benefit Age,
and
(ii) the Executive has not made a Timely Election to receive a lump sum benefit,
this Subsection 5.1(a)(1) shall be controlling with respect to retirement
benefits.
The
Retirement Income Trust Fund, measured as of the Executive's Benefit Age, shall
be annuitized (using the Interest Factor) into monthly installments and shall
be
payable for the Payout Period. Such payments shall commence on the Executive's
Benefit Eligibility Date. Should Retirement Income Trust Fund assets actually
earn a rate of return, following the date such balance is annuitized, which
is
less than the rate of return used to annuitize the Retirement Income Trust
Fund,
no additional contributions to the Retirement Income Trust Fund shall be
required by the Bank in order to fund the final benefit payment(s) and make
up
for any shortage attributable to the less-than-expected rate of return. Should
Retirement Income Trust Fund assets actually earn a rate of return, following
the date such balance is annuitized, which is greater than the rate of return
used to annuitize the Retirement Income Trust Fund, the final benefit payment
to
the Executive (or his Beneficiary) shall distribute the excess amounts
attributable to the greater-than-expected rate of return. In the event the
Executive dies at any time after attaining his Benefit Age, but prior to
commencement or completion of all the payments due and owing hereunder, (i)
the
trustee of the Retirement Income Trust Fund shall pay to the Executive's
Beneficiary the monthly installments (or a continuation of the monthly
installments if they have already commenced) for the balance of months remaining
in the Payout Period, or (ii) the Executive's Beneficiary may request to receive
the unpaid balance of the Executive's Retirement Income Trust Fund in a lump
sum
payment. If a lump sum payment is requested by the Beneficiary, payment of
the
balance of the Retirement Income Trust Fund in such lump sum form shall be
made
only if the Executive's Beneficiary (i) obtains approval from the trustee of
the
Elizabeth Hance Grantor Trust and (ii) notifies the Administrator in writing
of
such election within ninety (90) days of
the
Executive's death. Such lump sum payment, if approved by the trustee, shall
be
made within thirty (30) days of such trustee approval.
The
Executive
=
s
Accrued
Benefit Account (if applicable), measured as of the Executive
=
s
Benefit
Age, shall be annuitized (using the Interest Factor) into monthly installments
and shall be payable for the
Payout
Period. Such benefit payments shall commence on the Executive
=
s
Benefit
Eligibility Date. In the event the Executive dies at any time after attaining
his Benefit Age, but prior to commencement or completion of all the payments
due
and owing hereunder, the Bank shall pay to the Executive
=
s
Beneficiary the same monthly installments (or a continuation of such monthly
installments if they have already commenced) for the balance of months remaining
in the Payout Period.
(2)
Executive
Dies Prior to Benefit Age
If
(i)
after such termination, the Executive dies prior to attaining his Benefit Age,
and (ii) the Executive has not made a Timely Election to receive a lump sum
benefit, this Subsection 5.1(a)(2) shall be controlling with respect to
retirement benefits.
The
Retirement Income Trust Fund, measured as of the date of the Executive's death,
shall be annuitized (using the Interest Factor) into monthly installments and
shall be payable for the Payout Period. Such benefit payments shall commence
within thirty (30) days of the date the Administrator receives notice of the
Executive's death. Should Retirement Income Trust Fund assets actually earn
a
rate of return, following the date such balance is annuitized, which is less
than the rate of return used to annuitize the Retirement Income Trust Fund,
no
additional contributions to the Retirement Income Trust Fund shall be required
by the Bank in order to fund the final benefit payment(s) and make up for any
shortage attributable to the less-than-expected rate of return. Should
Retirement Income Trust Fund assets actually earn a rate of return, following
the date such balance is annuitized, which is greater than the rate of return
used to annuitize the Retirement Income Trust Fund as of the date of the
Executive's death, the final benefit payment to the Executive's Beneficiary
shall distribute the excess amounts attributable to the greater-than-expected
rate of return. The Executive's Beneficiary may request to receive the unpaid
balance of the Executive's Retirement Income Trust Fund in the form of a lump
sum payment. If a lump sum payment is requested by the Beneficiary, payment
of
the balance of the Retirement Income Trust Fund in such lump sum form shall
be
made only if the Executive's Beneficiary (i) obtains approval from the trustee
of the Elizabeth Hance Grantor Trust and (ii) notifies the Administrator in
writing of such election within ninety (90) days of the Executive's death.
Such
lump sum payment, if approved by the trustee, shall be made within thirty (30)
days of such trustee approval.
The
Executive
=
s
Accrued
Benefit Account (if applicable), measured as of the date of the
Executive
=
s
death,
shall be annuitized (using the Interest Factor) into monthly installments and
shall be payable for the Payout Period. Such payments shall commence within
thirty (30) days of the date the Administrator receives notice of the
Executive
=
s
death.
(b)
Alternative
Payout Option
(1)
Executive
Lives Until Benefit Age
If
(i)
after such termination, the Executive lives until attaining his Benefit Age,
and
(ii) the Executive has made a Timely Election to receive a lump sum benefit,
this Subsection 5.1(b)(1) shall be controlling with respect to retirement
benefits.
The
balance of the Retirement Income Trust Fund and the Accrued Benefit Account
(if
applicable), measured as of the Executive's Benefit Age, shall be paid to the
Executive in a lump sum on his Benefit Eligibility Date. In the event the
Executive dies after becoming eligible for such payment (upon attainment of
his
Benefit Age), but before the actual payment is made, his Beneficiary shall
be
entitled to receive the lump sum benefit in accordance with this Subsection
5.1(b)(1) within thirty (30) days of the date the Administrator receives notice
of the Executive's death. Notwithstanding the foregoing, unless the Executive
has made a Timely Election to receive a lump sum distribution with respect
to
the Accrued Benefit Account, distributions from the Accrued Benefit Account
will
be paid over the Payout Period commencing within thirty (30) days of the
Executive
=
s
Benefit
Age.
(2)
Executive
Dies Prior to Benefit Age
If
(i)
after such termination, the Executive dies prior to attaining his Benefit Age,
and (ii) the Executive has made a Timely Election to receive a lump sum benefit,
this Subsection 5.1(b)(2) shall be controlling with respect to retirement
benefits.
The
balance of the Retirement Income Trust Fund and the Accrued Benefit Account
(if
applicable), measured as of the date of the Executive's death, shall be paid
to
the Executive's Beneficiary within thirty (30) days of the date the
Administrator receives notice of the Executive's death. Notwithstanding the
foregoing, unless the Executive has made a Timely Election to receive a lump
sum
distribution with respect to the Accrued Benefit Account, distributions from
the
Accrued Benefit Account will be paid over the Payout Period commencing within
thirty (30) days of the date the Administrator receives notice of the
Executive
=
s
death.
5.2
Termination
For Cause
.
If
the
Executive is terminated for Cause, all benefits under this Agreement, other
than
those which can be paid from previous Contributions to the Retirement Income
Trust Fund (and earnings on such Contributions), shall be forfeited.
Furthermore, no further Contributions (or Phantom Contributions, as applicable)
shall be required of the Bank for the year in which such termination for Cause
occurs (if not yet made). The Executive shall be entitled to receive a benefit
in accordance with this Subsection 5.2.
The
balance of the Executive
=
s
Retirement Income Trust Fund shall be paid to the Executive in a lump sum on
his
Benefit Eligibility Date. In the event the Executive dies prior to his Benefit
Eligibility Date, his Beneficiary shall be entitled to receive the balance
of
the Executive's Retirement Income Trust Fund in a lump sum within thirty (30)
days of the date the Administrator receives notice of the Executive's death.
SECTION
VI
OTHER
BENEFITS
6.1
|
(a)
Disability
Benefit
.
|
If
the
Executive's service is terminated prior to Benefit Age due to a disability
which
meets the criteria set forth below, the Executive may request to receive the
Disability Benefit in lieu of the retirement benefit(s) available pursuant
to
Section 5.1 (which is (are) not available prior to the Executive's Benefit
Eligibility Date).
Notwithstanding
any other provision hereof
,
the
Executive shall receive a lump sum Disability Benefit hereunder in any case
in
which it is determined that the Executive is “disabled.” For these purposes, a
distribution from the Accrued Benefit Account (but not the Retirement Income
Trust Fund) due to disability shall require a determination that the Executive
is “disabled” within the meaning of proposed Treasury Regulation Section
1.409A-3(g)(4). The lump sum benefit(s) to which the Executive is entitled
shall
include: (i) the balance of the Retirement Income Trust Fund, plus (ii) the
balance of the Accrued Benefit Account (if applicable), both measured as of
the
disability determination date. The benefit(s) shall be paid within thirty (30)
days following the date of the Executive's final disability determination.
In
the event the Executive dies after becoming eligible for such payment(s) but
before the actual payment(s) is (are) made, his Beneficiary shall be entitled
to
receive
the benefit(s) provided for in this Subsection 6.1(a) within thirty (30) days
of
the date the Administrator receives notice of the Executive's
death.
(b)
Disability
Benefit - Supplemental
.
If
Board
of Director approval is obtained within thirty (30) days of the
Executive
=
s
death,
the Bank shall make a direct, lump sum payment to the Executive's Beneficiary
in
an amount equal to the following: the sum of all remaining Contributions (or
Phantom Contributions) set forth in Exhibit A, but not required pursuant to
Subsection 2.1(b) (or 2.1(c)) due to the Executive's disability-related
termination. Such lump sum payment, if approved by the Board of Directors,
shall
be payable within thirty (30) days of such Board of Director
approval.
SECTION
VII
BENEFICIARY
DESIGNATION
The
Executive shall make an initial designation of primary and secondary
Beneficiaries upon execution of this Agreement and shall have the right to
change such designation, at any subsequent time, by submitting to (i) the
Administrator,
and
(ii) the
trustee of the Retirement Income Trust Fund, in substantially the form attached
as Exhibit B to this Agreement, a written designation of primary and secondary
Beneficiaries. Any Beneficiary designation made subsequent to execution of
this
Agreement shall become effective only when receipt thereof is acknowledged
in
writing by the Administrator.
SECTION
VIII
EXECUTIVE'S
RIGHT TO ASSETS
The
rights of the Executive, any Beneficiary, or any other person claiming through
the Executive under this Agreement, shall be solely those of an unsecured
general creditor of the Bank, unless this Agreement provides otherwise. The
Executive, the Beneficiary, or any other person claiming through the Executive,
shall only have the right to receive from the Bank those payments so specified
under this Agreement. The Executive agrees that he, his Beneficiary, or any
other person claiming through him shall have no rights or interests whatsoever
in any asset of the Bank, including any insurance policies or contracts which
the Bank may possess or obtain to informally fund this Agreement. Any asset
used
or acquired by the Bank in connection with the liabilities it has assumed under
this
Agreement,
unless expressly provided herein, shall not be deemed to be held under any
trust
for the benefit of the Executive or his Beneficiaries, nor shall any asset
be
considered security for the performance of the obligations of the Bank. Any
such
asset shall be and remain, a general, unpledged, and unrestricted asset of
the
Bank.
SECTION
IX
RESTRICTIONS
UPON FUNDING
The
Bank
shall have no obligation to set aside, earmark or entrust any fund or money
with
which to pay its obligations under this Agreement, unless this Agreement
provides otherwise. Except as otherwise provided for in this Agreement, the
Executive, his Beneficiaries or any successor in interest to him shall be and
remain simply a general unsecured creditor of the Bank in the same manner as
any
other creditor having a general claim for matured and unpaid compensation.
The
Bank reserves the absolute right in its sole discretion to either purchase
assets to meet its obligations undertaken by this Agreement or to refrain from
the same and to determine the extent, nature, and method of such asset
purchases. Should the Bank decide to purchase assets such as life insurance,
mutual funds, disability policies or annuities, the Bank reserves the absolute
right, in its sole discretion, to terminate such assets at any time, in whole
or
in part. At no time shall the Executive be deemed to have any lien, right,
title
or interest in or to any specific investment or to any assets of the Bank.
If
the Bank elects to invest in a life insurance, disability or annuity policy
upon
the life of the Executive, then the Executive shall assist the Bank by freely
submitting to a physical examination and by supplying such additional
information necessary to obtain such insurance or annuities.
SECTION
X
ACT
PROVISIONS
10.1
|
Named
Fiduciary and Administrator
.
The Bank shall be the Administrator (the "Administrator") of this
Agreement. As Administrator, the Bank shall be responsible for the
management, control and administration of the Agreement as established
herein and shall be responsible for designation of the initial trustee,
of
the related rabbi trust, in accordance with the formal agreement
establishing such trust. The Administrator may delegate to others
certain
aspects of the management and operational responsibilities of the
Agreement, including the employment of advisors and the delegation
of
ministerial duties to qualified
individuals.
|
10.2
|
Claims
Procedure and Arbitration
.
In the event that benefits under this Agreement are not paid to the
Executive (or to his Beneficiary in the case of the Executive's death)
and
such claimants feel they are entitled to receive such benefits, then
a
written claim must be made to the Administrator within sixty (60)
days
from the date payments are refused. The Administrator shall review
the
written claim and, if the claim is denied, in whole or in part, it
shall
provide in writing, within ninety (90) days of receipt of such claim,
its
specific reasons for such denial, reference to the provisions of
this
Agreement upon which the denial is based, and any additional material
or
information necessary to perfect the claim. Such writing by the
Administrator shall further indicate the additional steps which must
be
undertaken by claimants if an additional review of the claim denial
is
desired.
|
If
claimants desire a second review, they shall notify the Administrator in writing
within sixty (60) days of the first claim denial. Claimants may review this
Agreement or any documents relating thereto and submit any issues and comments,
in writing, they may feel appropriate. In its sole discretion, the Administrator
shall then review the second claim and provide a written decision within sixty
(60) days of receipt of such claim. This decision shall state the specific
reasons for the decision and shall include reference to specific provisions
of
this Agreement upon which the decision is based. If such determination is
favorable to the claimants, it shall be binding and conclusive. If such
determination is adverse to such claimants, it shall be binding and conclusive
unless the claimants (i) notify the Administrator within ninety (90) days after
receipt by the claimants of the Administrator's determination, that the
claimants intend to institute legal proceedings challenging the determination
of
the Administrator, and (ii) actually institute such legal proceedings within
one
hundred eighty (180) days of receipt by the claimants of the Administrator's
determination.
SECTION
XI
MISCELLANEOUS
11.1
|
No
Effect on Employment Rights
.
Nothing contained herein will confer upon the Executive the right
to be
retained in the service of the Bank nor limit the right of the Bank
to
discharge or otherwise deal with the Executive, in accordance with
the
bylaws of the Bank, without regard to the existence of the Agreement.
Pursuant to 12 C.F.R.
'
563.39(b), the following conditions shall apply to this
Agreement:
|
|
(1)
|
The
Bank's Board of Directors may terminate the Executive at any time,
but any
termination by the Bank's Board of Directors other than termination
for
Cause shall not prejudice the Executive's vested right to compensation
or
other benefits under the contract. As provided in Subsection 5.2,
the
Executive shall have no right to receive additional compensation
or other
benefits, other than those provided for in Subsection 5.2, after
termination for Cause.
|
|
(2)
|
If
the Executive is suspended and/or temporarily prohibited from
participating in the conduct of the Bank's affairs by a notice served
under Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance
Act (12
U.S.C. 1818(e)(3) and (g)(1)) the Bank's obligations under the contract
shall be suspended (except vested rights) as of the date of termination
of
service unless stayed by appropriate proceedings. If the charges
in the
notice are dismissed, the Bank may in its discretion (i) pay the
Executive
all or part of the compensation withheld while its contract obligations
were suspended and (ii) reinstate (in whole or in part) any of its
obligations which were suspended.
|
|
(3)
|
If
the Executive is terminated and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued
under Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance
Act (12
U.S.C. 1818(e)(4) or (g)(1)), all non-vested obligations of the Bank
under
the contract shall terminate as of the effective date of the order.
|
|
(4)
|
If
the Bank is in default (as defined in Section 3(x)(1) of the Federal
Deposit Insurance Act), all non-vested obligations under the contract
shall terminate as of the date of default.
|
|
(5)
|
All
non-vested obligations under the contract shall be terminated, except
to
the extent determined that continuation of the contract is necessary
for
the continued operation of the
Bank:
|
|
(i)
|
by
the Director of the Federal Deposit Insurance Corporation or his
designee
at the time the Federal Deposit Insurance Corporation enters into
an
|
agreement
to provide assistance to or on behalf of
the Bank under the authority contained in
'
13(c) of
the Federal Deposit Insurance Act; or
|
(ii)
|
by
the Director of the Federal Deposit Insurance Corporation or his
designee,
at the time the Director or his designee approves a supervisory merger
to
resolve problems related to operation of the Bank or when the Bank
is
determined by the Director to be in an unsafe or unsound
condition.
|
Any
rights of the parties that have already vested, (i.e., the balance of the
Executive's Retirement Income Trust Fund and the balance of the
Executive
=
s
Accrued
Benefit Account, if applicable), however, shall not be affected by such
action.
11.2
|
Governing
Law
.
The Agreement is established under, and will be construed according
to,
the laws of the state of New Jersey, to the extent such laws are
not
preempted by the Act or other applicable federal law and valid regulations
published thereunder.
|
11.3
|
Construction
and Severability
.
The funding of and payment of benefits from the Accrued Benefit Account
is
deemed to be a nonqualified deferred compensation arrangement within
the
meaning of Code Section 409A. To the extent that the funding of a
benefit
under the Retirement Income Trust Fund under this Agreement is deemed
to
be a nonqualified deferred compensation arrangement, then that part
of
this Agreement shall also be operated, administered and construed
consistent with Code Section 409A. To the extent that a provision
of the
Agreement fails to comply with Code Section 409A and a construction
consistent with Code Section 409A is not possible, such provision
shall be
void
ab
initio
.
In addition, the Agreement shall be subject to amendment, with or
without
advance notice to Executive and other interested parties, and on
a
prospective or retroactive basis, including but not limited to amendment
in a manner that adversely affects the rights of Executives and other
interested parties, to the extent necessary to effect compliance
with Code
Section 409A. In the event that any of the provisions of this Agreement
or
portion thereof, are held to be inoperative or invalid by any court
of
competent jurisdiction, then: (1) insofar as is reasonable, effect
will be
given to the intent manifested in the provisions held invalid or
inoperative, and (2) the validity and enforceability of the remaining
provisions will not be affected
thereby.
|
11.4
|
Incapacity
of Recipient
.
In the event the Executive is declared incompetent and a conservator
or
other person legally charged with the care of his person or Estate
is
appointed, any benefits under the Agreement to which such Executive
is
entitled shall be paid to such conservator or other person legally
charged
with the care of his person or Estate.
|
11.5
|
Unclaimed
Benefit
.
The Executive shall keep the Bank informed of his current address
and the
current address of his Beneficiaries. The Bank shall not be obligated
to
search for the whereabouts of any person. If the location of the
Executive
is not made known to the Bank as of the date upon which any payment
of any
benefits from the Accrued Benefit Account may first be made, the
Bank
shall delay payment of the Executive's benefit payment(s) until the
location of the Executive is made known to the Bank; however, the
Bank
shall only be obligated to hold such benefit payment(s) for the Executive
until the expiration of thirty-six (36) months. Upon expiration of
the
thirty-six (36) month period, the Bank may discharge its obligation
by
payment to the Executive's Beneficiary. If the location of the Executive's
Beneficiary is not made known to the Bank by the end of an additional
two
(2) month period following expiration of the thirty-six (36) month
period,
the Bank may discharge its obligation by payment to the Executive's
Estate. If there is no Estate in existence at such time or if such
fact
cannot be determined by the Bank, the Executive and his Beneficiary(ies)
shall thereupon forfeit any rights to the balance, if any, of the
Executive
=
s
Accrued Benefit Account provided for such Executive and/or Beneficiary
under this Agreement.
|
11.6
|
Limitations
on Liability
.
Notwithstanding any of the preceding provisions of the Agreement,
no
individual acting as an employee or agent of the Bank, or as a member
of
the Board of Directors shall be personally liable to the Executive
or any
other person for any claim, loss, liability or expense incurred in
connection with the Agreement.
|
11.7
|
Gender
.
Whenever in this Agreement words are used in the masculine or neuter
gender, they shall be read and construed as in the masculine, feminine
or
neuter gender, whenever they should so
apply.
|
11.8
|
Effect
on Other Corporate Benefit Agreements
.
Nothing contained in this Agreement shall affect the right of the
Executive to participate in or be covered by any qualified or
non-qualified pension, profit sharing, group, bonus or other supplemental
compensation or fringe benefit agreement constituting a part of the
Bank's
existing or future compensation
structure.
|
11.9
|
Suicide
.
Notwithstanding anything to the contrary in this Agreement, if the
Executive's death results from suicide, whether sane or insane, within
twenty-six (26) months after execution of this Agreement, all further
Contributions to the Retirement Income Trust Fund (or Phantom
Contributions recorded in the Accrued Benefit Account) shall thereupon
cease, and no Contribution (or Phantom Contribution) shall be made
by the
Bank to the Retirement Income Trust Fund (or recorded in the Accrued
Benefit Account) in the year such death resulting from suicide occurs
(if
not yet made). All benefits other than those available from previous
Contributions to the Retirement Income Trust Fund under this Agreement
shall be forfeited, and this Agreement shall become null and void.
The
balance of the Retirement Income Trust Fund, measured as of the
Executive's date of death, shall be paid to the Beneficiary within
thirty
(30) days of the date the Administrator receives notice of the Executive's
death.
|
11.10
|
Inurement
.
This Agreement shall be binding upon and shall inure to the benefit
of the
Bank, its successors and assigns, and the Executive, his successors,
heirs, executors, administrators, and
Beneficiaries.
|
11.11
|
Headings
.
Headings and sub-headings in this Agreement are inserted for reference
and
convenience only and shall not be deemed a part of this
Agreement.
|
11.12
|
Establishment
of a Rabbi Trust.
The Bank shall establish a rabbi trust into which the Bank shall
contribute assets which shall be held therein, subject to the claims
of
the Bank's creditors in the event of the Bank's "Insolvency" (as
defined
in such rabbi trust agreement), until the contributed assets are
paid to
the Executive and/or his Beneficiary in such manner and at such times
as
specified in this Agreement. It is the intention of the Bank that
the
contribution or contributions to the rabbi trust shall provide the
Bank
with a source of funds to assist it in meeting the liabilities of
this
Agreement.
|
SECTION
XII
AMENDMENT/PLAN
TERMINATION
12.1
|
Amendment
or Plan Termination
.
The Bank intends this Agreement to be permanent, but reserves the
right to
amend or terminate the Agreement when such amendment or termination
is
required due to objection to the plan by the Bank's regulatory
authorities, or in the event of a change in existing federal income
tax
laws which would cause this plan to create adverse tax consequences
to the
Bank and/or
|
participants
in the plan. However, any termination of the Agreement which is done in
anticipation of or pursuant to a "Change in Control", as defined in Subsection
1.9, shall be deemed to trigger Subsection 2.1(b)(2) (or 2.1(c)(2), as
applicable) of the Agreement notwithstanding the Executive's continued
employment, and benefit(s) shall be paid from the Retirement Income Trust Fund
(and Accrued Benefit Account, if applicable) in accordance with Subsection
13.2
below and with Subsections 2.1(b)(2) (or 2.1(c)(2), as applicable). Any
amendment or termination of the Agreement shall be made pursuant to a resolution
of the Board of Directors of the Bank and shall be effective as of the date
of
such resolution. No amendment or termination of the Agreement shall directly
or
indirectly deprive the Executive of all or any portion of the Executive's
Retirement Income Trust Fund (and Accrued Benefit Account, if applicable) as
of
the effective date of the resolution amending or terminating the Agreement.
Notwithstanding the foregoing, if an individual Executive’s agreement is subject
to Code Section 409A, the Bank may terminate this Agreement only under the
following circumstances and conditions:
|
(a)
|
The
Board of Directors may terminate the Agreement within 12 months of
a
corporate dissolution taxed under Code Section 331, or with approval
of a
bankruptcy court pursuant to 11 U.S.C. §503(b)(1)(A), provided that the
amounts deferred under the Agreement are included in the Executive’s gross
income in the latest of (i) the calendar year in which the Agreement
terminates; (ii) the calendar year in which the amount is no longer
subject to a substantial risk of forfeiture; or (iii) the first calendar
year in which the payment is administratively
practicable.
|
|
(b)
|
The
Board of Directors may terminate the Agreement within the 30 days
preceding a Change in Control (but not following a Change in Control),
provided that the Agreement shall only be treated as terminated if
all
substantially similar arrangements sponsored by the Bank are terminated
so
that the Executive and all participants under substantially similar
arrangements are required to receive all amounts of compensation
deferred
under the terminated arrangements within 12 months of the date of
the
termination of the arrangements.
|
|
(c)
|
The
Board of Directors may terminate the Agreement provided that (i)
all
arrangements sponsored by the Bank that would be aggregated with
this
Agreement under Proposed Regulation Section 1.409A-1(c) if the Executive
covered by this Agreement was also covered by any of those other
arrangements are also terminated; (ii) no payments other than
payments
|
that
would be payable under the terms of the arrangement if the termination had
not
occurred are made within 12 months of the termination of the arrangement; (iii)
all payments are made within 24 months of the termination of the arrangements;
and (iv) the Bank does not adopt a new arrangement that would be aggregated
with
any terminated arrangement under Proposed Regulation Section 1.409A-1(c) if
the
Executive participated in both arrangements, at any time within five years
following the date of termination of the arrangement.
12.2
|
Executive's
Right to Payment Following Plan Termination
.
In the event of a termination of the Agreement, the Executive shall
be
entitled to the balance, if any, of his Retirement Income Trust Fund
(and
Accrued Benefit Account, if applicable), measured as of the date
of plan
termination. However, if such termination is done in anticipation
of or
pursuant to a
A
Change
in Control,
@
such balance(s) shall be measured as of the date the final Contribution
(or Phantom Contribution) is made (or recorded) pursuant to Subsection
2.1(b)(2) (or 2.1(c)(2)). Payment of the balance(s) of the Executive's
Retirement Income Trust Fund (and Accrued Benefit Account, if applicable)
shall not be dependent upon his continuation of employment with the
Bank
following the termination date of the Agreement. Payment of the balance(s)
of the Executive's Retirement Income Trust Fund (and Accrued Benefit
Account, if applicable) shall be made in a lump sum within thirty
(30)
days of the date of termination of the Agreement, provided, however,
to
the extent that Code Section 409A is applicable to a Separation from
Service following a Change in Control and payments are made to the
Retirement Income Trust Fund on account of a Separation from Service,
distributions shall not be made until the first day of the seventh
(7th)
month after Separation from
Service.
|
SECTION
XIII
EXECUTION
13.1
|
This
Agreement and the Elizabeth Hance Grantor Trust agreement set forth
the
entire understanding of the parties hereto with respect to the
transactions contemplated hereby, and any previous agreements or
understandings between the parties hereto regarding the subject matter
hereof are merged into and superseded by this Agreement and the Elizabeth
Hance Grantor Trust agreement.
|
13.2
|
This
Agreement shall be executed in triplicate, each copy of which, when
so
executed and delivered, shall be an original, but all three copies
shall
together constitute one and the same
instrument.
|
IN
WITNESS WHEREOF, the Bank and the Executive have caused this Agreement to be
executed on the day and date first above written.
|
|
MAGYAR
BANK
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/
|
|
|
|
|
/s/
|
|
|
Secretary
|
|
(Title)
|
|
|
|
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|
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|
|
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|
|
|
|
|
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|
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WITNESS:
|
|
EXECUTIVE:
|
|
|
|
|
/s/
|
|
/s/
Elizabeth E. Hance
|
|
|
|
|
|
|
|
|
|
|
|
|
CONDITIONS,
ASSUMPTIONS,
AND
SCHEDULE
OF CONTRIBUTIONS AND PHANTOM CONTRIBUTIONS
1.
Interest
Factor - for purposes of:
|
a.
|
the
Accrued Benefit Account - shall be Six percent (6%) per annum, compounded
monthly.
|
|
b.
|
the
Retirement Income Trust Fund - for purposes of annuitizing the balance
of
the Retirement Income Trust Fund over the Payout Period, the trustee
of
the Elizabeth Hance Grantor Trust shall exercise discretion in selecting
the appropriate rate, given the nature of the investments contained
in the
Retirement Income Trust Fund and the expected return associated with
the
investments.
|
2.
|
The
amount of the annual Contributions (or Phantom Contributions) to
the
Retirement Income Trust Fund (or Accrued Benefit Account) has been
based
on the annual incremental accounting accruals which would be required
of
the Bank until the earlier of the Executive
=
s
death or Benefit Age, (i) pursuant to APB Opinion No. 12, as amended
by
FAS 106 and (ii) assuming a discount rate equal to Six percent (6%)
per
annum, in order to provide the unfunded, non-qualified Supplemental
Retirement Income Benefit.
|
3.
|
Supplemental
Retirement Income Benefit means an actuarially determined annual
amount
equal to One-Hundred Thousand Six Hundred and Twelve Dollars ($100,612)
at
age 65 if paid entirely from the Accrued Benefit Account or Sixty-Four
Thousand Three Hundred and Ninety-Two Dollars ($64,392) at age 65
if paid
from the Retirement Income Trust
Fund.
|
The
Supplemental Retirement Income Benefit:
|
!
|
the
definition of Supplemental Retirement Income Benefit has been incorporated
into the Agreement for the sole purpose of actuarially establishing
the
amount of annual Contributions (or Phantom Contributions) to the
Retirement Income Trust Fund (or Accrued Benefit Account). The amount
of
any actual retirement, pre-retirement or disability benefit payable
pursuant to the Agreement will be a function of (i) the amount and
timing
of Contributions (or Phantom Contributions) to the Retirement Income
Trust
Fund (or Accrued Benefit Account) and (ii) the actual investment
experience of such Contributions (or the monthly compounding rate
of
Phantom Contributions).
|
Exhibit
A
4.
|
Schedule
of Annual Gross Contributions/Phantom
Contributions
|
Year
|
|
Contributions
|
|
|
|
|
1996
|
|
$
|
1,220
|
|
1997
|
|
$
|
2,083
|
|
1998
|
|
$
|
2,420
|
|
1999
|
|
$
|
2,799
|
|
2000
|
|
$
|
3,224
|
|
2001
|
|
$
|
3,700
|
|
2002
|
|
$
|
4,234
|
|
2003
|
|
$
|
15,062
|
|
2004
|
|
$
|
16,827
|
|
2005
|
|
$
|
18,752
|
|
2006
|
|
$
|
68,994
|
|
2007
|
|
$
|
68,994
|
|
2008
|
|
$
|
68,994
|
|
2009
|
|
$
|
68,994
|
|
2010
|
|
$
|
68,994
|
|
2011
|
|
$
|
68,994
|
|
2012
|
|
$
|
68,994
|
|
2013
|
|
$
|
68,994
|
|
2014
|
|
$
|
68,994
|
|
2015
|
|
$
|
68,994
|
|
2016
|
|
$
|
68,994
|
|
2017
|
|
$
|
68,994
|
|
2018
|
|
$
|
68,994
|
|
2019
|
|
$
|
68,914
|
|
|
|
|
|
|
|
|
|
|
|
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|
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|
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Exhibit
A
- continued
RESTATED
EXECUTIVE
SUPPLEMENTAL RETIREMENT INCOME AGREEMENT
BENEFICIARY
DESIGNATION
The
Executive, under the terms of the Restated Executive Supplemental Retirement
Income Agreement executed by the Bank, dated the
day of
,2006,
hereby designates the following Beneficiary(ies) to receive any guaranteed
payments or death benefits under such Agreement, following his
death:
PRIMARY
BENEFICIARY:
SECONDARY
BENEFICIARY:
This
Beneficiary Designation hereby revokes any prior Beneficiary Designation which
may have been in effect.
Such
Beneficiary Designation is revocable.
DATE:
______________________, 2006
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(WITNESS)
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EXECUTIVE
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(WITNESS)
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Exhibit
B
RESTATED
EXECUTIVE
SUPPLEMENTAL RETIREMENT INCOME AGREEMENT
NOTICE
OF ELECTION TO CHANGE FORM OF PAYMENT
I
hereby
give notice of my election to change the form of payment of my Supplemental
Retirement Income Benefit, as specified below.
I
understand that such notice,
in
order to be effective, must be submitted in accordance with the time
requirements described in Subsection 1.25 of my Restated Executive Supplemental
Retirement Income Agreement.
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o
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I
hereby elect to change the form of payment of my benefits from monthly
installments throughout my Payout Period to a lump sum benefit
payment.
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o
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I
hereby elect to change the form of payment of my benefits from a
lump sum
benefit payment to monthly installments throughout my Payout Period.
Such
election hereby revokes my previous notice of election to receive
a lump
sum form of benefit payments.
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Executive
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Date
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Acknowledged
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By:
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Title:
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Date:
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Exhibit
C
Exhibit
10.3
RESTATED
DIRECTOR
SUPPLEMENTAL RETIREMENT
INCOME
and DEFERRED COMPENSATION AGREEMENT
FOR
ELIZABETH HANCE
MAGYAR
BANK
New
Brunswick, New Jersey
January
1, 2006
Financial
Institution Consulting Corporation
700
Colonial Road, Suite 102
Memphis,
Tennessee 38117
WATS:
1-800-873-0089
FAX:
(901) 684-7414
(901)
684-7400
RESTATED
DIRECTOR
SUPPLEMENTAL RETIREMENT
INCOME
and DEFERRED COMPENSATION AGREEMENT
FOR
ELIZABETH HANCE
This
Restated Director Supplemental Retirement Income and Deferred Compensation
Agreement for Elizabeth Hance (the "Agreement"), effective as of the 1st day
of
January, 2006, amends and restates the Director Supplemental Retirement Income
and Deferred Compensation Agreement for Elizabeth Hance dated February 1, 2004,
and formalizes the understanding by and between MAGYAR BANK (the "Bank"), a
state chartered savings bank having its principal place of business in New
Brunswick, New Jersey, and ELIZABETH HANCE (hereinafter referred to as
"Director"). All prior non-qualified Director deferred compensation agreements,
including any and all Joinder Agreements, with respect to the Director and
MAGYAR BANK, are hereby superseded and replaced by this Agreement
W
I T N E S S E T H :
WHEREAS
,
the
Director serves the Bank as a member of the board; and
WHEREAS
,
the
Bank recognizes the valuable services heretofore performed by the Director
and
wishes to encourage his continued service; and
WHEREAS
,
the
Director wishes to be assured that the Director will be entitled to a certain
amount of additional compensation for some definite period of time from and
after retirement from active service with the Bank or other termination of
service and wishes to provide his beneficiary with benefits from and after
death; and
WHEREAS
,
the
Bank and the Director wish to provide the terms and conditions upon which the
Bank shall pay such additional compensation to the Director after retirement
or
other termination of service and/or death benefits to his beneficiary after
death; and
WHEREAS
,
the
Bank has adopted this Director Supplemental Retirement Income and Deferred
Compensation Agreement which controls all issues relating to benefits as
described herein; and
WHEREAS
,
Section
409A of the Internal Revenue Code of 1986 (“Code”), as amended, requires that
certain deferred compensation arrangements comply with its terms or subject
the
recipient of the compensation to potential taxes and penalties; and
WHEREAS
,
the
Bank desires to amend and restate the Agreement to comply with Code Section
409A
and any Treasury Regulations promulgated thereunder; and
WHEREAS
,
the
Board of Directors of the Bank has conditionally approved
the
amendment and restatement of the Agreement, subject to the approval of the
New
Jersey Department of Banking and Insurance.
NOW,
THEREFORE,
in
consideration of the premises and of the mutual promises herein contained,
the
Bank and the Director agree as follows:
SECTION
I
DEFINITIONS
When
used
herein, the following words and phrases shall have the meanings below unless
the
context clearly indicates otherwise:
1.1
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"Accrued
Benefit Account" shall be
represented
by
the bookkeeping entries required to record the Director
=
s
(i) Phantom Contributions plus (ii) accrued interest, equal to the
Interest Factor, earned to-date on such amounts. However, neither
the
existence of such bookkeeping entries nor the Accrued Benefit Account
itself shall be deemed to create either a trust of any kind, or a
fiduciary relationship between the Bank and the Director or any
Beneficiary.
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1.2
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"Act"
means the Employee Retirement Income Security Act of 1974, as amended
from
time to time.
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1.3
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A
Administrator
@
means the Bank.
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1.4
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"Bank"
means MAGYAR BANK and any successor
thereto.
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1.5
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"Beneficiary"
means the person or persons (and their heirs) designated as Beneficiary
in
Exhibit B of this Agreement to whom the deceased Director
=
s
benefits are payable. If no Beneficiary is so designated, then the
Director
=
s
Spouse, if living, will be deemed the Beneficiary. If the
Director
=
s
Spouse is not living, then the Children of the Director will be deemed
the
Beneficiaries and will take on a per stirpes basis. If there are
no
Children, then the Estate of the Director will be deemed the
Beneficiary.
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1.6
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"Benefit
Age" means the later of: (i) the Director's sixty-fifth (65th) birthday
or
(ii) the actual date the Director
=
s
full-time service with the Bank terminates.
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1.7
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"Benefit
Eligibility Date" means the date on which the Director is entitled
to
receive any benefit(s) pursuant to Section(s) III or V of this Agreement.
It shall be the first day of the month following both the attainment
of
the Directors’ Benefit Age and his actual retirement from the Board of
Directors.
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1.8
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"Board
of Directors" means the board of directors of the
Bank.
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1.9
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"Cause"
means termination of the Director
=
s
service on the Board of Directors due to: (i) actions or inactions
which
constitute a breach of the bylaws of the Bank or (ii) the
Director
=
s
personal dishonesty, willful misconduct, willful malfeasance, breach
of
fiduciary duty involving personal profit, intentional failure to
perform
stated duties, willful violation of any law, rule, regulation (other
than
traffic violations or similar offenses), or final cease-and-desist
order,
material breach of any provision of this Plan, or gross negligence
in
matters of material importance to the
Bank.
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1.10
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“Change
in Control” shall mean a change in the ownership of the Bank or Company
under paragraph (a) below, a change in effective control of the Bank
or
Company under paragraph (b) below, or a change in the ownership of
a
substantial portion of the assets of the Bank or Company under paragraph
(c) below. For all purposes hereunder, the definition of Change in
Control
shall be construed to be consistent with the requirements of Proposed
Treasury Regulation Section 1.409A-3(g), except to the extent that
such
proposed regulations are superseded by subsequent
guidance.
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For
this
subsection “persons acting as a group” is defined as follows; Persons will be
considered to be acting as a group if they are owners of a corporation that
enters into a merger, consolidation, purchase or acquisition of stock, or
similar business transaction with the corporation. Persons will not be
considered to be acting as a group solely because they purchase or own stock
of
the same corporation at the same time, or as a result of the same public
offering. If a person, including an entity, owns stock in both corporations
that
enter into a merger, consolidation, purchase or acquisition of stock, or similar
transaction, such shareholder is considered to be acting as a group with other
shareholders in a corporation only with respect to the ownership in that
corporation prior to the transaction giving rise to the change and not with
respect to the ownership interest in the other corporation.
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(a)
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Change
in Ownership of the Bank or Company
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Change
in
the ownership occurs on the date that any one person, or more than one person
acting as a group (as defined above), acquires ownership of stock of the Bank
or
Company that, together with stock held by such person or group, constitutes
more
than 50 percent of the total fair market value or total voting power of the
stock of such corporation. However, if any one person or more than one person
acting as a group, is considered to own more than 50 percent of the total fair
market value or total voting power of the stock of a corporation, the
acquisition of additional stock by the same person or persons is not considered
to cause a change in the ownership of the corporation or to cause a change
in
the effective control of the corporation.
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(b)
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Change
in the Effective Control of the Bank or
Company
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A
change
in the effective control of the Bank or Company occurs on the date that either
-
(1)
Any
one person, or more than one person acting as a group (as defined above),
acquires (or has acquired during the 12-month period ending on the date of
the
most recent acquisition by such person or persons) ownership of stock of the
Company possessing 20 percent or more of the total voting power of the stock
of
the Company (except that if an individual Director’s agreement becomes subject
to Code Section 409A, then the required percentage of acquired ownership of
stock under this Subsection 1.10 (b)(1) shall be 35 percent or more); or
(2)
a
majority of members of the Company’s board of directors is replaced during any
12-month period by directors whose appointment or election is not endorsed
by a
majority of the members of the Company’s board of directors prior to the date of
the appointment or election.
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(c)
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Change
in the Ownership of a Substantial Portion of the Bank’s or Company’s
Assets.
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Change
in
the ownership of a substantial portion of the Bank or Company’s assets occurs on
the date that any one person, or more than one person acting as a group (as
defined above), acquires (or has acquired during the 12-month period ending
on
the date of the most recent acquisition by such person or persons) assets from
the corporation that have a total gross fair market value equal to or more
than
40 percent of the total gross fair market value of all of the assets of the
Bank
or Company immediately prior to such acquisition or acquisitions. For this
purpose, gross fair market value means the value of the assets of the Bank
or
Company, or the value of the assets being disposed of, determined without regard
to any liabilities associated with such assets.
1.11
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"Children"
means all natural or adopted children of the Director and issue of
any
predeceased child or children.
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1.12
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"Code"
means the Internal Revenue Code of 1986, as amended from time to
time.
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1.13
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“Company”
shall mean Magyar Bancorp, Inc.
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1.14
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"Contribution(s)"
means those annual total contributions comprised of both the Elective
Contributions and the Emeritus Contributions which the Bank is required
to
make to the Retirement Income Trust Fund on behalf of the Director
in
accordance with Subsection 2.1(a) and in the amounts set forth in
Exhibit
A of the Agreement. Such Contributions, for the first Plan Year,
shall
include any and all amounts accrued by the Bank to pay the benefits
promised to the Director under any prior non-qualified deferred
compensation agreements including any Joinder Agreements previously
executed by the Bank and the Director.
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1.15
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(a)
"Disability Benefit" means the benefit payable to the Director following
a
determination, in accordance with Subsection 6.1(a), that he is no
longer
able, properly and satisfactorily, to perform his duties at the
Bank.
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(b)
"Disability Benefit-Supplemental" (if applicable) means the benefit payable
to
the Director
=
s
Beneficiary upon the Director
=
s
death
in accordance with Subsection 6.1(b).
1.16
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"Effective
Date" of this Agreement shall be January 1, 2006. The original effective
date of this Agreement was February 1, 2004. The Agreement is hereby
amended and restated effective January 1, 2006 in order to conform
to Code
Section 409A.
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1.17
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“Elective
Contribution” shall refer to the Director’s voluntary monthly pre-tax
deferral of board fees, committee fees and/or retainer plus interest
compounded annually at a rate equal to the Interest Factor. The Director
may elect to change his voluntary deferral amount by submitting to
the
Bank a Notice of Adjustment of Elective Contribution thirty (30)
days
prior to the end of any Plan Year.
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1.18
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“Emeritus
Contribution” shall refer to the amounts necessary to support an annual
amount payable to the Director at Benefit Age based upon a percentage,
as
stated in Appendix A, of the Director’s total board fees, committee fees
and/or retainer in the twelve months prior to the Director’s Benefit
Eligibility Date. The percentage shall be determined by the following
formula: ten percent (10%) plus two and one-half percent (2 ½%) for each
year of service as a Director, with a minimum of fifty percent (50%),
provided the Director has served for at least five (5) years, and
a
maximum of sixty percent (60%). Notwithstanding the foregoing, any
Director who serves as Board Chairman for a five-year term (other
than the
current Chairman) shall be entitled to receive seventy-five percent
(75%).
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1.19
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"Estate"
means the estate of the Director.
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1.20
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"Interest
Factor" means monthly compounding, discounting or annuitizing, as
applicable, at a rate set forth in
Exhibit A.
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1.21
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"Payout
Period" means the time frame during which certain benefits payable
hereunder shall be distributed. Payments shall be made in monthly
installments commencing on the first day of the month following the
occurrence of the event which triggers distribution and continuing
for a
period of one hundred eighty (180) months. Should the Director make
a
Timely Election to receive a lump sum benefit payment, the
Director
=
s
Payout Period shall be deemed to be one (1) month.
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1.22
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"Phantom
Contributions" means those annual Contributions which the Bank is
no
longer required to make on behalf of the Director to the Retirement
Income
Trust Fund. Rather, once the Director has exercised the withdrawal
rights
provided for in Subsection 2.2, the Bank shall be required to record
the
annual amounts set forth in Exhibit A of the Agreement in the
Director
=
s
Accrued Benefit Account, pursuant to Subsection 2.1.
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1.23
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"Plan
Year" shall mean the twelve (12) month period commencing January
1 and
ending December 31.
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1.24
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"Retirement
Income Trust Fund" means the trust fund account established by the
Director and into which annual Contributions will be made by the
Bank on
behalf of the Director pursuant to Subsection 2.1. The contractual
rights
of the Bank and the Director with respect to the Retirement Income
Trust
Fund shall be outlined in a separate writing to be known as the Elizabeth
Hance Grantor Trust agreement.
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1.25
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A
Spouse
@
means the individual to whom the Director is legally married at the
time
of the Director
=
s
death, provided, however, that the term
A
Spouse
@
shall not refer to an individual to whom the Director is legally
married
at the time of death if the Director and such individual have entered
into
a formal separation agreement or initiated divorce
proceedings.
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1.26
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"Supplemental
Retirement Income Benefit" means an annual amount (
before
taking into account federal and state income taxes), payable in monthly
installments throughout the Payout Period. Such benefit is projected
pursuant to the Agreement for the purpose of determining the Contributions
to be made to the Retirement Income Trust Fund (or Phantom Contributions
to be recorded in the Accrued Benefit Account). The annual Contributions
and Phantom
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Contributions
have been actuarially determined, using the assumptions set forth in Exhibit
A,
in order to fund for the projected Supplemental Retirement Income Benefit.
The
Supplemental Retirement Income Benefit for which Contributions (or Phantom
Contributions) are being made (or recorded) is set forth in Exhibit A.
1.27
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"Timely
Election" means the Director has made an election to change the form
of
his benefit payment(s) from the Retirement Income Trust Fund by filing
with the Administrator a Notice of Election to Change Form of Payment
(Exhibit C of this Agreement). In the case of benefits payable from
the
Retirement Income Trust Fund, such election may be made at any time.
In
the case of benefits payable from the Accrued Benefit Account, such
election generally shall have been made prior to December 31, 2006
(i.e.
the last day of the “Transition Period” for bringing plans into compliance
with Code Section 409A). Unless the Transition Period is extended
by the
Internal Revenue Service, if the Director makes an election subsequent
to
December 31, 2006 with respect to distributions from the Accrued
Benefit
Account, then (i) such election may not take effect until at least
twelve
(12) months after the date on which the election is made, (ii) in
the case
of an election related to a payment other than due to disability
or death,
the first payment with respect to which such election is made must
be
deferred for a period of not less than five (5) years from the date
such
payment would otherwise have been made, and (iii) any election related
to
a distribution at a specified time or pursuant to a fixed schedule
may not
be made less than twelve (12) months prior to the date of the first
scheduled payment.
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SECTION
II
BENEFIT
FUNDING
2.1
(a)
Retirement
Income Trust Fund and Accrued Benefit Account
.
The
Director shall establish the Elizabeth Hance Grantor Trust into which the Bank
shall be required to make annual Contributions on the Director
=
s
behalf,
pursuant to Exhibit A and this Section II of the Agreement. A trustee shall
be
selected by the Director. The trustee shall maintain an account, separate and
distinct from the Director
=
s
personal contributions, which account shall constitute the Retirement Income
Trust Fund. The trustee shall be charged with the responsibility of investing
all contributed funds. Distributions from the Retirement Income Trust Fund
of
the Elizabeth Hance Grantor Trust may be made by the trustee to the Director,
for purposes of payment of any
income
or
employment taxes due and owing on Contributions by the Bank to the Retirement
Income Trust Fund, if any, and on any taxable earnings associated with such
Contributions which the Director shall be required to pay from year to year,
under applicable law, prior to actual receipt of any benefit payments from
the
Retirement Income Trust Fund. If the Director exercises his withdrawal rights
pursuant to Subsection 2.2, the Bank
=
s
obligation to make Contributions to the Retirement Income Trust Fund shall
cease
and the Bank
=
s
obligation to record Phantom Contributions in the Accrued Benefit Account shall
immediately commence pursuant to Exhibit A and this Section II of the Agreement.
To the extent this Agreement is inconsistent with the Elizabeth Hance Grantor
Trust Agreement, the Elizabeth Hance Grantor Trust Agreement shall supersede
this Agreement.
The
annual Contributions (or Phantom Contributions) required to be made by the
Bank
to the Retirement Income Trust Fund (or recorded by the Bank in the Accrued
Benefit Account) have been actuarially determined and are set forth in Exhibit
A
which is attached hereto and incorporated herein by reference. Contributions
shall be made by the Bank to the Retirement Income Trust Fund (i) within
seventy-five (75) days of establishment of such trust, and (ii) within the
first
thirty (30) days of the beginning of each subsequent Plan Year, unless this
Section expressly provides otherwise. Phantom Contributions, if any, shall
be
recorded in the Accrued Benefit Account within the first thirty (30) days of
the
beginning of each applicable Plan Year, unless this Section expressly provides
otherwise. Phantom Contributions shall accrue interest at a rate equal to the
Interest Factor, during the Payout Period, until the balance of the Accrued
Benefit Account has been fully distributed. Interest on any Phantom Contribution
shall not commence until such Payout Period commences.
The
Administrator shall review the schedule of annual Contributions (or Phantom
Contributions) provided for in Exhibit A (i) within thirty (30) days prior
to
the close of each Plan Year and (ii) if the Director is employed by the Bank
until attaining Benefit Age, on or immediately before attainment of such Benefit
Age. Such review shall consist of an evaluation of the accuracy of all
assumptions used to establish the schedule of Contributions (or Phantom
Contributions). Provided that (i) the Director has not exercised his withdrawal
rights pursuant to Subsection 2.2 and (ii) the investments contained in the
Retirement Income Trust Fund have been deemed reasonable by the Bank, the
Administrator shall prospectively amend or supplement the schedule
of
Contributions provided for in Exhibit A should the Administrator determine
during any such review that
an
increase
in or
supplement
to
the
schedule of Contributions is necessary in order to adequately fund the
Retirement Income Trust Fund so as to provide an annual benefit (or to provide
the lump sum equivalent of such benefit, as applicable) equal to the
Supplemental Retirement Income Benefit, on an after-tax basis, commencing at
Benefit Age and payable for the duration of the Payout Period.
(b)
Withdrawal
Rights Not Exercised.
(1)
Contributions
Made Annually
If
the
Director does not exercise any withdrawal rights pursuant to Subsection 2.2,
the
annual Contributions to the Retirement Income Trust Fund shall continue each
year, unless this Subsection 2.1(b) specifically states otherwise, until the
earlier of (i) the last Plan Year that Contributions are required pursuant
to
Exhibit A, or (ii) the Plan Year of the Director's termination of
service.
(2)
Termination
Following a Change in Control
If
the
Director does not exercise his withdrawal rights pursuant to Subsection 2.2
and
a Change in Control occurs at the Bank, followed within thirty-six (36) months
by either (i) the Director's involuntary termination of service, or (ii)
Director's voluntary termination of service after: (A) a material change in
the
Director's function, duties, or responsibilities, which change would cause
the
Director's position to become one of lesser responsibility, importance, or
scope
from the position the Director held at the time of the Change in Control, (B)
a
relocation of the Director's principal place of service by more than thirty
(30)
miles from its location prior to the Change in Control, or (C) a material
reduction in the benefits and perquisites to the Director from those being
provided at the time of the Change in Control, the Emeritus Contributions as
set
forth on Schedule A shall continue to be required of the Bank. The Bank shall
be
required to make an immediate lump sum Contribution to the Director's Retirement
Income Trust Fund in an amount equal to: (i) the full Emeritus Contribution
required for the Plan Year in which such termination occurs, if not yet made,
plus (ii) the present value (computed using a discount rate equal to the
Interest Factor) of all remaining Emeritus Contributions to the Retirement
Income Trust Fund, and (iii) the present value (computed using the a discount
rate equal to the Interest Factor) of the interest only component of the
Elective Contribution; provided, however, that, if necessary, an
additional
amount shall be contributed to the Retirement Income Trust Fund which is
sufficient to provide the Director with after-tax benefits (assuming a constant
tax rate equal to the rate in effect as of the date of Director
=
s
termination) beginning at Benefit Age following such termination, equal in
amount to that benefit which would have been payable to the Director if no
secular trust had been implemented and the benefit obligation had been accrued
under APB Opinion No. 12, as amended by FAS 106.
(3)
Termination
For Cause
If
the
Director does not exercise his withdrawal rights pursuant to Subsection 2.2,
and
is terminated for Cause pursuant to Subsection 5.2, no further Contribution(s)
to the Retirement Income Trust Fund shall be required of the Bank, and if not
yet made, no Contribution shall be required for the Plan Year in which such
termination for Cause occurs.
(4)
Voluntary or Involuntary Termination of Service
.
If
the
Director does not exercise his withdrawal rights pursuant to
Subsection 2.2, and the Director's service with the Bank is voluntarily or
involuntarily terminated for any reason, including a termination due to
disability of the Director but excluding termination for Cause, or termination
following a Change in Control within thirty-six (36) months of such Change
in
Control, no further Contribution(s), as defined in Subsection 1.14, to the
Retirement Income Trust Fund shall be required of the Bank, and if not yet
made,
no Contribution shall be required for the Plan Year in which such termination
occurs. Notwithstanding the above, the Bank will be required to make annual
payments to Director’s Retirement Income Trust Fund determined as
follows:
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1.
|
Determine
what the accrued liability would have been as of the Director’s date of
termination, had no secular trust been
implemented.
|
|
2.
|
Determine
the benefit payable, beginning at the Benefit Age, for 180 months
which
that accrued liability would support had interest been added to that
liability on an annual basis using the Accrued Benefit Interest Factor
set
forth in Exhibit A.
|
|
3.
|
The
Bank shall make payments to the Director’s Retirement Income Trust Fund on
an annual basis in amounts equal to the accrued interest expense
which
would have been recorded absent the secular trust
arrangement.
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(5)
Death
During Service
.
If
the
Director does not exercise any withdrawal rights pursuant to
Subsection 2.2, and dies while employed by the Bank, and if, following the
Director
=
s
death,
the assets of the Retirement Income Trust Fund are insufficient to provide
the
Supplemental Retirement Income Benefit to which the Director is entitled, the
Bank shall be required to make a Contribution to the Retirement Income Trust
Fund equal to the sum of the remaining Contributions set forth on Exhibit A,
after taking into consideration any payments under any life insurance policies
that may have been obtained on the Director
=
s
life by
the Retirement Income Trust Fund. Such final contribution shall be payable
in a
lump sum to the Retirement Income Trust Fund within thirty (30) days of the
Director
=
s
death.
(c)
Withdrawal
Rights Exercised.
(1)
Phantom
Contributions Made Annually
.
If
the
Director exercises his withdrawal rights pursuant to Subsection 2.2, no further
Contributions to the Retirement Income Trust Fund shall be required of the
Bank.
Thereafter, Phantom Contributions shall be recorded annually in the Director's
Accrued Benefit Account within thirty (30) days of the beginning of each Plan
Year, commencing with the first Plan Year following the Plan Year in which
the
Director exercises his withdrawal rights. Such Phantom Contributions shall
continue to be recorded annually, unless this Subsection 2.1(c) specifically
states otherwise, until the earlier of (i) the last Plan Year that Phantom
Contributions are required pursuant to Exhibit A, or (ii) the Plan Year of
the
Director's termination of service.
(2)
Termination
Following a Change in Control
If
the
Director exercises his withdrawal rights pursuant to Subsection 2.2, Phantom
Contributions shall commence in the Plan Year following the Plan Year in which
the Director first exercises his withdrawal rights. If a Change in Control
occurs at the Bank, and within thirty-six (36) months of such Change in Control,
the Director's service is either (i) involuntarily terminated, or (ii)
voluntarily terminated by the Director after: (A) a material change in the
Director's function, duties, or responsibilities, which change would cause
the
Director's position to become one of lesser responsibility, importance, or
scope
from the position the Director held at the time of the Change in Control, (B)
a
relocation of the Director's principal place of service by more than thirty
(30)
miles from its location prior to the Change in Control, or (C) a material
reduction in the
benefits
and perquisites to the Director from those being provided at the time of the
Change in Control, the Phantom Contribution set forth below shall be required
of
the Bank. The Bank shall be required to record a lump sum Phantom Contribution
in the Accrued Benefit Account within ten (10) days of the Director
=
s
termination of service equal to (i) the full Emeritus Contribution required
for
the Plan Year in which such termination occurs, if not yet made, plus (ii)
the
present value (computed using a discount rate equal to the Interest Factor)
of
all remaining Emeritus Contributions to the Retirement Income Trust Fund, and
(iii) the present value (computed using the a discount rate equal to the
Interest Factor) of the interest only component of the Elective Contribution.
The amount of such final Phantom Contribution shall be actuarially determined
based on the Phantom Contribution required, at such time, in order to provide
a
benefit via this Agreement equal in amount to that benefit which would have
been
payable to the Director if no secular trust had been implemented and the benefit
obligation had been accrued under APB Opinion No. 12, as amended by FAS 106.
(Such actuarial determination shall reflect the fact that amounts shall be
payable from both the Accrued Benefit Account as well as the Retirement Income
Trust Fund and shall also reflect the amount and timing of any withdrawal(s)
made by the Director from the Retirement Income Trust Fund pursuant to
Subsection 2.2.)
(3)
Termination
For Cause
If
the
Director is terminated for Cause pursuant to Subsection 5.2, the entire balance
of the Director
=
s
Accrued
Benefit Account at the time of such termination, which shall include any Phantom
Contributions which have been recorded plus interest accrued on such Phantom
Contributions, shall be forfeited.
(4)
Voluntary
and
Involuntary
Termination of Service
.
If
the
Director exercises his withdrawal rights pursuant to Subsection 2.2, and the
Director's service with the Bank is voluntarily or involuntarily terminated
for
any reason including termination due to disability of the Director, but
excluding termination for Cause, or termination following a Change in Control,
within thirty (30) days of such termination of service, no further Phantom
Contributions shall be required of the Bank. Interest, at a rate equal to the
Interest Factor, shall accrue on such Phantom Contributions until the Director’s
Benefit Eligibility Date.
(5)
Death
During Service
.
If
the
Director exercises his withdrawal rights pursuant to Subsection 2.2, and
dies while employed by the Bank, Phantom Contributions included on Exhibit
A
shall be required of the Bank. Such Phantom Contributions shall commence in
the
Plan Year following the Plan Year in which the Director exercises his withdrawal
rights and shall continue through the Plan Year in which the Director dies.
The
Bank shall also be required to record a final Phantom Contribution within thirty
(30) days of the Director
=
s
death.
The amount of such final Phantom Contribution shall be actuarially determined
based on the Phantom Contribution required at such time (if any), in order
to
provide a benefit via this Agreement equivalent to the Supplemental Retirement
Income Benefit commencing within thirty (30) days of the date the Administrator
receives notice of the Director
=
s
death
and continuing for the duration of the Payout Period. (Such actuarial
determination shall reflect the fact that amounts shall be payable from the
Accrued Benefit Account as well as the Retirement Income Trust Fund and shall
also reflect the amount and timing of any withdrawal(s) made by the Director
pursuant to Subsection 2.2.)
2.2.2
|
Withdrawals
From Retirement Income Trust
Fund.
|
Exercise
of withdrawal rights by the Director pursuant to the Elizabeth Hance Grantor
Trust agreement shall terminate the Bank's obligation to make any further
Contributions to the Retirement Income Trust Fund, and the Bank
=
s
obligation to record Phantom Contributions pursuant to Subsection 2.1(c) shall
commence. For purposes of this Subsection 2.2,
A
exercise
of withdrawal rights
@
shall
mean those withdrawal rights to which the Director is entitled under Article
III
of the Elizabeth Hance Grantor Trust agreement and shall exclude any
distributions made by the trustee of the Retirement Income Trust Fund to the
Director for purposes of payment of income taxes in accordance with Subsection
2.1 of this Agreement and the tax reimbursement formula contained in the trust
document, or other trust expenses properly payable from the Elizabeth Hance
Grantor Trust pursuant to the provisions of the trust document.
2.3
|
Benefits
Payable From Retirement Income Trust
Fund
|
Notwithstanding
anything else to the contrary in this Agreement, in the event that the trustee
of the Retirement Income Trust Fund purchases a life insurance policy with
the
Contributions to and, if applicable, earnings of the Trust, and such life
insurance policy is intended to continue in force beyond the Payout Period
for
the disability or retirement benefits payable from the
Retirement
Income Trust Fund pursuant to this Agreement, then the trustee shall have
discretion to determine the portion of the cash value of such policy available
for purposes of annuitizing the Retirement Income Trust Fund (it being
understood that for purposes of this Section 2.3,
A
annuitizing
@
does not
mean surrender of such policy and annuitizing of the cash value received upon
such surrender) to provide the disability or retirement benefits payable under
this Agreement, after taking into consideration the amounts reasonably believed
to be required in order to maintain the cash value of such policy to continue
such policy in effect until the death of the Director and payment of death
benefits thereunder.
SECTION
III
RETIREMENT
BENEFIT
3.1
(a)
Normal
form of payment
.
If
(i)
the Director is employed with the Bank until reaching his Benefit Age and (ii)
the Director has not made a Timely Election to receive a lump sum benefit,
this
Subsection 3.1(a) shall be controlling with respect to retirement
benefits.
The
Retirement Income Trust Fund, measured as of the Director's Benefit Age, shall
be annuitized (using the Interest Factor) into monthly installments and shall
be
payable for the Payout Period. Such benefit payments shall commence on the
Director's Benefit Eligibility Date. Should Retirement Income Trust Fund assets
actually earn a rate of return, following the date such balance is annuitized,
which is less than the rate of return used to annuitize the Retirement Income
Trust Fund, no additional contributions to the Retirement Income Trust Fund
shall be required by the Bank in order to fund the final benefit payment(s)
and
make up for any shortage attributable to the less-than-expected rate of return.
Should Retirement Income Trust Fund assets actually earn a rate of return,
following the date such balance is annuitized, which is greater than the rate
of
return used to annuitize the Retirement Income Trust Fund, the final benefit
payment to the Director (or his Beneficiary) shall distribute the excess amounts
attributable to the greater-than-expected rate of return. The Director may
at
anytime during the Payout Period request to receive the unpaid balance of his
Retirement Income Trust Fund in a lump sum payment. If such a lump sum payment
is requested by the Director, payment of the balance of the Retirement Income
Trust Fund in such lump sum form shall be made only if the Director gives notice
to both
the
Administrator and trustee in writing. Such lump sum payment shall be payable
within thirty (30) days of such notice. In the event the Director dies at any
time after attaining his Benefit Age, but prior to commencement or completion
of
all monthly payments due and owing hereunder, (i) the trustee of the Retirement
Income Trust Fund shall pay to the Director's Beneficiary the monthly
installments (or a continuation of such monthly installments if they have
already commenced) for the balance of months remaining in the Payout Period,
or
(ii) the Director's Beneficiary may request to receive the unpaid balance of
the
Director's Retirement Income Trust Fund in a lump sum payment. If a lump sum
payment is requested by the Beneficiary, payment of the balance of the
Retirement Income Trust Fund in such lump sum form shall be made only if the
Director's Beneficiary notifies both the Administrator and trustee in writing
of
such election within ninety (90) days of the Director's death. Such lump sum
payment shall be payable within thirty (30) days of such notice.
The
Director
=
s
Accrued
Benefit Account (if applicable), measured as of the Director
=
s
Benefit
Age, shall be annuitized (using the Interest Factor) into monthly installments
and shall be payable for the Payout Period. Such benefit payments shall commence
on the Director
=
s
Benefit
Eligibility Date. In the event the Director dies at any time after attaining
his
Benefit Age, but prior to commencement or completion of all the payments due
and
owing hereunder, (i) the Bank shall pay to the Director
=
s
Beneficiary the same monthly installments (or a continuation of such monthly
installments if they have already commenced) for the balance of months remaining
in the Payout Period.
(b)
Alternative
payout option.
If
(i)
the Director is employed with the Bank until reaching his Benefit Age, and
(ii)
the Director has made a Timely Election to receive a lump sum benefit, this
Subsection 3.1(b) shall be controlling with respect to retirement benefits.
The
balance of the Retirement Income Trust Fund and the Accrued Benefit Account
(if
applicable), measured as of the Director
=
s
Benefit
Age, shall be paid to the Director in a lump sum on his Benefit Eligibility
Date. In the event the Director dies after becoming eligible for such payment
(upon attainment of his Benefit Age), but before the actual payment is made,
his
Beneficiary
shall be entitled to receive the lump sum benefit in accordance with this
Subsection 3.1(b) within thirty (30) days of the date the Administrator receives
notice of the Director’s death.
Notwithstanding
the foregoing, unless the Director has made a Timely Election to receive a
lump
sum distribution from the Accrued Benefit Account, distributions from the
Accrued Benefit Account will be paid over the Payout Period, commencing within
thirty (30) days of the Director’s Benefit Age.
SECTION
IV
PRE-RETIREMENT
DEATH BENEFIT
4.1
(a)
Normal form of payment
.
If
(i)
the Director dies while employed by the Bank, and (ii) the Director has not
made
a Timely Election to receive a lump sum benefit, this Subsection 4.1(a) shall
be
controlling with respect to pre-retirement death benefits.
The
balance of the Director
=
s
Retirement Income Trust Fund, measured as of the later of (i) the
Director
=
s
death,
or (ii) the date any final lump sum Contribution is made pursuant to Subsection
2.1(b), shall be annuitized (using the Interest Factor) into monthly
installments and shall be payable for the Payout Period. Such benefits shall
commence within thirty (30) days of the date the Administrator receives notice
of the Director
=
s
death.
Should Retirement Income Trust Fund assets actually earn a rate of return,
following the date such balance is annuitized, which is less than the rate
of
return used to annuitize the Retirement Income Trust Fund, no additional
contributions to the Retirement Income Trust Fund shall be required by the
Bank
in order to fund the final benefit payment(s) and make up for any shortage
attributable to the less-than-expected rate of return. Should Retirement Income
Trust Fund assets actually earn a rate of return, following the date such
balance is annuitized, which is greater than the rate of return used to
annuitize the Retirement Income Trust Fund, the final benefit payment to the
Director
=
s
Beneficiary shall distribute the excess amounts attributable to the
greater-than-expected rate of return. The Director
=
s
Beneficiary may request to receive the unpaid balance of the
Director
=
s
Retirement Income Trust Fund in a lump sum payment. If a lump sum payment is
requested by the Beneficiary, payment of the balance of the Retirement Income
Trust Fund in such lump sum form shall be made only if the Director
=
s
Beneficiary notifies both the Administrator and trustee
in
writing of such election within ninety (90) days of the Director
=
s
death.
Such lump sum payment shall be made within thirty (30) days of such
notice.
The
Director
=
s
Accrued
Benefit Account (if applicable), measured as of the later of (i) the
Director's death or (ii) the date any final lump sum Phantom Contribution is
recorded in the Accrued Benefit Account pursuant to Subsection 2.1(c), shall
be
annuitized (using the Interest Factor) into monthly installments and shall
be
payable to the Director's Beneficiary for the Payout Period. Such benefit
payments shall commence within thirty (30) days of the date the Administrator
receives notice of the Director
=
s
death,
or if later, within thirty (30) days after any final lump sum Phantom
Contribution is recorded in the Accrued Benefit Account in accordance with
Subsection 2.1(c).
(b)
Alternative
payout option
.
If
(i)
the Director dies while employed by the Bank, and (ii) the Director has made
a
Timely Election to receive a lump sum benefit, this Subsection 4.1(b) shall
be
controlling with respect to pre-retirement death benefits.
The
balance of the Director
=
s
Retirement Income Trust Fund and the Accrued Benefit Account (if applicable),
measured as of the later of (i) the Director
=
s
death,
or (ii) the date any final lump sum Contribution is made pursuant to Subsection
2.1(b), shall be paid to the Director's Beneficiary in a lump sum within thirty
(30) days of the date the Administrator receives notice of the Director's
death.
Notwithstanding the foregoing, unless the Director has made a Timely Election
to
receive a lump sum distribution with respect to the Accrued Benefit Account,
distributions from the Accrued Benefit Account will be paid over the Payout
Period commencing within thirty (30) days of the date the Administrator receives
notice of the Director
=
s
death.
SECTION
V
BENEFIT(S)
IN THE EVENT OF TERMINATION OF SERVICE
PRIOR
TO BENEFIT AGES
5.1
|
Voluntary
or Involuntary Termination of Service Other Than for Cause
.
In the event the Director
=
s
service with the Bank is voluntarily or involuntarily terminated
prior to
Benefit Age,
|
for
any
reason, including a Change in Control, but excluding (i) any disability related
termination for which the Board of Directors has approved early payment of
benefits pursuant to Subsection 6.1, (ii) the Director's pre-retirement death,
which shall be covered in Section IV, (iii) or termination for Cause, which
shall be covered in Subsection 5.2, the Director (or his Beneficiary) shall
be
entitled to receive benefits in accordance with this Subsection 5.1. Payments
of
benefits pursuant to this Subsection 5.1 shall be made in accordance with
Subsection 5.1(a) or 5.1(b) below, as applicable.
(a)
Normal
form of payment
.
(1)
Director
Lives Until Benefit Age
If
(i)
after such termination, the Director lives until attaining his Benefit Age,
and
(ii) the Director has not made a Timely Election to receive a lump sum benefit,
this Subsection 5.1(a)(1) shall be controlling with respect to retirement
benefits.
The
Retirement Income Trust Fund, measured as of the Director's Benefit Age, shall
be annuitized (using the Interest Factor) into monthly installments and shall
be
payable for the Payout Period. Such payments shall commence on the Director's
Benefit Eligibility Date. Should Retirement Income Trust Fund assets actually
earn a rate of return, following the date such balance is annuitized, which
is
less than the rate of return used to annuitize the Retirement Income Trust
Fund,
no additional contributions to the Retirement Income Trust Fund shall be
required by the Bank in order to fund the final benefit payment(s) and make
up
for any shortage attributable to the less-than-expected rate of return. Should
Retirement Income Trust Fund assets actually earn a rate of return, following
the date such balance is annuitized, which is greater than the rate of return
used to annuitize the Retirement Income Trust Fund, the final benefit payment
to
the Director (or his Beneficiary) shall distribute the excess amounts
attributable to the greater-than-expected rate of return. The Director may
at
anytime during the Payout Period request to receive the unpaid balance of his
Retirement Income Trust Fund in a lump sum payment. If such a lump sum payment
is requested by the Director, payment of the balance of the Retirement Income
Trust Fund in such lump sum form shall be made only if the Director gives notice
to both the Administrator and trustee in writing. Such lump sum payment shall
be
payable within thirty (30) days of such notice. In the event the Director dies
at any time after attaining his Benefit Age, but prior to commencement or
completion of all monthly payments due and owing hereunder, (i)
the
trustee of the Retirement Income Trust Fund shall pay to the Director's
Beneficiary the monthly installments (or a continuation of the monthly
installments if they have already commenced) for the balance of months remaining
in the Payout Period, or (ii) the Director's Beneficiary may request to receive
the unpaid balance of the Director's Retirement Income Trust Fund in a lump
sum
payment. If a lump sum payment is requested by the Beneficiary, payment of
the
balance of the Retirement Income Trust Fund in such lump sum form shall be
made
only if the Director's Beneficiary notifies both the Administrator and trustee
in writing of such election within ninety (90) days of the Director's death.
Such lump sum payment shall be made within thirty (30) days of such
notice.
The
Director
=
s
Accrued
Benefit Account (if applicable), measured as of the Director
=
s
Benefit
Age, shall be annuitized (using the Interest Factor) into monthly installments
and shall be payable for the Payout Period. Such benefit payments shall commence
on the Director
=
s
Benefit
Eligibility Date. In the event the Director dies at any time after attaining
his
Benefit Age, but prior to commencement or completion of all the payments due
and
owing hereunder, (i) the Bank shall pay to the Director
=
s
Beneficiary the same monthly installments (or a continuation of such monthly
installments if they have already commenced) for the balance of months remaining
in the Payout Period.
(2)
Director
Dies Prior to Benefit Age
If
(i)
after such termination, the Director dies prior to attaining his Benefit Age,
and (ii) the Director has not made a Timely Election to receive a lump sum
benefit, this Subsection 5.1(a)(2) shall be controlling with respect to
retirement benefits.
The
Retirement Income Trust Fund, measured as of the date of the Director's death,
shall be annuitized (using the Interest Factor) into monthly installments and
shall be payable for the Payout Period. Such payments shall commence within
thirty (30) days of the date the Administrator receives notice of the Director's
death. Should Retirement Income Trust Fund assets actually earn a rate of
return, following the date such balance is annuitized, which is less than the
rate of return used to annuitize the Retirement Income Trust Fund, no additional
contributions to the Retirement Income Trust Fund shall be required by the
Bank
in order to fund the final benefit payment(s) and make up for any shortage
attributable to the less-than-expected
rate
of
return. Should Retirement Income Trust Fund assets actually earn a rate of
return, following the date such balance is annuitized, which is greater than
the
rate of return used to annuitize the Retirement Income Trust Fund, the final
benefit payment to the Director's Beneficiary shall distribute the excess
amounts attributable to the greater-than-expected rate of return. The Director's
Beneficiary may request to receive the unpaid balance of the Director's
Retirement Income Trust Fund in the form of a lump sum payment. If a lump sum
payment is requested by the Beneficiary, payment of the balance of the
Retirement Income Trust Fund in such lump sum form shall be made only if the
Director's Beneficiary notifies both the Administrator and trustee in writing
of
such election within ninety (90) days of the Director's death. Such lump sum
payment shall be made within thirty (30) days of such notice.
The
Director
=
s
Accrued
Benefit Account (if applicable), measured as of the date of the
Director
=
s
death,
shall be annuitized (using the Interest Factor) into monthly installments and
shall be payable for the Payout Period. Such payments shall commence within
thirty (30) days of the date the Administrator receives notice of the
Director
=
s
death.
(b)
Alternative
Payout Option
.
(1)
Director
Lives Until Benefit Age
If
(i)
after such termination, the Director lives until attaining his Benefit Age,
and
(ii) the Director has made a Timely Election to receive a lump sum benefit,
this
Subsection 5.1(b)(1) shall be controlling with respect to retirement benefits.
The
balance of the Retirement Income Trust Fund and the Accrued Benefit Account
(if
applicable), measured as of the Director's Benefit Age, shall be paid to the
Director in a lump sum on his Benefit Eligibility Date. In the event the
Director dies after becoming eligible for such payment (upon attainment of
his
Benefit Age), but before the actual payment is made, his Beneficiary shall
be
entitled to receive the lump sum benefit in accordance with this Subsection
5.1(b)(1) within thirty (30) days of the date the Administrator receives notice
of the Director's death.
Notwithstanding the foregoing, unless the Director has made a Timely Election
to
receive a lump sum distribution from the Accrued Benefit Account, distributions
from the Accrued Benefit Account will be paid over the Payout Period, commencing
within thirty (30) days of the Director’s Benefit Age.
(2)
Director
Dies Prior to Benefit Age
If
(i)
after such termination, the Director dies prior to attaining his Benefit Age,
and (ii) the Director has made a Timely Election to receive a lump sum benefit,
this Subsection 5.1(b)(2) shall be controlling with respect to pre-retirement
death benefits.
The
balance of the Retirement Income Trust Fund and the Accrued Benefit Account
(if
applicable), measured as of the date of the Director's death, shall be paid
to
the Director's Beneficiary within thirty (30) days of the date the Administrator
receives notice of the Director's death.
Notwithstanding the foregoing, unless the Director has made a Timely Election
to
receive a lump sum distribution with respect to the Accrued Benefit Account,
distributions from the Accrued Benefit Account will be paid over the Payout
Period commencing within thirty (30) days of the date the Administrator receives
notice of the Director
=
s
death.
5.2
|
Termination
For Cause
.
|
If
the
Director is terminated for Cause, all benefits under this Agreement, other
than
those which can be paid from previous Contributions to the Retirement Income
Trust Fund (and earnings on such Contributions), shall be forfeited.
Furthermore, no further Contributions (or Phantom Contributions, as applicable)
shall be required of the Bank for the year in which such termination for Cause
occurs (if not yet made). The Director shall be entitled to receive a benefit
in
accordance with this Subsection 5.2.
The
balance of the Director
=
s
Retirement Income Trust Fund shall be paid to the Director in a lump sum on
his
Benefit Eligibility Date. In the event the Director dies prior to his Benefit
Eligibility Date, his Beneficiary shall be entitled to receive the balance
of
the Director's Retirement Income Trust Fund in a lump sum within thirty (30)
days of the date the Administrator receives notice of the Director's death.
SECTION
VI
OTHER
BENEFITS
6.1
|
(a)
Disability
Benefit
.
|
If
the
Director's service is terminated prior to Benefit Age due to a disability that
meets the criteria set forth below, the Director may request to receive the
Disability Benefit in lieu of the retirement benefit(s) available pursuant
to
Section 5.1 (which is (are) not available prior to the Director's Benefit
Eligibility Date).
In
any
instance in which it is determined by a duly licensed, independent physician
selected by the Bank, that the Director
is
“disabled,”
the
Director shall be entitled to receive a lump sum Disability Benefit
hereunder.
For
these
purposes, a distribution from the Accrued Benefit Account (but not the
Retirement Income Trust Fund) shall require a determination that the Director
is
“disabled”
within the meaning of proposed Treasury Regulation Section
1.409A-3(g)(4).
The
Director shall be entitled to the following lump sum benefit(s) in lieu of
any
benefits under Subsection 5.1. The lump sum benefit(s) to which the Director
is
entitled shall include: (i) the balance of the Retirement Income Trust Fund,
plus (ii) the balance of the Accrued Benefit Account (if applicable). The
benefit(s) shall be paid within thirty (30) days following the date of the
Director's final disability determination. In the event the Director dies after
becoming eligible for such payment(s) but before the actual payment(s) is (are)
made, his Beneficiary shall be entitled to receive the benefit(s) provided
for
in this Subsection 6.1(a) within thirty (30) days of the date the Administrator
receives notice of the Director's death.
(b)
Disability
Benefit - Supplemental.
Furthermore,
if Board of Director approval is obtained within thirty (30) days of the
Director
=
s
death,
the Bank shall make a direct, lump sum payment to the Director's Beneficiary
in
an amount equal to the sum of all remaining Contributions (or Phantom
Contributions) set forth in Exhibit A, but not required pursuant to Subsection
2.1(b) (or 2.1(c)) due to the Director's disability-related termination. Such
lump sum payment, if approved by the Board of Directors, shall be payable to
the
Director
=
s
Beneficiary within thirty (30) days of such Board of Director
approval.
6.2
|
Additional
Death Benefit - Burial Expense
.
|
Upon
the
Director
=
s
death,
the Director
=
s
Beneficiary shall also be entitled to receive a one-time lump sum death benefit
in the amount of Ten Thousand Dollars ($10,000). This benefit shall be paid
directly from the Bank to the Beneficiary and shall be provided specifically
for
the purpose of providing payment for burial and/or funeral expenses of the
Director. Such death benefit shall be payable within thirty (30) days of the
date the Administrator receives notice of the Director
=
s
death.
The Director
=
s
Beneficiary shall not be entitled to such benefit if the Director is terminated
for Cause prior to death.
SECTION
VII
BENEFICIARY
DESIGNATION
The
Director shall make an initial designation of primary and secondary
Beneficiaries upon execution of this Agreement and shall have the right to
change such designation, at any subsequent time, by submitting to (i) the
Administrator,
and
(ii) the
trustee of the Retirement Income Trust Fund, in substantially the form attached
as Exhibit B to this Agreement, a written designation of primary and secondary
Beneficiaries. Any Beneficiary designation made subsequent to execution of
this
Agreement shall become effective only when receipt thereof is acknowledged
in
writing by the Administrator.
SECTION
VIII
DIRECTOR'S
RIGHT TO ASSETS
The
rights of the Director, any Beneficiary, or any other person claiming through
the Director under this Agreement, shall be solely those of an unsecured general
creditor of the Bank. The Director, the Beneficiary, or any other person
claiming through the Director, shall only have the right to receive from the
Bank those payments or amounts so specified under this Agreement. The Director
agrees that he, his Beneficiary, or any other person claiming through him shall
have no rights or interests whatsoever in any asset of the Bank, including
any
insurance policies or contracts which the Bank may possess or obtain to
informally fund this Agreement. Any asset used or acquired by the Bank in
connection with the liabilities it has assumed under this Agreement shall not
be
deemed to be held under any trust for the benefit of the Director or his
Beneficiaries, unless such asset is contained in the rabbi trust described
in
Section
XII of this Agreement. Any such asset shall be and remain a general, unpledged
asset of the Bank in the event of the Bank
=
s
insolvency.
SECTION
IX
RESTRICTIONS
UPON FUNDING
The
Bank
shall have no obligation to set aside, earmark or entrust any fund or money
with
which to pay its obligations under this Agreement, other than those
Contributions required to be made to the Retirement Income Trust Fund. The
Director, his Beneficiaries or any successor in interest to him shall be and
remain simply a general unsecured creditor of the Bank in the same manner as
any
other creditor having a general claim for matured and unpaid compensation.
The
Bank reserves the absolute right in its sole discretion to either purchase
assets to meet its obligations undertaken by this Agreement or to refrain from
the same and to determine the extent, nature, and method of such asset
purchases. Should the Bank decide to purchase assets such as life insurance,
mutual funds, disability policies or annuities, the Bank reserves the absolute
right, in its sole discretion, to replace such assets from time to time or
to
terminate its investment in such assets at any time, in whole or in part. At
no
time shall the Director be deemed to have any lien, right, title or interest
in
or to any specific investment or to any assets of the Bank. If the Bank elects
to invest in a life insurance, disability or annuity policy upon the life of
the
Director, then the Director shall assist the Bank by freely submitting to a
physical examination and by supplying such additional information necessary
to
obtain such insurance or annuities.
SECTION
X
ACT
PROVISIONS
10.1
|
Named
Fiduciary and Administrator
.
The Bank, as Administrator, shall be the Named Fiduciary of this
Agreement. As Administrator, the Bank shall be responsible for the
management, control and administration of the Agreement as established
herein. The Administrator may delegate to others certain aspects
of the
management and operational responsibilities of the Agreement, including
the employment of advisors and the delegation of ministerial duties
to
qualified individuals.
|
10.2
|
Claims
Procedure and Arbitration11.2
Claims
Procedure and Arbitration
.
In the event that benefits under this Agreement are not paid to the
Director (or to his Beneficiary in the case of the Director's death)
and
such claimants feel they are entitled to receive such benefits, then
a
written claim must be made to the Administrator within sixty (60)
days
from the date payments are refused. The Administrator shall review
the
written claim and, if the claim is denied, in whole or in part, it
shall
provide in writing, within ninety (90) days of receipt of such claim,
its
specific reasons for such denial, reference to the provisions of
this
Agreement upon which the denial is based, and any additional material
or
information necessary to perfect the claim. Such writing by the
Administrator shall further indicate the additional steps which must
be
undertaken by claimants if an additional review of the claim denial
is
desired.
|
If
claimants desire a second review, they shall notify the Administrator in writing
within sixty (60) days of the first claim denial. Claimants may review this
Agreement or any documents relating thereto and submit any issues and comments,
in writing, they may feel appropriate. In its sole discretion, the Administrator
shall then review the second claim and provide a written decision within sixty
(60) days of receipt of such claim. This decision shall state the specific
reasons for the decision and shall include reference to specific provisions
of
this Agreement upon which the decision is based.
If
claimants continue to dispute the benefit denial based upon completed
performance of this Plan and the Agreement or the meaning and effect of the
terms and conditions thereof, then claimants may submit the dispute to
mediation, administered by the American Arbitration Association (
A
AAA
@
)
(or a
mediator selected by the parties) in accordance with the AAA
=
s
Commercial Mediation Rules. If mediation is not successful in resolving the
dispute, it shall be settled by arbitration administered by the AAA under its
Commercial Arbitration Rules, and judgment on the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction
thereof.
SECTION
XI
MISCELLANEOUS
11.1
|
No
Effect on Employment Rights
.
Nothing contained herein will confer upon the Director the right
to be
retained in the service of the Bank nor limit the right of the
Bank to
discharge or otherwise deal with the Director without regard to
the
existence of the Agreement.
|
11.2
|
Governing
Law.
The
Agreement is established under, and will be construed according
to, the
laws of the state of New Jersey, to the extent such laws are not
preempted
by the Act or other applicable federal law and valid regulations
published
thereunder.
|
11.3
|
Construction
and Severability.
The
funding of and payment of benefits from the Accrued Benefit Account
is
deemed to be a nonqualified deferred compensation arrangement within
the
meaning of Code Section 409A. To the extent that the funding of
a benefit
under the Retirement Income Trust Fund under this Agreement is
deemed to
be a nonqualified deferred compensation arrangement, then that
part of
this Agreement shall also be operated, administered and construed
consistent with Code Section 409A. To the extent that a provision
of the
Agreement fails to comply with Code Section 409A and a construction
consistent with Code Section 409A is not possible, such provision
shall be
void
ab
initio
.
In addition, the Agreement shall be subject to amendment, with
or without
advance notice to Director and other interested parties, and on
a
prospective or retroactive basis, including but not limited to
amendment
in a manner that adversely affects the rights of Directors and
other
interested parties, to the extent necessary to effect compliance
with Code
Section 409A. In the event that any of the provisions of this Agreement
or
portion thereof, are held to be inoperative or invalid by any court
of
competent jurisdiction, then: (1) insofar as is reasonable, effect
will be
given to the intent manifested in the provisions held invalid or
inoperative, and (2) the validity and enforceability of the remaining
provisions will not be affected
thereby.
|
11.4
|
Treatment
as a Director
.
For purposes of this Agreement, it is assumed that the Director
is treated
as a “director” in accordance with Proposed Treasury Regulation Section
1.409A-1(h)(2). If under future guidance or rulings promulgated
by the
Internal Revenue Service or Treasury Department under Code Section
409A it
is determined that the Director should properly be
|
treated
as an “employee” for purposes of this Agreement, distributions to the Director
due to Separation from Service will be made in accordance with the provisions
of
Proposed Treasury Regulation Section 1.409A-1(h)(1).
11.5
|
Incapacity
of Recipient.
In
the event the Director is declared incompetent and a conservator
or other
person legally charged with the care of his person or Estate is
appointed,
any benefits under the Agreement to which such Director is entitled
shall
be paid to such conservator or other person legally charged with
the care
of his person or Estate.
|
11.6
|
Unclaimed
Benefit.
The Director shall keep the Bank informed of his current address
and the
current address of his Beneficiaries. The Bank shall not be obligated
to
search for the whereabouts of any person. If the location of the
Director
is not made known to the Bank as of the date upon which any payment
of any
benefits from the Accrued Benefit Account may first be made, the
Bank
shall delay payment of the Director's benefit payment(s) until
the
location of the Director is made known to the Bank; however, the
Bank
shall only be obligated to hold such benefit payment(s) for the
Director
until the expiration of thirty-six (36) months.
|
11.7
|
Limitations
on Liability.
Notwithstanding any of the preceding provisions of the Agreement,
no
individual acting as an employee or agent of the Bank, or as a
member of
the Board of Directors shall be personally liable to the Director
or any
other person for any claim, loss, liability or expense incurred
in
connection with the Agreement.
|
11.8
|
GenderDirectors
shall be personally liable to the Executive or any other person
for any
claim, loss, liability or expense incurred in connection with the
Agreement.
Whenever in this Agreement words are used in the masculine or neuter
gender, they shall be read and construed as in the masculine, feminine
or
neuter gender, whenever they should so
apply.
|
11.9
|
Effect
on Other Corporate Benefit Agreements.
Nothing contained in this Agreement shall affect the right of the
Director
to participate in or be covered by any qualified or non-qualified
pension,
profit sharing, group, bonus or other supplemental compensation
or fringe
benefit agreement constituting a part of the Bank's existing or
future
compensation structure.
|
11.10
|
Suicide.
Notwithstanding anything to the contrary in this Agreement, if
the
Director's death results from suicide, whether sane or insane,
within
twenty-six (26) months after execution of this
|
Agreement,
all further Contributions to the Retirement Income Trust Fund (or Phantom
Contributions recorded in the Accrued Benefit Account) shall thereupon cease,
and no Contribution (or Phantom Contribution) shall be made by the Bank to
the
Retirement Income Trust Fund (or recorded in the Accrued Benefit Account)
in the
year such death resulting from suicide occurs (if not yet made). All benefits
other than those available from previous Contributions to the Retirement
Income
Trust Fund under this Agreement shall be forfeited, and this Agreement shall
become null and void. The balance of the Retirement Income Trust Fund, measured
as of the Director's date of death, shall be paid to the Beneficiary within
thirty (30) days of the date the Administrator receives notice of the Director's
death.
11.11
|
Inurement.
This Agreement shall be binding upon and shall inure to the benefit
of the
Bank, its successors and assigns, and the Director, his successors,
heirs,
executors, administrators, and
Beneficiaries.
|
11.12
|
Headings.
Headings and sub-headings in this Agreement are inserted for reference
and
convenience only and shall not be deemed a part of this
Agreement.
|
11.13
|
Establishment
of a Rabbi Trust.
The Bank shall establish a rabbi trust into which the Bank shall
contribute assets which shall be held therein, subject to the claims
of
the Bank's creditors in the event of the Bank's "Insolvency" (as
defined
in such rabbi trust agreement), until the contributed assets are
paid to
the Director and/or his Beneficiary in such manner and at such
times as
specified in this Agreement. It is the intention of the Bank that
the
contribution or contributions to the rabbi trust shall provide
the Bank
with a source of funds to assist it in meeting the liabilities
of this
Agreement.
|
11.14
|
Source
of Payments
.
All payments provided in this Agreement shall be timely paid in
cash or
check from the general funds of the Bank or the assets of the rabbi
trust,
to the extent made from the Accrued Benefit Account.
|
SECTION
XII
AMENDMENT/PLAN
TERMINATION
12.1
|
Amendment
or Plan Termination.
The Bank intends this Agreement to be permanent,
but
reserves the right to amend or terminate the Agreement when such
amendment
or termination is required due to objection to the plan by the
Bank's
regulatory authorities.
The
Agreement may not be amended or terminated without the express
written
consent of the parties. Any amendment or termination of the Agreement
shall be made pursuant to a resolution of the Board of Directors
of the
Bank and shall be effective as of the date of such resolution.
No
amendment or termination of the Agreement shall directly or indirectly
deprive the Director of all or any portion of the Director's Retirement
Income Trust Fund (and Accrued Benefit Account, if applicable)
as of the
effective date of the resolution amending or terminating the
Agreement.
|
Notwithstanding
the foregoing, if an individual Director’s agreement is subject to Code Section
409A, :the Bank may terminate this Agreement only under the following
circumstances and conditions:
|
(a)
|
The
Board of Directors may terminate the Agreement within 12 months
of a
corporate dissolution taxed under Code Section 331, or with approval
of a
bankruptcy court pursuant to 11 U.S.C. §503(b)(1)(A), provided that the
amounts deferred under the Agreement are included in the Director’s gross
income in the latest of (i) the calendar year in which the Agreement
terminates; (ii) the calendar year in which the amount is no longer
subject to a substantial risk of forfeiture; or (iii) the first
calendar
year in which the payment is administratively
practicable.
|
|
(b)
|
The
Board of Directors may terminate the Agreement within the 30 days
preceding a Change in Control (but not following a Change in Control),
provided that the Agreement shall only be treated as terminated
if all
substantially similar arrangements sponsored by the Bank are terminated
so
that the Director and all participants under substantially similar
arrangements are required to receive all amounts of compensation
deferred
under the terminated arrangements within 12 months of the date
of the
termination of the
arrangements.
|
|
(c)
|
The
Board of Directors may terminate the Agreement provided that (i)
all
arrangements sponsored by the Bank that would be aggregated with
this
Agreement under Proposed Regulation Section 1.409A-1(c) if the
Director
covered by this Agreement was also covered by any of those other
arrangements are also terminated; (ii) no payments other than payments
that would be payable under the terms of the arrangement if the
termination had not occurred are made within 12 months of the termination
of the arrangement; (iii) all payments are made within 24 months
of the
termination of the arrangements; and (iv) the Bank does not adopt
a new
arrangement that would be aggregated with any terminated arrangement
under
Proposed Regulation Section 1.409A-1(c) if the Director participated
in
both arrangements, at any time within five years following the
date of
termination of the arrangement.
|
12.2
|
Director's
Right to Payment Following Plan Termination.
In
the event of a termination of the Agreement, the Director shall
be
entitled to the balance, if any, of his Retirement Income Trust
Fund (and
Accrued Benefit Account, if applicable). However, if such termination
is
done in anticipation of or pursuant to a
A
Change
in Control,
@
such balance(s) shall include the final Contribution (or final
Phantom
Contribution) made (or recorded) pursuant to Subsection 2.1(b)(2)
(or
2.1(c)(2)). Payment of the balance(s) of the Director's Retirement
Income
Trust Fund (and Accrued Benefit Account, if applicable) shall not
be
dependent upon his continuation of service with the Bank following
the
termination date of the Agreement. Payment of the balance(s) of
the
Director's Retirement Income Trust Fund (and Accrued Benefit Account,
if
applicable) shall be made in a lump sum within thirty (30) days
of the
date of termination of the
Agreement.
|
SECTION
XIII
EXECUTION
13.1
|
This
Agreement and the Elizabeth Hance Grantor Trust Agreement set forth
the
entire understanding of the parties hereto with respect to the
transactions contemplated hereby, and any previous agreements or
understandings between the parties hereto regarding the subject
matter
hereof are merged into and superseded by this Agreement and the
Elizabeth
Hance Grantor Trust Agreement.
|
13.2
|
This
Agreement shall be executed in triplicate, each copy of which,
when so
executed and delivered, shall be an original, but all three copies
shall
together constitute one and the same
instrument.
|
[Remainder
of Page
Intentionally
Left Blank]
IN
WITNESS WHEREOF, the Bank and the Director have caused this Agreement to
be
executed on the day and date first above written.
ATTEST:
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MAGYAR
BANK:
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/s/
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By:
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/s/
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Title:
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WITNESS:
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DIRECTOR:
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/s/
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/s/
Elizabeth E. Hance
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CONDITIONS,
ASSUMPTIONS,
AND
SCHEDULE
OF CONTRIBUTIONS AND PHANTOM CONTRIBUTIONS
1.
|
Interest
Factor - for purposes of:
|
|
a.
|
the
Accrued Benefit Account - shall be six percent (6%) per annum,
compounded
monthly.
|
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b.
|
the
Elective Contributions - shall be ten percent (10%) per annum,
compounded
monthly.
|
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c.
|
the
Emeritus Contributions - shall be six percent (6%) per annum, compounded
monthly.
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d.
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the
Retirement Income Trust Fund - for purposes of annuitizing the
balance of
the Retirement Income Trust Fund over the Payout Period, the trustee
of
the Elizabeth Hance Grantor Trust shall exercise discretion in
selecting
the appropriate rate given the nature of the investments contained
in the
Retirement Income Trust Fund and the expected return associated
with the
investments. For these purposes, if the trustee of the Retirement
Income
Trust Fund has purchased a life insurance policy, the trustee shall
have
the discretion to determine the portion of the cash value of such
policy
available for purposes of annuitizing the Retirement Income Trust
Fund, in
accordance with Section 2.3 of the Agreement.
|
2.
|
The
amount of the annual Emeritus Contributions (or Phantom Contributions)
to
the Retirement Income Trust Fund (or Accrued Benefit Account) has
been
based on the annual interest-adjusted accounting accruals which
would be
required of the Bank through the earlier of the Director
=
s
death or Benefit Age, (i) pursuant to APB Opinion No. 12, as amended
by
FAS 106 and (ii) assuming a discount rate equal to six percent
(6%) per
annum, in order to provide a portion of the unfunded, non-qualified
Supplemental Retirement Income Benefit. The Emeritus Contributions
are
calculated to support a benefit based upon
60%
of
the Director’s total board fees, committee fees and/or retainer in the
twelve months prior to Director’s Benefit Eligibility Date.
|
3.
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The
amount of the annual Elective Contributions (or Phantom Contributions) to
the Retirement Income Trust Fund (or Accrued Benefit Account) has
been
based on the annual interest-adjusted accounting accruals which
would be
required of the Bank through the earlier of the Director’s death or
Benefit Age, (i) pursuant to APB Opinion No. 12, as amended by
FAS 106 and
(ii) assuming a discount rate equal to ten percent (10%) per annum,
in
order to provide a portion of the unfunded, non-qualified Supplemental
Retirement Income Benefit. Director has elected a monthly, pre-tax
deferral of board fees, committee fess and/or retainer in the amount
of
$1,603
per month ending January 2006.
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4.
|
For
purposes of this Agreement, and benefit calculations under this
Agreement,
future increases in Board Fees after 2006 will be limited to the
actual
increase or four percent (4%), whichever is
less.
|
Exhibit
A
5.
|
Supplemental
Retirement Income Benefit means an actuarially determined annual
amount
equal to One Hundred and Thirty-Eight Thousand Nine Hundred and
Twelve
Dollars ($138,912) at age 65 if paid entirely from the Accrued
Benefit
Account or Eighty-Eight Thousand Nine Hundred and Four Dollars
($88,904)
at age 65 if paid from the Retirement Income Trust
Fund.
|
The
Supplemental Retirement Income Benefit:
|
!
|
the
definition of Supplemental Retirement Income Benefit has been incorporated
into the Agreement for the sole purpose of actuarially establishing
the
amount of annual Contributions (or Phantom Contributions) to the
Retirement Income Trust Fund (or Accrued Benefit Account). The
amount of
any actual retirement, pre-retirement or disability benefit payable
pursuant to the Agreement will be a function of (i) the amount
and timing
of Contributions (or Phantom Contributions) to the Retirement Income
Trust
Fund (or Accrued Benefit Account) and (ii) the actual investment
experience of such Contributions (or the monthly compounding rate
of
Phantom Contributions).
|
6.
Schedule
of Annual Gross Contributions/Phantom Contributions
Plan
Year
|
|
Elective
Contributions
|
Emeritus
Contributions
|
Total
Contributions
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2004
|
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$
|
188,713
|
|
$
|
23,130
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$
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211,843
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2005
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40,071
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6,951
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47,022
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2006
|
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25,728
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7,720
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33,448
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2007
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26,651
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8,558
|
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35,209
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2008
|
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29,441
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9,470
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38,911
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2009
|
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32,524
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10,462
|
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42,986
|
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2010
|
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35,930
|
|
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11,540
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47,470
|
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2011
|
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39,692
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|
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12,711
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52,403
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2012
|
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43,849
|
|
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13,983
|
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57,832
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2013
|
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48,440
|
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15,364
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63,804
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2014
|
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53,512
|
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16,861
|
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70,373
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2015
|
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59,116
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18,485
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|
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77,601
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2016
|
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65,306
|
|
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20,245
|
|
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85,551
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2017
|
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72,145
|
|
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22,152
|
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94,297
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2018
|
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|
79,699
|
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24,217
|
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103,916
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2019
|
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87,240
|
|
|
21,032
|
|
|
108,272
|
|
|
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Exhibit
A
- Cont
=
d.
RESTATED
DIRECTOR
SUPPLEMENTAL RETIREMENT INCOME and
DEFERRED
COMPENSATION AGREEMENT
BENEFICIARY
DESIGNATION
The
Director, under the terms of the Restated Director Supplemental Retirement
Income and Deferred Compensation Agreement executed by the Bank, dated the
1st
day of February, 2004, as amended and restated effective January 1, 2006,
hereby
designates the following Beneficiary(ies) to receive any guaranteed payments
or
death benefits under such Agreement, following his death:
PRIMARY
BENEFICIARY:
|
|
|
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SECONDARY
BENEFICIARY:
|
|
This
Beneficiary Designation hereby revokes any prior Beneficiary Designation
which
may have been in effect.
Such
Beneficiary Designation is revocable.
DATE:
______________________, 20__
Exhibit
B
RESTATED
DIRECTOR
SUPPLEMENTAL RETIREMENT INCOME and
DEFERRED
COMPENSATION AGREEMENT
NOTICE
OF ELECTION TO CHANGE FORM OF PAYMENT
I
hereby
give notice of my election to change the form of payment of my Supplemental
Retirement Income Benefit, as specified below.
I
understand that such notice,
in
order to be effective, must be submitted in accordance with the time
requirements described in Subsection 1.27 of my Restated Director Supplemental
Retirement Income and Deferred Compensation Agreement.
|
G
|
I
hereby elect to change the form of payment of my benefits from
monthly
installments throughout my Payout Period to a lump sum benefit
payment.
|
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G
|
I
hereby elect to change the form of payment of my benefits from
a lump sum
benefit payment to monthly installments throughout my Payout Period.
Such
election hereby revokes my previous notice of election to receive
a lump
sum form of benefit payments.
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DIRECTOR
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DATE
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ACKNOWLEDGED
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BY:
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TITLE:
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DATE
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Exhibit
C
RESTATED
DIRECTOR
SUPPLEMENTAL RETIREMENT INCOME and
DEFERRED
COMPENSATION AGREEMENT
NOTICE
OF ADJUSTMENT OF ELECTIVE CONTRIBUTION
I
hereby
give notice of my election to adjust the amount of my Elective Contribution
in
accordance with my Restated Director Supplemental Retirement Income and Deferred
Compensation Agreement, dated the 1
st
day of
February, 2004, as amended and restated effective January 1, 2006. This notice
is submitted thirty (30) days prior to January 1st, and shall become effective
January 1st, as specified below.
Adjust
deferral as of:
|
January
1st, 2___
|
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Previous
Deferral Amount
|
____________
per month
|
New
Deferral Amount
|
____________
per month
|
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(to
discontinue deferral, enter $0)
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DIRECTOR
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DATE
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ACKNOWLEDGED
BY
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TITLE
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DATE
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Exhibit
D
Exhibit
10.4
RESTATED
DIRECTOR
SUPPLEMENTAL RETIREMENT
INCOME
and DEFERRED COMPENSATION AGREEMENT
FOR
JOSEPH J. LUKACS, JR.
MAGYAR
BANK
New
Brunswick, New Jersey
January
1, 2006
Financial
Institution Consulting Corporation
700
Colonial Road, Suite 102
Memphis,
Tennessee 38117
WATS:
1-800-873-0089
FAX:
(901) 684-7414
(901)
684-7400
RESTATED
DIRECTOR
SUPPLEMENTAL RETIREMENT
INCOME
and DEFERRED COMPENSATION AGREEMENT
FOR
JOSEPH J. LUKACS, JR.
This
Restated Director Supplemental Retirement Income and Deferred Compensation
Agreement for Joseph J. Lukacs, Jr. (the "Agreement"), effective as of the
1st
day of January, 2006, amends and restates the Director Supplemental Retirement
Income and Deferred Compensation Agreement for Joseph J. Lukacs, Jr. dated
February 1, 2004, and formalizes the understanding by and between MAGYAR BANK
(the "Bank"), a state chartered savings bank having its principal place of
business in New Brunswick, New Jersey, and JOSEPH J. LUKACS, JR. (hereinafter
referred to as "Director"). All prior non-qualified Director deferred
compensation agreements, including any and all Joinder Agreements, with respect
to the Director and MAGYAR BANK, are hereby superseded and replaced by this
Agreement
W
I T N E S S E T H :
WHEREAS
,
the
Director serves the Bank as a member of the board; and
WHEREAS
,
the
Bank recognizes the valuable services heretofore performed by the Director
and
wishes to encourage his continued service; and
WHEREAS
,
the
Director wishes to be assured that the Director will be entitled to a certain
amount of additional compensation for some definite period of time from and
after retirement from active service with the Bank or other termination of
service and wishes to provide his beneficiary with benefits from and after
death; and
WHEREAS
,
the
Bank and the Director wish to provide the terms and conditions upon which the
Bank shall pay such additional compensation to the Director after retirement
or
other termination of service and/or death benefits to his beneficiary after
death; and
WHEREAS
,
the
Bank has adopted this Director Supplemental Retirement Income and Deferred
Compensation Agreement which controls all issues relating to benefits as
described herein; and
WHEREAS
,
Section
409A of the Internal Revenue Code of 1986 (“Code”), as amended, requires that
certain deferred compensation arrangements comply with its terms or subject
the
recipient of the compensation to potential taxes and penalties; and
WHEREAS
,
the
Bank desires to amend and restate the Agreement to comply with Code Section
409A
and any Treasury Regulations promulgated thereunder; and
WHEREAS
,
the
Board of Directors of the Bank has conditionally approved
the
amendment and restatement of the Agreement, subject to the approval of the
New
Jersey Department of Banking and Insurance.
NOW,
THEREFORE,
in
consideration of the premises and of the mutual promises herein contained,
the
Bank and the Director agree as follows:
SECTION
I
DEFINITIONS
When
used
herein, the following words and phrases shall have the meanings below unless
the
context clearly indicates otherwise:
1.1
|
"Accrued
Benefit Account" shall be
represented
by
the bookkeeping entries required to record the Director
=
s
(i) Phantom Contributions plus (ii) accrued interest, equal to the
Interest Factor, earned to-date on such amounts. However, neither
the
existence of such bookkeeping entries nor the Accrued Benefit Account
itself shall be deemed to create either a trust of any kind, or a
fiduciary relationship between the Bank and the Director or any
Beneficiary.
|
1.2
|
"Act"
means the Employee Retirement Income Security Act of 1974, as amended
from
time to time.
|
1.3
|
A
Administrator
@
means the Bank.
|
1.4
|
"Bank"
means MAGYAR BANK and any successor
thereto.
|
1.5
|
"Beneficiary"
means the person or persons (and their heirs) designated as Beneficiary
in
Exhibit B of this Agreement to whom the deceased Director
=
s
benefits are payable. If no Beneficiary is so designated, then the
Director
=
s
Spouse, if living, will be deemed the Beneficiary. If the
Director
=
s
Spouse is not living, then the Children of the Director will be deemed
the
Beneficiaries and will take on a per stirpes basis. If there are
no
Children, then the Estate of the Director will be deemed the
Beneficiary.
|
1.6
|
"Benefit
Age" for the Phase One Payout (for accruals begun under the
Director
Deferred Compensation Master Agreement Type “A
”
(Feb. 1, 1996)) means the later of: (i) the Director’s sixty-fifth
(65
th
)
birthday or (ii) the actual date the Director’s full-time service with the
Bank terminates.
|
|
"Benefit
Age" for the Phase Two Payout (for accruals begun under the
Director
Emeritus Plan
(Feb. 1, 1996 superceded by a new plan on Sept. 1, 2001)) means the
later
of: (i) the Director’s seventy-fifth (75
th
)
birthday or (ii) the actual date the Director’s full-time service with the
Bank terminates.
|
1.7
|
"Benefit
Eligibility Date" means the date on which the Director is entitled
to
receive any benefit(s) pursuant to Section(s) III or V of this Agreement.
It shall be the first day of the month following both the attainment
of
the Directors’ Benefit Age and his actual retirement from the Board of
Directors.
|
1.8
|
"Board
of Directors" means the board of directors of the
Bank.
|
1.9
|
"Cause"
means termination of the Director
=
s
service on the Board of Directors due to: (i) actions or inactions
which
constitute a breach of the bylaws of the Bank or (ii) the
Director
=
s
personal dishonesty, willful misconduct, willful malfeasance, breach
of
fiduciary duty involving personal profit, intentional failure to
perform
stated duties, willful violation of any law, rule, regulation (other
than
traffic violations or similar offenses), or final cease-and-desist
order,
material breach of any provision of this Plan, or gross negligence
in
matters of material importance to the
Bank.
|
1.10
|
“Change
in Control” shall mean a change in the ownership of the Bank or Company
under paragraph (a) below, a change in effective control of the Bank
or
Company under paragraph (b)
|
below,
or
a change in the ownership of a substantial portion of the assets of the Bank
or
Company under paragraph (c) below. For all purposes hereunder, the definition
of
Change in Control shall be construed to be consistent with the requirements
of
Proposed Treasury Regulation Section 1.409A-3(g), except to the extent that
such
proposed regulations are superseded by subsequent guidance.
For
this
subsection “persons acting as a group” is defined as follows; Persons will be
considered to be acting as a group if they are owners of a corporation that
enters into a merger, consolidation, purchase or acquisition of stock, or
similar business transaction with the corporation. Persons will not be
considered to be acting as a group solely because they purchase or own stock
of
the same corporation at the same time, or as a result of the same public
offering. If a person, including an entity, owns stock in both corporations
that
enter into a merger, consolidation, purchase or acquisition of stock, or similar
transaction, such shareholder is considered to be acting as a group with other
shareholders in a corporation only with respect to the ownership in that
corporation prior to the transaction giving rise to the change and not with
respect to the ownership interest in the other corporation.
|
(a)
|
Change
in Ownership of the Bank or Company
|
Change
in
the ownership occurs on the date that any one person, or more than one person
acting as a group (as defined above), acquires ownership of stock of the Bank
or
Company that, together with stock held by such person or group, constitutes
more
than 50 percent of the total fair market value or total voting power of the
stock of such corporation. However, if any one person or more than one person
acting as a group, is considered to own more than 50 percent of the total fair
market value or total voting power of the stock of a corporation, the
acquisition of additional stock by the same person or persons is not considered
to cause a change in the ownership of the corporation or to cause a change
in
the effective control of the corporation.
|
(b)
|
Change
in the Effective Control of the Bank or
Company
|
A
change
in the effective control of the Bank or Company occurs on the date that either
-
(1)
Any
one person, or more than one person acting as a group (as defined above),
acquires (or has acquired during the 12-month period ending on the date of
the
most recent acquisition
by
such
person or persons) ownership of stock of the Company possessing 20 percent
or
more of the total voting power of the stock of the Company (except that if
an
individual Director’s agreement becomes subject to Code Section 409A, then the
required percentage of acquired ownership of stock under this Subsection 1.10
(b)(1) shall be 35 percent or more); or
(2)
a
majority of members of the Company’s board of directors is replaced during any
12-month period by directors whose appointment or election is not endorsed
by a
majority of the members of the Company’s board of directors prior to the date of
the appointment or election.
|
(c)
|
Change
in the Ownership of a Substantial Portion of the Bank’s or Company’s
Assets.
|
Change
in
the ownership of a substantial portion of the Bank or Company’s assets occurs on
the date that any one person, or more than one person acting as a group (as
defined above), acquires (or has acquired during the 12-month period ending
on
the date of the most recent acquisition by such person or persons) assets from
the corporation that have a total gross fair market value equal to or more
than
40 percent of the total gross fair market value of all of the assets of the
Bank
or Company immediately prior to such acquisition or acquisitions. For this
purpose, gross fair market value means the value of the assets of the Bank
or
Company, or the value of the assets being disposed of, determined without regard
to any liabilities associated with such assets.
1.11
|
"Children"
means all natural or adopted children of the Director and issue of
any
predeceased child or children.
|
1.12
|
"Code"
means the Internal Revenue Code of 1986, as amended from time to
time.
|
1.13
|
“Company”
shall mean Magyar Bancorp, Inc.
|
1.14
|
"Contribution(s)"
means those annual total contributions comprised of both the Elective
Contributions and the Emeritus Contributions which the Bank is required
to
make to the Retirement Income Trust Fund on behalf of the Director
in
accordance with Subsection 2.1(a) and in the amounts set forth in
Exhibit
A of the Agreement. Such Contributions, for the first Plan
|
Year,
shall include any and all amounts accrued by the Bank to pay the benefits
promised to the Director under any prior non-qualified deferred compensation
agreements including any Joinder Agreements previously executed by the Bank
and
the Director.
1.15
|
(a)
"Disability Benefit" means the benefit payable to the Director following
a
determination, in accordance with Subsection 6.1(a), that he is no
longer
able, properly and satisfactorily, to perform his duties at the
Bank.
|
(b)
"Disability Benefit-Supplemental" (if applicable) means the benefit payable
to
the Director
=
s
Beneficiary upon the Director
=
s
death
in accordance with Subsection 6.1(b).
1.16
|
"Effective
Date" of this Agreement shall be January 1, 2006. The original effective
date of this Agreement was February 1, 2004. The Agreement is hereby
amended and restated effective January 1, 2006 in order to conform
to Code
Section 409A.
|
1.17
|
“Elective
Contribution” shall refer to the Director’s voluntary monthly pre-tax
deferral of board fees, committee fees and/or retainer plus interest
compounded annually at a rate equal to the Interest Factor. The Director
may elect to change his voluntary deferral amount by submitting to
the
Bank a Notice of Adjustment of Elective Contribution thirty (30)
days
prior to the end of any Plan Year.
|
1.18
|
“Emeritus
Contribution” shall refer to the amounts necessary to support an annual
amount payable to the Director at Benefit Age based upon a percentage,
as
stated in Appendix A, of the Director’s total board fees, committee fees
and/or retainer in the twelve months prior to the Director’s Benefit
Eligibility Date. The percentage shall be determined by the following
formula: ten percent (10%) plus two and one-half percent (2 ½%) for each
year of service as a Director, with a minimum of fifty percent (50%),
provided the Director has served for at least five (5) years, and
a
maximum of sixty percent (60%). Notwithstanding the foregoing, any
Director who serves as Board Chairman for a five-year term (other
than the
current Chairman) shall be entitled to receive seventy-five percent
(75%).
|
1.19
|
"Estate"
means the estate of the
Director.
|
1.20
|
"Interest
Factor" means monthly compounding, discounting or annuitizing, as
applicable, at a rate set forth in
Exhibit A.
|
1.21
|
"Payout
Period" means the time frame during which certain benefits payable
hereunder shall be distributed. Payments shall be made in monthly
installments commencing on the first day of the month following the
occurrence of the event which triggers distribution and continuing
for a
period of one hundred eighty (180) months. Should the Director make
a
Timely Election to receive a lump sum benefit payment, the
Director
=
s
Payout Period shall be deemed to be one (1) month.
|
1.22
|
"Phantom
Contributions" means those annual Contributions which the Bank is
no
longer required to make on behalf of the Director to the Retirement
Income
Trust Fund. Rather, once the Director has exercised the withdrawal
rights
provided for in Subsection 2.2, the Bank shall be required to record
the
annual amounts set forth in Exhibit A of the Agreement in the
Director
=
s
Accrued Benefit Account, pursuant to Subsection 2.1.
|
1.23
|
"Plan
Year" shall mean the twelve (12) month period commencing January
1 and
ending December 31.
|
1.24
|
"Retirement
Income Trust Fund" means the trust fund account established by the
Director and into which annual Contributions will be made by the
Bank on
behalf of the Director pursuant to Subsection 2.1. The contractual
rights
of the Bank and the Director with respect to the Retirement Income
Trust
Fund shall be outlined in a separate writing to be known as the Joseph
J.
Lukacs, Jr. Grantor Trust agreement.
|
1.25
|
A
Spouse
@
means the individual to whom the Director is legally married at the
time
of the Director
=
s
death, provided, however, that the term
A
Spouse
@
shall not refer to an individual to whom the Director is legally
married
at the time of death if the Director and such individual have entered
into
a formal separation agreement or initiated divorce
proceedings.
|
1.26
|
"Supplemental
Retirement Income Benefit" means an annual amount (
before
taking into account federal and state income taxes), payable in monthly
installments throughout the Payout Period. Such benefit is projected
pursuant to the Agreement for the purpose of determining the Contributions
to be made to the Retirement Income Trust Fund (or Phantom Contributions
to be recorded in the Accrued Benefit Account). The annual Contributions
and Phantom Contributions have been actuarially determined, using
the
assumptions set forth in Exhibit A, in order to fund for the projected
Supplemental Retirement Income Benefit. The Supplemental Retirement
Income
Benefit for which Contributions (or Phantom Contributions) are being
made
(or recorded) is set forth in Exhibit A.
|
1.27
|
"Timely
Election" means the Director has made an election to change the form
of
his benefit payment(s) from the Retirement Income Trust Fund by filing
with the Administrator a Notice of Election to Change Form of Payment
(Exhibit C of this Agreement). In the case of benefits payable from
the
Retirement Income Trust Fund, such election may be made at any time.
In
the case of benefits payable from the Accrued Benefit Account, such
election generally shall have been made prior to December 31, 2006
(i.e.
the last day of the “Transition Period” for bringing plans into compliance
with Code Section 409A). Unless the Transition Period is extended
by the
Internal Revenue Service, if the Director makes an election subsequent
to
December 31, 2006 with respect to distributions from the Accrued
Benefit
Account, then (i) such election may not take effect until at least
twelve
(12) months after the date on which the election is made, (ii) in
the case
of an election related to a payment other than due to disability
or death,
the first payment with respect to which such election is made must
be
deferred for a period of not less than five (5) years from the date
such
payment would otherwise have been made, and (iii) any election related
to
a distribution at a specified time or pursuant to a fixed schedule
may not
be made less than twelve (12) months prior to the date of the first
scheduled payment.
|
SECTION
II
BENEFIT
FUNDING
2.1
|
(a)
Retirement
Income Trust Fund and Accrued Benefit Account
.
The Director shall establish the Joseph J. Lukacs, Jr. Grantor Trust
into
which the Bank shall be required to make annual Contributions on
the
Director
=
s
behalf, pursuant to Exhibit A and this Section II of the
|
Agreement.
A trustee shall be selected by the Director. The trustee shall maintain an
account, separate and distinct from the Director
=
s
personal contributions, which account shall constitute the Retirement Income
Trust Fund. The trustee shall be charged with the responsibility of investing
all contributed funds. Distributions from the Retirement Income Trust Fund
of
the Joseph J. Lukacs, Jr. Grantor Trust may be made by the trustee to the
Director, for purposes of payment of any income or employment taxes due and
owing on Contributions by the Bank to the Retirement Income Trust Fund, if
any,
and on any taxable earnings associated with such Contributions which the
Director shall be required to pay from year to year, under applicable law,
prior
to actual receipt of any benefit payments from the Retirement Income Trust
Fund.
If the Director exercises his withdrawal rights pursuant to Subsection 2.2,
the
Bank
=
s
obligation to make Contributions to the Retirement Income Trust Fund shall
cease
and the Bank
=
s
obligation to record Phantom Contributions in the Accrued Benefit Account shall
immediately commence pursuant to Exhibit A and this Section II of the Agreement.
To the extent this Agreement is inconsistent with the Joseph J. Lukacs, Jr.
Grantor Trust Agreement, the Joseph J. Lukacs, Jr. Grantor Trust Agreement
shall
supersede this Agreement.
The
annual Contributions (or Phantom Contributions) required to be made by the
Bank
to the Retirement Income Trust Fund (or recorded by the Bank in the Accrued
Benefit Account) have been actuarially determined and are set forth in Exhibit
A
which is attached hereto and incorporated herein by reference. Contributions
shall be made by the Bank to the Retirement Income Trust Fund (i) within
seventy-five (75) days of establishment of such trust, and (ii) within the
first
thirty (30) days of the beginning of each subsequent Plan Year, unless this
Section expressly provides otherwise. Phantom Contributions, if any, shall
be
recorded in the Accrued Benefit Account within the first thirty (30) days of
the
beginning of each applicable Plan Year, unless this Section expressly provides
otherwise. Phantom Contributions shall accrue interest at a rate equal to the
Interest Factor, during the Payout Period, until the balance of the Accrued
Benefit Account has been fully distributed. Interest on any Phantom Contribution
shall not commence until such Payout Period commences.
The
Administrator shall review the schedule of annual Contributions (or Phantom
Contributions) provided for in Exhibit A (i) within thirty (30) days prior
to
the close of each Plan Year and (ii) if the Director is employed by the Bank
until attaining Benefit Age, on or immediately before
attainment
of such Benefit Age. Such review shall consist of an evaluation of the accuracy
of all assumptions used to establish the schedule of Contributions (or Phantom
Contributions). Provided that (i) the Director has not exercised his withdrawal
rights pursuant to Subsection 2.2 and (ii) the investments contained in the
Retirement Income Trust Fund have been deemed reasonable by the Bank, the
Administrator shall prospectively amend or supplement the schedule of
Contributions provided for in Exhibit A should the Administrator determine
during any such review that
an
increase
in or
supplement
to
the
schedule of Contributions is necessary in order to adequately fund the
Retirement Income Trust Fund so as to provide an annual benefit (or to provide
the lump sum equivalent of such benefit, as applicable) equal to the
Supplemental Retirement Income Benefit, on an after-tax basis, commencing at
Benefit Age and payable for the duration of the Payout Period.
(b)
Withdrawal
Rights Not Exercised.
(1)
Contributions
Made Annually(1)
If
the
Director does not exercise any withdrawal rights pursuant to Subsection 2.2,
the
annual Contributions to the Retirement Income Trust Fund shall continue each
year, unless this Subsection 2.1(b) specifically states otherwise, until the
earlier of (i) the last Plan Year that Contributions are required pursuant
to
Exhibit A, or (ii) the Plan Year of the Director's termination of
service.
(2)
Termination
Following a Change in Control
If
the
Director does not exercise his withdrawal rights pursuant to Subsection 2.2
and
a Change in Control occurs at the Bank, followed within thirty-six (36) months
by either (i) the Director's involuntary termination of service, or (ii)
Director's voluntary termination of service after: (A) a material change in
the
Director's function, duties, or responsibilities, which change would cause
the
Director's position to become one of lesser responsibility, importance, or
scope
from the position the Director held at the time of the Change in Control, (B)
a
relocation of the Director's principal place of service by more than thirty
(30)
miles from its location prior to the Change in Control, or (C) a material
reduction in the benefits and perquisites to the Director from those being
provided at the time of the Change in Control, the Emeritus Contributions as
set
forth on Schedule A shall continue to be required of the Bank. The Bank shall
be
required to make an immediate lump sum Contribution to the Director's Retirement
Income Trust Fund in an amount
equal
to:
(i) the full Emeritus Contribution required for the Plan Year in which such
termination occurs, if not yet made, plus (ii) the present value (computed
using
a discount rate equal to the Interest Factor) of all remaining Emeritus
Contributions to the Retirement Income Trust Fund, and (iii) the present value
(computed using the a discount rate equal to the Interest Factor) of the
interest only component of the Elective Contribution; provided, however, that,
if necessary, an additional amount shall be contributed to the Retirement Income
Trust Fund which is sufficient to provide the Director with after-tax benefits
(assuming a constant tax rate equal to the rate in effect as of the date of
Director
=
s
termination) beginning at Benefit Age following such termination, equal in
amount to that benefit which would have been payable to the Director if no
secular trust had been implemented and the benefit obligation had been accrued
under APB Opinion No. 12, as amended by FAS 106.
(3)
Termination
For Cause
If
the
Director does not exercise his withdrawal rights pursuant to Subsection 2.2,
and
is terminated for Cause pursuant to Subsection 5.2, no further Contribution(s)
to the Retirement Income Trust Fund shall be required of the Bank, and if not
yet made, no Contribution shall be required for the Plan Year in which such
termination for Cause occurs.
(4)
Voluntary or Involuntary Termination of Service.
If
the
Director does not exercise his withdrawal rights pursuant to
Subsection 2.2, and the Director's service with the Bank is voluntarily or
involuntarily terminated for any reason, including a termination due to
disability of the Director but excluding termination for Cause, or termination
following a Change in Control within thirty-six (36) months of such Change
in
Control, no further Contribution(s), as defined in Subsection 1.14, to the
Retirement Income Trust Fund shall be required of the Bank, and if not yet
made,
no Contribution shall be required for the Plan Year in which such termination
occurs. Notwithstanding the above, the Bank will be required to make annual
payments to Director’s Retirement Income Trust Fund determined as
follows:
|
1.
|
Determine
what the accrued liability would have been as of the Director’s date of
termination, had no secular trust been
implemented.
|
|
2.
|
Determine
the benefit payable, beginning at the Benefit Age, for 180 months which
that accrued liability would support had interest been added to that
liability on an
|
annual
basis using the Accrued Benefit Interest Factor set forth in Exhibit
A.
|
3.
|
The
Bank shall make payments to the Director’s Retirement Income Trust Fund on
an annual basis in amounts equal to the accrued interest expense
which
would have been recorded absent the secular trust
arrangement.
|
(5)
Death
During Service.
If
the
Director does not exercise any withdrawal rights pursuant to
Subsection 2.2, and dies while employed by the Bank, and if, following the
Director
=
s
death,
the assets of the Retirement Income Trust Fund are insufficient to provide
the
Supplemental Retirement Income Benefit to which the Director is entitled, the
Bank shall be required to make a Contribution to the Retirement Income Trust
Fund equal to the sum of the remaining Contributions set forth on Exhibit A,
after taking into consideration any payments under any life insurance policies
that may have been obtained on the Director
=
s
life by
the Retirement Income Trust Fund. Such final contribution shall be payable
in a
lump sum to the Retirement Income Trust Fund within thirty (30) days of the
Director
=
s
death.
(c)
Withdrawal
Rights Exercised.
(1)
Phantom
Contributions Made Annually.
If
the
Director exercises his withdrawal rights pursuant to Subsection 2.2, no further
Contributions to the Retirement Income Trust Fund shall be required of the
Bank.
Thereafter, Phantom Contributions shall be recorded annually in the Director's
Accrued Benefit Account within thirty (30) days of the beginning of each Plan
Year, commencing with the first Plan Year following the Plan Year in which
the
Director exercises his withdrawal rights. Such Phantom Contributions shall
continue to be recorded annually, unless this Subsection 2.1(c) specifically
states otherwise, until the earlier of (i) the last Plan Year that Phantom
Contributions are required pursuant to Exhibit A, or (ii) the Plan Year of
the
Director's termination of service.
(2)
Termination
Following a Change in Control
If
the
Director exercises his withdrawal rights pursuant to Subsection 2.2, Phantom
Contributions shall commence in the Plan Year following the Plan Year in which
the Director first exercises his withdrawal rights. If a Change in Control
occurs at the Bank, and within thirty-six (36) months of such Change in Control,
the Director's service is either (i) involuntarily terminated, or (ii)
voluntarily
terminated by the Director after: (A) a material change in the Director's
function, duties, or responsibilities, which change would cause the Director's
position to become one of lesser responsibility, importance, or scope from
the
position the Director held at the time of the Change in Control, (B) a
relocation of the Director's principal place of service by more than thirty
(30)
miles from its location prior to the Change in Control, or (C) a material
reduction in the benefits and perquisites to the Director from those being
provided at the time of the Change in Control, the Phantom Contribution set
forth below shall be required of the Bank. The Bank shall be required to record
a lump sum Phantom Contribution in the Accrued Benefit Account within ten (10)
days of the Director
=
s
termination of service equal to (i) the full Emeritus Contribution required
for
the Plan Year in which such termination occurs, if not yet made, plus (ii)
the
present value (computed using a discount rate equal to the Interest Factor)
of
all remaining Emeritus Contributions to the Retirement Income Trust Fund, and
(iii) the present value (computed using the a discount rate equal to the
Interest Factor) of the interest only component of the Elective Contribution.
The amount of such final Phantom Contribution shall be actuarially determined
based on the Phantom Contribution required, at such time, in order to provide
a
benefit via this Agreement equal in amount to that benefit which would have
been
payable to the Director if no secular trust had been implemented and the benefit
obligation had been accrued under APB Opinion No. 12, as amended by FAS 106.
(Such actuarial determination shall reflect the fact that amounts shall be
payable from both the Accrued Benefit Account as well as the Retirement Income
Trust Fund and shall also reflect the amount and timing of any withdrawal(s)
made by the Director from the Retirement Income Trust Fund pursuant to
Subsection 2.2.)
(3)
Termination
For Cause(3) Termination For Cause
If
the
Director is terminated for Cause pursuant to Subsection 5.2, the entire balance
of the Director
=
s
Accrued
Benefit Account at the time of such termination, which shall include any Phantom
Contributions which have been recorded plus interest accrued on such Phantom
Contributions, shall be forfeited.
(4)
Voluntary
and
Involuntary
Termination of Service.
If
the
Director exercises his withdrawal rights pursuant to Subsection 2.2, and the
Director's service with the Bank is voluntarily or involuntarily terminated
for
any reason including termination due to disability of the Director, but
excluding termination for Cause, or termination
following
a Change in Control, within thirty (30) days of such termination of service,
no
further Phantom Contributions shall be required of the Bank. Interest, at a
rate
equal to the Interest Factor, shall accrue on such Phantom Contributions until
the Director’s Benefit Eligibility Date.
(5)
Death
During Service.
If
the
Director exercises his withdrawal rights pursuant to Subsection 2.2, and
dies while employed by the Bank, Phantom Contributions included on Exhibit
A
shall be required of the Bank. Such Phantom Contributions shall commence in
the
Plan Year following the Plan Year in which the Director exercises his withdrawal
rights and shall continue through the Plan Year in which the Director dies.
The
Bank shall also be required to record a final Phantom Contribution within thirty
(30) days of the Director
=
s
death.
The amount of such final Phantom Contribution shall be actuarially determined
based on the Phantom Contribution required at such time (if any), in order
to
provide a benefit via this Agreement equivalent to the Supplemental Retirement
Income Benefit commencing within thirty (30) days of the date the Administrator
receives notice of the Director
=
s
death
and continuing for the duration of the Payout Period. (Such actuarial
determination shall reflect the fact that amounts shall be payable from the
Accrued Benefit Account as well as the Retirement Income Trust Fund and shall
also reflect the amount and timing of any withdrawal(s) made by the Director
pursuant to Subsection 2.2.)
2.2.
|
Withdrawals
From Retirement Income Trust
Fund.
|
Exercise
of withdrawal rights by the Director pursuant to the Joseph J. Lukacs, Jr.
Grantor Trust agreement shall terminate the Bank's obligation to make any
further Contributions to the Retirement Income Trust Fund, and the
Bank
=
s
obligation to record Phantom Contributions pursuant to Subsection 2.1(c) shall
commence. For purposes of this Subsection 2.2,
A
exercise
of withdrawal rights
@
shall
mean those withdrawal rights to which the Director is entitled under Article
III
of the Joseph J. Lukacs, Jr. Grantor Trust agreement and shall exclude any
distributions made by the trustee of the Retirement Income Trust Fund to the
Director for purposes of payment of income taxes in accordance with Subsection
2.1 of this Agreement and the tax reimbursement formula contained in the trust
document, or other trust expenses properly payable from the Joseph J. Lukacs,
Jr. Grantor Trust pursuant to the provisions of the trust
document.
2.3
|
Benefits
Payable From Retirement Income Trust
Fund
|
Notwithstanding
anything else to the contrary in this Agreement, in the event that the trustee
of the Retirement Income Trust Fund purchases a life insurance policy with
the
Contributions to and, if applicable, earnings of the Trust, and such life
insurance policy is intended to continue in force beyond the Payout Period
for
the disability or retirement benefits payable from the Retirement Income Trust
Fund pursuant to this Agreement, then the trustee shall have discretion to
determine the portion of the cash value of such policy available for purposes
of
annuitizing the Retirement Income Trust Fund (it being understood that for
purposes of this Section 2.3,
A
annuitizing
@
does not
mean surrender of such policy and annuitizing of the cash value received upon
such surrender) to provide the disability or retirement benefits payable under
this Agreement, after taking into consideration the amounts reasonably believed
to be required in order to maintain the cash value of such policy to continue
such policy in effect until the death of the Director and payment of death
benefits thereunder.
SECTION
III
RETIREMENT
BENEFIT
3.1
|
(a)
Normal
form of payment.
|
If
(i)
the Director is employed with the Bank until reaching his Benefit Age and (ii)
the Director has not made a Timely Election to receive a lump sum benefit,
this
Subsection 3.1(a) shall be controlling with respect to retirement
benefits.
The
Retirement Income Trust Fund, measured as of the Director's Benefit Age, shall
be annuitized (using the Interest Factor) into monthly installments and shall
be
payable for the Payout Period. Such benefit payments shall commence on the
Director's Benefit Eligibility Date. Should Retirement Income Trust Fund assets
actually earn a rate of return, following the date such balance is annuitized,
which is less than the rate of return used to annuitize the Retirement Income
Trust Fund, no additional contributions to the Retirement Income Trust Fund
shall be required by the Bank in order to fund the final benefit payment(s)
and
make up for any shortage attributable to the less-than-expected rate of return.
Should Retirement Income Trust Fund assets actually earn a rate of return,
following the date such balance is annuitized, which is greater than the rate
of
return used to annuitize the Retirement Income Trust Fund, the final benefit
payment
to
the
Director (or his Beneficiary) shall distribute the excess amounts attributable
to the greater-than-expected rate of return. The Director may at anytime during
the Payout Period request to receive the unpaid balance of his Retirement Income
Trust Fund in a lump sum payment. If such a lump sum payment is requested by
the
Director, payment of the balance of the Retirement Income Trust Fund in such
lump sum form shall be made only if the Director gives notice to both the
Administrator and trustee in writing. Such lump sum payment shall be payable
within thirty (30) days of such notice. In the event the Director dies at any
time after attaining his Benefit Age, but prior to commencement or completion
of
all monthly payments due and owing hereunder, (i) the trustee of the Retirement
Income Trust Fund shall pay to the Director's Beneficiary the monthly
installments (or a continuation of such monthly installments if they have
already commenced) for the balance of months remaining in the Payout Period,
or
(ii) the Director's Beneficiary may request to receive the unpaid balance of
the
Director's Retirement Income Trust Fund in a lump sum payment. If a lump sum
payment is requested by the Beneficiary, payment of the balance of the
Retirement Income Trust Fund in such lump sum form shall be made only if the
Director's Beneficiary notifies both the Administrator and trustee in writing
of
such election within ninety (90) days of the Director's death. Such lump sum
payment shall be payable within thirty (30) days of such notice.
The
Director
=
s
Accrued
Benefit Account (if applicable), measured as of the Director
=
s
Benefit
Age, shall be annuitized (using the Interest Factor) into monthly installments
and shall be payable for the Payout Period. Such benefit payments shall commence
on the Director
=
s
Benefit
Eligibility Date. In the event the Director dies at any time after attaining
his
Benefit Age, but prior to commencement or completion of all the payments due
and
owing hereunder, (i) the Bank shall pay to the Director
=
s
Beneficiary the same monthly installments (or a continuation of such monthly
installments if they have already commenced) for the balance of months remaining
in the Payout Period.
(b)
Alternative
payout option.
If
(i)
the Director is employed with the Bank until reaching his Benefit Age, and
(ii)
the Director has made a Timely Election to receive a lump sum benefit, this
Subsection 3.1(b) shall be controlling with respect to retirement benefits.
The
balance of the Retirement Income Trust Fund and the Accrued Benefit Account
(if
applicable), measured as of the Director
=
s
Benefit
Age, shall be paid to the Director in a lump sum on his Benefit Eligibility
Date. In the event the Director dies after becoming eligible for such payment
(upon attainment of his Benefit Age), but before the actual payment is made,
his
Beneficiary shall be entitled to receive the lump sum benefit in accordance
with
this Subsection 3.1(b) within thirty (30) days of the date the Administrator
receives notice of the Director’s death.
Notwithstanding
the foregoing, unless the Director has made a Timely Election to receive a
lump
sum distribution from the Accrued Benefit Account, distributions from the
Accrued Benefit Account will be paid over the Payout Period, commencing within
thirty (30) days of the Director’s Benefit Age.
SECTION
IV
PRE-RETIREMENT
DEATH BENEFIT
4.1
|
(a)
Normal
form of payment.
|
If
(i)
the Director dies while employed by the Bank, and (ii) the Director has not
made
a Timely Election to receive a lump sum benefit, this Subsection 4.1(a) shall
be
controlling with respect to pre-retirement death benefits.
The
balance of the Director
=
s
Retirement Income Trust Fund, measured as of the later of (i) the
Director
=
s
death,
or (ii) the date any final lump sum Contribution is made pursuant to Subsection
2.1(b), shall be annuitized (using the Interest Factor) into monthly
installments and shall be payable for the Payout Period. Such benefits shall
commence within thirty (30) days of the date the Administrator receives notice
of the Director
=
s
death.
Should Retirement Income Trust Fund assets actually earn a rate of return,
following the date such balance is annuitized, which is less than the rate
of
return used to annuitize the Retirement Income Trust Fund, no additional
contributions to the Retirement Income Trust Fund shall be required by the
Bank
in order to fund the final benefit payment(s) and make up for any shortage
attributable to the less-than-expected rate of return. Should Retirement Income
Trust Fund assets actually earn a rate of return, following the date such
balance is annuitized, which is greater than the rate of return used to
annuitize the Retirement Income Trust Fund, the final benefit payment to the
Director
=
s
Beneficiary shall distribute the excess amounts attributable to the
greater-than-expected rate of return. The Director
=
s
Beneficiary may request to receive the unpaid balance of the
Director
=
s
Retirement
Income Trust Fund in a lump sum payment. If a lump sum payment is requested
by
the Beneficiary, payment of the balance of the Retirement Income Trust Fund
in
such lump sum form shall be made only if the Director
=
s
Beneficiary notifies both the Administrator and trustee in writing of such
election within ninety (90) days of the Director
=
s
death.
Such lump sum payment shall be made within thirty (30) days of such
notice.
The
Director
=
s
Accrued
Benefit Account (if applicable), measured as of the later of (i) the
Director's death or (ii) the date any final lump sum Phantom Contribution is
recorded in the Accrued Benefit Account pursuant to Subsection 2.1(c), shall
be
annuitized (using the Interest Factor) into monthly installments and shall
be
payable to the Director's Beneficiary for the Payout Period. Such benefit
payments shall commence within thirty (30) days of the date the Administrator
receives notice of the Director
=
s
death,
or if later, within thirty (30) days after any final lump sum Phantom
Contribution is recorded in the Accrued Benefit Account in accordance with
Subsection 2.1(c).
(b)
Alternative
payout option.
If
(i)
the Director dies while employed by the Bank, and (ii) the Director has made
a
Timely Election to receive a lump sum benefit, this Subsection 4.1(b) shall
be
controlling with respect to pre-retirement death benefits.
The
balance of the Director
=
s
Retirement Income Trust Fund and the Accrued Benefit Account (if applicable),
measured as of the later of (i) the Director
=
s
death,
or (ii) the date any final lump sum Contribution is made pursuant to Subsection
2.1(b), shall be paid to the Director's Beneficiary in a lump sum within thirty
(30) days of the date the Administrator receives notice of the Director's
death.
Notwithstanding the foregoing, unless the Director has made a Timely Election
to
receive a lump sum distribution with respect to the Accrued Benefit Account,
distributions from the Accrued Benefit Account will be paid over the Payout
Period commencing within thirty (30) days of the date the Administrator receives
notice of the Director
=
s
death.
SECTION
V
BENEFIT(S)
IN THE EVENT OF TERMINATION OF SERVICE
PRIOR
TO BENEFIT AGE
5.1
|
Voluntary
or Involuntary Termination of Service Other Than for Cause
.
In the event the Director
=
s
service with the Bank is voluntarily or involuntarily terminated
prior to
Benefit Age, for any reason, including a Change in Control, but excluding
(i) any disability related termination for which the Board of Directors
has approved early payment of benefits pursuant to Subsection 6.1,
(ii)
the Director's pre-retirement death, which shall be covered in Section
IV,
(iii) or termination for Cause, which shall be covered in Subsection
5.2,
the Director (or his Beneficiary) shall be entitled to receive benefits
in
accordance with this Subsection 5.1. Payments of benefits pursuant
to this
Subsection 5.1 shall be made in accordance with Subsection 5.1(a)
or
5.1(b) below, as applicable.
|
(a)
Normal
form of payment
.
(1)
Director
Lives Until Benefit Age
If
(i)
after such termination, the Director lives until attaining his Benefit Age,
and
(ii) the Director has not made a Timely Election to receive a lump sum benefit,
this Subsection 5.1(a)(1) shall be controlling with respect to retirement
benefits.
The
Retirement Income Trust Fund, measured as of the Director's Benefit Age, shall
be annuitized (using the Interest Factor) into monthly installments and shall
be
payable for the Payout Period. Such payments shall commence on the Director's
Benefit Eligibility Date. Should Retirement Income Trust Fund assets actually
earn a rate of return, following the date such balance is annuitized, which
is
less than the rate of return used to annuitize the Retirement Income Trust
Fund,
no additional contributions to the Retirement Income Trust Fund shall be
required by the Bank in order to fund the final benefit payment(s) and make
up
for any shortage attributable to the less-than-expected rate of return. Should
Retirement Income Trust Fund assets actually earn a rate of return, following
the date such balance is annuitized, which is greater than the rate of return
used to annuitize the Retirement Income Trust Fund, the final benefit payment
to
the Director (or his Beneficiary) shall distribute the excess amounts
attributable to the greater-than-expected rate of return. The Director may
at
anytime during the Payout Period request to
receive
the unpaid balance of his Retirement Income Trust Fund in a lump sum payment.
If
such a lump sum payment is requested by the Director, payment of the balance
of
the Retirement Income Trust Fund in such lump sum form shall be made only if
the
Director gives notice to both the Administrator and trustee in writing. Such
lump sum payment shall be payable within thirty (30) days of such notice. In
the
event the Director dies at any time after attaining his Benefit Age, but prior
to commencement or completion of all monthly payments due and owing hereunder,
(i) the trustee of the Retirement Income Trust Fund shall pay to the Director's
Beneficiary the monthly installments (or a continuation of the monthly
installments if they have already commenced) for the balance of months remaining
in the Payout Period, or (ii) the Director's Beneficiary may request to receive
the unpaid balance of the Director's Retirement Income Trust Fund in a lump
sum
payment. If a lump sum payment is requested by the Beneficiary, payment of
the
balance of the Retirement Income Trust Fund in such lump sum form shall be
made
only if the Director's Beneficiary notifies both the Administrator and trustee
in writing of such election within ninety (90) days of the Director's death.
Such lump sum payment shall be made within thirty (30) days of such
notice.
The
Director
=
s
Accrued
Benefit Account (if applicable), measured as of the Director
=
s
Benefit
Age, shall be annuitized (using the Interest Factor) into monthly installments
and shall be payable for the Payout Period. Such benefit payments shall commence
on the Director
=
s
Benefit
Eligibility Date. In the event the Director dies at any time after attaining
his
Benefit Age, but prior to commencement or completion of all the payments due
and
owing hereunder, (i) the Bank shall pay to the Director
=
s
Beneficiary the same monthly installments (or a continuation of such monthly
installments if they have already commenced) for the balance of months remaining
in the Payout Period.
(2)
Director
Dies Prior to Benefit Age
If
(i)
after such termination, the Director dies prior to attaining his Benefit Age,
and (ii) the Director has not made a Timely Election to receive a lump sum
benefit, this Subsection 5.1(a)(2) shall be controlling with respect to
retirement benefits.
The
Retirement Income Trust Fund, measured as of the date of the Director's death,
shall be annuitized (using the Interest Factor) into monthly installments and
shall be payable for the
Payout
Period. Such payments shall commence within thirty (30) days of the date the
Administrator receives notice of the Director's death. Should Retirement Income
Trust Fund assets actually earn a rate of return, following the date such
balance is annuitized, which is less than the rate of return used to annuitize
the Retirement Income Trust Fund, no additional contributions to the Retirement
Income Trust Fund shall be required by the Bank in order to fund the final
benefit payment(s) and make up for any shortage attributable to the
less-than-expected rate of return. Should Retirement Income Trust Fund assets
actually earn a rate of return, following the date such balance is annuitized,
which is greater than the rate of return used to annuitize the Retirement Income
Trust Fund, the final benefit payment to the Director's Beneficiary shall
distribute the excess amounts attributable to the greater-than-expected rate
of
return. The Director's Beneficiary may request to receive the unpaid balance
of
the Director's Retirement Income Trust Fund in the form of a lump sum payment.
If a lump sum payment is requested by the Beneficiary, payment of the balance
of
the Retirement Income Trust Fund in such lump sum form shall be made only if
the
Director's Beneficiary notifies both the Administrator and trustee in writing
of
such election within ninety (90) days of the Director's death. Such lump sum
payment shall be made within thirty (30) days of such notice.
The
Director
=
s
Accrued
Benefit Account (if applicable), measured as of the date of the
Director
=
s
death,
shall be annuitized (using the Interest Factor) into monthly installments and
shall be payable for the Payout Period. Such payments shall commence within
thirty (30) days of the date the Administrator receives notice of the
Director
=
s
death.
(b)
Alternative
Payout Option
.
(1)
Director
Lives Until Benefit Age
If
(i)
after such termination, the Director lives until attaining his Benefit Age,
and
(ii) the Director has made a Timely Election to receive a lump sum benefit,
this
Subsection 5.1(b)(1) shall be controlling with respect to retirement benefits.
The
balance of the Retirement Income Trust Fund and the Accrued Benefit Account
(if
applicable), measured as of the Director's Benefit Age, shall be paid to the
Director in a lump sum on his Benefit Eligibility Date. In the event the
Director dies after becoming eligible for such payment (upon attainment of
his
Benefit Age), but before the actual payment is made, his
Beneficiary
shall be entitled to receive the lump sum benefit in accordance with this
Subsection 5.1(b)(1) within thirty (30) days of the date the Administrator
receives notice of the Director's death.
Notwithstanding the foregoing, unless the Director has made a Timely Election
to
receive a lump sum distribution from the Accrued Benefit Account, distributions
from the Accrued Benefit Account will be paid over the Payout Period, commencing
within thirty (30) days of the Director’s Benefit Age.
(2)
Director
Dies Prior to Benefit Age
If
(i)
after such termination, the Director dies prior to attaining his Benefit Age,
and (ii) the Director has made a Timely Election to receive a lump sum benefit,
this Subsection 5.1(b)(2) shall be controlling with respect to pre-retirement
death benefits.
The
balance of the Retirement Income Trust Fund and the Accrued Benefit Account
(if
applicable), measured as of the date of the Director's death, shall be paid
to
the Director's Beneficiary within thirty (30) days of the date the Administrator
receives notice of the Director's death.
Notwithstanding the foregoing, unless the Director has made a Timely Election
to
receive a lump sum distribution with respect to the Accrued Benefit Account,
distributions from the Accrued Benefit Account will be paid over the Payout
Period commencing within thirty (30) days of the date the Administrator receives
notice of the Director
=
s
death.
5.2
|
Termination
For Cause
.
|
If
the
Director is terminated for Cause, all benefits under this Agreement, other
than
those which can be paid from previous Contributions to the Retirement Income
Trust Fund (and earnings on such Contributions), shall be forfeited.
Furthermore, no further Contributions (or Phantom Contributions, as applicable)
shall be required of the Bank for the year in which such termination for Cause
occurs (if not yet made). The Director shall be entitled to receive a benefit
in
accordance with this Subsection 5.2.
The
balance of the Director
=
s
Retirement Income Trust Fund shall be paid to the Director in a lump sum on
his
Benefit Eligibility Date. In the event the Director dies prior to his Benefit
Eligibility Date, his Beneficiary shall be entitled to receive the balance
of
the Director's Retirement Income Trust Fund in a lump sum within thirty (30)
days of the date the Administrator receives notice of the Director's death.
SECTION
VI
OTHER
BENEFITS
6.1
|
(a)
Disability
Benefit
.
|
If
the
Director's service is terminated prior to Benefit Age due to a disability that
meets the criteria set forth below, the Director may request to receive the
Disability Benefit in lieu of the retirement benefit(s) available pursuant
to
Section 5.1 (which is (are) not available prior to the Director's Benefit
Eligibility Date).
In
any
instance in which it is determined by a duly licensed, independent physician
selected by the Bank, that the Director
is
“disabled,”
the
Director shall be entitled to receive a lump sum Disability Benefit
hereunder.
For
these
purposes, a distribution from the Accrued Benefit Account (but not the
Retirement Income Trust Fund) shall require a determination that the Director
is
“disabled”
within the meaning of proposed Treasury Regulation Section
1.409A-3(g)(4).
The
Director shall be entitled to the following lump sum benefit(s) in lieu of
any
benefits under Subsection 5.1. The lump sum benefit(s) to which the Director
is
entitled shall include: (i) the balance of the Retirement Income Trust Fund,
plus (ii) the balance of the Accrued Benefit Account (if applicable). The
benefit(s) shall be paid within thirty (30) days following the date of the
Director's final disability determination. In the event the Director dies after
becoming eligible for such payment(s) but before the actual payment(s) is (are)
made, his Beneficiary shall be entitled to receive the benefit(s) provided
for
in this Subsection 6.1(a) within thirty (30) days of the date the Administrator
receives notice of the Director's death.
(b)
Disability
Benefit - Supplemental
.
Furthermore,
if Board of Director approval is obtained within thirty (30) days of the
Director
=
s
death,
the Bank shall make a direct, lump sum payment to the Director's Beneficiary
in
an amount equal to the sum of all remaining Contributions (or Phantom
Contributions) set forth in Exhibit A, but not required pursuant to Subsection
2.1(b) (or 2.1(c)) due to the Director's disability-related termination. Such
lump sum payment, if approved by the Board of Directors, shall be payable to
the
Director
=
s
Beneficiary within thirty (30) days of such Board of Director
approval.
6.2
|
Additional
Death Benefit - Burial Expense
.
|
Upon
the
Director
=
s
death,
the Director
=
s
Beneficiary shall also be entitled to receive a one-time lump sum death benefit
in the amount of Ten Thousand Dollars ($10,000). This benefit shall be paid
directly from the Bank to the Beneficiary and shall be provided specifically
for
the purpose of providing payment for burial and/or funeral expenses of the
Director. Such death benefit shall be payable within thirty (30) days of the
date the Administrator receives notice of the Director
=
s
death.
The Director
=
s
Beneficiary shall not be entitled to such benefit if the Director is terminated
for Cause prior to death.
SECTION
VII
BENEFICIARY
DESIGNATION
The
Director shall make an initial designation of primary and secondary
Beneficiaries upon execution of this Agreement and shall have the right to
change such designation, at any subsequent time, by submitting to (i) the
Administrator,
and
(ii) the
trustee of the Retirement Income Trust Fund, in substantially the form attached
as Exhibit B to this Agreement, a written designation of primary and secondary
Beneficiaries. Any Beneficiary designation made subsequent to execution of
this
Agreement shall become effective only when receipt thereof is acknowledged
in
writing by the Administrator.
SECTION
VIII
DIRECTOR'S
RIGHT TO ASSETS
The
rights of the Director, any Beneficiary, or any other person claiming through
the Director under this Agreement, shall be solely those of an unsecured general
creditor of the Bank. The Director, the Beneficiary, or any other person
claiming through the Director, shall only have the right to receive from the
Bank those payments or amounts so specified under this Agreement. The Director
agrees that he, his Beneficiary, or any other person claiming through him shall
have no rights or interests whatsoever in any asset of the Bank, including
any
insurance policies or contracts which the Bank may possess or obtain to
informally fund this Agreement. Any asset used or acquired by the Bank in
connection with the liabilities it has assumed under this Agreement shall not
be
deemed to be held under any trust for the benefit of the Director or his
Beneficiaries, unless such asset is contained in the rabbi trust described
in
Section
XII of this Agreement. Any such asset shall be and remain a general, unpledged
asset of the Bank in the event of the Bank
=
s
insolvency.
SECTION
IX
RESTRICTIONS
UPON FUNDING
The
Bank
shall have no obligation to set aside, earmark or entrust any fund or money
with
which to pay its obligations under this Agreement, other than those
Contributions required to be made to the Retirement Income Trust Fund. The
Director, his Beneficiaries or any successor in interest to him shall be and
remain simply a general unsecured creditor of the Bank in the same manner as
any
other creditor having a general claim for matured and unpaid compensation.
The
Bank reserves the absolute right in its sole discretion to either purchase
assets to meet its obligations undertaken by this Agreement or to refrain from
the same and to determine the extent, nature, and method of such asset
purchases. Should the Bank decide to purchase assets such as life insurance,
mutual funds, disability policies or annuities, the Bank reserves the absolute
right, in its sole discretion, to replace such assets from time to time or
to
terminate its investment in such assets at any time, in whole or in part. At
no
time shall the Director be deemed to have any lien, right, title or interest
in
or to any specific investment or to any assets of the Bank. If the Bank elects
to invest in a life insurance, disability or annuity policy upon the life of
the
Director, then the Director shall assist the Bank by freely submitting to a
physical examination and by supplying such additional information necessary
to
obtain such insurance or annuities.
SECTION
X
ACT
PROVISIONS
10.1
|
Named
Fiduciary and Administrator
.
The Bank, as Administrator, shall be the Named Fiduciary of this
Agreement. As Administrator, the Bank shall be responsible for the
management, control and administration of the Agreement as established
herein. The Administrator may delegate to others certain aspects
of the
management and operational responsibilities of the Agreement, including
the employment of advisors and the delegation of ministerial duties
to
qualified individuals.
|
10.2
|
Claims
Procedure and Arbitration
.
In the event that benefits under this Agreement are not paid to the
Director (or to his Beneficiary in the case of the Director's death)
and
such claimants feel they are entitled to receive such benefits, then
a
written claim must be made to the Administrator within sixty (60)
days
from the date payments are refused. The Administrator shall review
the
written claim and, if the claim is denied, in whole or in part, it
shall
provide in writing, within ninety (90) days of receipt of such claim,
its
specific reasons for such denial, reference to the provisions of
this
Agreement upon which the denial is based, and any additional material
or
information necessary to perfect the claim. Such writing by the
Administrator shall further indicate the additional steps which must
be
undertaken by claimants if an additional review of the claim denial
is
desired.
|
If
claimants desire a second review, they shall notify the Administrator in writing
within sixty (60) days of the first claim denial. Claimants may review this
Agreement or any documents relating thereto and submit any issues and comments,
in writing, they may feel appropriate. In its sole discretion, the Administrator
shall then review the second claim and provide a written decision within sixty
(60) days of receipt of such claim. This decision shall state the specific
reasons for the decision and shall include reference to specific provisions
of
this Agreement upon which the decision is based.
If
claimants continue to dispute the benefit denial based upon completed
performance of this Plan and the Agreement or the meaning and effect of the
terms and conditions thereof, then claimants may submit the dispute to
mediation, administered by the American Arbitration Association (
A
AAA
@
)
(or a
mediator selected by the parties) in accordance with the AAA
=
s
Commercial Mediation Rules. If mediation is not successful in resolving the
dispute, it shall be settled by arbitration administered by the AAA under its
Commercial Arbitration Rules, and judgment on the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction
thereof.
SECTION
XI
MISCELLANEOUS
11.1
|
No
Effect on Employment Rights
.
Nothing contained herein will confer upon the Director the right
to be
retained in the service of the Bank nor limit the right of the Bank
to
discharge or otherwise deal with the Director without regard to the
existence of the Agreement.
|
11.2
|
Governing
Law
.
The Agreement is established under, and will be construed according
to,
the laws of the state of New Jersey, to the extent such laws are
not
preempted by the Act or other applicable federal law and valid regulations
published thereunder.
|
11.3
|
Construction
and Severability
.
The funding of and payment of benefits from the Accrued Benefit Account
is
deemed to be a nonqualified deferred compensation arrangement within
the
meaning of Code Section 409A. To the extent that the funding of a
benefit
under the Retirement Income Trust Fund under this Agreement is deemed
to
be a nonqualified deferred compensation arrangement, then that part
of
this Agreement shall also be operated, administered and construed
consistent with Code Section 409A. To the extent that a provision
of the
Agreement fails to comply with Code Section 409A and a construction
consistent with Code Section 409A is not possible, such provision
shall be
void
ab
initio
.
In addition, the Agreement shall be subject to amendment, with or
without
advance notice to Director and other interested parties, and on a
prospective or retroactive basis, including but not limited to amendment
in a manner that adversely affects the rights of Directors and other
interested parties, to the extent necessary to effect compliance
with Code
Section 409A. In the event that any of the provisions of this Agreement
or
portion thereof, are held to be inoperative or invalid by any court
of
competent jurisdiction, then: (1) insofar as is reasonable, effect
will be
given to the intent manifested in the provisions held invalid or
inoperative, and (2) the validity and enforceability of the remaining
provisions will not be affected
thereby.
|
11.4
|
Treatment
as a Director
.
For purposes of this Agreement, it is assumed that the Director is
treated
as a “director” in accordance with Proposed Treasury Regulation Section
1.409A-1(h)(2). If under future guidance or rulings promulgated by
the
Internal Revenue Service or Treasury Department under Code Section
409A it
is determined that the Director should properly be
|
treated
as an “employee” for purposes of this Agreement, distributions to the Director
due to Separation from Service will be made in accordance with the provisions
of
Proposed Treasury Regulation Section 1.409A-1(h)(1).
11.5
|
Incapacity
of Recipient
.
In the event the Director is declared incompetent and a conservator
or
other person legally charged with the care of his person or Estate
is
appointed, any benefits under the Agreement to which such Director
is
entitled shall be paid to such conservator or other person legally
charged
with the care of his person or Estate.
|
11.6
|
Unclaimed
Benefit
.
The Director shall keep the Bank informed of his current address
and the
current address of his Beneficiaries. The Bank shall not be obligated
to
search for the whereabouts of any person. If the location of the
Director
is not made known to the Bank as of the date upon which any payment
of any
benefits from the Accrued Benefit Account may first be made, the
Bank
shall delay payment of the Director's benefit payment(s) until the
location of the Director is made known to the Bank; however, the
Bank
shall only be obligated to hold such benefit payment(s) for the Director
until the expiration of thirty-six (36) months.
|
11.7
|
Limitations
on Liability
.
Notwithstanding any of the preceding provisions of the Agreement,
no
individual acting as an employee or agent of the Bank, or as a member
of
the Board of Directors shall be personally liable to the Director
or any
other person for any claim, loss, liability or expense incurred in
connection with the Agreement.
|
11.8
|
Gender
.
Whenever in this Agreement words are used in the masculine or neuter
gender, they shall be read and construed as in the masculine, feminine
or
neuter gender, whenever they should so
apply.
|
11.9
|
Effect
on Other Corporate Benefit Agreements
.
Nothing contained in this Agreement shall affect the right of the
Director
to participate in or be covered by any qualified or non-qualified
pension,
profit sharing, group, bonus or other supplemental compensation or
fringe
benefit agreement constituting a part of the Bank's existing or future
compensation structure.
|
11.10
|
Suicide
.
Notwithstanding anything to the contrary in this Agreement, if the
Director's death results from suicide, whether sane or insane, within
twenty-six (26) months after execution of this
|
Agreement,
all further Contributions to the Retirement Income Trust Fund (or Phantom
Contributions recorded in the Accrued Benefit Account) shall thereupon cease,
and no Contribution (or Phantom Contribution) shall be made by the Bank to
the
Retirement Income Trust Fund (or recorded in the Accrued Benefit Account) in
the
year such death resulting from suicide occurs (if not yet made). All benefits
other than those available from previous Contributions to the Retirement Income
Trust Fund under this Agreement shall be forfeited, and this Agreement shall
become null and void. The balance of the Retirement Income Trust Fund, measured
as of the Director's date of death, shall be paid to the Beneficiary within
thirty (30) days of the date the Administrator receives notice of the Director's
death.
11.11
|
Inurement
.
This Agreement shall be binding upon and shall inure to the benefit
of the
Bank, its successors and assigns, and the Director, his successors,
heirs,
executors, administrators, and
Beneficiaries.
|
11.12
|
Headings
.
Headings and sub-headings in this Agreement are inserted for reference
and
convenience only and shall not be deemed a part of this
Agreement.
|
11.13
|
Establishment
of a Rabbi Trust.
The Bank shall establish a rabbi trust into which the Bank shall
contribute assets which shall be held therein, subject to the claims
of
the Bank's creditors in the event of the Bank's "Insolvency" (as
defined
in such rabbi trust agreement), until the contributed assets are
paid to
the Director and/or his Beneficiary in such manner and at such times
as
specified in this Agreement. It is the intention of the Bank that
the
contribution or contributions to the rabbi trust shall provide the
Bank
with a source of funds to assist it in meeting the liabilities of
this
Agreement.
|
11.14
|
Source
of Payments
.
All payments provided in this Agreement shall be timely paid in cash
or
check from the general funds of the Bank or the assets of the rabbi
trust,
to the extent made from the Accrued Benefit Account.
|
SECTION
XII
AMENDMENT/PLAN
TERMINATION
12.1
|
Amendment
or Plan Termination
.
The Bank intends this Agreement to be permanent,
but
reserves the right to amend or terminate the Agreement when such
amendment
or termination is required due to objection to the plan by the Bank's
regulatory authorities.
The
Agreement may not be amended or terminated without the express written
consent of the parties. Any amendment or termination of the Agreement
shall be made pursuant to a resolution of the Board of Directors
of the
Bank and shall be effective as of the date of such resolution. No
amendment or termination of the Agreement shall directly or indirectly
deprive the Director of all or any portion of the Director's Retirement
Income Trust Fund (and Accrued Benefit Account, if applicable) as
of the
effective date of the resolution amending or terminating the
Agreement.
|
Notwithstanding
the foregoing, if an individual Director’s agreement is subject to Code Section
409A, :the Bank may terminate this Agreement only under the following
circumstances and conditions:
|
(a)
|
The
Board of Directors may terminate the Agreement within 12 months of
a
corporate dissolution taxed under Code Section 331, or with approval
of a
bankruptcy court pursuant to 11 U.S.C. §503(b)(1)(A), provided that the
amounts deferred under the Agreement are included in the Director’s gross
income in the latest of (i) the calendar year in which the Agreement
terminates; (ii) the calendar year in which the amount is no longer
subject to a substantial risk of forfeiture; or (iii) the first calendar
year in which the payment is administratively
practicable.
|
|
(b)
|
The
Board of Directors may terminate the Agreement within the 30 days
preceding a Change in Control (but not following a Change in Control),
provided that the Agreement shall only be treated as terminated if
all
substantially similar arrangements sponsored by the Bank are terminated
so
that the Director and all participants under substantially similar
arrangements are required to receive all amounts of compensation
deferred
under the terminated arrangements within 12 months of the date of
the
termination of the
arrangements.
|
|
(c)
|
The
Board of Directors may terminate the Agreement provided that (i)
all
arrangements sponsored by the Bank that would be aggregated with
this
Agreement under Proposed Regulation Section 1.409A-1(c) if the Director
covered by this Agreement was also covered by any of those other
arrangements are also terminated; (ii) no payments other than payments
that would be payable under the terms of the arrangement if the
termination had not occurred are made within 12 months of the termination
of the arrangement; (iii) all payments are made within 24 months
of the
termination of the arrangements; and (iv) the Bank does not adopt
a new
arrangement that would be aggregated with any terminated arrangement
under
Proposed Regulation Section 1.409A-1(c) if the Director participated
in
both arrangements, at any time within five years following the date
of
termination of the arrangement.
|
12.2
|
Director's
Right to Payment Following Plan Termination
.
In the event of a termination of the Agreement, the Director shall
be
entitled to the balance, if any, of his Retirement Income Trust Fund
(and
Accrued Benefit Account, if applicable). However, if such termination
is
done in anticipation of or pursuant to a
A
Change
in Control,
@
such balance(s) shall include the final Contribution (or final Phantom
Contribution) made (or recorded) pursuant to Subsection 2.1(b)(2)
(or
2.1(c)(2)). Payment of the balance(s) of the Director's Retirement
Income
Trust Fund (and Accrued Benefit Account, if applicable) shall not
be
dependent upon his continuation of service with the Bank following
the
termination date of the Agreement. Payment of the balance(s) of the
Director's Retirement Income Trust Fund (and Accrued Benefit Account,
if
applicable) shall be made in a lump sum within thirty (30) days of
the
date of termination of the
Agreement.
|
SECTION
XIII
EXECUTION
13.1
|
This
Agreement and the Joseph J. Lukacs, Jr. Grantor Trust Agreement set
forth
the entire understanding of the parties hereto with respect to the
transactions contemplated hereby, and any previous agreements or
understandings between the parties hereto regarding the subject matter
hereof are merged into and superseded by this Agreement and the Joseph
J.
Lukacs, Jr. Grantor Trust Agreement.
|
13.2
|
This
Agreement shall be executed in triplicate, each copy of which, when
so
executed and delivered, shall be an original, but all three copies
shall
together constitute one and the same
instrument.
|
[Remainder
of Page
Intentionally
Left Blank]
IN
WITNESS WHEREOF, the Bank and the Director have caused this Agreement to be
executed on the day and date first above written.
ATTEST:
|
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MAGYAR
BANK:
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/s/
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By:
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/s/
Elizabeth E. Hance
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Title:
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President/CEO
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WITNESS:
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DIRECTOR:
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/s/
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/s/
Joseph J. Lukacs, Jr.
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|
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CONDITIONS,
ASSUMPTIONS,
AND
SCHEDULE
OF CONTRIBUTIONS AND PHANTOM CONTRIBUTIONS
1.
Interest
Factor - for purposes of:
|
a.
|
the
Accrued Benefit Account - shall be six percent (6%) per annum, compounded
monthly.
|
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b.
|
the
Elective Contributions - shall be ten percent (10%) per annum, compounded
monthly.
|
|
c.
|
the
Emeritus Contributions - shall be six percent (6%) per annum, compounded
monthly.
|
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d.
|
the
Retirement Income Trust Fund - for purposes of annuitizing the balance
of
the Retirement Income Trust Fund over the Payout Period, the trustee
of
the Joseph J. Lukacs, Jr. Grantor Trust shall exercise discretion
in
selecting the appropriate rate given the nature of the investments
contained in the Retirement Income Trust Fund and the expected return
associated with the investments. For these purposes, if the trustee
of the
Retirement Income Trust Fund has purchased a life insurance policy,
the
trustee shall have the discretion to determine the portion of the
cash
value of such policy available for purposes of annuitizing the Retirement
Income Trust Fund, in accordance with Section 2.3 of the Agreement.
|
2.
|
The
amount of the annual Emeritus Contributions (or Phantom Contributions)
to
the Retirement Income Trust Fund (or Accrued Benefit Account) has
been
based on the annual interest-adjusted accounting accruals which would
be
required of the Bank through the earlier of the Director
=
s
death or Benefit Age, (i) pursuant to APB Opinion No. 12, as amended
by
FAS 106 and (ii) assuming a discount rate equal to six percent (6%)
per
annum, in order to provide a portion of the unfunded, non-qualified
Supplemental Retirement Income Benefit. The Emeritus Contributions
are
calculated to support a benefit based upon
75%
of
the Director’s total board fees, committee fees and/or retainer in the
twelve months prior to Director’s Benefit Eligibility Date.
|
3.
|
The
amount of the annual Elective Contributions (or Phantom Contributions)
to
the Retirement Income Trust Fund (or Accrued Benefit Account) has
been
based on the annual interest-adjusted accounting accruals which would
be
required of the Bank through the earlier of the Director’s death or
Benefit Age, (i) pursuant to APB Opinion No. 12, as amended by FAS
106 and
(ii) assuming a discount rate equal to ten percent (10%) per annum,
in
order to provide a portion of the unfunded, non-qualified Supplemental
Retirement Income Benefit. Director has elected a monthly, pre-tax
deferral of board fees, committee fess and/or retainer in the amount
of
$2,050
per month ending January 2006.
|
4.
|
For
purposes of this Agreement, and benefit calculations under this Agreement,
future increases in Board Fees after 2006 will be limited to the
actual
increase or four percent (4%), whichever is
less.
|
Exhibit
A
5.
|
Supplemental
Retirement Income Benefit under the
Phase
One Payout (for accruals begun under the
Director
Deferred Compensation Master Agreement Type “A
”
(Feb. 1, 1996))
means
an actuarially determined annual amount equal to Fifty-One Thousand
Three-Hundred and Ninety Dollars ($51,390) at age 65 if paid entirely
from
the Accrued Benefit Account or Twenty-Nine Thousand Two Hundred and
Ninety-Two Dollars ($29,292) at age 65 if paid from the Retirement
Income
Trust Fund.
|
|
Supplemental
Retirement Income Benefit under the Phase Two Payout (for accruals
begun
under the
Director
Emeritus Plan
(Feb. 1, 1996 superceded by a new plan on Sept. 1, 2001)) means an
actuarially determined annual amount equal to Ninety-One Thousand
and
Thirty-Five Dollars ($91,035) at age 75 if paid entirely from the
Accrued
Benefit Account or Fifty-One Thousand Eight Hundred and Ninety Dollars
($51,890) at age 75 if paid from the Retirement Income Trust
Fund.
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The
Supplemental Retirement Income Benefit:
|
!
|
the
definition of Supplemental Retirement Income Benefit has been incorporated
into the Agreement for the sole purpose of actuarially establishing
the
amount of annual Contributions (or Phantom Contributions) to the
Retirement Income Trust Fund (or Accrued Benefit Account). The amount
of
any actual retirement, pre-retirement or disability benefit payable
pursuant to the Agreement will be a function of (i) the amount and
timing
of Contributions (or Phantom Contributions) to the Retirement Income
Trust
Fund (or Accrued Benefit Account) and (ii) the actual investment
experience of such Contributions (or the monthly compounding rate
of
Phantom Contributions).
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6.
Schedule
of Annual Gross Contributions/Phantom Contributions
Plan
Year
|
Elective
Contributions
|
Emeritus
Contributions
|
Total
Contributions
|
2004
|
$306,645
|
$237,015
|
$543,660
|
2005
|
58,084
|
106,516
|
164,600
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2006
|
40,421
|
33,590
|
74,011
|
2007
|
|
36,427
|
36,427
|
2008
|
|
39,486
|
39,486
|
2009
|
|
42,783
|
42,783
|
2010
|
|
46,337
|
46,337
|
2011
|
|
50,167
|
50,167
|
2012
|
|
54,293
|
54,293
|
2013
|
|
58,737
|
58,737
|
2014
|
|
63,523
|
63,523
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2015
|
|
68,675
|
68,675
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2016
|
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70,423
|
70,423
|
Exhibit
A
- Cont
=
d.
RESTATED
DIRECTOR
SUPPLEMENTAL RETIREMENT INCOME and
DEFERRED
COMPENSATION AGREEMENT
BENEFICIARY
DESIGNATION
The
Director, under the terms of the Restated Director Supplemental Retirement
Income and Deferred Compensation Agreement executed by the Bank, dated the
1st
day of February, 2004, as amended and restated effective January 1, 2006, hereby
designates the following Beneficiary(ies) to receive any guaranteed payments
or
death benefits under such Agreement, following his death:
PRIMARY
BENEFICIARY:
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SECONDARY
BENEFICIARY:
|
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This
Beneficiary Designation hereby revokes any prior Beneficiary Designation which
may have been in effect.
Such
Beneficiary Designation is revocable.
DATE:
______________________, 20__
Exhibit
B
RESTATED
DIRECTOR
SUPPLEMENTAL RETIREMENT INCOME and
DEFERRED
COMPENSATION AGREEMENT
NOTICE
OF ELECTION TO CHANGE FORM OF PAYMENT
I
hereby
give notice of my election to change the form of payment of my Supplemental
Retirement Income Benefit, as specified below.
I
understand that such notice,
in
order to be effective, must be submitted in accordance with the time
requirements described in Subsection 1.27 of my Restated Director Supplemental
Retirement Income and Deferred Compensation Agreement.
|
G
|
I
hereby elect to change the form of payment of my benefits from monthly
installments throughout my Payout Period to a lump sum benefit
payment.
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G
|
I
hereby elect to change the form of payment of my benefits from a
lump sum
benefit payment to monthly installments throughout my Payout Period.
Such
election hereby revokes my previous notice of election to receive
a lump
sum form of benefit payments.
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DIRECTOR
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DATE
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ACKNOWLEDGED
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BY:
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TITLE:
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DATE
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Exhibit
C
RESTATED
DIRECTOR
SUPPLEMENTAL RETIREMENT INCOME and
DEFERRED
COMPENSATION AGREEMENT
NOTICE
OF ADJUSTMENT OF ELECTIVE CONTRIBUTION
I
hereby
give notice of my election to adjust the amount of my Elective Contribution
in
accordance with my Restated Director Supplemental Retirement Income and Deferred
Compensation Agreement, dated the 1
st
day of
February, 2004, as amended and restated effective January 1, 2006. This notice
is submitted thirty (30) days prior to January 1st, and shall become effective
January 1st, as specified below.
Adjust
deferral as of:
|
January
1st, 2___
|
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Previous
Deferral Amount
|
____________
per month
|
New
Deferral Amount
|
____________
per month
|
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(to
discontinue deferral, enter $0)
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DIRECTOR
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DATE
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ACKNOWLEDGED
BY
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TITLE
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DATE
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Exhibit
D
Exhibit
10.5
RESTATED
DIRECTOR
SUPPLEMENTAL RETIREMENT
INCOME
and DEFERRED COMPENSATION AGREEMENT
FOR
SALVATORE ROMANO
MAGYAR
BANK
New
Brunswick, New Jersey
January
1, 2006
Financial
Institution Consulting Corporation
700
Colonial Road, Suite 102
Memphis,
Tennessee 38117
WATS:
1-800-873-0089
FAX:
(901) 684-7414
(901)
684-7400
RESTATED
DIRECTOR
SUPPLEMENTAL RETIREMENT
INCOME
and DEFERRED COMPENSATION AGREEMENT
FOR
SALVATORE ROMANO
This
Restated Director Supplemental Retirement Income and Deferred Compensation
Agreement for Salvatore Romano (the “Agreement”), effective as of the 1st day of
January, 2006, amends and restates the Director Supplemental Retirement Income
and Deferred Compensation Agreement for Salvatore Romano dated February 1,
2004,
and formalizes the understanding by and between MAGYAR BANK (the “Bank”), a
state chartered savings bank having its principal place of business in New
Brunswick, New Jersey, and SALVATORE ROMANO (hereinafter referred to as
“Director”). All prior non-qualified Director deferred compensation agreements,
including any and all Joinder Agreements, with respect to the Director and
MAGYAR BANK, are hereby superseded and replaced by this Agreement
W
I T N E S S E T H :
WHEREAS
,
the
Director serves the Bank as a member of the board; and
WHEREAS
,
the
Bank recognizes the valuable services heretofore performed by the Director
and
wishes to encourage his continued service; and
WHEREAS
,
the
Director wishes to be assured that the Director will be entitled to a certain
amount of additional compensation for some definite period of time from and
after retirement from active service with the Bank or other termination of
service and wishes to provide his beneficiary with benefits from and after
death; and
WHEREAS
,
the
Bank and the Director wish to provide the terms and conditions upon which the
Bank shall pay such additional compensation to the Director after retirement
or
other termination of service and/or death benefits to his beneficiary after
death; and
WHEREAS
,
the
Bank has adopted this Director Supplemental Retirement Income and Deferred
Compensation Agreement which controls all issues relating to benefits as
described herein; and
WHEREAS
,
Section
409A of the Internal Revenue Code of 1986 (“Code”), as amended, requires that
certain deferred compensation arrangements comply with its terms or subject
the
recipient of the compensation to potential taxes and penalties; and
WHEREAS
,
the
Bank desires to amend and restate the Agreement to comply with Code Section
409A
and any Treasury Regulations promulgated thereunder; and
WHEREAS
,
the
Board of Directors of the Bank has conditionally approved
the
amendment and restatement of the Agreement, subject to the approval of the
New
Jersey Department of Banking and Insurance.
NOW,
THEREFORE,
in
consideration of the premises and of the mutual promises herein contained,
the
Bank and the Director agree as follows:
SECTION
I
DEFINITIONS
When
used
herein, the following words and phrases shall have the meanings below unless
the
context clearly indicates otherwise:
1.1
|
“Accrued
Benefit Account” shall be
represented
by
the bookkeeping entries required to record the Director
=
s
(i) Phantom Contributions plus (ii) accrued interest, equal to the
Interest Factor, earned to-date on such amounts. However, neither
the
existence of such bookkeeping entries nor the Accrued Benefit Account
itself shall be deemed to create either a trust of any kind, or a
fiduciary relationship between the Bank and the Director or any
Beneficiary.
|
1.2
|
“Act”
means the Employee Retirement Income Security Act of 1974, as amended
from
time to time.
|
1.3
|
A
Administrator
@
means the Bank.
|
1.4
|
“Bank”
means MAGYAR BANK and any successor
thereto.
|
1.5
|
“Beneficiary”
means the person or persons (and their heirs) designated as Beneficiary
in
Exhibit B of this Agreement to whom the deceased Director
=
s
benefits are payable. If no Beneficiary is so designated, then the
Director
=
s
Spouse, if living, will be deemed the Beneficiary. If the
Director
=
s
Spouse is not living, then the Children of the Director will be deemed
the
Beneficiaries and will take on a per stirpes basis. If there are
no
Children, then the Estate of the Director will be deemed the
Beneficiary.
|
1.6
|
“Benefit
Age” means the later of: (i) the Director’s seventy-fifth (75th) birthday
or (ii) the actual date the Director
=
s
full-time service with the Bank terminates.
|
1.7
|
“Benefit
Eligibility Date” means the date on which the Director is entitled to
receive any benefit(s) pursuant to Section(s) III or V of this Agreement.
It shall be the first day of the month following both the attainment
of
the Directors’ Benefit Age and his actual retirement from the Board of
Directors.
|
1.8
|
“Board
of Directors” means the board of directors of the
Bank.
|
1.9
|
“Cause”
means termination of the Director
=
s
service on the Board of Directors due to: (i) actions or inactions
which
constitute a breach of the bylaws of the Bank or (ii) the
Director
=
s
personal dishonesty, willful misconduct, willful malfeasance, breach
of
fiduciary duty involving personal profit, intentional failure to
perform
stated duties, willful violation of any law, rule, regulation (other
than
traffic violations or similar offenses), or final cease-and-desist
order,
material breach of any provision of this Plan, or gross negligence
in
matters of material importance to the
Bank.
|
1.10
|
“Change
in Control” shall mean a change in the ownership of the Bank or Company
under paragraph (a) below, a change in effective control of the Bank
or
Company under paragraph (b) below, or a change in the ownership of
a
substantial portion of the assets of the Bank or Company under paragraph
(c) below. For all purposes hereunder, the definition of Change in
Control
shall be construed to be consistent with the requirements of Proposed
Treasury Regulation Section 1.409A-3(g), except to the extent that
such
proposed regulations are superseded by subsequent
guidance.
|
For
this
subsection “persons acting as a group” is defined as follows; Persons will be
considered to be acting as a group if they are owners of a corporation that
enters into a merger, consolidation, purchase or acquisition of stock, or
similar business transaction with the corporation. Persons will not be
considered to be acting as a group solely because they purchase or own stock
of
the same corporation at the same time, or as a result of the same public
offering. If a person, including an entity, owns stock in both corporations
that
enter into a merger, consolidation, purchase or acquisition of stock, or similar
transaction, such shareholder is considered to be acting as a group with other
shareholders in a corporation only with respect to the ownership in that
corporation prior to the transaction giving rise to the change and not with
respect to the ownership interest in the other corporation.
|
(a)
|
Change
in Ownership of the Bank or Company
|
Change
in
the ownership occurs on the date that any one person, or more than one person
acting as a group (as defined above), acquires ownership of stock of the Bank
or
Company that, together with stock held by such person or group, constitutes
more
than 50 percent of the total fair market value or total voting power of the
stock of such corporation. However, if any one person or more than one person
acting as a group, is considered to own more than 50 percent of the total fair
market value or total voting power of the stock of a corporation, the
acquisition of additional stock by the same person or persons is not considered
to cause a change in the ownership of the corporation or to cause a change
in
the effective control of the corporation.
|
(b)
|
Change
in the Effective Control of the Bank or
Company
|
A
change
in the effective control of the Bank or Company occurs on the date that either
-
(1)
Any
one person, or more than one person acting as a group (as defined above),
acquires (or has acquired during the 12-month period ending on the date of
the
most recent acquisition by such person or persons) ownership of stock of the
Company possessing 20 percent or more of the total voting power of the stock
of
the Company (except that if an individual Director’s agreement becomes subject
to Code Section 409A, then the required percentage of acquired ownership of
stock under this Subsection 1.10 (b)(1) shall be 35 percent or more); or
(2)
a
majority of members of the Company’s board of directors is replaced during any
12-month period by directors whose appointment or election is not endorsed
by a
majority of the members of the Company’s board of directors prior to the date of
the appointment or election.
|
(c)
|
Change
in the Ownership of a Substantial Portion of the Bank’s or Company’s
Assets.
|
Change
in
the ownership of a substantial portion of the Bank or Company’s assets occurs on
the date that any one person, or more than one person acting as a group (as
defined above), acquires (or has acquired during the 12-month period ending
on
the date of the most recent acquisition by such person or persons) assets from
the corporation that have a total gross fair market value equal to or more
than
40 percent of the total gross fair market value of all of the assets of the
Bank
or Company immediately prior to such acquisition or acquisitions. For this
purpose, gross fair market value means the value of the assets of the Bank
or
Company, or the value of the assets being disposed of, determined without regard
to any liabilities associated with such assets.
1.11
|
“Children”
means all natural or adopted children of the Director and issue of
any
predeceased child or children.
|
1.12
|
“Code”
means the Internal Revenue Code of 1986, as amended from time to
time.
|
1.13
|
“Company”
shall mean Magyar Bancorp, Inc.
|
1.14
|
“Contribution(s)”
means those annual total contributions comprised of both the Elective
Contributions and the Emeritus Contributions which the Bank is required
to
make to the Retirement Income Trust Fund on behalf of the Director
in
accordance with Subsection 2.1(a) and in the amounts set forth in
Exhibit
A of the Agreement. Such Contributions, for the first Plan Year,
shall
include any and all amounts accrued by the Bank to pay the benefits
promised to the Director under any prior non-qualified deferred
compensation agreements including any Joinder Agreements previously
executed by the Bank and the Director.
|
1.15
|
(a)
“Disability Benefit” means the benefit payable to the Director following a
determination, in accordance with Subsection 6.1(a), that he is no
longer
able, properly and satisfactorily, to perform his duties at the
Bank.
|
(b)
“Disability Benefit-Supplemental” (if applicable) means the benefit payable to
the Director
=
s
Beneficiary upon the Director
=
s
death
in accordance with Subsection 6.1(b).
1.16
|
“Effective
Date” of this Agreement shall be January 1, 2006. The original effective
date of this Agreement was February 1, 2004. The Agreement is hereby
amended and restated effective January 1, 2006 in order to conform
to Code
Section 409A.
|
1.17
|
“Elective
Contribution” shall refer to the Director’s voluntary monthly pre-tax
deferral of board fees, committee fees and/or retainer plus interest
compounded annually at a rate equal to the Interest Factor. The Director
may elect to change his voluntary deferral amount by submitting to
the
Bank a Notice of Adjustment of Elective Contribution thirty (30)
days
prior to the end of any Plan Year.
|
1.18
|
“Emeritus
Contribution” shall refer to the amounts necessary to support an annual
amount payable to the Director at Benefit Age based upon a percentage,
as
stated in Appendix A, of the Director’s total board fees, committee fees
and/or retainer in the twelve months prior to the Director’s Benefit
Eligibility Date. The percentage shall be determined by the following
formula: ten percent (10%) plus two and one-half percent (2 ½%) for each
year of service as a Director, with a minimum of fifty percent (50%),
provided the Director has served for at least five (5) years, and
a
maximum of sixty percent (60%). Notwithstanding the foregoing, any
Director who serves as Board Chairman for a five-year term (other
than the
current Chairman) shall be entitled to receive seventy-five percent
(75%).
|
1.19
|
“Estate”
means the estate of the Director.
|
1.20
|
“Interest
Factor” means monthly compounding, discounting or annuitizing, as
applicable, at a rate set forth in
Exhibit A.
|
1.21
|
“Payout
Period” means the time frame during which certain benefits payable
hereunder shall be distributed. Payments shall be made in monthly
installments commencing on the first day of the month following the
occurrence of the event which triggers distribution and continuing
for a
period of one hundred eighty (180) months. Should the Director make
a
Timely Election to receive a lump sum benefit payment, the
Director
=
s
Payout Period shall be deemed to be one (1) month.
|
1.22
|
“Phantom
Contributions” means those annual Contributions which the Bank is no
longer required to make on behalf of the Director to the Retirement
Income
Trust Fund. Rather, once the Director has exercised the withdrawal
rights
provided for in Subsection 2.2, the Bank shall be required to record
the
annual amounts set forth in Exhibit A of the Agreement in the
Director
=
s
Accrued Benefit Account, pursuant to Subsection 2.1.
|
1.23
|
“Plan
Year” shall mean the twelve (12) month period commencing January 1 and
ending December 31.
|
1.24
|
“Retirement
Income Trust Fund” means the trust fund account established by the
Director and into which annual Contributions will be made by the
Bank on
behalf of the Director pursuant to Subsection 2.1. The contractual
rights
of the Bank and the Director with respect to the Retirement Income
Trust
Fund shall be outlined in a separate writing to be known as the Salvatore
Romano Grantor Trust agreement.
|
1.25
|
A
Spouse
@
means the individual to whom the Director is legally married at the
time
of the Director
=
s
death, provided, however, that the term
A
Spouse
@
shall not refer to an individual to whom the Director is legally
married
at the time of death if the Director and such individual have entered
into
a formal separation agreement or initiated divorce
proceedings.
|
1.26
|
“Supplemental
Retirement Income Benefit” means an annual amount (
before
taking into account federal and state income taxes), payable in monthly
installments throughout the Payout Period. Such benefit is projected
pursuant to the Agreement for the purpose of determining the Contributions
to be made to the Retirement Income Trust Fund (or Phantom Contributions
to be recorded in the Accrued Benefit Account). The annual Contributions
and Phantom
|
Contributions
have been actuarially determined, using the assumptions set forth in Exhibit
A,
in order to fund for the projected Supplemental Retirement Income Benefit.
The
Supplemental Retirement Income Benefit for which Contributions (or Phantom
Contributions) are being made (or recorded) is set forth in Exhibit A.
1.27
|
“Timely
Election” means the Director has made an election to change the form of
his benefit payment(s) from the Retirement Income Trust Fund by filing
with the Administrator a Notice of Election to Change Form of Payment
(Exhibit C of this Agreement). In the case of benefits payable from
the
Retirement Income Trust Fund, such election may be made at any time.
In
the case of benefits payable from the Accrued Benefit Account, such
election generally shall have been made prior to December 31, 2006
(i.e.
the last day of the “Transition Period” for bringing plans into compliance
with Code Section 409A). Unless the Transition Period is extended
by the
Internal Revenue Service, if the Director makes an election subsequent
to
December 31, 2006 with respect to distributions from the Accrued
Benefit
Account, then (i) such election may not take effect until at least
twelve
(12) months after the date on which the election is made, (ii) in
the case
of an election related to a payment other than due to disability
or death,
the first payment with respect to which such election is made must
be
deferred for a period of not less than five (5) years from the date
such
payment would otherwise have been made, and (iii) any election related
to
a distribution at a specified time or pursuant to a fixed schedule
may not
be made less than twelve (12) months prior to the date of the first
scheduled payment.
|
SECTION
II
BENEFIT
FUNDING
2.1
|
(a)
Retirement
Income Trust Fund and Accrued Benefit Account
.
The Director shall establish the Salvatore Romano Grantor Trust into
which
the Bank shall be required to make annual Contributions on the
Director
=
s
behalf, pursuant to Exhibit A and this Section II of the Agreement.
A
trustee shall be selected by the Director. The trustee shall maintain
an
account, separate and distinct from the Director
=
s
personal contributions, which account shall constitute the Retirement
Income Trust Fund. The trustee shall be charged with the responsibility
of
investing all contributed funds. Distributions from the Retirement
Income
Trust Fund of the Salvatore Romano Grantor Trust may be made by the
trustee to the Director, for purposes of payment
of
|
any
income or employment taxes due and owing on Contributions by the Bank to the
Retirement Income Trust Fund, if any, and on any taxable earnings associated
with such Contributions which the Director shall be required to pay from year
to
year, under applicable law, prior to actual receipt of any benefit payments
from
the Retirement Income Trust Fund. If the Director exercises his withdrawal
rights pursuant to Subsection 2.2, the Bank
=
s
obligation to make Contributions to the Retirement Income Trust Fund shall
cease
and the Bank
=
s
obligation to record Phantom Contributions in the Accrued Benefit Account shall
immediately commence pursuant to Exhibit A and this Section II of the Agreement.
To the extent this Agreement is inconsistent with the Salvatore Romano Grantor
Trust Agreement, the Salvatore Romano Grantor Trust Agreement shall supersede
this Agreement.
The
annual Contributions (or Phantom Contributions) required to be made by the
Bank
to the Retirement Income Trust Fund (or recorded by the Bank in the Accrued
Benefit Account) have been actuarially determined and are set forth in Exhibit
A
which is attached hereto and incorporated herein by reference. Contributions
shall be made by the Bank to the Retirement Income Trust Fund (i) within
seventy-five (75) days of establishment of such trust, and (ii) within the
first
thirty (30) days of the beginning of each subsequent Plan Year, unless this
Section expressly provides otherwise. Phantom Contributions, if any, shall
be
recorded in the Accrued Benefit Account within the first thirty (30) days of
the
beginning of each applicable Plan Year, unless this Section expressly provides
otherwise. Phantom Contributions shall accrue interest at a rate equal to the
Interest Factor, during the Payout Period, until the balance of the Accrued
Benefit Account has been fully distributed. Interest on any Phantom Contribution
shall not commence until such Payout Period commences.
The
Administrator shall review the schedule of annual Contributions (or Phantom
Contributions) provided for in Exhibit A (i) within thirty (30) days prior
to
the close of each Plan Year and (ii) if the Director is employed by the Bank
until attaining Benefit Age, on or immediately before attainment of such Benefit
Age. Such review shall consist of an evaluation of the accuracy of all
assumptions used to establish the schedule of Contributions (or Phantom
Contributions). Provided that (i) the Director has not exercised his withdrawal
rights pursuant to Subsection 2.2 and (ii) the investments contained in the
Retirement Income Trust Fund have been deemed reasonable by the Bank, the
Administrator shall prospectively amend or supplement the
schedule
of
Contributions provided for in Exhibit A should the Administrator determine
during any such review that
an
increase
in or
supplement
to
the
schedule of Contributions is necessary in order to adequately fund the
Retirement Income Trust Fund so as to provide an annual benefit (or to provide
the lump sum equivalent of such benefit, as applicable) equal to the
Supplemental Retirement Income Benefit, on an after-tax basis, commencing at
Benefit Age and payable for the duration of the Payout Period.
(b)
Withdrawal
Rights Not Exercised.
(1)
Contributions
Made Annually
If
the
Director does not exercise any withdrawal rights pursuant to Subsection 2.2,
the
annual Contributions to the Retirement Income Trust Fund shall continue each
year, unless this Subsection 2.1(b) specifically states otherwise, until the
earlier of (i) the last Plan Year that Contributions are required pursuant
to
Exhibit A, or (ii) the Plan Year of the Director’s termination of
service.
(2)
Termination
Following a Change in Control
If
the
Director does not exercise his withdrawal rights pursuant to Subsection 2.2
and
a Change in Control occurs at the Bank, followed within thirty-six (36) months
by either (i) the Director’s involuntary termination of service, or (ii)
Director’s voluntary termination of service after: (A) a material change in the
Director’s function, duties, or responsibilities, which change would cause the
Director’s position to become one of lesser responsibility, importance, or scope
from the position the Director held at the time of the Change in Control, (B)
a
relocation of the Director’s principal place of service by more than thirty (30)
miles from its location prior to the Change in Control, or (C) a material
reduction in the benefits and perquisites to the Director from those being
provided at the time of the Change in Control, the Emeritus Contributions as
set
forth on Schedule A shall continue to be required of the Bank. The Bank shall
be
required to make an immediate lump sum Contribution to the Director’s Retirement
Income Trust Fund in an amount equal to: (i) the full Emeritus Contribution
required for the Plan Year in which such termination occurs, if not yet made,
plus (ii) the present value (computed using a discount rate equal to the
Interest Factor) of all remaining Emeritus Contributions to the Retirement
Income Trust Fund, and (iii) the present value (computed using the a discount
rate equal to the Interest Factor) of the interest only component of the
Elective Contribution; provided, however, that, if necessary, an
additional
amount shall be contributed to the Retirement Income Trust Fund which is
sufficient to provide the Director with after-tax benefits (assuming a constant
tax rate equal to the rate in effect as of the date of Director
=
s
termination) beginning at Benefit Age following such termination, equal in
amount to that benefit which would have been payable to the Director if no
secular trust had been implemented and the benefit obligation had been accrued
under APB Opinion No. 12, as amended by FAS 106.
(3)
Termination
For Cause
If
the
Director does not exercise his withdrawal rights pursuant to Subsection 2.2,
and
is terminated for Cause pursuant to Subsection 5.2, no further Contribution(s)
to the Retirement Income Trust Fund shall be required of the Bank, and if not
yet made, no Contribution shall be required for the Plan Year in which such
termination for Cause occurs.
(4)
Voluntary or Involuntary Termination of Service
.
If
the
Director does not exercise his withdrawal rights pursuant to
Subsection 2.2, and the Director’s service with the Bank is voluntarily or
involuntarily terminated for any reason, including a termination due to
disability of the Director but excluding termination for Cause, or termination
following a Change in Control within thirty-six (36) months of such Change
in
Control, no further Contribution(s), as defined in Subsection 1.14, to the
Retirement Income Trust Fund shall be required of the Bank, and if not yet
made,
no Contribution shall be required for the Plan Year in which such termination
occurs. Notwithstanding the above, the Bank will be required to make annual
payments to Director’s Retirement Income Trust Fund determined as
follows:
|
1.
|
Determine
what the accrued liability would have been as of the Director’s date of
termination, had no secular trust been
implemented.
|
|
2.
|
Determine
the benefit payable, beginning at the Benefit Age, for 180 months
which
that accrued liability would support had interest been added to that
liability on an annual basis using the Accrued Benefit Interest Factor
set
forth in Exhibit A.
|
|
3.
|
The
Bank shall make payments to the Director’s Retirement Income Trust Fund on
an annual basis in amounts equal to the accrued interest expense
which
would have been recorded absent the secular trust
arrangement.
|
(5)
Death
During Service
.
If
the
Director does not exercise any withdrawal rights pursuant to
Subsection 2.2, and dies while employed by the Bank, and if, following the
Director
=
s
death,
the assets of the Retirement Income Trust Fund are insufficient to provide
the
Supplemental Retirement Income Benefit to which the Director is entitled, the
Bank shall be required to make a Contribution to the Retirement Income Trust
Fund equal to the sum of the remaining Contributions set forth on Exhibit A,
after taking into consideration any payments under any life insurance policies
that may have been obtained on the Director
=
s
life by
the Retirement Income Trust Fund. Such final contribution shall be payable
in a
lump sum to the Retirement Income Trust Fund within thirty (30) days of the
Director
=
s
death.
(c)
Withdrawal
Rights Exercised.
(1)
Phantom
Contributions Made Annually
.
If
the
Director exercises his withdrawal rights pursuant to Subsection 2.2, no further
Contributions to the Retirement Income Trust Fund shall be required of the
Bank.
Thereafter, Phantom Contributions shall be recorded annually in the Director’s
Accrued Benefit Account within thirty (30) days of the beginning of each Plan
Year, commencing with the first Plan Year following the Plan Year in which
the
Director exercises his withdrawal rights. Such Phantom Contributions shall
continue to be recorded annually, unless this Subsection 2.1(c) specifically
states otherwise, until the earlier of (i) the last Plan Year that Phantom
Contributions are required pursuant to Exhibit A, or (ii) the Plan Year of
the
Director’s termination of service.
(2)
Termination
Following a Change in Control
If
the
Director exercises his withdrawal rights pursuant to Subsection 2.2, Phantom
Contributions shall commence in the Plan Year following the Plan Year in which
the Director first exercises his withdrawal rights. If a Change in Control
occurs at the Bank, and within thirty-six (36) months of such Change in Control,
the Director’s service is either (i) involuntarily terminated, or (ii)
voluntarily terminated by the Director after: (A) a material change in the
Director’s function, duties, or responsibilities, which change would cause the
Director’s position to become one of lesser responsibility, importance, or scope
from the position the Director held at the time of the Change in Control, (B)
a
relocation of the Director’s principal place of service by more than thirty (30)
miles from its location prior to the Change in Control, or (C) a material
reduction in the
benefits
and perquisites to the Director from those being provided at the time of the
Change in Control, the Phantom Contribution set forth below shall be required
of
the Bank. The Bank shall be required to record a lump sum Phantom Contribution
in the Accrued Benefit Account within ten (10) days of the Director
=
s
termination of service equal to (i) the full Emeritus Contribution required
for
the Plan Year in which such termination occurs, if not yet made, plus (ii)
the
present value (computed using a discount rate equal to the Interest Factor)
of
all remaining Emeritus Contributions to the Retirement Income Trust Fund, and
(iii) the present value (computed using the a discount rate equal to the
Interest Factor) of the interest only component of the Elective Contribution.
The amount of such final Phantom Contribution shall be actuarially determined
based on the Phantom Contribution required, at such time, in order to provide
a
benefit via this Agreement equal in amount to that benefit which would have
been
payable to the Director if no secular trust had been implemented and the benefit
obligation had been accrued under APB Opinion No. 12, as amended by FAS 106.
(Such actuarial determination shall reflect the fact that amounts shall be
payable from both the Accrued Benefit Account as well as the Retirement Income
Trust Fund and shall also reflect the amount and timing of any withdrawal(s)
made by the Director from the Retirement Income Trust Fund pursuant to
Subsection 2.2.)
(3)
Termination
For Cause
If
the
Director is terminated for Cause pursuant to Subsection 5.2, the entire balance
of the Director
=
s
Accrued
Benefit Account at the time of such termination, which shall include any Phantom
Contributions which have been recorded plus interest accrued on such Phantom
Contributions, shall be forfeited.
(4)
Voluntary
and
Involuntary
Termination of Service
.
If
the
Director exercises his withdrawal rights pursuant to Subsection 2.2, and the
Director’s service with the Bank is voluntarily or involuntarily terminated for
any reason including termination due to disability of the Director, but
excluding termination for Cause, or termination following a Change in Control,
within thirty (30) days of such termination of service, no further Phantom
Contributions shall be required of the Bank. Interest, at a rate equal to the
Interest Factor, shall accrue on such Phantom Contributions until the Director’s
Benefit Eligibility Date.
(5)
Death
During Service
.
If
the
Director exercises his withdrawal rights pursuant to Subsection 2.2, and
dies while employed by the Bank, Phantom Contributions included on Exhibit
A
shall be required of the Bank. Such Phantom Contributions shall commence in
the
Plan Year following the Plan Year in which the Director exercises his withdrawal
rights and shall continue through the Plan Year in which the Director dies.
The
Bank shall also be required to record a final Phantom Contribution within thirty
(30) days of the Director
=
s
death.
The amount of such final Phantom Contribution shall be actuarially determined
based on the Phantom Contribution required at such time (if any), in order
to
provide a benefit via this Agreement equivalent to the Supplemental Retirement
Income Benefit commencing within thirty (30) days of the date the Administrator
receives notice of the Director
=
s
death
and continuing for the duration of the Payout Period. (Such actuarial
determination shall reflect the fact that amounts shall be payable from the
Accrued Benefit Account as well as the Retirement Income Trust Fund and shall
also reflect the amount and timing of any withdrawal(s) made by the Director
pursuant to Subsection 2.2.)
2.2
|
Withdrawals
From Retirement Income Trust
Fund.
|
Exercise
of withdrawal rights by the Director pursuant to the Salvatore Romano Grantor
Trust agreement shall terminate the Bank’s obligation to make any further
Contributions to the Retirement Income Trust Fund, and the Bank
=
s
obligation to record Phantom Contributions pursuant to Subsection 2.1(c) shall
commence. For purposes of this Subsection 2.2,
A
exercise
of withdrawal rights
@
shall
mean those withdrawal rights to which the Director is entitled under Article
III
of the Salvatore Romano Grantor Trust agreement and shall exclude any
distributions made by the trustee of the Retirement Income Trust Fund to the
Director for purposes of payment of income taxes in accordance with Subsection
2.1 of this Agreement and the tax reimbursement formula contained in the trust
document, or other trust expenses properly payable from the Salvatore Romano
Grantor Trust pursuant to the provisions of the trust document.
2.3
|
Benefits
Payable From Retirement Income Trust
Fund
|
Notwithstanding
anything else to the contrary in this Agreement, in the event that the trustee
of the Retirement Income Trust Fund purchases a life insurance policy with
the
Contributions to and, if applicable, earnings of the Trust, and such life
insurance policy is intended to continue in force beyond the Payout Period
for
the disability or retirement benefits payable from the
Retirement
Income Trust Fund pursuant to this Agreement, then the trustee shall have
discretion to determine the portion of the cash value of such policy available
for purposes of annuitizing the Retirement Income Trust Fund (it being
understood that for purposes of this Section 2.3,
A
annuitizing
@
does not
mean surrender of such policy and annuitizing of the cash value received upon
such surrender) to provide the disability or retirement benefits payable under
this Agreement, after taking into consideration the amounts reasonably believed
to be required in order to maintain the cash value of such policy to continue
such policy in effect until the death of the Director and payment of death
benefits thereunder.
SECTION
III
RETIREMENT
BENEFIT
3.1
|
(a)
Normal
form of payment
.
|
If
(i)
the Director is employed with the Bank until reaching his Benefit Age and (ii)
the Director has not made a Timely Election to receive a lump sum benefit,
this
Subsection 3.1(a) shall be controlling with respect to retirement
benefits.
The
Retirement Income Trust Fund, measured as of the Director’s Benefit Age, shall
be annuitized (using the Interest Factor) into monthly installments and shall
be
payable for the Payout Period. Such benefit payments shall commence on the
Director’s Benefit Eligibility Date. Should Retirement Income Trust Fund assets
actually earn a rate of return, following the date such balance is annuitized,
which is less than the rate of return used to annuitize the Retirement Income
Trust Fund, no additional contributions to the Retirement Income Trust Fund
shall be required by the Bank in order to fund the final benefit payment(s)
and
make up for any shortage attributable to the less-than-expected rate of return.
Should Retirement Income Trust Fund assets actually earn a rate of return,
following the date such balance is annuitized, which is greater than the rate
of
return used to annuitize the Retirement Income Trust Fund, the final benefit
payment to the Director (or his Beneficiary) shall distribute the excess amounts
attributable to the greater-than-expected rate of return. The Director may
at
anytime during the Payout Period request to receive the unpaid balance of his
Retirement Income Trust Fund in a lump sum payment. If such a lump sum payment
is requested by the Director, payment of the balance of the Retirement Income
Trust Fund in such lump sum form shall be made only if the Director gives notice
to both
the
Administrator and trustee in writing. Such lump sum payment shall be payable
within thirty (30) days of such notice. In the event the Director dies at any
time after attaining his Benefit Age, but prior to commencement or completion
of
all monthly payments due and owing hereunder, (i) the trustee of the Retirement
Income Trust Fund shall pay to the Director’s Beneficiary the monthly
installments (or a continuation of such monthly installments if they have
already commenced) for the balance of months remaining in the Payout Period,
or
(ii) the Director’s Beneficiary may request to receive the unpaid balance of the
Director’s Retirement Income Trust Fund in a lump sum payment. If a lump sum
payment is requested by the Beneficiary, payment of the balance of the
Retirement Income Trust Fund in such lump sum form shall be made only if the
Director’s Beneficiary notifies both the Administrator and trustee in writing of
such election within ninety (90) days of the Director’s death. Such lump sum
payment shall be payable within thirty (30) days of such notice.
The
Director
=
s
Accrued
Benefit Account (if applicable), measured as of the Director
=
s
Benefit
Age, shall be annuitized (using the Interest Factor) into monthly installments
and shall be payable for the Payout Period. Such benefit payments shall commence
on the Director
=
s
Benefit
Eligibility Date. In the event the Director dies at any time after attaining
his
Benefit Age, but prior to commencement or completion of all the payments due
and
owing hereunder, (i) the Bank shall pay to the Director
=
s
Beneficiary the same monthly installments (or a continuation of such monthly
installments if they have already commenced) for the balance of months remaining
in the Payout Period.
(b)
Alternative
payout option.
If
(i)
the Director is employed with the Bank until reaching his Benefit Age, and (ii)
the Director has made a Timely Election to receive a lump sum benefit, this
Subsection 3.1(b) shall be controlling with respect to retirement benefits.
The
balance of the Retirement Income Trust Fund and the Accrued Benefit Account
(if
applicable), measured as of the Director
=
s
Benefit
Age, shall be paid to the Director in a lump sum on his Benefit Eligibility
Date. In the event the Director dies after becoming eligible for such payment
(upon attainment of his Benefit Age), but before the actual payment is made,
his
Beneficiary
shall be entitled to receive the lump sum benefit in accordance with this
Subsection 3.1(b) within thirty (30) days of the date the Administrator receives
notice of the Director’s death.
Notwithstanding
the foregoing, unless the Director has made a Timely Election to receive a
lump
sum distribution from the Accrued Benefit Account, distributions from the
Accrued Benefit Account will be paid over the Payout Period, commencing within
thirty (30) days of the Director’s Benefit Age.
SECTION
IV
PRE-RETIREMENT
DEATH BENEFIT
4.1
|
(a)
Normal
form of payment
.
|
If
(i)
the Director dies while employed by the Bank, and (ii) the Director has not
made
a Timely Election to receive a lump sum benefit, this Subsection 4.1(a) shall
be
controlling with respect to pre-retirement death benefits.
The
balance of the Director
=
s
Retirement Income Trust Fund, measured as of the later of (i) the
Director
=
s
death,
or (ii) the date any final lump sum Contribution is made pursuant to Subsection
2.1(b), shall be annuitized (using the Interest Factor) into monthly
installments and shall be payable for the Payout Period. Such benefits shall
commence within thirty (30) days of the date the Administrator receives notice
of the Director
=
s
death.
Should Retirement Income Trust Fund assets actually earn a rate of return,
following the date such balance is annuitized, which is less than the rate
of
return used to annuitize the Retirement Income Trust Fund, no additional
contributions to the Retirement Income Trust Fund shall be required by the
Bank
in order to fund the final benefit payment(s) and make up for any shortage
attributable to the less-than-expected rate of return. Should Retirement Income
Trust Fund assets actually earn a rate of return, following the date such
balance is annuitized, which is greater than the rate of return used to
annuitize the Retirement Income Trust Fund, the final benefit payment to the
Director
=
s
Beneficiary shall distribute the excess amounts attributable to the
greater-than-expected rate of return. The Director
=
s
Beneficiary may request to receive the unpaid balance of the
Director
=
s
Retirement Income Trust Fund in a lump sum payment. If a lump sum payment is
requested by the Beneficiary, payment of the balance of the Retirement Income
Trust Fund in such lump sum form shall be made only if the Director
=
s
Beneficiary notifies both the Administrator and trustee
in
writing of such election within ninety (90) days of the Director
=
s
death.
Such lump sum payment shall be made within thirty (30) days of such
notice.
The
Director
=
s
Accrued
Benefit Account (if applicable), measured as of the later of (i) the
Director’s death or (ii) the date any final lump sum Phantom Contribution is
recorded in the Accrued Benefit Account pursuant to Subsection 2.1(c), shall
be
annuitized (using the Interest Factor) into monthly installments and shall
be
payable to the Director’s Beneficiary for the Payout Period. Such benefit
payments shall commence within thirty (30) days of the date the Administrator
receives notice of the Director
=
s
death,
or if later, within thirty (30) days after any final lump sum Phantom
Contribution is recorded in the Accrued Benefit Account in accordance with
Subsection 2.1(c).
(b)
Alternative
payout option
.
If
(i)
the Director dies while employed by the Bank, and (ii) the Director has made
a
Timely Election to receive a lump sum benefit, this Subsection 4.1(b) shall
be
controlling with respect to pre-retirement death benefits.
The
balance of the Director
=
s
Retirement Income Trust Fund and the Accrued Benefit Account (if applicable),
measured as of the later of (i) the Director
=
s
death,
or (ii) the date any final lump sum Contribution is made pursuant to Subsection
2.1(b), shall be paid to the Director’s Beneficiary in a lump sum within thirty
(30) days of the date the Administrator receives notice of the Director’s
death.
Notwithstanding the foregoing, unless the Director has made a Timely Election
to
receive a lump sum distribution with respect to the Accrued Benefit Account,
distributions from the Accrued Benefit Account will be paid over the Payout
Period commencing within thirty (30) days of the date the Administrator receives
notice of the Director
=
s
death.
SECTION
V
BENEFIT(S)
IN THE EVENT OF TERMINATION OF SERVICE
PRIOR
TO BENEFIT AGE
5.1
|
Voluntary
or Involuntary Termination of Service Other Than for Cause
.
In the event the Director
=
s
service with the Bank is voluntarily or involuntarily terminated
prior to
Benefit Age,
|
for
any
reason, including a Change in Control, but excluding (i) any disability related
termination for which the Board of Directors has approved early payment of
benefits pursuant to Subsection 6.1, (ii) the Director’s pre-retirement death,
which shall be covered in Section IV, (iii) or termination for Cause, which
shall be covered in Subsection 5.2, the Director (or his Beneficiary) shall
be
entitled to receive benefits in accordance with this Subsection 5.1. Payments
of
benefits pursuant to this Subsection 5.1 shall be made in accordance with
Subsection 5.1(a) or 5.1(b) below, as applicable.
(a)
Normal
form of payment
.
(1)
Director
Lives Until Benefit Age
If
(i)
after such termination, the Director lives until attaining his Benefit Age,
and
(ii) the Director has not made a Timely Election to receive a lump sum benefit,
this Subsection 5.1(a)(1) shall be controlling with respect to retirement
benefits.
The
Retirement Income Trust Fund, measured as of the Director’s Benefit Age, shall
be annuitized (using the Interest Factor) into monthly installments and shall
be
payable for the Payout Period. Such payments shall commence on the Director’s
Benefit Eligibility Date. Should Retirement Income Trust Fund assets actually
earn a rate of return, following the date such balance is annuitized, which
is
less than the rate of return used to annuitize the Retirement Income Trust
Fund,
no additional contributions to the Retirement Income Trust Fund shall be
required by the Bank in order to fund the final benefit payment(s) and make
up
for any shortage attributable to the less-than-expected rate of return. Should
Retirement Income Trust Fund assets actually earn a rate of return, following
the date such balance is annuitized, which is greater than the rate of return
used to annuitize the Retirement Income Trust Fund, the final benefit payment
to
the Director (or his Beneficiary) shall distribute the excess amounts
attributable to the greater-than-expected rate of return. The Director may
at
anytime during the Payout Period request to receive the unpaid balance of his
Retirement Income Trust Fund in a lump sum payment. If such a lump sum payment
is requested by the Director, payment of the balance of the Retirement Income
Trust Fund in such lump sum form shall be made only if the Director gives notice
to both the Administrator and trustee in writing. Such lump sum payment shall
be
payable within thirty (30) days of such notice. In the event the Director dies
at any time after attaining his Benefit Age, but prior to commencement or
completion of all monthly payments due and owing hereunder, (i)
the
trustee of the Retirement Income Trust Fund shall pay to the Director’s
Beneficiary the monthly installments (or a continuation of the monthly
installments if they have already commenced) for the balance of months remaining
in the Payout Period, or (ii) the Director’s Beneficiary may request to receive
the unpaid balance of the Director’s Retirement Income Trust Fund in a lump sum
payment. If a lump sum payment is requested by the Beneficiary, payment of
the
balance of the Retirement Income Trust Fund in such lump sum form shall be
made
only if the Director’s Beneficiary notifies both the Administrator and trustee
in writing of such election within ninety (90) days of the Director’s death.
Such lump sum payment shall be made within thirty (30) days of such
notice.
The
Director
=
s
Accrued
Benefit Account (if applicable), measured as of the Director
=
s
Benefit
Age, shall be annuitized (using the Interest Factor) into monthly installments
and shall be payable for the Payout Period. Such benefit payments shall commence
on the Director
=
s
Benefit
Eligibility Date. In the event the Director dies at any time after attaining
his
Benefit Age, but prior to commencement or completion of all the payments due
and
owing hereunder, (i) the Bank shall pay to the Director
=
s
Beneficiary the same monthly installments (or a continuation of such monthly
installments if they have already commenced) for the balance of months remaining
in the Payout Period.
(2)
Director
Dies Prior to Benefit Age
If
(i)
after such termination, the Director dies prior to attaining his Benefit Age,
and (ii) the Director has not made a Timely Election to receive a lump sum
benefit, this Subsection 5.1(a)(2) shall be controlling with respect to
retirement benefits.
The
Retirement Income Trust Fund, measured as of the date of the Director’s death,
shall be annuitized (using the Interest Factor) into monthly installments and
shall be payable for the Payout Period. Such payments shall commence within
thirty (30) days of the date the Administrator receives notice of the Director’s
death. Should Retirement Income Trust Fund assets actually earn a rate of
return, following the date such balance is annuitized, which is less than the
rate of return used to annuitize the Retirement Income Trust Fund, no additional
contributions to the Retirement Income Trust Fund shall be required by the
Bank
in order to fund the final benefit payment(s) and make up for any shortage
attributable to the less-than-expected
rate
of
return. Should Retirement Income Trust Fund assets actually earn a rate of
return, following the date such balance is annuitized, which is greater than
the
rate of return used to annuitize the Retirement Income Trust Fund, the final
benefit payment to the Director’s Beneficiary shall distribute the excess
amounts attributable to the greater-than-expected rate of return. The Director’s
Beneficiary may request to receive the unpaid balance of the Director’s
Retirement Income Trust Fund in the form of a lump sum payment. If a lump sum
payment is requested by the Beneficiary, payment of the balance of the
Retirement Income Trust Fund in such lump sum form shall be made only if the
Director’s Beneficiary notifies both the Administrator and trustee in writing of
such election within ninety (90) days of the Director’s death. Such lump sum
payment shall be made within thirty (30) days of such notice.
The
Director
=
s
Accrued
Benefit Account (if applicable), measured as of the date of the
Director
=
s
death,
shall be annuitized (using the Interest Factor) into monthly installments and
shall be payable for the Payout Period. Such payments shall commence within
thirty (30) days of the date the Administrator receives notice of the
Director
=
s
death.
(b)
Alternative
Payout Option
.
(1)
Director
Lives Until Benefit Age
If
(i)
after such termination, the Director lives until attaining his Benefit Age,
and
(ii) the Director has made a Timely Election to receive a lump sum benefit,
this
Subsection 5.1(b)(1) shall be controlling with respect to retirement benefits.
The
balance of the Retirement Income Trust Fund and the Accrued Benefit Account
(if
applicable), measured as of the Director’s Benefit Age, shall be paid to the
Director in a lump sum on his Benefit Eligibility Date. In the event the
Director dies after becoming eligible for such payment (upon attainment of
his
Benefit Age), but before the actual payment is made, his Beneficiary shall
be
entitled to receive the lump sum benefit in accordance with this Subsection
5.1(b)(1) within thirty (30) days of the date the Administrator receives notice
of the Director’s death.
Notwithstanding the foregoing, unless the Director has made a Timely Election
to
receive a lump sum distribution from the Accrued Benefit Account, distributions
from the Accrued Benefit Account will be paid over the Payout Period, commencing
within thirty (30) days of the Director’s Benefit Age.
(2)
Director
Dies Prior to Benefit Age
If
(i)
after such termination, the Director dies prior to attaining his Benefit Age,
and (ii) the Director has made a Timely Election to receive a lump sum benefit,
this Subsection 5.1(b)(2) shall be controlling with respect to pre-retirement
death benefits.
The
balance of the Retirement Income Trust Fund and the Accrued Benefit Account
(if
applicable), measured as of the date of the Director’s death, shall be paid to
the Director’s Beneficiary within thirty (30) days of the date the Administrator
receives notice of the Director’s death.
Notwithstanding the foregoing, unless the Director has made a Timely Election
to
receive a lump sum distribution with respect to the Accrued Benefit Account,
distributions from the Accrued Benefit Account will be paid over the Payout
Period commencing within thirty (30) days of the date the Administrator receives
notice of the Director
=
s
death.
5.2
|
Termination
For Cause
.
|
If
the
Director is terminated for Cause, all benefits under this Agreement, other
than
those which can be paid from previous Contributions to the Retirement Income
Trust Fund (and earnings on such Contributions), shall be forfeited.
Furthermore, no further Contributions (or Phantom Contributions, as applicable)
shall be required of the Bank for the year in which such termination for Cause
occurs (if not yet made). The Director shall be entitled to receive a benefit
in
accordance with this Subsection 5.2.
The
balance of the Director
=
s
Retirement Income Trust Fund shall be paid to the Director in a lump sum on
his
Benefit Eligibility Date. In the event the Director dies prior to his Benefit
Eligibility Date, his Beneficiary shall be entitled to receive the balance
of
the Director’s Retirement Income Trust Fund in a lump sum within thirty (30)
days of the date the Administrator receives notice of the Director’s death.
SECTION
VI
OTHER
BENEFITS
6.1
|
(a)
Disability
Benefit
.
|
If
the
Director’s service is terminated prior to Benefit Age due to a disability that
meets the criteria set forth below, the Director may request to receive the
Disability Benefit in lieu of the retirement benefit(s) available pursuant
to
Section 5.1 (which is (are) not available prior to the Director’s Benefit
Eligibility Date).
In
any
instance in which it is determined by a duly licensed, independent physician
selected by the Bank, that the Director
is
“disabled,”
the
Director shall be entitled to receive a lump sum Disability Benefit
hereunder.
For
these
purposes, a distribution from the Accrued Benefit Account (but not the
Retirement Income Trust Fund) shall require a determination that the Director
is
“disabled”
within the meaning of proposed Treasury Regulation Section 1.409A-3(g)(4).
The
Director shall be entitled to the following lump sum benefit(s) in lieu of
any
benefits under Subsection 5.1. The lump sum benefit(s) to which the Director
is
entitled shall include: (i) the balance of the Retirement Income Trust Fund,
plus (ii) the balance of the Accrued Benefit Account (if applicable). The
benefit(s) shall be paid within thirty (30) days following the date of the
Director’s final disability determination. In the event the Director dies after
becoming eligible for such payment(s) but before the actual payment(s) is (are)
made, his Beneficiary shall be entitled to receive the benefit(s) provided
for
in this Subsection 6.1(a) within thirty (30) days of the date the Administrator
receives notice of the Director’s death.
(b)
Disability
Benefit - Supplemental
.
Furthermore,
if Board of Director approval is obtained within thirty (30) days of the
Director
=
s
death,
the Bank shall make a direct, lump sum payment to the Director’s Beneficiary in
an amount equal to the sum of all remaining Contributions (or Phantom
Contributions) set forth in Exhibit A, but not required pursuant to Subsection
2.1(b) (or 2.1(c)) due to the Director’s disability-related termination. Such
lump sum payment, if approved by the Board of Directors, shall be payable to
the
Director
=
s
Beneficiary within thirty (30) days of such Board of Director
approval.
6.2
|
Additional
Death Benefit - Burial Expense
.
|
Upon
the
Director
=
s
death,
the Director
=
s
Beneficiary shall also be entitled to receive a one-time lump sum death benefit
in the amount of Ten Thousand Dollars ($10,000). This benefit shall be paid
directly from the Bank to the Beneficiary and shall be provided specifically
for
the purpose of providing payment for burial and/or funeral expenses of the
Director. Such death benefit shall be payable within thirty (30) days of the
date the Administrator receives notice of the Director
=
s
death.
The Director
=
s
Beneficiary shall not be entitled to such benefit if the Director is terminated
for Cause prior to death.
SECTION
VII
BENEFICIARY
DESIGNATION
The
Director shall make an initial designation of primary and secondary
Beneficiaries upon execution of this Agreement and shall have the right to
change such designation, at any subsequent time, by submitting to (i) the
Administrator,
and
(ii) the
trustee of the Retirement Income Trust Fund, in substantially the form attached
as Exhibit B to this Agreement, a written designation of primary and secondary
Beneficiaries. Any Beneficiary designation made subsequent to execution of
this
Agreement shall become effective only when receipt thereof is acknowledged
in
writing by the Administrator.
SECTION
VIII
DIRECTOR’S
RIGHT TO ASSETS
The
rights of the Director, any Beneficiary, or any other person claiming through
the Director under this Agreement, shall be solely those of an unsecured general
creditor of the Bank. The Director, the Beneficiary, or any other person
claiming through the Director, shall only have the right to receive from the
Bank those payments or amounts so specified under this Agreement. The Director
agrees that he, his Beneficiary, or any other person claiming through him shall
have no rights or interests whatsoever in any asset of the Bank, including
any
insurance policies or contracts which the Bank may possess or obtain to
informally fund this Agreement. Any asset used or acquired by the Bank in
connection with the liabilities it has assumed under this Agreement shall not
be
deemed to be held under any trust for the benefit of the Director or his
Beneficiaries, unless such asset is contained in the rabbi trust described
in
Section
XII of this Agreement. Any such asset shall be and remain a general, unpledged
asset of the Bank in the event of the Bank
=
s
insolvency.
SECTION
IX
RESTRICTIONS
UPON FUNDING
The
Bank
shall have no obligation to set aside, earmark or entrust any fund or money
with
which to pay its obligations under this Agreement, other than those
Contributions required to be made to the Retirement Income Trust Fund. The
Director, his Beneficiaries or any successor in interest to him shall be and
remain simply a general unsecured creditor of the Bank in the same manner as
any
other creditor having a general claim for matured and unpaid compensation.
The
Bank reserves the absolute right in its sole discretion to either purchase
assets to meet its obligations undertaken by this Agreement or to refrain from
the same and to determine the extent, nature, and method of such asset
purchases. Should the Bank decide to purchase assets such as life insurance,
mutual funds, disability policies or annuities, the Bank reserves the absolute
right, in its sole discretion, to replace such assets from time to time or
to
terminate its investment in such assets at any time, in whole or in part. At
no
time shall the Director be deemed to have any lien, right, title or interest
in
or to any specific investment or to any assets of the Bank. If the Bank elects
to invest in a life insurance, disability or annuity policy upon the life of
the
Director, then the Director shall assist the Bank by freely submitting to a
physical examination and by supplying such additional information necessary
to
obtain such insurance or annuities.
SECTION
X
ACT
PROVISIONS
10.1
|
Named
Fiduciary and Administrator
.
The Bank, as Administrator, shall be the Named Fiduciary of this
Agreement. As Administrator, the Bank shall be responsible for the
management, control and administration of the Agreement as established
herein. The Administrator may delegate to others certain aspects
of the
management and operational responsibilities of the Agreement, including
the employment of advisors and the delegation of ministerial duties
to
qualified individuals.
|
10.2
|
Claims
Procedure and Arbitration
.
In the event that benefits under this Agreement are not paid to the
Director (or to his Beneficiary in the case of the Director’s death) and
such claimants feel they are entitled to receive such benefits, then
a
written claim must be made to the Administrator within sixty (60) days
from the date payments are refused. The Administrator shall review
the
written claim and, if the claim is denied, in whole or in part, it
shall
provide in writing, within ninety (90) days of receipt of such claim,
its
specific reasons for such denial, reference to the provisions of
this
Agreement upon which the denial is based, and any additional material
or
information necessary to perfect the claim. Such writing by the
Administrator shall further indicate the additional steps which must
be
undertaken by claimants if an additional review of the claim denial
is
desired.
|
If
claimants desire a second review, they shall notify the Administrator in writing
within sixty (60) days of the first claim denial. Claimants may review this
Agreement or any documents relating thereto and submit any issues and comments,
in writing, they may feel appropriate. In its sole discretion, the Administrator
shall then review the second claim and provide a written decision within sixty
(60) days of receipt of such claim. This decision shall state the specific
reasons for the decision and shall include reference to specific provisions
of
this Agreement upon which the decision is based.
If
claimants continue to dispute the benefit denial based upon completed
performance of this Plan and the Agreement or the meaning and effect of the
terms and conditions thereof, then claimants may submit the dispute to
mediation, administered by the American Arbitration Association (
A
AAA
@
)
(or a
mediator selected by the parties) in accordance with the AAA
=
s
Commercial Mediation Rules. If mediation is not successful in resolving the
dispute, it shall be settled by arbitration administered by the AAA under its
Commercial Arbitration Rules, and judgment on the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction
thereof.
SECTION
XI
MISCELLANEOUS
11.1
|
No
Effect on Employment Rights
.
Nothing contained herein will confer upon the Director the right
to be
retained in the service of the Bank nor limit the right of the Bank
to
discharge or otherwise deal with the Director without regard to the
existence of the Agreement.
|
11.2
|
Governing
Law
.
The Agreement is established under, and will be construed according
to,
the laws of the state of New Jersey, to the extent such laws are
not
preempted by the Act or other applicable federal law and valid regulations
published thereunder.
|
11.3
|
Construction
and Severability
.
The funding of and payment of benefits from the Accrued Benefit Account
is
deemed to be a nonqualified deferred compensation arrangement within
the
meaning of Code Section 409A. To the extent that the funding of a
benefit
under the Retirement Income Trust Fund under this Agreement is deemed
to
be a nonqualified deferred compensation arrangement, then that part
of
this Agreement shall also be operated, administered and construed
consistent with Code Section 409A. To the extent that a provision
of the
Agreement fails to comply with Code Section 409A and a construction
consistent with Code Section 409A is not possible, such provision
shall be
void
ab
initio
.
In addition, the Agreement shall be subject to amendment, with or
without
advance notice to Director and other interested parties, and on a
prospective or retroactive basis, including but not limited to amendment
in a manner that adversely affects the rights of Directors and other
interested parties, to the extent necessary to effect compliance
with Code
Section 409A. In the event that any of the provisions of this Agreement
or
portion thereof, are held to be inoperative or invalid by any court
of
competent jurisdiction, then: (1) insofar as is reasonable, effect
will be
given to the intent manifested in the provisions held invalid or
inoperative, and (2) the validity and enforceability of the remaining
provisions will not be affected
thereby.
|
11.4
|
Treatment
as a Director
.
For purposes of this Agreement, it is assumed that the Director is
treated
as a “director” in accordance with Proposed Treasury Regulation Section
1.409A-1(h)(2). If under future guidance or rulings promulgated by
the
Internal Revenue Service or Treasury Department under Code Section
409A it
is determined that the Director should properly
be
|
treated
as an “employee” for purposes of this Agreement, distributions to the Director
due to Separation from Service will be made in accordance with the provisions
of
Proposed Treasury Regulation Section 1.409A-1(h)(1).
11.5
|
Incapacity
of Recipient
.
In the event the Director is declared incompetent and a conservator
or
other person legally charged with the care of his person or Estate
is
appointed, any benefits under the Agreement to which such Director
is
entitled shall be paid to such conservator or other person legally
charged
with the care of his person or Estate.
|
11.6
|
Unclaimed
Benefit
.
The Director shall keep the Bank informed of his current address
and the
current address of his Beneficiaries. The Bank shall not be obligated
to
search for the whereabouts of any person. If the location of the
Director
is not made known to the Bank as of the date upon which any payment
of any
benefits from the Accrued Benefit Account may first be made, the
Bank
shall delay payment of the Director’s benefit payment(s) until the
location of the Director is made known to the Bank; however, the
Bank
shall only be obligated to hold such benefit payment(s) for the Director
until the expiration of thirty-six (36) months.
|
11.7
|
Limitations
on Liability
.
Notwithstanding any of the preceding provisions of the Agreement,
no
individual acting as an employee or agent of the Bank, or as a member
of
the Board of Directors shall be personally liable to the Director
or any
other person for any claim, loss, liability or expense incurred in
connection with the Agreement.
|
11.8
|
Gender
.
Whenever in this Agreement words are used in the masculine or neuter
gender, they shall be read and construed as in the masculine, feminine
or
neuter gender, whenever they should so
apply.
|
11.9
|
Effect
on Other Corporate Benefit Agreements
.
Nothing contained in this Agreement shall affect the right of the
Director
to participate in or be covered by any qualified or non-qualified
pension,
profit sharing, group, bonus or other supplemental compensation or
fringe
benefit agreement constituting a part of the Bank’s existing or future
compensation structure.
|
11.10
|
Suicide
.
Notwithstanding anything to the contrary in this Agreement, if the
Director’s death results from suicide, whether sane or insane, within
twenty-six (26) months after execution of
this
|
Agreement,
all further Contributions to the Retirement Income Trust Fund (or Phantom
Contributions recorded in the Accrued Benefit Account) shall thereupon cease,
and no Contribution (or Phantom Contribution) shall be made by the Bank to
the
Retirement Income Trust Fund (or recorded in the Accrued Benefit Account) in
the
year such death resulting from suicide occurs (if not yet made). All benefits
other than those available from previous Contributions to the Retirement Income
Trust Fund under this Agreement shall be forfeited, and this Agreement shall
become null and void. The balance of the Retirement Income Trust Fund, measured
as of the Director’s date of death, shall be paid to the Beneficiary within
thirty (30) days of the date the Administrator receives notice of the Director’s
death.
11.11
|
Inurement
.
This Agreement shall be binding upon and shall inure to the benefit
of the
Bank, its successors and assigns, and the Director, his successors,
heirs,
executors, administrators, and
Beneficiaries.
|
11.12
|
Headings
.
Headings and sub-headings in this Agreement are inserted for reference
and
convenience only and shall not be deemed a part of this
Agreement.
|
11.13
|
Establishment
of a Rabbi Trust.
The
Bank shall establish a rabbi trust into which the Bank shall contribute
assets which shall be held therein, subject to the claims of the
Bank’s
creditors in the event of the Bank’s “Insolvency” (as defined in such
rabbi trust agreement), until the contributed assets are paid to
the
Director and/or his Beneficiary in such manner and at such times
as
specified in this Agreement. It is the intention of the Bank that
the
contribution or contributions to the rabbi trust shall provide the
Bank
with a source of funds to assist it in meeting the liabilities of
this
Agreement.
|
11.14
|
Source
of Payments
.
All payments provided in this Agreement shall be timely paid in cash
or
check from the general funds of the Bank or the assets of the rabbi
trust,
to the extent made from the Accrued Benefit Account.
|
SECTION
XII
AMENDMENT/PLAN
TERMINATION
12.1
|
Amendment
or Plan Termination
.
The Bank intends this Agreement to be permanent,
but
reserves the right to amend or terminate the Agreement when such
amendment
or termination is required due to objection to the plan by the Bank’s
regulatory authorities.
The
Agreement may not be amended or terminated without the express written
consent of the parties. Any amendment or termination of the Agreement
shall be made pursuant to a resolution of the Board of Directors
of the
Bank and shall be effective as of the date of such resolution. No
amendment or termination of the Agreement shall directly or indirectly
deprive the Director of all or any portion of the Director’s Retirement
Income Trust Fund (and Accrued Benefit Account, if applicable) as
of the
effective date of the resolution amending or terminating the
Agreement.
|
Notwithstanding
the foregoing, if an individual Director’s agreement is subject to Code Section
409A, :the Bank may terminate this Agreement only under the following
circumstances and conditions:
|
(a)
|
The
Board of Directors may terminate the Agreement within 12 months of
a
corporate dissolution taxed under Code Section 331, or with approval
of a
bankruptcy court pursuant to 11 U.S.C. §503(b)(1)(A), provided that the
amounts deferred under the Agreement are included in the Director’s gross
income in the latest of (i) the calendar year in which the Agreement
terminates; (ii) the calendar year in which the amount is no longer
subject to a substantial risk of forfeiture; or (iii) the first calendar
year in which the payment is administratively
practicable.
|
|
(b)
|
The
Board of Directors may terminate the Agreement within the 30 days
preceding a Change in Control (but not following a Change in Control),
provided that the Agreement shall only be treated as terminated if
all
substantially similar arrangements sponsored by the Bank are terminated
so
that the Director and all participants under substantially similar
arrangements are required to receive all amounts of compensation
deferred
under the terminated arrangements within 12 months of the date of
the
termination of the
arrangements.
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(c)
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The
Board of Directors may terminate the Agreement provided that (i)
all
arrangements sponsored by the Bank that would be aggregated with
this
Agreement under Proposed Regulation Section 1.409A-1(c) if the Director
covered by this Agreement was also covered by any of those other
arrangements are also terminated; (ii) no payments other than payments
that would be payable under the terms of the arrangement if the
termination had not occurred are made within 12 months of the termination
of the arrangement; (iii) all payments are made within 24 months
of the
termination of the arrangements; and (iv) the Bank does not adopt
a new
arrangement that would be aggregated with any terminated arrangement
under
Proposed Regulation Section 1.409A-1(c) if the Director participated
in
both arrangements, at any time within five years following the date
of
termination of the arrangement.
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12.2
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Director’s
Right to Payment Following Plan Termination
.
In the event of a termination of the Agreement, the Director shall
be
entitled to the balance, if any, of his Retirement Income Trust Fund
(and
Accrued Benefit Account, if applicable). However, if such termination
is
done in anticipation of or pursuant to a
A
Change
in Control,
@
such balance(s) shall include the final Contribution (or final Phantom
Contribution) made (or recorded) pursuant to Subsection 2.1(b)(2)
(or
2.1(c)(2)). Payment of the balance(s) of the Director’s Retirement Income
Trust Fund (and Accrued Benefit Account, if applicable) shall not
be
dependent upon his continuation of service with the Bank following
the
termination date of the Agreement. Payment of the balance(s) of the
Director’s Retirement Income Trust Fund (and Accrued Benefit Account, if
applicable) shall be made in a lump sum within thirty (30) days of
the
date of termination of the
Agreement.
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SECTION
XIII
EXECUTION
13.1
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This
Agreement and the Salvatore Romano Grantor Trust Agreement set forth
the
entire understanding of the parties hereto with respect to the
transactions contemplated hereby, and any previous agreements or
understandings between the parties hereto regarding the subject matter
hereof are merged into and superseded by this Agreement and the Salvatore
Romano Grantor Trust Agreement.
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13.2
|
This
Agreement shall be executed in triplicate, each copy of which, when
so
executed and delivered, shall be an original, but all three copies
shall
together constitute one and the same
instrument.
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[Remainder
of Page
Intentionally
Left Blank]
IN
WITNESS WHEREOF, the Bank and the Director have caused this Agreement to be
executed on the day and date first above written.
ATTEST:
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MAGYAR
BANK:
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/s/
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By:
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/s/
Elizabeth E. Hance
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Title:
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President/CEO
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WITNESS:
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DIRECTOR:
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/s/
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/s/
Salvatore Romano
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CONDITIONS,
ASSUMPTIONS,
AND
SCHEDULE
OF CONTRIBUTIONS AND PHANTOM CONTRIBUTIONS
1.
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Interest
Factor - for purposes of:
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a.
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the
Accrued Benefit Account - shall be six percent (6%) per annum, compounded
monthly.
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b.
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the
Elective Contributions - shall be ten percent (10%) per annum, compounded
monthly.
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c.
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the
Emeritus Contributions - shall be six percent (6%) per annum, compounded
monthly.
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d.
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the
Retirement Income Trust Fund - for purposes of annuitizing the balance
of
the Retirement Income Trust Fund over the Payout Period, the trustee
of
the
Salvatore
Romano
Grantor Trust shall exercise discretion in selecting the appropriate
rate
given the nature of the investments contained in the Retirement Income
Trust Fund and the expected return associated with the investments.
For
these purposes, if the trustee of the Retirement Income Trust Fund
has
purchased a life insurance policy, the trustee shall have the discretion
to determine the portion of the cash value of such policy available
for
purposes of annuitizing the Retirement Income Trust Fund, in accordance
with Section 2.3 of the Agreement.
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2.
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The
amount of the annual Emeritus Contributions (or Phantom Contributions)
to
the Retirement Income Trust Fund (or Accrued Benefit Account) has
been
based on the annual interest-adjusted accounting accruals which would
be
required of the Bank through the earlier of the Director
=
s
death or Benefit Age, (i) pursuant to APB Opinion No. 12, as amended
by
FAS 106 and (ii) assuming a discount rate equal to six percent (6%)
per
annum, in order to provide a portion of the unfunded, non-qualified
Supplemental Retirement Income Benefit. The Emeritus Contributions
are
calculated to support a benefit based upon
50%
of
the Director’s total board fees, committee fees and/or retainer in the
twelve months prior to Director’s Benefit Eligibility Date.
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3.
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For
purposes of this Agreement, and benefit calculations under this Agreement,
future increases in Board Fees after 2006 will be limited to the
actual
increase or four percent (4%), whichever is
less.
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4.
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Supplemental
Retirement Income Benefit means an actuarially determined annual
amount
equal to Thirty Thousand Seven Hundred and Fifteen Dollars ($30,715)
at
age 75 if paid entirely from the Accrued Benefit Account or Nineteen
Thousand Six Hundred and Fifty-Eight Dollars ($19,658) at age 75
if paid
from the Retirement Income Trust
Fund.
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Exhibit
A
The
Supplemental Retirement Income Benefit:
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!
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the
definition of Supplemental Retirement Income Benefit has been incorporated
into the Agreement for the sole purpose of actuarially establishing
the
amount of annual Contributions (or Phantom Contributions) to the
Retirement Income Trust Fund (or Accrued Benefit Account). The amount
of
any actual retirement, pre-retirement or disability benefit payable
pursuant to the Agreement will be a function of (i) the amount and
timing
of Contributions (or Phantom Contributions) to the Retirement Income
Trust
Fund (or Accrued Benefit Account) and (ii) the actual investment
experience of such Contributions (or the monthly compounding rate
of
Phantom Contributions).
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6.
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Schedule
of Annual Gross Contributions/Phantom
Contributions
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Plan
Year
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Contributions
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2007
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12,679
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2008
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13,748
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2009
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14,901
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2010
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16,143
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2011
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17,482
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2012
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18,925
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2013
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20,479
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2014
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22,153
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2015
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23,955
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2016
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21,717
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Exhibit
A
- Cont
=
d.
RESTATED
DIRECTOR
SUPPLEMENTAL RETIREMENT INCOME and
DEFERRED
COMPENSATION AGREEMENT
BENEFICIARY
DESIGNATION
The
Director, under the terms of the Restated Director Supplemental Retirement
Income and Deferred Compensation Agreement executed by the Bank, dated the
1st
day of February, 2004, as amended and restated effective January 1, 2006, hereby
designates the following Beneficiary(ies) to receive any guaranteed payments
or
death benefits under such Agreement, following his death:
PRIMARY
BENEFICIARY:
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SECONDARY
BENEFICIARY:
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This
Beneficiary Designation hereby revokes any prior Beneficiary Designation which
may have been in effect.
Such
Beneficiary Designation is revocable.
DATE:
______________________, 20__
Exhibit
B
RESTATED
DIRECTOR
SUPPLEMENTAL RETIREMENT INCOME and
DEFERRED
COMPENSATION AGREEMENT
NOTICE
OF ELECTION TO CHANGE FORM OF PAYMENT
I
hereby
give notice of my election to change the form of payment of my Supplemental
Retirement Income Benefit, as specified below.
I
understand that such notice,
in
order to be effective, must be submitted in accordance with the time
requirements described in Subsection 1.27 of my Restated Director Supplemental
Retirement Income and Deferred Compensation Agreement.
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G
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I
hereby elect to change the form of payment of my benefits from monthly
installments throughout my Payout Period to a lump sum benefit
payment.
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G
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I
hereby elect to change the form of payment of my benefits from a
lump sum
benefit payment to monthly installments throughout my Payout Period.
Such
election hereby revokes my previous notice of election to receive
a lump
sum form of benefit payments.
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DIRECTOR
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DATE
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ACKNOWLEDGED
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BY:
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TITLE:
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DATE
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Exhibit
C
RESTATED
DIRECTOR
SUPPLEMENTAL RETIREMENT INCOME and
DEFERRED
COMPENSATION AGREEMENT
NOTICE
OF ADJUSTMENT OF ELECTIVE CONTRIBUTION
I
hereby
give notice of my election to adjust the amount of my Elective Contribution
in
accordance with my Restated Director Supplemental Retirement Income and Deferred
Compensation Agreement, dated the 1
st
day of
February, 2004, as amended and restated effective January 1, 2006. This notice
is submitted thirty (30) days prior to January 1st, and shall become effective
January 1st, as specified below.
Adjust
deferral as of:
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January
1st, 2___
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Previous
Deferral Amount
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____________
per month
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New
Deferral Amount
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____________
per month
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(to
discontinue deferral, enter $0)
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DIRECTOR
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DATE
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ACKNOWLEDGED
BY
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TITLE
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DATE
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Exhibit
D
Exhibit
10.6
RESTATED
DIRECTOR
SUPPLEMENTAL RETIREMENT
INCOME
and DEFERRED COMPENSATION AGREEMENT
FOR
JOSEPH YELENCSICS
MAGYAR
BANK
New
Brunswick, New Jersey
January
1, 2006
Financial
Institution Consulting Corporation
700
Colonial Road, Suite 102
Memphis,
Tennessee 38117
WATS:
1-800-873-0089
FAX:
(901) 684-7414
(901)
684-7400
RESTATED
DIRECTOR
SUPPLEMENTAL RETIREMENT
INCOME
and DEFERRED COMPENSATION AGREEMENT
FOR
JOSEPH YELENCSICS
This
Restated Director Supplemental Retirement Income and Deferred Compensation
Agreement for Joseph Yelencsics (the “Agreement”), effective as of the 1st day
of January, 2006, amends and restates the Director Supplemental Retirement
Income and Deferred Compensation Agreement for Joseph Yelencsics dated February
1, 2004, and formalizes the understanding by and between MAGYAR BANK (the
“Bank”), a state chartered savings bank having its principal place of business
in New Brunswick, New Jersey, and JOSEPH YELENCSICS (hereinafter referred to
as
“Director”). All prior non-qualified Director deferred compensation agreements,
including any and all Joinder Agreements, with respect to the Director and
MAGYAR BANK, are hereby superseded and replaced by this Agreement
W
I T N E S S E T H :
WHEREAS
,
the
Director serves the Bank as a member of the board; and
WHEREAS
,
the
Bank recognizes the valuable services heretofore performed by the Director
and
wishes to encourage his continued service; and
WHEREAS
,
the
Director wishes to be assured that the Director will be entitled to a certain
amount of additional compensation for some definite period of time from and
after retirement from active service with the Bank or other termination of
service and wishes to provide his beneficiary with benefits from and after
death; and
WHEREAS
,
the
Bank and the Director wish to provide the terms and conditions upon which the
Bank shall pay such additional compensation to the Director after retirement
or
other termination of service and/or death benefits to his beneficiary after
death; and
WHEREAS
,
the
Bank has adopted this Director Supplemental Retirement Income and Deferred
Compensation Agreement which controls all issues relating to benefits as
described herein; and
WHEREAS
,
Section
409A of the Internal Revenue Code of 1986 (“Code”), as amended, requires that
certain deferred compensation arrangements comply with its terms or subject
the
recipient of the compensation to potential taxes and penalties; and
WHEREAS
,
the
Bank desires to amend and restate the Agreement to comply with Code Section
409A
and any Treasury Regulations promulgated thereunder; and
WHEREAS
,
the
Board of Directors of the Bank has conditionally approved
the
amendment and restatement of the Agreement, subject to the approval of the
New
Jersey Department of Banking and Insurance.
NOW,
THEREFORE,
in
consideration of the premises and of the mutual promises herein contained,
the
Bank and the Director agree as follows:
SECTION
I
DEFINITIONS
When
used
herein, the following words and phrases shall have the meanings below unless
the
context clearly indicates otherwise:
1.1
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“Accrued
Benefit Account” shall be
represented
by
the bookkeeping entries required to record the Director
=
s
(i) Phantom Contributions plus (ii) accrued interest, equal to the
Interest Factor, earned to-date on such amounts. However, neither
the
existence of such bookkeeping entries nor the Accrued Benefit Account
itself shall be deemed to create either a trust of any kind, or a
fiduciary relationship between the Bank and the Director or any
Beneficiary.
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1.2
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“Act”
means the Employee Retirement Income Security Act of 1974, as amended
from
time to time.
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1.3
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A
Administrator
@
means the Bank.
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1.4
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“Bank”
means MAGYAR BANK and any successor
thereto.
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1.5
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“Beneficiary”
means the person or persons (and their heirs) designated as Beneficiary
in
Exhibit B of this Agreement to whom the deceased Director
=
s
benefits are payable. If no Beneficiary is so designated, then the
Director
=
s
Spouse, if living, will be deemed the Beneficiary. If the
Director
=
s
Spouse is not living, then the Children of the Director will be deemed
the
Beneficiaries and will take on a per stirpes basis. If there are
no
Children, then the Estate of the Director will be deemed the
Beneficiary.
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1.6
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“Benefit
Age” means the later of: (i) the Director’s sixty-fifth (65th) birthday or
(ii) the actual date the Director
=
s
full-time service with the Bank terminates.
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1.7
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“Benefit
Eligibility Date” means the date on which the Director is entitled to
receive any benefit(s) pursuant to Section(s) III or V of this Agreement.
It shall be the first day of the month following both the attainment
of
the Directors’ Benefit Age and his actual retirement from the Board of
Directors.
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1.8
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“Board
of Directors” means the board of directors of the
Bank.
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1.9
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“Cause”
means termination of the Director
=
s
service on the Board of Directors due to: (i) actions or inactions
which
constitute a breach of the bylaws of the Bank or (ii) the
Director
=
s
personal dishonesty, willful misconduct, willful malfeasance, breach
of
fiduciary duty involving personal profit, intentional failure to
perform
stated duties, willful violation of any law, rule, regulation (other
than
traffic violations or similar offenses), or final cease-and-desist
order,
material breach of any provision of this Plan, or gross negligence
in
matters of material importance to the
Bank.
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1.10
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“Change
in Control” shall mean a change in the ownership of the Bank or Company
under paragraph (a) below, a change in effective control of the Bank
or
Company under paragraph (b) below, or a change in the ownership of
a
substantial portion of the assets of the Bank or Company under paragraph
(c) below. For all purposes hereunder, the definition of Change in
Control
shall be construed to be consistent with the requirements of Proposed
Treasury Regulation Section 1.409A-3(g), except to the extent that
such
proposed regulations are superseded by subsequent
guidance.
|
For
this
subsection “persons acting as a group” is defined as follows; Persons will be
considered to be acting as a group if they are owners of a corporation that
enters into a merger, consolidation, purchase or acquisition of stock, or
similar business transaction with the corporation. Persons will not be
considered to be acting as a group solely because they purchase or own stock
of
the same corporation at the same time, or as a result of the same public
offering. If a person, including an entity, owns stock in both corporations
that
enter into a merger, consolidation, purchase or acquisition of stock, or similar
transaction, such shareholder is considered to be acting as a group with other
shareholders in a corporation only with respect to the ownership in that
corporation prior to the transaction giving rise to the change and not with
respect to the ownership interest in the other corporation.
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(a)
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Change
in Ownership of the Bank or Company
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Change
in
the ownership occurs on the date that any one person, or more than one person
acting as a group (as defined above), acquires ownership of stock of the Bank
or
Company that, together with stock held by such person or group, constitutes
more
than 50 percent of the total fair market value or total voting power of the
stock of such corporation. However, if any one person or more than one person
acting as a group, is considered to own more than 50 percent of the total fair
market value or total voting power of the stock of a corporation, the
acquisition of additional stock by the same person or persons is not considered
to cause a change in the ownership of the corporation or to cause a change
in
the effective control of the corporation.
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(b)
|
Change
in the Effective Control of the Bank or
Company
|
A
change
in the effective control of the Bank or Company occurs on the date that either
-
(1)
Any
one person, or more than one person acting as a group (as defined above),
acquires (or has acquired during the 12-month period ending on the date of
the
most recent acquisition by such person or persons) ownership of stock of the
Company possessing 20 percent or more of the total voting power of the stock
of
the Company (except that if an individual Director’s agreement becomes subject
to Code Section 409A, then the required percentage of acquired ownership of
stock under this Subsection 1.10 (b)(1) shall be 35 percent or more);
or
(2)
a
majority of members of the Company’s board of directors is replaced during any
12-month period by directors whose appointment or election is not endorsed
by a
majority of the members of the Company’s board of directors prior to the date of
the appointment or election.
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(c)
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Change
in the Ownership of a Substantial Portion of the Bank’s or Company’s
Assets.
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Change
in
the ownership of a substantial portion of the Bank or Company’s assets occurs on
the date that any one person, or more than one person acting as a group (as
defined above), acquires (or has acquired during the 12-month period ending
on
the date of the most recent acquisition by such person or persons) assets from
the corporation that have a total gross fair market value equal to or more
than
40 percent of the total gross fair market value of all of the assets of the
Bank
or Company immediately prior to such acquisition or acquisitions. For this
purpose, gross fair market value means the value of the assets of the Bank
or
Company, or the value of the assets being disposed of, determined without regard
to any liabilities associated with such assets.
1.11
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“Children”
means all natural or adopted children of the Director and issue of
any
predeceased child or children.
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1.12
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“Code”
means the Internal Revenue Code of 1986, as amended from time to
time.
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1.13
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“Company”
shall mean Magyar Bancorp, Inc.
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1.14
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“Contribution(s)”
means those annual total contributions comprised of both the Elective
Contributions and the Emeritus Contributions which the Bank is required
to
make to the Retirement Income Trust Fund on behalf of the Director
in
accordance with Subsection 2.1(a) and in the amounts set forth in
Exhibit
A of the Agreement. Such Contributions, for the first Plan Year,
shall
include any and all amounts accrued by the Bank to pay the benefits
promised to the Director under any prior non-qualified deferred
compensation agreements including any Joinder Agreements previously
executed by the Bank and the Director.
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1.15
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(a)
“Disability Benefit” means the benefit payable to the Director following a
determination, in accordance with Subsection 6.1(a), that he is no
longer
able, properly and satisfactorily, to perform his duties at the
Bank.
|
(b)
“Disability Benefit-Supplemental” (if applicable) means the benefit payable to
the Director
=
s
Beneficiary upon the Director
=
s
death
in accordance with Subsection 6.1(b).
1.16
|
“Effective
Date” of this Agreement shall be January 1, 2006. The original effective
date of this Agreement was February 1, 2004. The Agreement is hereby
amended and restated effective January 1, 2006 in order to conform
to Code
Section 409A.
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1.17
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“Elective
Contribution” shall refer to the Director’s voluntary monthly pre-tax
deferral of board fees, committee fees and/or retainer plus interest
compounded annually at a rate equal to the Interest Factor. The Director
may elect to change his voluntary deferral amount by submitting to
the
Bank a Notice of Adjustment of Elective Contribution thirty (30)
days
prior to the end of any Plan Year.
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1.18
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“Emeritus
Contribution” shall refer to the amounts necessary to support an annual
amount payable to the Director at Benefit Age based upon a percentage,
as
stated in Appendix A, of the Director’s total board fees, committee fees
and/or retainer in the twelve months prior to the Director’s Benefit
Eligibility Date. The percentage shall be determined by the following
formula: ten percent (10%) plus two and one-half percent (2 ½%) for each
year of service as a Director, with a minimum of fifty percent (50%),
provided the Director has served for at least five (5) years, and
a
maximum of sixty percent (60%). Notwithstanding the foregoing, any
Director who serves as Board Chairman for a five-year term (other
than the
current Chairman) shall be entitled to receive seventy-five percent
(75%).
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1.19
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“Estate”
means the estate of the Director.
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1.20
|
“Interest
Factor” means monthly compounding, discounting or annuitizing, as
applicable, at a rate set forth in
Exhibit A.
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1.21
|
“Payout
Period” means the time frame during which certain benefits payable
hereunder shall be distributed. Payments shall be made in monthly
installments commencing on the first day of the month following the
occurrence of the event which triggers distribution and continuing
for a
period of one hundred eighty (180) months. Should the Director make
a
Timely Election to receive a lump sum benefit payment, the
Director
=
s
Payout Period shall be deemed to be one (1) month.
|
1.22
|
“Phantom
Contributions” means those annual Contributions which the Bank is no
longer required to make on behalf of the Director to the Retirement
Income
Trust Fund. Rather, once the Director has exercised the withdrawal
rights
provided for in Subsection 2.2, the Bank shall be required to record
the
annual amounts set forth in Exhibit A of the Agreement in the
Director
=
s
Accrued Benefit Account, pursuant to Subsection 2.1.
|
1.23
|
“Plan
Year” shall mean the twelve (12) month period commencing January 1 and
ending December 31.
|
1.24
|
“Retirement
Income Trust Fund” means the trust fund account established by the
Director and into which annual Contributions will be made by the
Bank on
behalf of the Director pursuant to Subsection 2.1. The contractual
rights
of the Bank and the Director with respect to the Retirement Income
Trust
Fund shall be outlined in a separate writing to be known as the Joseph
Yelencsics Grantor Trust agreement.
|
1.25
|
A
Spouse
@
means the individual to whom the Director is legally married at the
time
of the Director
=
s
death, provided, however, that the term
A
Spouse
@
shall not refer to an individual to whom the Director is legally
married
at the time of death if the Director and such individual have entered
into
a formal separation agreement or initiated divorce
proceedings.
|
1.26
|
“Supplemental
Retirement Income Benefit” means an annual amount (
before
taking into account federal and state income taxes), payable in monthly
installments throughout the Payout Period. Such benefit is projected
pursuant to the Agreement for the purpose of determining the Contributions
to be made to the Retirement Income Trust Fund (or Phantom Contributions
to be recorded in the Accrued Benefit Account). The annual Contributions
and Phantom
|
Contributions
have been actuarially determined, using the assumptions set forth in Exhibit
A,
in order to fund for the projected Supplemental Retirement Income Benefit.
The
Supplemental Retirement Income Benefit for which Contributions (or Phantom
Contributions) are being made (or recorded) is set forth in Exhibit A.
1.27
|
“Timely
Election” means the Director has made an election to change the form of
his benefit payment(s) from the Retirement Income Trust Fund by filing
with the Administrator a Notice of Election to Change Form of Payment
(Exhibit C of this Agreement). In the case of benefits payable from
the
Retirement Income Trust Fund, such election may be made at any time.
In
the case of benefits payable from the Accrued Benefit Account, such
election generally shall have been made prior to December 31, 2006
(i.e.
the last day of the “Transition Period” for bringing plans into compliance
with Code Section 409A). Unless the Transition Period is extended
by the
Internal Revenue Service, if the Director makes an election subsequent
to
December 31, 2006 with respect to distributions from the Accrued
Benefit
Account, then (i) such election may not take effect until at least
twelve
(12) months after the date on which the election is made, (ii) in
the case
of an election related to a payment other than due to disability
or death,
the first payment with respect to which such election is made must
be
deferred for a period of not less than five (5) years from the date
such
payment would otherwise have been made, and (iii) any election related
to
a distribution at a specified time or pursuant to a fixed schedule
may not
be made less than twelve (12) months prior to the date of the first
scheduled payment.
|
SECTION
II
BENEFIT
FUNDING
2.1
|
(a)
Retirement
Income Trust Fund and Accrued Benefit Account
.
The Director shall establish the Joseph Yelencsics Grantor Trust
into
which the Bank shall be required to make annual Contributions on
the
Director
=
s
behalf, pursuant to Exhibit A and this Section II of the Agreement.
A
trustee shall be selected by the Director. The trustee shall maintain
an
account, separate and distinct from the Director
=
s
personal contributions, which account shall constitute the Retirement
Income Trust Fund. The trustee shall be charged with the responsibility
of
investing all contributed funds. Distributions from the Retirement
Income
Trust Fund of the Joseph Yelencsics Grantor Trust may be made by
the
trustee to the Director, for purposes of payment
of
|
any
income or employment taxes due and owing on Contributions by the Bank to the
Retirement Income Trust Fund, if any, and on any taxable earnings associated
with such Contributions which the Director shall be required to pay from year
to
year, under applicable law, prior to actual receipt of any benefit payments
from
the Retirement Income Trust Fund. If the Director exercises his withdrawal
rights pursuant to Subsection 2.2, the Bank
=
s
obligation to make Contributions to the Retirement Income Trust Fund shall
cease
and the Bank
=
s
obligation to record Phantom Contributions in the Accrued Benefit Account shall
immediately commence pursuant to Exhibit A and this Section II of the Agreement.
To the extent this Agreement is inconsistent with the Joseph Yelencsics Grantor
Trust Agreement, the Joseph Yelencsics Grantor Trust Agreement shall supersede
this Agreement.
The
annual Contributions (or Phantom Contributions) required to be made by the
Bank
to the Retirement Income Trust Fund (or recorded by the Bank in the Accrued
Benefit Account) have been actuarially determined and are set forth in Exhibit
A
which is attached hereto and incorporated herein by reference. Contributions
shall be made by the Bank to the Retirement Income Trust Fund (i) within
seventy-five (75) days of establishment of such trust, and (ii) within the
first
thirty (30) days of the beginning of each subsequent Plan Year, unless this
Section expressly provides otherwise. Phantom Contributions, if any, shall
be
recorded in the Accrued Benefit Account within the first thirty (30) days of
the
beginning of each applicable Plan Year, unless this Section expressly provides
otherwise. Phantom Contributions shall accrue interest at a rate equal to the
Interest Factor, during the Payout Period, until the balance of the Accrued
Benefit Account has been fully distributed. Interest on any Phantom Contribution
shall not commence until such Payout Period commences.
The
Administrator shall review the schedule of annual Contributions (or Phantom
Contributions) provided for in Exhibit A (i) within thirty (30) days prior
to
the close of each Plan Year and (ii) if the Director is employed by the Bank
until attaining Benefit Age, on or immediately before attainment of such Benefit
Age. Such review shall consist of an evaluation of the accuracy of all
assumptions used to establish the schedule of Contributions (or Phantom
Contributions). Provided that (i) the Director has not exercised his withdrawal
rights pursuant to Subsection 2.2 and (ii) the investments contained in the
Retirement Income Trust Fund have been deemed reasonable by the Bank, the
Administrator shall prospectively amend or supplement the
schedule
of
Contributions provided for in Exhibit A should the Administrator determine
during any such review that
an
increase
in or
supplement
to
the
schedule of Contributions is necessary in order to adequately fund the
Retirement Income Trust Fund so as to provide an annual benefit (or to provide
the lump sum equivalent of such benefit, as applicable) equal to the
Supplemental Retirement Income Benefit, on an after-tax basis, commencing at
Benefit Age and payable for the duration of the Payout Period.
(b)
Withdrawal
Rights Not Exercised.
(1)
Contributions
Made Annually
If
the
Director does not exercise any withdrawal rights pursuant to Subsection 2.2,
the
annual Contributions to the Retirement Income Trust Fund shall continue each
year, unless this Subsection 2.1(b) specifically states otherwise, until the
earlier of (i) the last Plan Year that Contributions are required pursuant
to
Exhibit A, or (ii) the Plan Year of the Director’s termination of
service.
(2)
Termination
Following a Change in Control
If
the
Director does not exercise his withdrawal rights pursuant to Subsection 2.2
and
a Change in Control occurs at the Bank, followed within thirty-six (36) months
by either (i) the Director’s involuntary termination of service, or (ii)
Director’s voluntary termination of service after: (A) a material change in the
Director’s function, duties, or responsibilities, which change would cause the
Director’s position to become one of lesser responsibility, importance, or scope
from the position the Director held at the time of the Change in Control, (B)
a
relocation of the Director’s principal place of service by more than thirty (30)
miles from its location prior to the Change in Control, or (C) a material
reduction in the benefits and perquisites to the Director from those being
provided at the time of the Change in Control, the Emeritus Contributions as
set
forth on Schedule A shall continue to be required of the Bank. The Bank shall
be
required to make an immediate lump sum Contribution to the Director’s Retirement
Income Trust Fund in an amount equal to: (i) the full Emeritus Contribution
required for the Plan Year in which such termination occurs, if not yet made,
plus (ii) the present value (computed using a discount rate equal to the
Interest Factor) of all remaining Emeritus Contributions to the Retirement
Income Trust Fund, and (iii) the present value (computed using the a discount
rate equal to the Interest Factor) of the interest only component of the
Elective Contribution; provided, however, that, if necessary,
an
additional
amount shall be contributed to the Retirement Income Trust Fund which is
sufficient to provide the Director with after-tax benefits (assuming a constant
tax rate equal to the rate in effect as of the date of Director
=
s
termination) beginning at Benefit Age following such termination, equal in
amount to that benefit which would have been payable to the Director if no
secular trust had been implemented and the benefit obligation had been accrued
under APB Opinion No. 12, as amended by FAS 106.
(3)
Termination
For Cause
If
the
Director does not exercise his withdrawal rights pursuant to Subsection 2.2,
and
is terminated for Cause pursuant to Subsection 5.2, no further Contribution(s)
to the Retirement Income Trust Fund shall be required of the Bank, and if not
yet made, no Contribution shall be required for the Plan Year in which such
termination for Cause occurs.
(4)
Voluntary or Involuntary Termination of Service
.
If
the
Director does not exercise his withdrawal rights pursuant to
Subsection 2.2, and the Director’s service with the Bank is voluntarily or
involuntarily terminated for any reason, including a termination due to
disability of the Director but excluding termination for Cause, or termination
following a Change in Control within thirty-six (36) months of such Change
in
Control, no further Contribution(s), as defined in Subsection 1.14, to the
Retirement Income Trust Fund shall be required of the Bank, and if not yet
made,
no Contribution shall be required for the Plan Year in which such termination
occurs. Notwithstanding the above, the Bank will be required to make annual
payments to Director’s Retirement Income Trust Fund determined as
follows:
|
1.
|
Determine
what the accrued liability would have been as of the Director’s date of
termination, had no secular trust been
implemented.
|
|
2.
|
Determine
the benefit payable, beginning at the Benefit Age, for 180 months
which
that accrued liability would support had interest been added to that
liability on an annual basis using the Accrued Benefit Interest Factor
set
forth in Exhibit A.
|
|
3.
|
The
Bank shall make payments to the Director’s Retirement Income Trust Fund on
an annual basis in amounts equal to the accrued interest expense
which
would have been recorded absent the secular trust
arrangement.
|
(5)
Death
During Service(5) Death During Employment
.
If
the
Director does not exercise any withdrawal rights pursuant to
Subsection 2.2, and dies while employed by the Bank, and if, following the
Director
=
s
death,
the assets of the Retirement Income Trust Fund are insufficient to provide
the
Supplemental Retirement Income Benefit to which the Director is entitled, the
Bank shall be required to make a Contribution to the Retirement Income Trust
Fund equal to the sum of the remaining Contributions set forth on Exhibit A,
after taking into consideration any payments under any life insurance policies
that may have been obtained on the Director
=
s
life by
the Retirement Income Trust Fund. Such final contribution shall be payable
in a
lump sum to the Retirement Income Trust Fund within thirty (30) days of the
Director
=
s
death.
(c)
Withdrawal
Rights Exercised.
(1)
Phantom
Contributions Made Annually
.
If
the
Director exercises his withdrawal rights pursuant to Subsection 2.2, no further
Contributions to the Retirement Income Trust Fund shall be required of the
Bank.
Thereafter, Phantom Contributions shall be recorded annually in the Director’s
Accrued Benefit Account within thirty (30) days of the beginning of each Plan
Year, commencing with the first Plan Year following the Plan Year in which
the
Director exercises his withdrawal rights. Such Phantom Contributions shall
continue to be recorded annually, unless this Subsection 2.1(c) specifically
states otherwise, until the earlier of (i) the last Plan Year that Phantom
Contributions are required pursuant to Exhibit A, or (ii) the Plan Year of
the
Director’s termination of service.
(2)
Termination
Following a Change in Control
If
the
Director exercises his withdrawal rights pursuant to Subsection 2.2, Phantom
Contributions shall commence in the Plan Year following the Plan Year in which
the Director first exercises his withdrawal rights. If a Change in Control
occurs at the Bank, and within thirty-six (36) months of such Change in Control,
the Director’s service is either (i) involuntarily terminated, or (ii)
voluntarily terminated by the Director after: (A) a material change in the
Director’s function, duties, or responsibilities, which change would cause the
Director’s position to become one of lesser responsibility, importance, or scope
from the position the Director held at the time of the Change in Control, (B)
a
relocation of the Director’s principal place of service by more than thirty (30)
miles from its location prior to the Change in Control, or (C) a material
reduction in the
benefits
and perquisites to the Director from those being provided at the time of the
Change in Control, the Phantom Contribution set forth below shall be required
of
the Bank. The Bank shall be required to record a lump sum Phantom Contribution
in the Accrued Benefit Account within ten (10) days of the Director
=
s
termination of service equal to (i) the full Emeritus Contribution required
for
the Plan Year in which such termination occurs, if not yet made, plus (ii)
the
present value (computed using a discount rate equal to the Interest Factor)
of
all remaining Emeritus Contributions to the Retirement Income Trust Fund, and
(iii) the present value (computed using the a discount rate equal to the
Interest Factor) of the interest only component of the Elective Contribution.
The amount of such final Phantom Contribution shall be actuarially determined
based on the Phantom Contribution required, at such time, in order to provide
a
benefit via this Agreement equal in amount to that benefit which would have
been
payable to the Director if no secular trust had been implemented and the benefit
obligation had been accrued under APB Opinion No. 12, as amended by FAS 106.
(Such actuarial determination shall reflect the fact that amounts shall be
payable from both the Accrued Benefit Account as well as the Retirement Income
Trust Fund and shall also reflect the amount and timing of any withdrawal(s)
made by the Director from the Retirement Income Trust Fund pursuant to
Subsection 2.2.)
(3)
Termination
For Cause(3) Termination For Cause
If
the
Director is terminated for Cause pursuant to Subsection 5.2, the entire balance
of the Director
=
s
Accrued
Benefit Account at the time of such termination, which shall include any Phantom
Contributions which have been recorded plus interest accrued on such Phantom
Contributions, shall be forfeited.
(4)
Voluntary
and
Involuntary
Termination of Service
.
If
the
Director exercises his withdrawal rights pursuant to Subsection 2.2, and the
Director’s service with the Bank is voluntarily or involuntarily terminated for
any reason including termination due to disability of the Director, but
excluding termination for Cause, or termination following a Change in Control,
within thirty (30) days of such termination of service, no further Phantom
Contributions shall be required of the Bank. Interest, at a rate equal to the
Interest Factor, shall accrue on such Phantom Contributions until the Director’s
Benefit Eligibility Date.
(5)
Death
During Service
.
If
the
Director exercises his withdrawal rights pursuant to Subsection 2.2, and
dies while employed by the Bank, Phantom Contributions included on Exhibit
A
shall be required of the Bank. Such Phantom Contributions shall commence in
the
Plan Year following the Plan Year in which the Director exercises his withdrawal
rights and shall continue through the Plan Year in which the Director dies.
The
Bank shall also be required to record a final Phantom Contribution within thirty
(30) days of the Director
=
s
death.
The amount of such final Phantom Contribution shall be actuarially determined
based on the Phantom Contribution required at such time (if any), in order
to
provide a benefit via this Agreement equivalent to the Supplemental Retirement
Income Benefit commencing within thirty (30) days of the date the Administrator
receives notice of the Director
=
s
death
and continuing for the duration of the Payout Period. (Such actuarial
determination shall reflect the fact that amounts shall be payable from the
Accrued Benefit Account as well as the Retirement Income Trust Fund and shall
also reflect the amount and timing of any withdrawal(s) made by the Director
pursuant to Subsection 2.2.)
2.2
|
Withdrawals
From Retirement Income Trust
Fund.
|
Exercise
of withdrawal rights by the Director pursuant to the Joseph Yelencsics Grantor
Trust agreement shall terminate the Bank’s obligation to make any further
Contributions to the Retirement Income Trust Fund, and the Bank
=
s
obligation to record Phantom Contributions pursuant to Subsection 2.1(c) shall
commence. For purposes of this Subsection 2.2,
A
exercise
of withdrawal rights
@
shall
mean those withdrawal rights to which the Director is entitled under Article
III
of the Joseph Yelencsics Grantor Trust agreement and shall exclude any
distributions made by the trustee of the Retirement Income Trust Fund to the
Director for purposes of payment of income taxes in accordance with Subsection
2.1 of this Agreement and the tax reimbursement formula contained in the trust
document, or other trust expenses properly payable from the Joseph Yelencsics
Grantor Trust pursuant to the provisions of the trust document.
2.3
|
Benefits
Payable From Retirement Income Trust
Fund
|
Notwithstanding
anything else to the contrary in this Agreement, in the event that the trustee
of the Retirement Income Trust Fund purchases a life insurance policy with
the
Contributions to and, if applicable, earnings of the Trust, and such life
insurance policy is intended to continue in force beyond the Payout Period
for
the disability or retirement benefits payable from the
Retirement
Income Trust Fund pursuant to this Agreement, then the trustee shall have
discretion to determine the portion of the cash value of such policy available
for purposes of annuitizing the Retirement Income Trust Fund (it being
understood that for purposes of this Section 2.3,
A
annuitizing
@
does not
mean surrender of such policy and annuitizing of the cash value received upon
such surrender) to provide the disability or retirement benefits payable under
this Agreement, after taking into consideration the amounts reasonably believed
to be required in order to maintain the cash value of such policy to continue
such policy in effect until the death of the Director and payment of death
benefits thereunder.
SECTION
III
RETIREMENT
BENEFIT
3.1
|
(a)
Normal
form of payment
.
|
If
(i)
the Director is employed with the Bank until reaching his Benefit Age and (ii)
the Director has not made a Timely Election to receive a lump sum benefit,
this
Subsection 3.1(a) shall be controlling with respect to retirement
benefits.
The
Retirement Income Trust Fund, measured as of the Director’s Benefit Age, shall
be annuitized (using the Interest Factor) into monthly installments and shall
be
payable for the Payout Period. Such benefit payments shall commence on the
Director’s Benefit Eligibility Date. Should Retirement Income Trust Fund assets
actually earn a rate of return, following the date such balance is annuitized,
which is less than the rate of return used to annuitize the Retirement Income
Trust Fund, no additional contributions to the Retirement Income Trust Fund
shall be required by the Bank in order to fund the final benefit payment(s)
and
make up for any shortage attributable to the less-than-expected rate of return.
Should Retirement Income Trust Fund assets actually earn a rate of return,
following the date such balance is annuitized, which is greater than the rate
of
return used to annuitize the Retirement Income Trust Fund, the final benefit
payment to the Director (or his Beneficiary) shall distribute the excess amounts
attributable to the greater-than-expected rate of return. The Director may
at
anytime during the Payout Period request to receive the unpaid balance of his
Retirement Income Trust Fund in a lump sum payment. If such a lump sum payment
is requested by the Director, payment of the balance of the Retirement Income
Trust Fund in such lump sum form shall be made only if the Director gives notice
to both
the
Administrator and trustee in writing. Such lump sum payment shall be payable
within thirty (30) days of such notice. In the event the Director dies at any
time after attaining his Benefit Age, but prior to commencement or completion
of
all monthly payments due and owing hereunder, (i) the trustee of the Retirement
Income Trust Fund shall pay to the Director’s Beneficiary the monthly
installments (or a continuation of such monthly installments if they have
already commenced) for the balance of months remaining in the Payout Period,
or
(ii) the Director’s Beneficiary may request to receive the unpaid balance of the
Director’s Retirement Income Trust Fund in a lump sum payment. If a lump sum
payment is requested by the Beneficiary, payment of the balance of the
Retirement Income Trust Fund in such lump sum form shall be made only if the
Director’s Beneficiary notifies both the Administrator and trustee in writing of
such election within ninety (90) days of the Director’s death. Such lump sum
payment shall be payable within thirty (30) days of such notice.
The
Director
=
s
Accrued
Benefit Account (if applicable), measured as of the Director
=
s
Benefit
Age, shall be annuitized (using the Interest Factor) into monthly installments
and shall be payable for the Payout Period. Such benefit payments shall commence
on the Director
=
s
Benefit
Eligibility Date. In the event the Director dies at any time after attaining
his
Benefit Age, but prior to commencement or completion of all the payments due
and
owing hereunder, (i) the Bank shall pay to the Director
=
s
Beneficiary the same monthly installments (or a continuation of such monthly
installments if they have already commenced) for the balance of months remaining
in the Payout Period.
(b)
Alternative
payout option.
If
(i)
the Director is employed with the Bank until reaching his Benefit Age, and
(ii)
the Director has made a Timely Election to receive a lump sum benefit, this
Subsection 3.1(b) shall be controlling with respect to retirement benefits.
The
balance of the Retirement Income Trust Fund and the Accrued Benefit Account
(if
applicable), measured as of the Director
=
s
Benefit
Age, shall be paid to the Director in a lump sum on his Benefit Eligibility
Date. In the event the Director dies after becoming eligible for such payment
(upon attainment of his Benefit Age), but before the actual payment is made,
his
Beneficiary
shall be entitled to receive the lump sum benefit in accordance with this
Subsection 3.1(b) within thirty (30) days of the date the Administrator receives
notice of the Director’s death.
Notwithstanding
the foregoing, unless the Director has made a Timely Election to receive a
lump
sum distribution from the Accrued Benefit Account, distributions from the
Accrued Benefit Account will be paid over the Payout Period, commencing within
thirty (30) days of the Director’s Benefit Age.
SECTION
IV
PRE-RETIREMENT
DEATH BENEFIT
4.1
|
(a)
Normal
form of payment
.
|
If
(i)
the Director dies while employed by the Bank, and (ii) the Director has not
made
a Timely Election to receive a lump sum benefit, this Subsection 4.1(a) shall
be
controlling with respect to pre-retirement death benefits.
The
balance of the Director
=
s
Retirement Income Trust Fund, measured as of the later of (i) the
Director
=
s
death,
or (ii) the date any final lump sum Contribution is made pursuant to Subsection
2.1(b), shall be annuitized (using the Interest Factor) into monthly
installments and shall be payable for the Payout Period. Such benefits shall
commence within thirty (30) days of the date the Administrator receives notice
of the Director
=
s
death.
Should Retirement Income Trust Fund assets actually earn a rate of return,
following the date such balance is annuitized, which is less than the rate
of
return used to annuitize the Retirement Income Trust Fund, no additional
contributions to the Retirement Income Trust Fund shall be required by the
Bank
in order to fund the final benefit payment(s) and make up for any shortage
attributable to the less-than-expected rate of return. Should Retirement Income
Trust Fund assets actually earn a rate of return, following the date such
balance is annuitized, which is greater than the rate of return used to
annuitize the Retirement Income Trust Fund, the final benefit payment to the
Director
=
s
Beneficiary shall distribute the excess amounts attributable to the
greater-than-expected rate of return. The Director
=
s
Beneficiary may request to receive the unpaid balance of the
Director
=
s
Retirement Income Trust Fund in a lump sum payment. If a lump sum payment is
requested by the Beneficiary, payment of the balance of the Retirement Income
Trust Fund in such lump sum form shall be made only if the Director
=
s
Beneficiary notifies both the Administrator and trustee
in
writing of such election within ninety (90) days of the Director
=
s
death.
Such lump sum payment shall be made within thirty (30) days of such
notice.
The
Director
=
s
Accrued
Benefit Account (if applicable), measured as of the later of (i) the
Director’s death or (ii) the date any final lump sum Phantom Contribution is
recorded in the Accrued Benefit Account pursuant to Subsection 2.1(c), shall
be
annuitized (using the Interest Factor) into monthly installments and shall
be
payable to the Director’s Beneficiary for the Payout Period. Such benefit
payments shall commence within thirty (30) days of the date the Administrator
receives notice of the Director
=
s
death,
or if later, within thirty (30) days after any final lump sum Phantom
Contribution is recorded in the Accrued Benefit Account in accordance with
Subsection 2.1(c).
(b)
Alternative
payout option
.
If
(i)
the Director dies while employed by the Bank, and (ii) the Director has made
a
Timely Election to receive a lump sum benefit, this Subsection 4.1(b) shall
be
controlling with respect to pre-retirement death benefits.
The
balance of the Director
=
s
Retirement Income Trust Fund and the Accrued Benefit Account (if applicable),
measured as of the later of (i) the Director
=
s
death,
or (ii) the date any final lump sum Contribution is made pursuant to Subsection
2.1(b), shall be paid to the Director’s Beneficiary in a lump sum within thirty
(30) days of the date the Administrator receives notice of the Director’s
death.
Notwithstanding the foregoing, unless the Director has made a Timely Election
to
receive a lump sum distribution with respect to the Accrued Benefit Account,
distributions from the Accrued Benefit Account will be paid over the Payout
Period commencing within thirty (30) days of the date the Administrator receives
notice of the Director
=
s
death.
SECTION
V
BENEFIT(S)
IN THE EVENT OF TERMINATION OF SERVICE
PRIOR
TO BENEFIT AGE
5.1
|
Voluntary
or Involuntary Termination of Service Other Than for Cause
.
In the event the Director
=
s
service with the Bank is voluntarily or involuntarily terminated
prior to
Benefit Age,
|
for
any
reason, including a Change in Control, but excluding (i) any disability related
termination for which the Board of Directors has approved early payment of
benefits pursuant to Subsection 6.1, (ii) the Director’s pre-retirement death,
which shall be covered in Section IV, (iii) or termination for Cause, which
shall be covered in Subsection 5.2, the Director (or his Beneficiary) shall
be
entitled to receive benefits in accordance with this Subsection 5.1. Payments
of
benefits pursuant to this Subsection 5.1 shall be made in accordance with
Subsection 5.1(a) or 5.1(b) below, as applicable.
(a)
Normal
form of payment
.
(1)
Director
Lives Until Benefit Age
If
(i)
after such termination, the Director lives until attaining his Benefit Age,
and
(ii) the Director has not made a Timely Election to receive a lump sum benefit,
this Subsection 5.1(a)(1) shall be controlling with respect to retirement
benefits.
The
Retirement Income Trust Fund, measured as of the Director’s Benefit Age, shall
be annuitized (using the Interest Factor) into monthly installments and shall
be
payable for the Payout Period. Such payments shall commence on the Director’s
Benefit Eligibility Date. Should Retirement Income Trust Fund assets actually
earn a rate of return, following the date such balance is annuitized, which
is
less than the rate of return used to annuitize the Retirement Income Trust
Fund,
no additional contributions to the Retirement Income Trust Fund shall be
required by the Bank in order to fund the final benefit payment(s) and make
up
for any shortage attributable to the less-than-expected rate of return. Should
Retirement Income Trust Fund assets actually earn a rate of return, following
the date such balance is annuitized, which is greater than the rate of return
used to annuitize the Retirement Income Trust Fund, the final benefit payment
to
the Director (or his Beneficiary) shall distribute the excess amounts
attributable to the greater-than-expected rate of return. The Director may
at
anytime during the Payout Period request to receive the unpaid balance of his
Retirement Income Trust Fund in a lump sum payment. If such a lump sum payment
is requested by the Director, payment of the balance of the Retirement Income
Trust Fund in such lump sum form shall be made only if the Director gives notice
to both the Administrator and trustee in writing. Such lump sum payment shall
be
payable within thirty (30) days of such notice. In the event the Director dies
at any time after attaining his Benefit Age, but prior to commencement or
completion of all monthly payments due and owing hereunder, (i)
the
trustee of the Retirement Income Trust Fund shall pay to the Director’s
Beneficiary the monthly installments (or a continuation of the monthly
installments if they have already commenced) for the balance of months remaining
in the Payout Period, or (ii) the Director’s Beneficiary may request to receive
the unpaid balance of the Director’s Retirement Income Trust Fund in a lump sum
payment. If a lump sum payment is requested by the Beneficiary, payment of
the
balance of the Retirement Income Trust Fund in such lump sum form shall be
made
only if the Director’s Beneficiary notifies both the Administrator and trustee
in writing of such election within ninety (90) days of the Director’s death.
Such lump sum payment shall be made within thirty (30) days of such
notice.
The
Director
=
s
Accrued
Benefit Account (if applicable), measured as of the Director
=
s
Benefit
Age, shall be annuitized (using the Interest Factor) into monthly installments
and shall be payable for the Payout Period. Such benefit payments shall commence
on the Director
=
s
Benefit
Eligibility Date. In the event the Director dies at any time after attaining
his
Benefit Age, but prior to commencement or completion of all the payments due
and
owing hereunder, (i) the Bank shall pay to the Director
=
s
Beneficiary the same monthly installments (or a continuation of such monthly
installments if they have already commenced) for the balance of months remaining
in the Payout Period.
(2)
Director
Dies Prior to Benefit Age
If
(i)
after such termination, the Director dies prior to attaining his Benefit Age,
and (ii) the Director has not made a Timely Election to receive a lump sum
benefit, this Subsection 5.1(a)(2) shall be controlling with respect to
retirement benefits.
The
Retirement Income Trust Fund, measured as of the date of the Director’s death,
shall be annuitized (using the Interest Factor) into monthly installments and
shall be payable for the Payout Period. Such payments shall commence within
thirty (30) days of the date the Administrator receives notice of the Director’s
death. Should Retirement Income Trust Fund assets actually earn a rate of
return, following the date such balance is annuitized, which is less than the
rate of return used to annuitize the Retirement Income Trust Fund, no additional
contributions to the Retirement Income Trust Fund shall be required by the
Bank
in order to fund the final benefit payment(s) and make up for any shortage
attributable to the less-than-expected
rate
of
return. Should Retirement Income Trust Fund assets actually earn a rate of
return, following the date such balance is annuitized, which is greater than
the
rate of return used to annuitize the Retirement Income Trust Fund, the final
benefit payment to the Director’s Beneficiary shall distribute the excess
amounts attributable to the greater-than expected rate of return. The Director’s
Beneficiary may request to receive the unpaid balance of the Director’s
Retirement Income Trust Fund in the form of a lump sum payment. If a lump sum
payment is requested by the Beneficiary, payment of the balance of the
Retirement Income Trust Fund in such lump sum form shall be made only if the
Director’s Beneficiary notifies both the Administrator and trustee in writing of
such election within ninety (90) days of the Director’s death. Such lump sum
payment shall be made within thirty (30) days of such notice.
The
Director
=
s
Accrued
Benefit Account (if applicable), measured as of the date of the
Director
=
s
death,
shall be annuitized (using the Interest Factor) into monthly installments and
shall be payable for the Payout Period. Such payments shall commence within
thirty (30) days of the date the Administrator receives notice of the
Director
=
s
death.
(b)
Alternative
Payout Option
.
(1)
Director
Lives Until Benefit Age
If
(i)
after such termination, the Director lives until attaining his Benefit Age,
and
(ii) the Director has made a Timely Election to receive a lump sum benefit,
this
Subsection 5.1(b)(1) shall be controlling with respect to retirement benefits.
The
balance of the Retirement Income Trust Fund and the Accrued Benefit Account
(if
applicable), measured as of the Director’s Benefit Age, shall be paid to the
Director in a lump sum on his Benefit Eligibility Date. In the event the
Director dies after becoming eligible for such payment (upon attainment of
his
Benefit Age), but before the actual payment is made, his Beneficiary shall
be
entitled to receive the lump sum benefit in accordance with this Subsection
5.1(b)(1) within thirty (30) days of the date the Administrator receives notice
of the Director’s death.
Notwithstanding the foregoing, unless the Director has made a Timely Election
to
receive a lump sum distribution from the Accrued Benefit Account, distributions
from the Accrued Benefit Account will be paid over the Payout Period, commencing
within thirty (30) days of the Director’s Benefit Age.
(2)
Director
Dies Prior to Benefit Age
If
(i)
after such termination, the Director dies prior to attaining his Benefit Age,
and (ii) the Director has made a Timely Election to receive a lump sum benefit,
this Subsection 5.1(b)(2) shall be controlling with respect to pre-retirement
death benefits.
The
balance of the Retirement Income Trust Fund and the Accrued Benefit Account
(if
applicable), measured as of the date of the Director’s death, shall be paid to
the Director’s Beneficiary within thirty (30) days of the date the Administrator
receives notice of the Director’s death.
Notwithstanding the foregoing, unless the Director has made a Timely Election
to
receive a lump sum distribution with respect to the Accrued Benefit Account,
distributions from the Accrued Benefit Account will be paid over the Payout
Period commencing within thirty (30) days of the date the Administrator receives
notice of the Director
=
s
death.
5.2
|
Termination
For Cause
.
|
If
the
Director is terminated for Cause, all benefits under this Agreement, other
than
those which can be paid from previous Contributions to the Retirement Income
Trust Fund (and earnings on such Contributions), shall be forfeited.
Furthermore, no further Contributions (or Phantom Contributions, as applicable)
shall be required of the Bank for the year in which such termination for Cause
occurs (if not yet made). The Director shall be entitled to receive a benefit
in
accordance with this Subsection 5.2.
The
balance of the Director
=
s
Retirement Income Trust Fund shall be paid to the Director in a lump sum on
his
Benefit Eligibility Date. In the event the Director dies prior to his Benefit
Eligibility Date, his Beneficiary shall be entitled to receive the balance
of
the Director’s Retirement Income Trust Fund in a lump sum within thirty (30)
days of the date the Administrator receives notice of the Director’s death.
SECTION
VI
OTHER
BENEFITS
6.1
|
(a)
Disability
Benefit
.
|
If
the
Director’s service is terminated prior to Benefit Age due to a disability that
meets the criteria set forth below, the Director may request to receive the
Disability Benefit in lieu of the retirement benefit(s) available pursuant
to
Section 5.1 (which is (are) not available prior to the Director’s Benefit
Eligibility Date).
In
any
instance in which it is determined by a duly licensed, independent physician
selected by the Bank, that the Director
is
“disabled,”
the
Director shall be entitled to receive a lump sum Disability Benefit
hereunder.
For
these
purposes, a distribution from the Accrued Benefit Account (but not the
Retirement Income Trust Fund) shall require a determination that the Director
is
“disabled”
within the meaning of proposed Treasury Regulation Section 1.409A-3(g)(4).
The
Director shall be entitled to the following lump sum benefit(s) in lieu of
any
benefits under Subsection 5.1. The lump sum benefit(s) to which the Director
is
entitled shall include: (i) the balance of the Retirement Income Trust Fund,
plus (ii) the balance of the Accrued Benefit Account (if applicable). The
benefit(s) shall be paid within thirty (30) days following the date of the
Director’s final disability determination. In the event the Director dies after
becoming eligible for such payment(s) but before the actual payment(s) is (are)
made, his Beneficiary shall be entitled to receive the benefit(s) provided
for
in this Subsection 6.1(a) within thirty (30) days of the date the Administrator
receives notice of the Director’s death.
(b)
Disability
Benefit - Supplemental
.
Furthermore,
if Board of Director approval is obtained within thirty (30) days of the
Director
=
s
death,
the Bank shall make a direct, lump sum payment to the Director’s Beneficiary in
an amount equal to the sum of all remaining Contributions (or Phantom
Contributions) set forth in Exhibit A, but not required pursuant to Subsection
2.1(b) (or 2.1(c)) due to the Director’s disability-related termination. Such
lump sum payment, if approved by the Board of Directors, shall be payable to
the
Director
=
s
Beneficiary within thirty (30) days of such Board of Director
approval.
6.2
|
Additional
Death Benefit - Burial Expense
.
|
Upon
the
Director
=
s
death,
the Director
=
s
Beneficiary shall also be entitled to receive a one-time lump sum death benefit
in the amount of Ten Thousand Dollars ($10,000). This benefit shall be paid
directly from the Bank to the Beneficiary and shall be provided specifically
for
the purpose of providing payment for burial and/or funeral expenses of the
Director. Such death benefit shall be payable within thirty (30) days of the
date the Administrator receives notice of the Director
=
s
death.
The Director
=
s
Beneficiary shall not be entitled to such benefit if the Director is terminated
for Cause prior to death.
SECTION
VII
BENEFICIARY
DESIGNATION
The
Director shall make an initial designation of primary and secondary
Beneficiaries upon execution of this Agreement and shall have the right to
change such designation, at any subsequent time, by submitting to (i) the
Administrator,
and
(ii) the
trustee of the Retirement Income Trust Fund, in substantially the form attached
as Exhibit B to this Agreement, a written designation of primary and secondary
Beneficiaries. Any Beneficiary designation made subsequent to execution of
this
Agreement shall become effective only when receipt thereof is acknowledged
in
writing by the Administrator.
SECTION
VIII
DIRECTOR’S
RIGHT TO ASSETS
The
rights of the Director, any Beneficiary, or any other person claiming through
the Director under this Agreement, shall be solely those of an unsecured general
creditor of the Bank. The Director, the Beneficiary, or any other person
claiming through the Director, shall only have the right to receive from the
Bank those payments or amounts so specified under this Agreement. The Director
agrees that he, his Beneficiary, or any other person claiming through him shall
have no rights or interests whatsoever in any asset of the Bank, including
any
insurance policies or contracts which the Bank may possess or obtain to
informally fund this Agreement. Any asset used or acquired by the Bank in
connection with the liabilities it has assumed under this Agreement shall not
be
deemed to be held under any trust for the benefit of the Director or his
Beneficiaries, unless such asset is contained in the rabbi trust described
in
Section
XII of this Agreement. Any such asset shall be and remain a general, unpledged
asset of the Bank in the event of the Bank
=
s
insolvency.
SECTION
IX
RESTRICTIONS
UPON FUNDING
The
Bank
shall have no obligation to set aside, earmark or entrust any fund or money
with
which to pay its obligations under this Agreement, other than those
Contributions required to be made to the Retirement Income Trust Fund. The
Director, his Beneficiaries or any successor in interest to him shall be and
remain simply a general unsecured creditor of the Bank in the same manner as
any
other creditor having a general claim for matured and unpaid compensation.
The
Bank reserves the absolute right in its sole discretion to either purchase
assets to meet its obligations undertaken by this Agreement or to refrain from
the same and to determine the extent, nature, and method of such asset
purchases. Should the Bank decide to purchase assets such as life insurance,
mutual funds, disability policies or annuities, the Bank reserves the absolute
right, in its sole discretion, to replace such assets from time to time or
to
terminate its investment in such assets at any time, in whole or in part. At
no
time shall the Director be deemed to have any lien, right, title or interest
in
or to any specific investment or to any assets of the Bank. If the Bank elects
to invest in a life insurance, disability or annuity policy upon the life of
the
Director, then the Director shall assist the Bank by freely submitting to a
physical examination and by supplying such additional information necessary
to
obtain such insurance or annuities.
SECTION
X
ACT
PROVISIONS
10.1
|
Named
Fiduciary and Administrator
.
The Bank, as Administrator, shall be the Named Fiduciary of this
Agreement. As Administrator, the Bank shall be responsible for the
management, control and administration of the Agreement as established
herein. The Administrator may delegate to others certain aspects
of the
management and operational responsibilities of the Agreement, including
the employment of advisors and the delegation of ministerial duties
to
qualified individuals.
|
10.2
|
Claims
Procedure and Arbitration
.
In the event that benefits under this Agreement are not paid to the
Director (or to his Beneficiary in the case of the Director’s death) and
such claimants feel they are entitled to receive such benefits, then
a
written claim must be made to the Administrator within sixty (60)
days
from the date payments are refused. The Administrator shall review
the
written claim and, if the claim is denied, in whole or in part, it
shall
provide in writing, within ninety (90) days of receipt of such claim,
its
specific reasons for such denial, reference to the provisions of
this
Agreement upon which the denial is based, and any additional material
or
information necessary to perfect the claim. Such writing by the
Administrator shall further indicate the additional steps which must
be
undertaken by claimants if an additional review of the claim denial
is
desired.
|
If
claimants desire a second review, they shall notify the Administrator in writing
within sixty (60) days of the first claim denial. Claimants may review this
Agreement or any documents relating thereto and submit any issues and comments,
in writing, they may feel appropriate. In its sole discretion, the Administrator
shall then review the second claim and provide a written decision within sixty
(60) days of receipt of such claim. This decision shall state the specific
reasons for the decision and shall include reference to specific provisions
of
this Agreement upon which the decision is based.
If
claimants continue to dispute the benefit denial based upon completed
performance of this Plan and the Agreement or the meaning and effect of the
terms and conditions thereof, then claimants may submit the dispute to
mediation, administered by the American Arbitration Association (
A
AAA
@
)
(or a
mediator selected by the parties) in accordance with the AAA
=
s
Commercial Mediation Rules. If mediation is not successful in resolving the
dispute, it shall be settled by arbitration administered by the AAA under its
Commercial Arbitration Rules, and judgment on the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction
thereof.
SECTION
XI
MISCELLANEOUS
11.1
|
No
Effect on Employment Rights
.
Nothing contained herein will confer upon the Director the right
to be
retained in the service of the Bank nor limit the right of the Bank
to
discharge or otherwise deal with the Director without regard to the
existence of the Agreement.
|
11.2
|
Governing
Law
.
The Agreement is established under, and will be construed according
to,
the laws of the state of New Jersey, to the extent such laws are
not
preempted by the Act or other applicable federal law and valid regulations
published thereunder.
|
11.3
|
Construction
and Severability
.
The funding of and payment of benefits from the Accrued Benefit Account
is
deemed to be a nonqualified deferred compensation arrangement within
the
meaning of Code Section 409A. To the extent that the funding of a
benefit
under the Retirement Income Trust Fund under this Agreement is deemed
to
be a nonqualified deferred compensation arrangement, then that part
of
this Agreement shall also be operated, administered and construed
consistent with Code Section 409A. To the extent that a provision
of the
Agreement fails to comply with Code Section 409A and a construction
consistent with Code Section 409A is not possible, such provision
shall be
void
ab
initio
.
In addition, the Agreement shall be subject to amendment, with or
without
advance notice to Director and other interested parties, and on a
prospective or retroactive basis, including but not limited to amendment
in a manner that adversely affects the rights of Directors and other
interested parties, to the extent necessary to effect compliance
with Code
Section 409A. In the event that any of the provisions of this Agreement
or
portion thereof, are held to be inoperative or invalid by any court
of
competent jurisdiction, then: (1) insofar as is reasonable, effect
will be
given to the intent manifested in the provisions held invalid or
inoperative, and (2) the validity and enforceability of the remaining
provisions will not be affected
thereby.
|
11.4
|
Treatment
as a Director
.
For purposes of this Agreement, it is assumed that the Director is
treated
as a “director” in accordance with Proposed Treasury Regulation Section
1.409A-1(h)(2). If under future guidance or rulings promulgated by
the
Internal Revenue Service or Treasury Department under Code Section
409A it
is determined that the Director should properly
be
|
treated
as an “employee” for purposes of this Agreement, distributions to the Director
due to Separation from Service will be made in accordance with the provisions
of
Proposed Treasury Regulation Section 1.409A-1(h)(1).
11.5
|
Incapacity
of Recipient
.
In the event the Director is declared incompetent and a conservator
or
other person legally charged with the care of his person or Estate
is
appointed, any benefits under the Agreement to which such Director
is
entitled shall be paid to such conservator or other person legally
charged
with the care of his person or Estate.
|
11.6
|
Unclaimed
Benefit
.
The Director shall keep the Bank informed of his current address
and the
current address of his Beneficiaries. The Bank shall not be obligated
to
search for the whereabouts of any person. If the location of the
Director
is not made known to the Bank as of the date upon which any payment
of any
benefits from the Accrued Benefit Account may first be made, the
Bank
shall delay payment of the Director’s benefit payment(s) until the
location of the Director is made known to the Bank; however, the
Bank
shall only be obligated to hold such benefit payment(s) for the Director
until the expiration of thirty-six (36) months.
|
11.7
|
Limitations
on Liability
.
Notwithstanding any of the preceding provisions of the Agreement,
no
individual acting as an employee or agent of the Bank, or as a member
of
the Board of Directors shall be personally liable to the Director
or any
other person for any claim, loss, liability or expense incurred in
connection with the Agreement.
|
11.8
|
Gender
.
Whenever in this Agreement words are used in the masculine or neuter
gender, they shall be read and construed as in the masculine, feminine
or
neuter gender, whenever they should so
apply.
|
11.9
|
Effect
on Other Corporate Benefit Agreements
.
Nothing contained in this Agreement shall affect the right of the
Director
to participate in or be covered by any qualified or non-qualified
pension,
profit sharing, group, bonus or other supplemental compensation or
fringe
benefit agreement constituting a part of the Bank’s existing or future
compensation structure.
|
11.10
|
Suicide
.
Notwithstanding anything to the contrary in this Agreement, if the
Director’s death results from suicide, whether sane or insane, within
twenty-six (26) months after execution of
this
|
Agreement,
all further Contributions to the Retirement Income Trust Fund (or Phantom
Contributions recorded in the Accrued Benefit Account) shall thereupon cease,
and no Contribution (or Phantom Contribution) shall be made by the Bank to
the
Retirement Income Trust Fund (or recorded in the Accrued Benefit Account) in
the
year such death resulting from suicide occurs (if not yet made). All benefits
other than those available from previous Contributions to the Retirement Income
Trust Fund under this Agreement shall be forfeited, and this Agreement shall
become null and void. The balance of the Retirement Income Trust Fund, measured
as of the Director’s date of death, shall be paid to the Beneficiary within
thirty (30) days of the date the Administrator receives notice of the Director’s
death.
11.11
|
Inurement
.
This Agreement shall be binding upon and shall inure to the benefit
of the
Bank, its successors and assigns, and the Director, his successors,
heirs,
executors, administrators, and
Beneficiaries.
|
11.12
|
Headings
.
Headings and sub-headings in this Agreement are inserted for reference
and
convenience only and shall not be deemed a part of this
Agreement.
|
11.13
|
Establishment
of a Rabbi Trust.
The
Bank shall establish a rabbi trust into which the Bank shall contribute
assets which shall be held therein, subject to the claims of the
Bank’s
creditors in the event of the Bank’s “Insolvency” (as defined in such
rabbi trust agreement), until the contributed assets are paid to
the
Director and/or his Beneficiary in such manner and at such times
as
specified in this Agreement. It is the intention of the Bank that
the
contribution or contributions to the rabbi trust shall provide the
Bank
with a source of funds to assist it in meeting the liabilities of
this
Agreement.
|
11.14
|
Source
of Payments
.
All payments provided in this Agreement shall be timely paid in cash
or
check from the general funds of the Bank or the assets of the rabbi
trust,
to the extent made from the Accrued Benefit Account.
|
SECTION
XII
AMENDMENT/PLAN
TERMINATION
12.1
|
Amendment
or Plan Termination
.
The Bank intends this Agreement to be permanent,
but
reserves the right to amend or terminate the Agreement when such
amendment
or termination is required due to objection to the plan by the Bank’s
regulatory authorities.
The
Agreement may not be amended or terminated without the express written
consent of the parties. Any amendment or termination of the Agreement
shall be made pursuant to a resolution of the Board of Directors
of the
Bank and shall be effective as of the date of such resolution. No
amendment or termination of the Agreement shall directly or indirectly
deprive the Director of all or any portion of the Director’s Retirement
Income Trust Fund (and Accrued Benefit Account, if applicable) as
of the
effective date of the resolution amending or terminating the
Agreement.
|
Notwithstanding
the foregoing, if an individual Director’s agreement is subject to Code Section
409A, :the Bank may terminate this Agreement only under the following
circumstances and conditions:
|
(a)
|
The
Board of Directors may terminate the Agreement within 12 months of
a
corporate dissolution taxed under Code Section 331, or with approval
of a
bankruptcy court pursuant to 11 U.S.C. §503(b)(1)(A), provided that the
amounts deferred under the Agreement are included in the Director’s gross
income in the latest of (i) the calendar year in which the Agreement
terminates; (ii) the calendar year in which the amount is no longer
subject to a substantial risk of forfeiture; or (iii) the first calendar
year in which the payment is administratively
practicable.
|
|
(b)
|
The
Board of Directors may terminate the Agreement within the 30 days
preceding a Change in Control (but not following a Change in Control),
provided that the Agreement shall only be treated as terminated if
all
substantially similar arrangements sponsored by the Bank are terminated
so
that the Director and all participants under substantially similar
arrangements are required to receive all amounts of compensation
deferred
under the terminated arrangements within 12 months of the date of
the
termination of the
arrangements.
|
|
(c)
|
The
Board of Directors may terminate the Agreement provided that (i)
all
arrangements sponsored by the Bank that would be aggregated with
this
Agreement under Proposed Regulation Section 1.409A-1(c) if the Director
covered by this Agreement was also covered by any of those other
arrangements are also terminated; (ii) no payments other than payments
that would be payable under the terms of the arrangement if the
termination had not occurred are made within 12 months of the termination
of the arrangement; (iii) all payments are made within 24 months
of the
termination of the arrangements; and (iv) the Bank does not adopt
a new
arrangement that would be aggregated with any terminated arrangement
under
Proposed Regulation Section 1.409A-1(c) if the Director participated
in
both arrangements, at any time within five years following the date
of
termination of the arrangement.
|
12.2
|
Director’s
Right to Payment Following Plan Termination
.
In the event of a termination of the Agreement, the Director shall
be
entitled to the balance, if any, of his Retirement Income Trust Fund
(and
Accrued Benefit Account, if applicable). However, if such termination
is
done in anticipation of or pursuant to a
A
Change
in Control,
@
such balance(s) shall include the final Contribution (or final Phantom
Contribution) made (or recorded) pursuant to Subsection 2.1(b)(2)
(or
2.1(c)(2)). Payment of the balance(s) of the Director’s Retirement Income
Trust Fund (and Accrued Benefit Account, if applicable) shall not
be
dependent upon his continuation of service with the Bank following
the
termination date of the Agreement. Payment of the balance(s) of the
Director’s Retirement Income Trust Fund (and Accrued Benefit Account, if
applicable) shall be made in a lump sum within thirty (30) days of
the
date of termination of the
Agreement.
|
SECTION
XIII
EXECUTION
13.1
|
This
Agreement and the Joseph Yelencsics Grantor Trust Agreement set forth
the
entire understanding of the parties hereto with respect to the
transactions contemplated hereby, and any previous agreements or
understandings between the parties hereto regarding the subject matter
hereof are merged into and superseded by this Agreement and the Joseph
Yelencsics Grantor Trust Agreement.
|
13.2
|
This
Agreement shall be executed in triplicate, each copy of which, when
so
executed and delivered, shall be an original, but all three copies
shall
together constitute one and the same
instrument.
|
[Remainder
of Page
Intentionally
Left Blank]
IN
WITNESS WHEREOF, the Bank and the Director have caused this Agreement to be
executed on the day and date first above written.
ATTEST:
|
|
MAGYAR
BANK:
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/
|
|
By:
|
/s/
Elizabeth E. Hance
|
|
|
|
|
|
|
Title:
|
President/CEO
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
WITNESS:
|
|
DIRECTOR:
|
|
|
|
|
/s/
|
|
/s/
Joseph Yelencsics
|
|
|
|
|
|
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|
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|
|
CONDITIONS,
ASSUMPTIONS,
AND
SCHEDULE
OF CONTRIBUTIONS AND PHANTOM CONTRIBUTIONS
1.
|
Interest
Factor - for purposes of:
|
|
a.
|
the
Accrued Benefit Account - shall be six percent (6%) per annum, compounded
monthly.
|
|
b.
|
the
Elective Contributions - shall be ten percent (10%) per annum, compounded
monthly.
|
|
c.
|
the
Emeritus Contributions - shall be six percent (6%) per annum, compounded
monthly.
|
|
d.
|
the
Retirement Income Trust Fund - for purposes of annuitizing the balance
of
the Retirement Income Trust Fund over the Payout Period, the trustee
of
the Joseph Yelencsics Grantor Trust shall exercise discretion in
selecting
the appropriate rate given the nature of the investments contained
in the
Retirement Income Trust Fund and the expected return associated with
the
investments. For these purposes, if the trustee of the Retirement
Income
Trust Fund has purchased a life insurance policy, the trustee shall
have
the discretion to determine the portion of the cash value of such
policy
available for purposes of annuitizing the Retirement Income Trust
Fund, in
accordance with Section 2.3 of the Agreement.
|
2.
|
The
amount of the annual Emeritus Contributions (or Phantom Contributions)
to
the Retirement Income Trust Fund (or Accrued Benefit Account) has
been
based on the annual interest-adjusted accounting accruals which would
be
required of the Bank through the earlier of the Director
=
s
death or Benefit Age, (i) pursuant to APB Opinion No. 12, as amended
by
FAS 106 and (ii) assuming a discount rate equal to six percent (6%)
per
annum, in order to provide a portion of the unfunded, non-qualified
Supplemental Retirement Income Benefit. The Emeritus Contributions
are
calculated to support a benefit based upon
57.5%
of
the Director’s total board fees, committee fees and/or retainer in the
twelve months prior to Director’s Benefit Eligibility Date.
|
3.
|
The
amount of the annual Elective Contributions (or Phantom Contributions)
to
the Retirement Income Trust Fund (or Accrued Benefit Account) has
been
based on the annual interest-adjusted accounting accruals which would
be
required of the Bank through the earlier of the Director’s death or
Benefit Age, (i) pursuant to APB Opinion No. 12, as amended by FAS
106 and
(ii) assuming a discount rate equal to ten percent (10%) per annum,
in
order to provide a portion of the unfunded, non-qualified Supplemental
Retirement Income Benefit. Effective January 1, 2007 the Director
has
elected to discontinue his monthly deferral of board fees, committee
fess
and/or retainer. Effective January 1, 2007 the monthly deferral amount
will be zero.
|
4.
|
For
purposes of this Agreement, and benefit calculations under this Agreement,
future increases in Board Fees after 2006 will be limited to the
actual
increase or four percent (4%), whichever is
less.
|
Exhibit
A
5.
|
Supplemental
Retirement Income Benefit means an actuarially determined annual
amount
equal to Sixty-Three Thousand Seven Hundred and Forty-Two Dollars
($63,742) at age 65 if paid entirely from the Accrued Benefit Account
or
Forty Thousand Seven Hundred and Ninety-Five Dollars ($40,795) at
age 65
if paid from the Retirement Income Trust
Fund.
|
The
Supplemental Retirement Income Benefit:
|
!
|
the
definition of Supplemental Retirement Income Benefit has been incorporated
into the Agreement for the sole purpose of actuarially establishing
the
amount of annual Contributions (or Phantom Contributions) to the
Retirement Income Trust Fund (or Accrued Benefit Account). The amount
of
any actual retirement, pre-retirement or disability benefit payable
pursuant to the Agreement will be a function of (i) the amount and
timing
of Contributions (or Phantom Contributions) to the Retirement Income
Trust
Fund (or Accrued Benefit Account) and (ii) the actual investment
experience of such Contributions (or the monthly compounding rate
of
Phantom Contributions).
|
6.
Schedule
of Annual Gross Contributions/Phantom Contributions
Plan
Year
|
Elective
Contributions
|
Emeritus
Contributions
|
Total
Contributions
|
2004
|
$32,647
|
$19,868
|
$52,515
|
2005
|
9,754
|
7,760
|
17,514
|
2006
|
10,775
|
12,556
|
23,331
|
2007
|
11,903
|
13,999
|
25,902
|
2008
|
13,150
|
15,573
|
28,723
|
2009
|
14,527
|
17,288
|
31,815
|
2010
|
14,006
|
19,155
|
33,161
|
2011
|
11,179
|
21,187
|
32,366
|
2012
|
12,350
|
23,397
|
35,747
|
2013
|
13,643
|
25,798
|
39,441
|
2014
|
15,072
|
28,407
|
43,479
|
2015
|
16,650
|
31,240
|
47,890
|
2016
|
18,394
|
34,313
|
52,707
|
2017
|
20,319
|
37,647
|
57,966
|
2018
|
22,447
|
41,262
|
63,709
|
2019
|
24,571
|
35,176
|
59,747
|
Exhibit
A
- Cont
=
d.
RESTATED
DIRECTOR
SUPPLEMENTAL RETIREMENT INCOME and
DEFERRED
COMPENSATION AGREEMENT
BENEFICIARY
DESIGNATION
The
Director, under the terms of the Restated Director Supplemental Retirement
Income and Deferred Compensation Agreement executed by the Bank, dated the
1st
day of February, 2004, as amended and restated effective January 1, 2006, hereby
designates the following Beneficiary(ies) to receive any guaranteed payments
or
death benefits under such Agreement, following his death:
PRIMARY
BENEFICIARY:
|
|
|
|
SECONDARY
BENEFICIARY:
|
|
This
Beneficiary Designation hereby revokes any prior Beneficiary Designation which
may have been in effect.
Such
Beneficiary Designation is revocable.
DATE:
______________________, 20__
Exhibit
B
RESTATED
DIRECTOR
SUPPLEMENTAL RETIREMENT INCOME and
DEFERRED
COMPENSATION AGREEMENT
NOTICE
OF ELECTION TO CHANGE FORM OF PAYMENT
I
hereby
give notice of my election to change the form of payment of my Supplemental
Retirement Income Benefit, as specified below.
I
understand that such notice,
in
order to be effective, must be submitted in accordance with the time
requirements described in Subsection 1.27 of my Restated Director Supplemental
Retirement Income and Deferred Compensation Agreement.
|
G
|
I
hereby elect to change the form of payment of my benefits from monthly
installments throughout my Payout Period to a lump sum benefit
payment.
|
|
G
|
I
hereby elect to change the form of payment of my benefits from a
lump sum
benefit payment to monthly installments throughout my Payout Period.
Such
election hereby revokes my previous notice of election to receive
a lump
sum form of benefit payments.
|
|
|
|
|
|
|
|
|
DIRECTOR
|
|
|
|
|
|
|
|
|
|
|
DATE
|
|
|
|
|
|
|
|
ACKNOWLEDGED
|
|
|
BY:
|
|
|
|
|
|
|
|
TITLE:
|
|
|
|
|
|
|
DATE
|
|
|
Exhibit
C
RESTATED
DIRECTOR
SUPPLEMENTAL RETIREMENT INCOME and
DEFERRED
COMPENSATION AGREEMENT
NOTICE
OF ADJUSTMENT OF ELECTIVE CONTRIBUTION
I
hereby
give notice of my election to adjust the amount of my Elective Contribution
in
accordance with my Restated Director Supplemental Retirement Income and Deferred
Compensation Agreement, dated the 1
st
day of
February, 2004, as amended and restated effective January 1, 2006. This notice
is submitted thirty (30) days prior to January 1st, and shall become effective
January 1st, as specified below.
Adjust
deferral as of:
|
January
1st, 2___
|
|
|
|
|
Previous
Deferral Amount
|
____________
per month
|
New
Deferral Amount
|
____________
per month
|
|
(to
discontinue deferral, enter $0)
|
|
|
|
|
DIRECTOR
|
|
|
|
|
|
|
|
|
DATE
|
|
|
|
|
|
|
|
|
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|
|
ACKNOWLEDGED
BY
|
|
|
|
|
|
|
|
|
TITLE
|
|
|
|
|
|
|
|
|
DATE
|
|
Exhibit
D
Exhibit
10.7
RESTATED
DIRECTOR
SUPPLEMENTAL RETIREMENT
INCOME
and DEFERRED COMPENSATION AGREEMENT
FOR
EDWARD STOKES
MAGYAR
BANK
New
Brunswick, New Jersey
January
1, 2006
Financial
Institution Consulting Corporation
700
Colonial Road, Suite 102
Memphis,
Tennessee 38117
WATS:
1-800-873-0089
FAX:
(901) 684-7414
(901)
684-7400
RESTATED
DIRECTOR
SUPPLEMENTAL RETIREMENT
INCOME
and DEFERRED COMPENSATION AGREEMENT
FOR
EDWARD STOKES
This
Restated Director Supplemental Retirement Income and Deferred Compensation
Agreement for Edward Stokes (the "Agreement"), effective as of the 1st day
of
January, 2006, amends and restates the Director Supplemental Retirement Income
and Deferred Compensation Agreement for Edward Stokes dated February 1, 2004,
and formalizes the understanding by and between MAGYAR BANK (the "Bank"), a
state chartered savings bank having its principal place of business in New
Brunswick, New Jersey, and EDWARD STOKES (hereinafter referred to as
"Director"). All prior non-qualified Director deferred compensation agreements,
including any and all Joinder Agreements, with respect to the Director and
MAGYAR BANK, are hereby superseded and replaced by this Agreement
W
I T N E S S E T H :
WHEREAS
,
the
Director serves the Bank as a member of the board; and
WHEREAS
,
the
Bank recognizes the valuable services heretofore performed by the Director
and
wishes to encourage his continued service; and
WHEREAS
,
the
Director wishes to be assured that the Director will be entitled to a certain
amount of additional compensation for some definite period of time from and
after retirement from active service with the Bank or other termination of
service and wishes to provide his beneficiary with benefits from and after
death; and
WHEREAS
,
the
Bank and the Director wish to provide the terms and conditions upon which the
Bank shall pay such additional compensation to the Director after retirement
or
other termination of service and/or death benefits to his beneficiary after
death; and
WHEREAS
,
the
Bank has adopted this Director Supplemental Retirement Income and Deferred
Compensation Agreement which controls all issues relating to benefits as
described herein; and
WHEREAS
,
Section
409A of the Internal Revenue Code of 1986 (“Code”), as amended, requires that
certain deferred compensation arrangements comply with its terms or subject
the
recipient of the compensation to potential taxes and penalties; and
WHEREAS
,
the
Bank desires to amend and restate the Agreement to comply with Code Section
409A
and any Treasury Regulations promulgated thereunder; and
WHEREAS
,
the
Board of Directors of the Bank has conditionally approved
the
amendment and restatement of the Agreement, subject to the approval of the
New
Jersey Department of Banking and Insurance.
NOW,
THEREFORE,
in
consideration of the premises and of the mutual promises herein contained,
the
Bank and the Director agree as follows:
SECTION
I
DEFINITIONS
When
used
herein, the following words and phrases shall have the meanings below unless
the
context clearly indicates otherwise:
1.1
|
"Accrued
Benefit Account" shall be
represented
by
the bookkeeping entries required to record the Director
=
s
(i) Phantom Contributions plus (ii) accrued interest, equal to the
Interest Factor, earned to-date on such amounts. However, neither
the
existence of such bookkeeping entries nor the Accrued Benefit Account
itself shall be deemed to create either a trust of any kind, or a
fiduciary relationship between the Bank and the Director or any
Beneficiary.
|
1.2
|
"Act"
means the Employee Retirement Income Security Act of 1974, as amended
from
time to time.
|
1.3
|
A
Administrator
@
means the Bank.
|
1.4
|
"Bank"
means MAGYAR BANK and any successor
thereto.
|
1.5
|
"Beneficiary"
means the person or persons (and their heirs) designated as Beneficiary
in
Exhibit B of this Agreement to whom the deceased Director
=
s
benefits are payable. If no Beneficiary is so designated, then the
Director
=
s
Spouse, if living, will be deemed the Beneficiary. If the
Director
=
s
Spouse is not living, then the Children of the Director will be deemed
the
Beneficiaries and will take on a per stirpes basis. If there are
no
Children, then the Estate of the Director will be deemed the
Beneficiary.
|
1.6
|
"Benefit
Age" means the later of: (i) the Director's sixty-fifth (65th) birthday
or
(ii) the actual date the Director
=
s
full-time service with the Bank terminates.
|
1.7
|
"Benefit
Eligibility Date" means the date on which the Director is entitled
to
receive any benefit(s) pursuant to Section(s) III or V of this Agreement.
It shall be the first day of the month following both the attainment
of
the Directors’ Benefit Age and his actual retirement from the Board of
Directors.
|
1.8
|
"Board
of Directors" means the board of directors of the
Bank.
|
1.9
|
"Cause"
means termination of the Director
=
s
service on the Board of Directors due to: (i) actions or inactions
which
constitute a breach of the bylaws of the Bank or (ii) the
Director
=
s
personal dishonesty, willful misconduct, willful malfeasance, breach
of
fiduciary duty involving personal profit, intentional failure to
perform
stated duties, willful violation of any law, rule, regulation (other
than
traffic violations or similar offenses), or final cease-and-desist
order,
material breach of any provision of this Plan, or gross negligence
in
matters of material importance to the
Bank.
|
1.10
|
“Change
in Control” shall mean a change in the ownership of the Bank or Company
under paragraph (a) below, a change in effective control of the Bank
or
Company under paragraph (b) below, or a change in the ownership of
a
substantial portion of the assets of the Bank or Company under paragraph
(c) below. For all purposes hereunder, the definition of Change in
Control
shall be construed to be consistent with the requirements of Proposed
Treasury Regulation Section 1.409A-3(g), except to the extent that
such
proposed regulations are superseded by subsequent
guidance.
|
For
this
subsection “persons acting as a group” is defined as follows; Persons will be
considered to be acting as a group if they are owners of a corporation that
enters into a merger, consolidation, purchase or acquisition of stock, or
similar business transaction with the corporation. Persons will not be
considered to be acting as a group solely because they purchase or own stock
of
the same corporation at the same time, or as a result of the same public
offering. If a person, including an entity, owns stock in both corporations
that
enter into a merger, consolidation, purchase or acquisition of stock, or similar
transaction, such shareholder is considered to be acting as a group with other
shareholders in a corporation only with respect to the ownership in that
corporation prior to the transaction giving rise to the change and not with
respect to the ownership interest in the other corporation.
|
(a)
|
Change
in Ownership of the Bank or Company
|
Change
in
the ownership occurs on the date that any one person, or more than one person
acting as a group (as defined above), acquires ownership of stock of the Bank
or
Company that, together with stock held by such person or group, constitutes
more
than 50 percent of the total fair market value or total voting power of the
stock of such corporation. However, if any one person or more than one person
acting as a group, is considered to own more than 50 percent of the total fair
market value or total voting power of the stock of a corporation, the
acquisition of additional stock by the same person or persons is not considered
to cause a change in the ownership of the corporation or to cause a change
in
the effective control of the corporation.
|
(b)
|
Change
in the Effective Control of the Bank or
Company
|
A
change
in the effective control of the Bank or Company occurs on the date that either
-
(1)
Any
one person, or more than one person acting as a group (as defined above),
acquires (or has acquired during the 12-month period ending on the date of
the
most recent acquisition by such person or persons) ownership of stock of the
Company possessing 20 percent or more of the total voting power of the stock
of
the Company (except that if an individual Director’s agreement becomes subject
to Code Section 409A, then the required percentage of acquired ownership of
stock under this Subsection 1.10 (b)(1) shall be 35 percent or more); or
(2)
a
majority of members of the Company’s board of directors is replaced during any
12-month period by directors whose appointment or election is not endorsed
by a
majority of the members of the Company’s board of directors prior to the date of
the appointment or election.
|
(c)
|
Change
in the Ownership of a Substantial Portion of the Bank’s or Company’s
Assets.
|
Change
in
the ownership of a substantial portion of the Bank or Company’s assets occurs on
the date that any one person, or more than one person acting as a group (as
defined above), acquires (or has acquired during the 12-month period ending
on
the date of the most recent acquisition by such person or persons) assets from
the corporation that have a total gross fair market value equal to or more
than
40 percent of the total gross fair market value of all of the assets of the
Bank
or Company immediately prior to such acquisition or acquisitions. For this
purpose, gross fair market value means the value of the assets of the Bank
or
Company, or the value of the assets being disposed of, determined without regard
to any liabilities associated with such assets.
1.11
|
"Children"
means all natural or adopted children of the Director and issue of
any
predeceased child or children.
|
1.12
|
"Code"
means the Internal Revenue Code of 1986, as amended from time to
time.
|
1.13
|
“Company”
shall mean Magyar Bancorp, Inc.
|
1.14
|
"Contribution(s)"
means those annual total contributions comprised of both the Elective
Contributions and the Emeritus Contributions which the Bank is required
to
make to the Retirement Income Trust Fund on behalf of the Director
in
accordance with Subsection 2.1(a) and in the amounts set forth in
Exhibit
A of the Agreement. Such Contributions, for the first Plan Year,
shall
include any and all amounts accrued by the Bank to pay the benefits
promised to the Director under any prior non-qualified deferred
compensation agreements including any Joinder Agreements previously
executed by the Bank and the Director.
|
1.15
|
(a)
"Disability Benefit" means the benefit payable to the Director following
a
determination, in accordance with Subsection 6.1(a), that he is no
longer
able, properly and satisfactorily, to perform his duties at the
Bank.
|
(b)
"Disability Benefit-Supplemental" (if applicable) means the benefit payable
to
the Director
=
s
Beneficiary upon the Director
=
s
death
in accordance with Subsection 6.1(b).
1.16
|
"Effective
Date" of this Agreement shall be January 1, 2006. The original effective
date of this Agreement was February 1, 2004. The Agreement is hereby
amended and restated effective January 1, 2006 in order to conform
to Code
Section 409A.
|
1.17
|
“Elective
Contribution” shall refer to the Director’s voluntary monthly pre-tax
deferral of board fees, committee fees and/or retainer plus interest
compounded annually at a rate equal to the Interest Factor. The Director
may elect to change his voluntary deferral amount by submitting to
the
Bank a Notice of Adjustment of Elective Contribution thirty (30)
days
prior to the end of any Plan Year.
|
1.18
|
“Emeritus
Contribution” shall refer to the amounts necessary to support an annual
amount payable to the Director at Benefit Age based upon a percentage,
as
stated in Appendix A, of the Director’s total board fees, committee fees
and/or retainer in the twelve months prior to the Director’s Benefit
Eligibility Date. The percentage shall be determined by the following
formula: ten percent (10%) plus two and one-half percent (2 ½%) for each
year of service as a Director, with a minimum of fifty percent (50%),
provided the Director has served for at least five (5) years, and
a
maximum of sixty percent (60%). Notwithstanding the foregoing, any
Director who serves as Board Chairman for a five-year term (other
than the
current Chairman) shall be entitled to receive seventy-five percent
(75%).
|
1.19
|
"Estate"
means the estate of the Director.
|
1.20
|
"Interest
Factor" means monthly compounding, discounting or annuitizing, as
applicable, at a rate set forth in
Exhibit A.
|
1.21
|
"Payout
Period" means the time frame during which certain benefits payable
hereunder shall be distributed. Payments shall be made in monthly
installments commencing on the first day of the month following the
occurrence of the event which triggers distribution and continuing
for a
period of one hundred eighty (180) months. Should the Director make
a
Timely Election to receive a lump sum benefit payment, the
Director
=
s
Payout Period shall be deemed to be one (1) month.
|
1.22
|
"Phantom
Contributions" means those annual Contributions which the Bank is
no
longer required to make on behalf of the Director to the Retirement
Income
Trust Fund. Rather, once the Director has exercised the withdrawal
rights
provided for in Subsection 2.2, the Bank shall be required to record
the
annual amounts set forth in Exhibit A of the Agreement in the
Director
=
s
Accrued Benefit Account, pursuant to Subsection 2.1.
|
1.23
|
"Plan
Year" shall mean the twelve (12) month period commencing January
1 and
ending December 31.
|
1.24
|
"Retirement
Income Trust Fund" means the trust fund account established by the
Director and into which annual Contributions will be made by the
Bank on
behalf of the Director pursuant to Subsection 2.1. The contractual
rights
of the Bank and the Director with respect to the Retirement Income
Trust
Fund shall be outlined in a separate writing to be known as the Edward
Stokes Grantor Trust agreement.
|
1.25
|
A
Spouse
@
means the individual to whom the Director is legally married at the
time
of the Director
=
s
death, provided, however, that the term
A
Spouse
@
shall not refer to an individual to whom the Director is legally
married
at the time of death if the Director and such individual have entered
into
a formal separation agreement or initiated divorce
proceedings.
|
1.26
|
"Supplemental
Retirement Income Benefit" means an annual amount (
before
taking into account federal and state income taxes), payable in monthly
installments throughout the Payout Period. Such benefit is projected
pursuant to the Agreement for the purpose of determining the Contributions
to be made to the Retirement Income Trust Fund (or Phantom Contributions
to be recorded in the Accrued Benefit Account). The annual Contributions
and Phantom
|
Contributions
have been actuarially determined, using the assumptions set forth in Exhibit
A,
in order to fund for the projected Supplemental Retirement Income Benefit.
The
Supplemental Retirement Income Benefit for which Contributions (or Phantom
Contributions) are being made (or recorded) is set forth in Exhibit A.
1.27
|
"Timely
Election" means the Director has made an election to change the form
of
his benefit payment(s) from the Retirement Income Trust Fund by filing
with the Administrator a Notice of Election to Change Form of Payment
(Exhibit C of this Agreement). In the case of benefits payable from
the
Retirement Income Trust Fund, such election may be made at any time.
In
the case of benefits payable from the Accrued Benefit Account, such
election generally shall have been made prior to December 31, 2006
(i.e.
the last day of the “Transition Period” for bringing plans into compliance
with Code Section 409A). Unless the Transition Period is extended
by the
Internal Revenue Service, if the Director makes an election subsequent
to
December 31, 2006 with respect to distributions from the Accrued
Benefit
Account, then (i) such election may not take effect until at least
twelve
(12) months after the date on which the election is made, (ii) in
the case
of an election related to a payment other than due to disability
or death,
the first payment with respect to which such election is made must
be
deferred for a period of not less than five (5) years from the date
such
payment would otherwise have been made, and (iii) any election related
to
a distribution at a specified time or pursuant to a fixed schedule
may not
be made less than twelve (12) months prior to the date of the first
scheduled payment.
|
SECTION
II
BENEFIT
FUNDING
2.1
|
(a)
Retirement
Income Trust Fund and Accrued Benefit Account
.
The Director shall establish the Edward Stokes Grantor Trust into
which
the Bank shall be required to make annual Contributions on the
Director
=
s
behalf, pursuant to Exhibit A and this Section II of the Agreement.
A
trustee shall be selected by the Director. The trustee shall maintain
an
account, separate and distinct from the Director
=
s
personal contributions, which account shall constitute the Retirement
Income Trust Fund. The trustee shall be charged with the responsibility
of
investing all contributed funds. Distributions from the Retirement
Income
Trust Fund of the Edward Stokes Grantor Trust may be made by the
trustee
to the Director, for purposes of payment of any income or employment
taxes
|
due
and
owing on Contributions by the Bank to the Retirement Income Trust Fund, if
any,
and on any taxable earnings associated with such Contributions which the
Director shall be required to pay from year to year, under applicable law,
prior
to actual receipt of any benefit payments from the Retirement Income Trust
Fund.
If the Director exercises his withdrawal rights pursuant to Subsection 2.2,
the
Bank
=
s
obligation to make Contributions to the Retirement Income Trust Fund shall
cease
and the Bank
=
s
obligation to record Phantom Contributions in the Accrued Benefit Account shall
immediately commence pursuant to Exhibit A and this Section II of the Agreement.
To the extent this Agreement is inconsistent with the Edward Stokes Grantor
Trust Agreement, the Edward Stokes Grantor Trust Agreement shall supersede
this
Agreement.
The
annual Contributions (or Phantom Contributions) required to be made by the
Bank
to the Retirement Income Trust Fund (or recorded by the Bank in the Accrued
Benefit Account) have been actuarially determined and are set forth in Exhibit
A
which is attached hereto and incorporated herein by reference. Contributions
shall be made by the Bank to the Retirement Income Trust Fund (i) within
seventy-five (75) days of establishment of such trust, and (ii) within the
first
thirty (30) days of the beginning of each subsequent Plan Year, unless this
Section expressly provides otherwise. Phantom Contributions, if any, shall
be
recorded in the Accrued Benefit Account within the first thirty (30) days of
the
beginning of each applicable Plan Year, unless this Section expressly provides
otherwise. Phantom Contributions shall accrue interest at a rate equal to the
Interest Factor, during the Payout Period, until the balance of the Accrued
Benefit Account has been fully distributed. Interest on any Phantom Contribution
shall not commence until such Payout Period commences.
The
Administrator shall review the schedule of annual Contributions (or Phantom
Contributions) provided for in Exhibit A (i) within thirty (30) days prior
to
the close of each Plan Year and (ii) if the Director is employed by the Bank
until attaining Benefit Age, on or immediately before attainment of such Benefit
Age. Such review shall consist of an evaluation of the accuracy of all
assumptions used to establish the schedule of Contributions (or Phantom
Contributions). Provided that (i) the Director has not exercised his withdrawal
rights pursuant to Subsection 2.2 and (ii) the investments contained in the
Retirement Income Trust Fund have been deemed reasonable by the Bank, the
Administrator shall prospectively amend or supplement the schedule of
Contributions provided for in Exhibit A should the Administrator determine
during any such
review
that
an
increase
in or
supplement
to
the
schedule of Contributions is necessary in order to adequately fund the
Retirement Income Trust Fund so as to provide an annual benefit (or to provide
the lump sum equivalent of such benefit, as applicable) equal to the
Supplemental Retirement Income Benefit, on an after-tax basis, commencing at
Benefit Age and payable for the duration of the Payout Period.
(b)
Withdrawal
Rights Not Exercised.
(1)
Contributions
Made Annually
If
the
Director does not exercise any withdrawal rights pursuant to Subsection 2.2,
the
annual Contributions to the Retirement Income Trust Fund shall continue each
year, unless this Subsection 2.1(b) specifically states otherwise, until the
earlier of (i) the last Plan Year that Contributions are required pursuant
to
Exhibit A, or (ii) the Plan Year of the Director's termination of
service.
(2)
Termination
Following a Change in Control
If
the
Director does not exercise his withdrawal rights pursuant to Subsection 2.2
and
a Change in Control occurs at the Bank, followed within thirty-six (36) months
by either (i) the Director's involuntary termination of service, or (ii)
Director's voluntary termination of service after: (A) a material change in
the
Director's function, duties, or responsibilities, which change would cause
the
Director's position to become one of lesser responsibility, importance, or
scope
from the position the Director held at the time of the Change in Control, (B)
a
relocation of the Director's principal place of service by more than thirty
(30)
miles from its location prior to the Change in Control, or (C) a material
reduction in the benefits and perquisites to the Director from those being
provided at the time of the Change in Control, the Emeritus Contributions as
set
forth on Schedule A shall continue to be required of the Bank. The Bank shall
be
required to make an immediate lump sum Contribution to the Director's Retirement
Income Trust Fund in an amount equal to: (i) the full Emeritus Contribution
required for the Plan Year in which such termination occurs, if not yet made,
plus (ii) the present value (computed using a discount rate equal to the
Interest Factor) of all remaining Emeritus Contributions to the Retirement
Income Trust Fund, and (iii) the present value (computed using the a discount
rate equal to the Interest Factor) of the interest only component of the
Elective Contribution; provided, however, that, if necessary, an additional
amount shall be contributed to the Retirement Income Trust Fund which is
sufficient to
provide
the Director with after-tax benefits (assuming a constant tax rate equal to
the
rate in effect as of the date of Director
=
s
termination) beginning at Benefit Age following such termination, equal in
amount to that benefit which would have been payable to the Director if no
secular trust had been implemented and the benefit obligation had been accrued
under APB Opinion No. 12, as amended by FAS 106.
(3)
Termination
For Cause
If
the
Director does not exercise his withdrawal rights pursuant to Subsection 2.2,
and
is terminated for Cause pursuant to Subsection 5.2, no further Contribution(s)
to the Retirement Income Trust Fund shall be required of the Bank, and if not
yet made, no Contribution shall be required for the Plan Year in which such
termination for Cause occurs.
(4)
Voluntary or Involuntary Termination of Service
.
If
the
Director does not exercise his withdrawal rights pursuant to
Subsection 2.2, and the Director's service with the Bank is voluntarily or
involuntarily terminated for any reason, including a termination due to
disability of the Director but excluding termination for Cause, or termination
following a Change in Control within thirty-six (36) months of such Change
in
Control, no further Contribution(s), as defined in Subsection 1.14, to the
Retirement Income Trust Fund shall be required of the Bank, and if not yet
made,
no Contribution shall be required for the Plan Year in which such termination
occurs. Notwithstanding the above, the Bank will be required to make annual
payments to Director’s Retirement Income Trust Fund determined as
follows:
|
1.
|
Determine
what the accrued liability would have been as of the Director’s date of
termination, had no secular trust been
implemented.
|
|
2.
|
Determine
the benefit payable, beginning at the Benefit Age, for 180 months
which
that accrued liability would support had interest been added to that
liability on an annual basis using the Accrued Benefit Interest Factor
set
forth in Exhibit A.
|
|
3.
|
The
Bank shall make payments to the Director’s Retirement Income Trust Fund on
an annual basis in amounts equal to the accrued interest expense
which
would have been recorded absent the secular trust
arrangement.
|
(5)
Death
During Service
.
If
the
Director does not exercise any withdrawal rights pursuant to
Subsection 2.2, and dies while employed by the Bank, and if, following the
Director
=
s
death,
the assets of the Retirement Income Trust Fund are insufficient to provide
the
Supplemental Retirement Income Benefit to which the Director is entitled, the
Bank shall be required to make a Contribution to the Retirement Income Trust
Fund equal to the sum of the remaining Contributions set forth on Exhibit A,
after taking into consideration any payments under any life insurance policies
that may have been obtained on the Director
=
s
life by
the Retirement Income Trust Fund. Such final contribution shall be payable
in a
lump sum to the Retirement Income Trust Fund within thirty (30) days of the
Director
=
s
death.
(c)
Withdrawal
Rights Exercised.
(1)
Phantom
Contributions Made Annually
.
If
the
Director exercises his withdrawal rights pursuant to Subsection 2.2, no further
Contributions to the Retirement Income Trust Fund shall be required of the
Bank.
Thereafter, Phantom Contributions shall be recorded annually in the Director's
Accrued Benefit Account within thirty (30) days of the beginning of each Plan
Year, commencing with the first Plan Year following the Plan Year in which
the
Director exercises his withdrawal rights. Such Phantom Contributions shall
continue to be recorded annually, unless this Subsection 2.1(c) specifically
states otherwise, until the earlier of (i) the last Plan Year that Phantom
Contributions are required pursuant to Exhibit A, or (ii) the Plan Year of
the
Director's termination of service.
(2)
Termination
Following a Change in Control
If
the
Director exercises his withdrawal rights pursuant to Subsection 2.2, Phantom
Contributions shall commence in the Plan Year following the Plan Year in which
the Director first exercises his withdrawal rights. If a Change in Control
occurs at the Bank, and within thirty-six (36) months of such Change in Control,
the Director's service is either (i) involuntarily terminated, or (ii)
voluntarily terminated by the Director after: (A) a material change in the
Director's function, duties, or responsibilities, which change would cause
the
Director's position to become one of lesser responsibility, importance, or
scope
from the position the Director held at the time of the Change in Control, (B)
a
relocation of the Director's principal place of service by more than thirty
(30)
miles from its location prior to the Change in Control, or (C) a material
reduction in the
benefits
and perquisites to the Director from those being provided at the time of the
Change in Control, the Phantom Contribution set forth below shall be required
of
the Bank. The Bank shall be required to record a lump sum Phantom Contribution
in the Accrued Benefit Account within ten (10) days of the Director
=
s
termination of service equal to (i) the full Emeritus Contribution required
for
the Plan Year in which such termination occurs, if not yet made, plus (ii)
the
present value (computed using a discount rate equal to the Interest Factor)
of
all remaining Emeritus Contributions to the Retirement Income Trust Fund, and
(iii) the present value (computed using the a discount rate equal to the
Interest Factor) of the interest only component of the Elective Contribution.
The amount of such final Phantom Contribution shall be actuarially determined
based on the Phantom Contribution required, at such time, in order to provide
a
benefit via this Agreement equal in amount to that benefit which would have
been
payable to the Director if no secular trust had been implemented and the benefit
obligation had been accrued under APB Opinion No. 12, as amended by FAS 106.
(Such actuarial determination shall reflect the fact that amounts shall be
payable from both the Accrued Benefit Account as well as the Retirement Income
Trust Fund and shall also reflect the amount and timing of any withdrawal(s)
made by the Director from the Retirement Income Trust Fund pursuant to
Subsection 2.2.)
(3)
Termination
For Cause
If
the
Director is terminated for Cause pursuant to Subsection 5.2, the entire balance
of the Director
=
s
Accrued
Benefit Account at the time of such termination, which shall include any Phantom
Contributions which have been recorded plus interest accrued on such Phantom
Contributions, shall be forfeited.
(4)
Voluntary
and
Involuntary
Termination of Service
.
If
the
Director exercises his withdrawal rights pursuant to Subsection 2.2, and the
Director's service with the Bank is voluntarily or involuntarily terminated
for
any reason including termination due to disability of the Director, but
excluding termination for Cause, or termination following a Change in Control,
within thirty (30) days of such termination of service, no further Phantom
Contributions shall be required of the Bank. Interest, at a rate equal to the
Interest Factor, shall accrue on such Phantom Contributions until the Director’s
Benefit Eligibility Date.
(5)
Death
During Service
.
If
the
Director exercises his withdrawal rights pursuant to Subsection 2.2, and
dies while employed by the Bank, Phantom Contributions included on Exhibit
A
shall be required of the Bank. Such Phantom Contributions shall commence in
the
Plan Year following the Plan Year in which the Director exercises his withdrawal
rights and shall continue through the Plan Year in which the Director dies.
The
Bank shall also be required to record a final Phantom Contribution within thirty
(30) days of the Director
=
s
death.
The amount of such final Phantom Contribution shall be actuarially determined
based on the Phantom Contribution required at such time (if any), in order
to
provide a benefit via this Agreement equivalent to the Supplemental Retirement
Income Benefit commencing within thirty (30) days of the date the Administrator
receives notice of the Director
=
s
death
and continuing for the duration of the Payout Period. (Such actuarial
determination shall reflect the fact that amounts shall be payable from the
Accrued Benefit Account as well as the Retirement Income Trust Fund and shall
also reflect the amount and timing of any withdrawal(s) made by the Director
pursuant to Subsection 2.2.)
2.2
|
Withdrawals
From Retirement Income Trust
Fund.
|
Exercise
of withdrawal rights by the Director pursuant to the Edward Stokes Grantor
Trust
agreement shall terminate the Bank's obligation to make any further
Contributions to the Retirement Income Trust Fund, and the Bank
=
s
obligation to record Phantom Contributions pursuant to Subsection 2.1(c) shall
commence. For purposes of this Subsection 2.2,
A
exercise
of withdrawal rights
@
shall
mean those withdrawal rights to which the Director is entitled under Article
III
of the Edward Stokes Grantor Trust agreement and shall exclude any distributions
made by the trustee of the Retirement Income Trust Fund to the Director for
purposes of payment of income taxes in accordance with Subsection 2.1 of this
Agreement and the tax reimbursement formula contained in the trust document,
or
other trust expenses properly payable from the Edward Stokes Grantor Trust
pursuant to the provisions of the trust document.
2.3
|
Benefits
Payable From Retirement Income Trust
Fund
|
Notwithstanding
anything else to the contrary in this Agreement, in the event that the trustee
of the Retirement Income Trust Fund purchases a life insurance policy with
the
Contributions to and, if applicable, earnings of the Trust, and such life
insurance policy is intended to continue in force beyond the Payout Period
for
the disability or retirement benefits payable from the
Retirement
Income Trust Fund pursuant to this Agreement, then the trustee shall have
discretion to determine the portion of the cash value of such policy available
for purposes of annuitizing the Retirement Income Trust Fund (it being
understood that for purposes of this Section 2.3,
A
annuitizing
@
does not
mean surrender of such policy and annuitizing of the cash value received upon
such surrender) to provide the disability or retirement benefits payable under
this Agreement, after taking into consideration the amounts reasonably believed
to be required in order to maintain the cash value of such policy to continue
such policy in effect until the death of the Director and payment of death
benefits thereunder.
SECTION
III
RETIREMENT
BENEFIT
3.1
|
(a)
Normal
form of payment
.
|
If
(i)
the Director is employed with the Bank until reaching his Benefit Age and (ii)
the Director has not made a Timely Election to receive a lump sum benefit,
this
Subsection 3.1(a) shall be controlling with respect to retirement
benefits.
The
Retirement Income Trust Fund, measured as of the Director's Benefit Age, shall
be annuitized (using the Interest Factor) into monthly installments and shall
be
payable for the Payout Period. Such benefit payments shall commence on the
Director's Benefit Eligibility Date. Should Retirement Income Trust Fund assets
actually earn a rate of return, following the date such balance is annuitized,
which is less than the rate of return used to annuitize the Retirement Income
Trust Fund, no additional contributions to the Retirement Income Trust Fund
shall be required by the Bank in order to fund the final benefit payment(s)
and
make up for any shortage attributable to the less-than-expected rate of return.
Should Retirement Income Trust Fund assets actually earn a rate of return,
following the date such balance is annuitized, which is greater than the rate
of
return used to annuitize the Retirement Income Trust Fund, the final benefit
payment to the Director (or his Beneficiary) shall distribute the excess amounts
attributable to the greater-than-expected rate of return. The Director may
at
anytime during the Payout Period request to receive the unpaid balance of his
Retirement Income Trust Fund in a lump sum payment. If such a lump sum payment
is requested by the Director, payment of the balance of the Retirement Income
Trust Fund in such lump sum form shall be made only if the Director gives notice
to both
the
Administrator and trustee in writing. Such lump sum payment shall be payable
within thirty (30) days of such notice. In the event the Director dies at any
time after attaining his Benefit Age, but prior to commencement or completion
of
all monthly payments due and owing hereunder, (i) the trustee of the Retirement
Income Trust Fund shall pay to the Director's Beneficiary the monthly
installments (or a continuation of such monthly installments if they have
already commenced) for the balance of months remaining in the Payout Period,
or
(ii) the Director's Beneficiary may request to receive the unpaid balance of
the
Director's Retirement Income Trust Fund in a lump sum payment. If a lump sum
payment is requested by the Beneficiary, payment of the balance of the
Retirement Income Trust Fund in such lump sum form shall be made only if the
Director's Beneficiary notifies both the Administrator and trustee in writing
of
such election within ninety (90) days of the Director's death. Such lump sum
payment shall be payable within thirty (30) days of such notice.
The
Director
=
s
Accrued
Benefit Account (if applicable), measured as of the Director
=
s
Benefit
Age, shall be annuitized (using the Interest Factor) into monthly installments
and shall be payable for the Payout Period. Such benefit payments shall commence
on the Director
=
s
Benefit
Eligibility Date. In the event the Director dies at any time after attaining
his
Benefit Age, but prior to commencement or completion of all the payments due
and
owing hereunder, (i) the Bank shall pay to the Director
=
s
Beneficiary the same monthly installments (or a continuation of such monthly
installments if they have already commenced) for the balance of months remaining
in the Payout Period.
(b)
Alternative
payout option.
If
(i)
the Director is employed with the Bank until reaching his Benefit Age, and
(ii)
the Director has made a Timely Election to receive a lump sum benefit, this
Subsection 3.1(b) shall be controlling with respect to retirement benefits.
The
balance of the Retirement Income Trust Fund and the Accrued Benefit Account
(if
applicable), measured as of the Director
=
s
Benefit
Age, shall be paid to the Director in a lump sum on his Benefit Eligibility
Date. In the event the Director dies after becoming eligible for such payment
(upon attainment of his Benefit Age), but before the actual payment is made,
his
Beneficiary
shall be entitled to receive the lump sum benefit in accordance with this
Subsection 3.1(b) within thirty (30) days of the date the Administrator receives
notice of the Director’s death.
Notwithstanding the foregoing, unless the Director has made a Timely Election
to
receive a lump sum distribution from the Accrued Benefit Account, distributions
from the Accrued Benefit Account will be paid over the Payout Period, commencing
within thirty (30) days of the Director’s Benefit Age.
SECTION
IV
PRE-RETIREMENT
DEATH BENEFIT
4.1
|
(a)
Normal
form of payment
.
|
If
(i)
the Director dies while employed by the Bank, and (ii) the Director has not
made
a Timely Election to receive a lump sum benefit, this Subsection 4.1(a) shall
be
controlling with respect to pre-retirement death benefits.
The
balance of the Director
=
s
Retirement Income Trust Fund, measured as of the later of (i) the
Director
=
s
death,
or (ii) the date any final lump sum Contribution is made pursuant to Subsection
2.1(b), shall be annuitized (using the Interest Factor) into monthly
installments and shall be payable for the Payout Period. Such benefits shall
commence within thirty (30) days of the date the Administrator receives notice
of the Director
=
s
death.
Should Retirement Income Trust Fund assets actually earn a rate of return,
following the date such balance is annuitized, which is less than the rate
of
return used to annuitize the Retirement Income Trust Fund, no additional
contributions to the Retirement Income Trust Fund shall be required by the
Bank
in order to fund the final benefit payment(s) and make up for any shortage
attributable to the less-than-expected rate of return. Should Retirement Income
Trust Fund assets actually earn a rate of return, following the date such
balance is annuitized, which is greater than the rate of return used to
annuitize the Retirement Income Trust Fund, the final benefit payment to the
Director
=
s
Beneficiary shall distribute the excess amounts attributable to the
greater-than-expected rate of return. The Director
=
s
Beneficiary may request to receive the unpaid balance of the
Director
=
s
Retirement Income Trust Fund in a lump sum payment. If a lump sum payment is
requested by the Beneficiary, payment of the balance of the Retirement Income
Trust Fund in such lump sum form shall be made only if the Director
=
s
Beneficiary notifies both the Administrator and trustee
in
writing of such election within ninety (90) days of the Director
=
s
death.
Such lump sum payment shall be made within thirty (30) days of such
notice.
The
Director
=
s
Accrued
Benefit Account (if applicable), measured as of the later of (i) the
Director's death or (ii) the date any final lump sum Phantom Contribution is
recorded in the Accrued Benefit Account pursuant to Subsection 2.1(c), shall
be
annuitized (using the Interest Factor) into monthly installments and shall
be
payable to the Director's Beneficiary for the Payout Period. Such benefit
payments shall commence within thirty (30) days of the date the Administrator
receives notice of the Director
=
s
death,
or if later, within thirty (30) days after any final lump sum Phantom
Contribution is recorded in the Accrued Benefit Account in accordance with
Subsection 2.1(c).
(b)
Alternative
payout option
.
If
(i)
the Director dies while employed by the Bank, and (ii) the Director has made
a
Timely Election to receive a lump sum benefit, this Subsection 4.1(b) shall
be
controlling with respect to pre-retirement death benefits.
The
balance of the Director
=
s
Retirement Income Trust Fund and the Accrued Benefit Account (if applicable),
measured as of the later of (i) the Director
=
s
death,
or (ii) the date any final lump sum Contribution is made pursuant to Subsection
2.1(b), shall be paid to the Director's Beneficiary in a lump sum within thirty
(30) days of the date the Administrator receives notice of the Director's
death.
Notwithstanding the foregoing, unless the Director has made a Timely Election
to
receive a lump sum distribution with respect to the Accrued Benefit Account,
distributions from the Accrued Benefit Account will be paid over the Payout
Period commencing within thirty (30) days of the date the Administrator receives
notice of the Director
=
s
death.
SECTION
V
BENEFIT(S)
IN THE EVENT OF TERMINATION OF SERVICE
PRIOR
TO BENEFIT AGE
5.1
|
Voluntary
or Involuntary Termination of Service Other Than for Cause
.
In the event the Director
=
s
service with the Bank is voluntarily or involuntarily terminated
prior to
Benefit Age,
|
for
any
reason, including a Change in Control, but excluding (i) any disability related
termination for which the Board of Directors has approved early payment of
benefits pursuant to Subsection 6.1, (ii) the Director's pre-retirement death,
which shall be covered in Section IV, (iii) or termination for Cause, which
shall be covered in Subsection 5.2, the Director (or his Beneficiary) shall
be
entitled to receive benefits in accordance with this Subsection 5.1. Payments
of
benefits pursuant to this Subsection 5.1 shall be made in accordance with
Subsection 5.1(a) or 5.1(b) below, as applicable.
(a)
Normal
form of payment
.
(1)
Director
Lives Until Benefit Age
If
(i)
after such termination, the Director lives until attaining his Benefit Age,
and
(ii) the Director has not made a Timely Election to receive a lump sum benefit,
this Subsection 5.1(a)(1) shall be controlling with respect to retirement
benefits.
The
Retirement Income Trust Fund, measured as of the Director's Benefit Age, shall
be annuitized (using the Interest Factor) into monthly installments and shall
be
payable for the Payout Period. Such payments shall commence on the Director's
Benefit Eligibility Date. Should Retirement Income Trust Fund assets actually
earn a rate of return, following the date such balance is annuitized, which
is
less than the rate of return used to annuitize the Retirement Income Trust
Fund,
no additional contributions to the Retirement Income Trust Fund shall be
required by the Bank in order to fund the final benefit payment(s) and make
up
for any shortage attributable to the less-than-expected rate of return. Should
Retirement Income Trust Fund assets actually earn a rate of return, following
the date such balance is annuitized, which is greater than the rate of return
used to annuitize the Retirement Income Trust Fund, the final benefit payment
to
the Director (or his Beneficiary) shall distribute the excess amounts
attributable to the greater-than-expected rate of return. The Director may
at
anytime during the Payout Period request to receive the unpaid balance of his
Retirement Income Trust Fund in a lump sum payment. If such a lump sum payment
is requested by the Director, payment of the balance of the Retirement Income
Trust Fund in such lump sum form shall be made only if the Director gives notice
to both the Administrator and trustee in writing. Such lump sum payment shall
be
payable within thirty (30) days of such notice. In the event the Director dies
at any time after attaining his Benefit Age, but prior to commencement or
completion of all monthly payments due and owing hereunder, (i)
the
trustee of the Retirement Income Trust Fund shall pay to the Director's
Beneficiary the monthly installments (or a continuation of the monthly
installments if they have already commenced) for the balance of months remaining
in the Payout Period, or (ii) the Director's Beneficiary may request to receive
the unpaid balance of the Director's Retirement Income Trust Fund in a lump
sum
payment. If a lump sum payment is requested by the Beneficiary, payment of
the
balance of the Retirement Income Trust Fund in such lump sum form shall be
made
only if the Director's Beneficiary notifies both the Administrator and trustee
in writing of such election within ninety (90) days of the Director's death.
Such lump sum payment shall be made within thirty (30) days of such
notice.
The
Director
=
s
Accrued
Benefit Account (if applicable), measured as of the Director
=
s
Benefit
Age, shall be annuitized (using the Interest Factor) into monthly installments
and shall be payable for the Payout Period. Such benefit payments shall commence
on the Director
=
s
Benefit
Eligibility Date. In the event the Director dies at any time after attaining
his
Benefit Age, but prior to commencement or completion of all the payments due
and
owing hereunder, (i) the Bank shall pay to the Director
=
s
Beneficiary the same monthly installments (or a continuation of such monthly
installments if they have already commenced) for the balance of months remaining
in the Payout Period.
(2)
Director
Dies Prior to Benefit Age
If
(i)
after such termination, the Director dies prior to attaining his Benefit Age,
and (ii) the Director has not made a Timely Election to receive a lump sum
benefit, this Subsection 5.1(a)(2) shall be controlling with respect to
retirement benefits.
The
Retirement Income Trust Fund, measured as of the date of the Director's death,
shall be annuitized (using the Interest Factor) into monthly installments and
shall be payable for the Payout Period. Such payments shall commence within
thirty (30) days of the date the Administrator receives notice of the Director's
death. Should Retirement Income Trust Fund assets actually earn a rate of
return, following the date such balance is annuitized, which is less than the
rate of return used to annuitize the Retirement Income Trust Fund, no additional
contributions to the Retirement Income Trust Fund shall be required by the
Bank
in order to fund the final benefit payment(s) and make up for any shortage
attributable to the less-than-expected
rate
of
return. Should Retirement Income Trust Fund assets actually earn a rate of
return, following the date such balance is annuitized, which is greater than
the
rate of return used to annuitize the Retirement Income Trust Fund, the final
benefit payment to the Director's Beneficiary shall distribute the excess
amounts attributable to the greater-than-expected rate of return. The Director's
Beneficiary may request to receive the unpaid balance of the Director's
Retirement Income Trust Fund in the form of a lump sum payment. If a lump sum
payment is requested by the Beneficiary, payment of the balance of the
Retirement Income Trust Fund in such lump sum form shall be made only if the
Director's Beneficiary notifies both the Administrator and trustee in writing
of
such election within ninety (90) days of the Director's death. Such lump sum
payment shall be made within thirty (30) days of such notice.
The
Director
=
s
Accrued
Benefit Account (if applicable), measured as of the date of the
Director
=
s
death,
shall be annuitized (using the Interest Factor) into monthly installments and
shall be payable for the Payout Period. Such payments shall commence within
thirty (30) days of the date the Administrator receives notice of the
Director
=
s
death.
(b)
Alternative
Payout Option
.
(1)
Director
Lives Until Benefit Age
If
(i)
after such termination, the Director lives until attaining his Benefit Age,
and
(ii) the Director has made a Timely Election to receive a lump sum benefit,
this
Subsection 5.1(b)(1) shall be controlling with respect to retirement benefits.
The
balance of the Retirement Income Trust Fund and the Accrued Benefit Account
(if
applicable), measured as of the Director's Benefit Age, shall be paid to the
Director in a lump sum on his Benefit Eligibility Date. In the event the
Director dies after becoming eligible for such payment (upon attainment of
his
Benefit Age), but before the actual payment is made, his Beneficiary shall
be
entitled to receive the lump sum benefit in accordance with this Subsection
5.1(b)(1) within thirty (30) days of the date the Administrator receives notice
of the Director's death.
Notwithstanding the foregoing, unless the Director has made a Timely Election
to
receive a lump sum distribution from the Accrued Benefit Account, distributions
from the Accrued Benefit Account will be paid over the Payout Period, commencing
within thirty (30) days of the Director’s Benefit Age.
(2)
Director
Dies Prior to Benefit Age
If
(i)
after such termination, the Director dies prior to attaining his Benefit Age,
and (ii) the Director has made a Timely Election to receive a lump sum benefit,
this Subsection 5.1(b)(2) shall be controlling with respect to pre-retirement
death benefits.
The
balance of the Retirement Income Trust Fund and the Accrued Benefit Account
(if
applicable), measured as of the date of the Director's death, shall be paid
to
the Director's Beneficiary within thirty (30) days of the date the Administrator
receives notice of the Director's death.
Notwithstanding the foregoing, unless the Director has made a Timely Election
to
receive a lump sum distribution with respect to the Accrued Benefit Account,
distributions from the Accrued Benefit Account will be paid over the Payout
Period commencing within thirty (30) days of the date the Administrator receives
notice of the Director
=
s
death.
5.2
|
Termination
For Cause
.
|
If
the
Director is terminated for Cause, all benefits under this Agreement, other
than
those which can be paid from previous Contributions to the Retirement Income
Trust Fund (and earnings on such Contributions), shall be forfeited.
Furthermore, no further Contributions (or Phantom Contributions, as applicable)
shall be required of the Bank for the year in which such termination for Cause
occurs (if not yet made). The Director shall be entitled to receive a benefit
in
accordance with this Subsection 5.2.
The
balance of the Director
=
s
Retirement Income Trust Fund shall be paid to the Director in a lump sum on
his
Benefit Eligibility Date. In the event the Director dies prior to his Benefit
Eligibility Date, his Beneficiary shall be entitled to receive the balance
of
the Director's Retirement Income Trust Fund in a lump sum within thirty (30)
days of the date the Administrator receives notice of the Director's death.
SECTION
VI
OTHER
BENEFITS
6.1
|
(a)
Disability
Benefit
.
|
If
the
Director's service is terminated prior to Benefit Age due to a disability that
meets the criteria set forth below, the Director may request to receive the
Disability Benefit in lieu of the retirement benefit(s) available pursuant
to
Section 5.1 (which is (are) not available prior to the Director's Benefit
Eligibility Date).
In
any
instance in which it is determined by a duly licensed, independent physician
selected by the Bank, that the Director
is
“disabled,”
the
Director shall be entitled to receive a lump sum Disability Benefit
hereunder.
For
these
purposes, a distribution from the Accrued Benefit Account (but not the
Retirement Income Trust Fund) shall require a determination that the Director
is
“disabled”
within the meaning of proposed Treasury Regulation Section
1.409A-3(g)(4).
The
Director shall be entitled to the following lump sum benefit(s) in lieu of
any
benefits under Subsection 5.1. The lump sum benefit(s) to which the Director
is
entitled shall include: (i) the balance of the Retirement Income Trust Fund,
plus (ii) the balance of the Accrued Benefit Account (if applicable). The
benefit(s) shall be paid within thirty (30) days following the date of the
Director's final disability determination. In the event the Director dies after
becoming eligible for such payment(s) but before the actual payment(s) is (are)
made, his Beneficiary shall be entitled to receive the benefit(s) provided
for
in this Subsection 6.1(a) within thirty (30) days of the date the Administrator
receives notice of the Director's death.
(b)
Disability
Benefit - Supplemental
.
Furthermore,
if Board of Director approval is obtained within thirty (30) days of the
Director
=
s
death,
the Bank shall make a direct, lump sum payment to the Director's Beneficiary
in
an amount equal to the sum of all remaining Contributions (or Phantom
Contributions) set forth in Exhibit A, but not required pursuant to Subsection
2.1(b) (or 2.1(c)) due to the Director's disability-related termination. Such
lump sum payment, if approved by the Board of Directors, shall be payable to
the
Director
=
s
Beneficiary within thirty (30) days of such Board of Director
approval.
6.2
|
Additional
Death Benefit - Burial Expense
.
|
Upon
the
Director
=
s
death,
the Director
=
s
Beneficiary shall also be entitled to receive a one-time lump sum death benefit
in the amount of Ten Thousand Dollars ($10,000). This benefit shall be paid
directly from the Bank to the Beneficiary and shall be provided specifically
for
the purpose of providing payment for burial and/or funeral expenses of the
Director. Such death benefit shall be payable within thirty (30) days of the
date the Administrator receives notice of the Director
=
s
death.
The Director
=
s
Beneficiary shall not be entitled to such benefit if the Director is terminated
for Cause prior to death.
SECTION
VII
BENEFICIARY
DESIGNATION
The
Director shall make an initial designation of primary and secondary
Beneficiaries upon execution of this Agreement and shall have the right to
change such designation, at any subsequent time, by submitting to (i) the
Administrator,
and
(ii) the
trustee of the Retirement Income Trust Fund, in substantially the form attached
as Exhibit B to this Agreement, a written designation of primary and secondary
Beneficiaries. Any Beneficiary designation made subsequent to execution of
this
Agreement shall become effective only when receipt thereof is acknowledged
in
writing by the Administrator.
SECTION
VIII
DIRECTOR'S
RIGHT TO ASSETS
The
rights of the Director, any Beneficiary, or any other person claiming through
the Director under this Agreement, shall be solely those of an unsecured general
creditor of the Bank. The Director, the Beneficiary, or any other person
claiming through the Director, shall only have the right to receive from the
Bank those payments or amounts so specified under this Agreement. The Director
agrees that he, his Beneficiary, or any other person claiming through him shall
have no rights or interests whatsoever in any asset of the Bank, including
any
insurance policies or contracts which the Bank may possess or obtain to
informally fund this Agreement. Any asset used or acquired by the Bank in
connection with the liabilities it has assumed under this Agreement shall not
be
deemed to be held under any trust for the benefit of the Director or his
Beneficiaries, unless such asset is contained in the rabbi trust described
in
Section
XII of this Agreement. Any such asset shall be and remain a general, unpledged
asset of the Bank in the event of the Bank
=
s
insolvency.
SECTION
IX
RESTRICTIONS
UPON FUNDING
The
Bank
shall have no obligation to set aside, earmark or entrust any fund or money
with
which to pay its obligations under this Agreement, other than those
Contributions required to be made to the Retirement Income Trust Fund. The
Director, his Beneficiaries or any successor in interest to him shall be and
remain simply a general unsecured creditor of the Bank in the same manner as
any
other creditor having a general claim for matured and unpaid compensation.
The
Bank reserves the absolute right in its sole discretion to either purchase
assets to meet its obligations undertaken by this Agreement or to refrain from
the same and to determine the extent, nature, and method of such asset
purchases. Should the Bank decide to purchase assets such as life insurance,
mutual funds, disability policies or annuities, the Bank reserves the absolute
right, in its sole discretion, to replace such assets from time to time or
to
terminate its investment in such assets at any time, in whole or in part. At
no
time shall the Director be deemed to have any lien, right, title or interest
in
or to any specific investment or to any assets of the Bank. If the Bank elects
to invest in a life insurance, disability or annuity policy upon the life of
the
Director, then the Director shall assist the Bank by freely submitting to a
physical examination and by supplying such additional information necessary
to
obtain such insurance or annuities.
SECTION
X
ACT
PROVISIONS
10.1
|
Named
Fiduciary and Administrator
.
The Bank, as Administrator, shall be the Named Fiduciary of this
Agreement. As Administrator, the Bank shall be responsible for the
management, control and administration of the Agreement as established
herein. The Administrator may delegate to others certain aspects
of the
management and operational responsibilities of the Agreement, including
the employment of advisors and the delegation of ministerial duties
to
qualified individuals.
|
10.2
|
Claims
Procedure and Arbitration
.
In the event that benefits under this Agreement are not paid to the
Director (or to his Beneficiary in the case of the Director's death)
and
such claimants feel they are entitled to receive such benefits, then
a
written claim must be made to the Administrator within sixty (60)
days
from the date payments are refused. The Administrator shall review
the
written claim and, if the claim is denied, in whole or in part, it
shall
provide in writing, within ninety (90) days of receipt of such claim,
its
specific reasons for such denial, reference to the provisions of
this
Agreement upon which the denial is based, and any additional material
or
information necessary to perfect the claim. Such writing by the
Administrator shall further indicate the additional steps which must
be
undertaken by claimants if an additional review of the claim denial
is
desired.
|
If
claimants desire a second review, they shall notify the Administrator in writing
within sixty (60) days of the first claim denial. Claimants may review this
Agreement or any documents relating thereto and submit any issues and comments,
in writing, they may feel appropriate. In its sole discretion, the Administrator
shall then review the second claim and provide a written decision within sixty
(60) days of receipt of such claim. This decision shall state the specific
reasons for the decision and shall include reference to specific provisions
of
this Agreement upon which the decision is based.
If
claimants continue to dispute the benefit denial based upon completed
performance of this Plan and the Agreement or the meaning and effect of the
terms and conditions thereof, then claimants may submit the dispute to
mediation, administered by the American Arbitration Association (
A
AAA
@
)
(or a
mediator selected by the parties) in accordance with the AAA
=
s
Commercial Mediation Rules. If mediation is not successful in resolving the
dispute, it shall be settled by arbitration administered by the AAA under its
Commercial Arbitration Rules, and judgment on the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction
thereof.
SECTION
XI
MISCELLANEOUS
11.1
|
No
Effect on Employment Rights
.
Nothing contained herein will confer upon the Director the right
to be
retained in the service of the Bank nor limit the right of the Bank
to
discharge or otherwise deal with the Director without regard to the
existence of the Agreement.
|
11.2
|
Governing
Law
.
The Agreement is established under, and will be construed according
to,
the laws of the state of New Jersey, to the extent such laws are
not
preempted by the Act or other applicable federal law and valid regulations
published thereunder.
|
11.3
|
Construction
and Severability
.
The funding of and payment of benefits from the Accrued Benefit Account
is
deemed to be a nonqualified deferred compensation arrangement within
the
meaning of Code Section 409A. To the extent that the funding of a
benefit
under the Retirement Income Trust Fund under this Agreement is deemed
to
be a nonqualified deferred compensation arrangement, then that part
of
this Agreement shall also be operated, administered and construed
consistent with Code Section 409A. To the extent that a provision
of the
Agreement fails to comply with Code Section 409A and a construction
consistent with Code Section 409A is not possible, such provision
shall be
void
ab
initio
.
In addition, the Agreement shall be subject to amendment, with or
without
advance notice to Director and other interested parties, and on a
prospective or retroactive basis, including but not limited to amendment
in a manner that adversely affects the rights of Directors and other
interested parties, to the extent necessary to effect compliance
with Code
Section 409A. In the event that any of the provisions of this Agreement
or
portion thereof, are held to be inoperative or invalid by any court
of
competent jurisdiction, then: (1) insofar as is reasonable, effect
will be
given to the intent manifested in the provisions held invalid or
inoperative, and (2) the validity and enforceability of the remaining
provisions will not be affected
thereby.
|
11.4
|
Treatment
as a Director
.
For purposes of this Agreement, it is assumed that the Director is
treated
as a “director” in accordance with Proposed Treasury Regulation Section
1.409A-1(h)(2). If under future guidance or rulings promulgated by
the
Internal Revenue Service or Treasury Department under Code Section
409A it
is determined that the Director should properly be
|
treated
as an “employee” for purposes of this Agreement, distributions to the Director
due to Separation from Service will be made in accordance with the provisions
of
Proposed Treasury Regulation Section 1.409A-1(h)(1).
11.5
|
Incapacity
of Recipient
.
In the event the Director is declared incompetent and a conservator
or
other person legally charged with the care of his person or Estate
is
appointed, any benefits under the Agreement to which such Director
is
entitled shall be paid to such conservator or other person legally
charged
with the care of his person or Estate.
|
11.6
|
Unclaimed
Benefit
.
The Director shall keep the Bank informed of his current address
and the
current address of his Beneficiaries. The Bank shall not be obligated
to
search for the whereabouts of any person. If the location of the
Director
is not made known to the Bank as of the date upon which any payment
of any
benefits from the Accrued Benefit Account may first be made, the
Bank
shall delay payment of the Director's benefit payment(s) until the
location of the Director is made known to the Bank; however, the
Bank
shall only be obligated to hold such benefit payment(s) for the Director
until the expiration of thirty-six (36) months.
|
11.7
|
Limitations
on Liability
.
Notwithstanding any of the preceding provisions of the Agreement,
no
individual acting as an employee or agent of the Bank, or as a member
of
the Board of Directors shall be personally liable to the Director
or any
other person for any claim, loss, liability or expense incurred in
connection with the Agreement.
|
11.8
|
Gender
.
Whenever in this Agreement words are used in the masculine or neuter
gender, they shall be read and construed as in the masculine, feminine
or
neuter gender, whenever they should so
apply.
|
11.9
|
Effect
on Other Corporate Benefit Agreements
.
Nothing contained in this Agreement shall affect the right of the
Director
to participate in or be covered by any qualified or non-qualified
pension,
profit sharing, group, bonus or other supplemental compensation or
fringe
benefit agreement constituting a part of the Bank's existing or future
compensation structure.
|
11.10
|
Suicide
.
Notwithstanding anything to the contrary in this Agreement, if the
Director's death results from suicide, whether sane or insane, within
twenty-six (26) months after execution of
this
|
Agreement,
all further Contributions to the Retirement Income Trust Fund (or Phantom
Contributions recorded in the Accrued Benefit Account) shall thereupon cease,
and no Contribution (or Phantom Contribution) shall be made by the Bank to
the
Retirement Income Trust Fund (or recorded in the Accrued Benefit Account) in
the
year such death resulting from suicide occurs (if not yet made). All benefits
other than those available from previous Contributions to the Retirement Income
Trust Fund under this Agreement shall be forfeited, and this Agreement shall
become null and void. The balance of the Retirement Income Trust Fund, measured
as of the Director's date of death, shall be paid to the Beneficiary within
thirty (30) days of the date the Administrator receives notice of the Director's
death.
11.11
|
Inurement
.
This Agreement shall be binding upon and shall inure to the benefit
of the
Bank, its successors and assigns, and the Director, his successors,
heirs,
executors, administrators, and
Beneficiaries.
|
11.12
|
Headings
.
Headings and sub-headings in this Agreement are inserted for reference
and
convenience only and shall not be deemed a part of this
Agreement.
|
11.13
|
Establishment
of a Rabbi Trust.
The Bank shall establish a rabbi trust into which the Bank shall
contribute assets which shall be held therein, subject to the claims
of
the Bank's creditors in the event of the Bank's "Insolvency" (as
defined
in such rabbi trust agreement), until the contributed assets are
paid to
the Director and/or his Beneficiary in such manner and at such times
as
specified in this Agreement. It is the intention of the Bank that
the
contribution or contributions to the rabbi trust shall provide the
Bank
with a source of funds to assist it in meeting the liabilities of
this
Agreement.
|
11.14
|
Source
of Payments
.
All payments provided in this Agreement shall be timely paid in cash
or
check from the general funds of the Bank or the assets of the rabbi
trust,
to the extent made from the Accrued Benefit Account.
|
SECTION
XII
AMENDMENT/PLAN
TERMINATION
12.1
|
Amendment
or Plan Termination
.
The Bank intends this Agreement to be permanent,
but
reserves the right to amend or terminate the Agreement when such
amendment
or termination is required due to objection to the plan by the Bank's
regulatory authorities.
The
Agreement may not be amended or terminated without the express written
consent of the parties. Any amendment or termination of the Agreement
shall be made pursuant to a resolution of the Board of Directors
of the
Bank and shall be effective as of the date of such resolution. No
amendment or termination of the Agreement shall directly or indirectly
deprive the Director of all or any portion of the Director's Retirement
Income Trust Fund (and Accrued Benefit Account, if applicable) as
of the
effective date of the resolution amending or terminating the
Agreement.
|
Notwithstanding
the foregoing, if an individual Director’s agreement is subject to Code Section
409A, :the Bank may terminate this Agreement only under the following
circumstances and conditions:
|
(a)
|
The
Board of Directors may terminate the Agreement within 12 months of
a
corporate dissolution taxed under Code Section 331, or with approval
of a
bankruptcy court pursuant to 11 U.S.C. §503(b)(1)(A), provided that the
amounts deferred under the Agreement are included in the Director’s gross
income in the latest of (i) the calendar year in which the Agreement
terminates; (ii) the calendar year in which the amount is no longer
subject to a substantial risk of forfeiture; or (iii) the first calendar
year in which the payment is administratively
practicable.
|
|
(b)
|
The
Board of Directors may terminate the Agreement within the 30 days
preceding a Change in Control (but not following a Change in Control),
provided that the Agreement shall only be treated as terminated if
all
substantially similar arrangements sponsored by the Bank are terminated
so
that the Director and all participants under substantially similar
arrangements are required to receive all amounts of compensation
deferred
under the terminated arrangements within 12 months of the date of
the
termination of the
arrangements.
|
|
(c)
|
The
Board of Directors may terminate the Agreement provided that (i)
all
arrangements sponsored by the Bank that would be aggregated with
this
Agreement under Proposed Regulation Section 1.409A-1(c) if the Director
covered by this Agreement was also covered by any of those other
arrangements are also terminated; (ii) no payments other than payments
that would be payable under the terms of the arrangement if the
termination had not occurred are made within 12 months of the termination
of the arrangement; (iii) all payments are made within 24 months
of the
termination of the arrangements; and (iv) the Bank does not adopt
a new
arrangement that would be aggregated with any terminated arrangement
under
Proposed Regulation Section 1.409A-1(c) if the Director participated
in
both arrangements, at any time within five years following the date
of
termination of the arrangement.
|
12.2
|
Director's
Right to Payment Following Plan Termination
.
In the event of a termination of the Agreement, the Director shall
be
entitled to the balance, if any, of his Retirement Income Trust Fund
(and
Accrued Benefit Account, if applicable). However, if such termination
is
done in anticipation of or pursuant to a
A
Change
in Control,
@
such balance(s) shall include the final Contribution (or final Phantom
Contribution) made (or recorded) pursuant to Subsection 2.1(b)(2)
(or
2.1(c)(2)). Payment of the balance(s) of the Director's Retirement
Income
Trust Fund (and Accrued Benefit Account, if applicable) shall not
be
dependent upon his continuation of service with the Bank following
the
termination date of the Agreement. Payment of the balance(s) of the
Director's Retirement Income Trust Fund (and Accrued Benefit Account,
if
applicable) shall be made in a lump sum within thirty (30) days of
the
date of termination of the
Agreement.
|
SECTION
XIII
EXECUTION
13.1
|
This
Agreement and the Edward Stokes Grantor Trust Agreement set forth
the
entire understanding of the parties hereto with respect to the
transactions contemplated hereby, and any previous agreements or
understandings between the parties hereto regarding the subject matter
hereof are merged into and superseded by this Agreement and the Edward
Stokes Grantor Trust Agreement.
|
13.2
|
This
Agreement shall be executed in triplicate, each copy of which, when
so
executed and delivered, shall be an original, but all three copies
shall
together constitute one and the same
instrument.
|
[Remainder
of Page
Intentionally
Left Blank]
IN
WITNESS WHEREOF, the Bank and the Director have caused this Agreement to be
executed on the day and date first above written.
ATTEST:
|
|
MAGYAR
BANK:
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/s/
|
|
By:
|
/s/
Elizabeth E. Hance
|
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|
|
Title:
|
President/CEO
|
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WITNESS:
|
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DIRECTOR:
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/s/
|
|
/s/
Edward Stokes
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|
|
CONDITIONS,
ASSUMPTIONS,
AND
SCHEDULE
OF CONTRIBUTIONS AND PHANTOM CONTRIBUTIONS
1.
|
Interest
Factor - for purposes of:
|
|
a.
|
the
Accrued Benefit Account - shall be six percent (6%) per annum, compounded
monthly.
|
|
b.
|
the
Elective Contributions - shall be ten percent (10%) per annum, compounded
monthly.
|
|
c.
|
the
Emeritus Contributions - shall be six percent (6%) per annum, compounded
monthly.
|
|
d.
|
the
Retirement Income Trust Fund - for purposes of annuitizing the balance
of
the Retirement Income Trust Fund over the Payout Period, the trustee
of
the Edward Stokes Grantor Trust shall exercise discretion in selecting
the
appropriate rate given the nature of the investments contained in
the
Retirement Income Trust Fund and the expected return associated with
the
investments. For these purposes, if the trustee of the Retirement
Income
Trust Fund has purchased a life insurance policy, the trustee shall
have
the discretion to determine the portion of the cash value of such
policy
available for purposes of annuitizing the Retirement Income Trust
Fund, in
accordance with Section 2.3 of the Agreement.
|
2.
|
The
amount of the annual Emeritus Contributions (or Phantom Contributions)
to
the Retirement Income Trust Fund (or Accrued Benefit Account) has
been
based on the annual interest-adjusted accounting accruals which would
be
required of the Bank through the earlier of the Director
=
s
death or Benefit Age, (i) pursuant to APB Opinion No. 12, as amended
by
FAS 106 and (ii) assuming a discount rate equal to six percent (6%)
per
annum, in order to provide a portion of the unfunded, non-qualified
Supplemental Retirement Income Benefit. The Emeritus Contributions
are
calculated to support a benefit based upon
50%
of
the Director’s total board fees, committee fees and/or retainer in the
twelve months prior to Director’s Benefit Eligibility Date.
|
3.
|
The
amount of the annual Elective Contributions (or Phantom Contributions)
to
the Retirement Income Trust Fund (or Accrued Benefit Account) has
been
based on the annual interest-adjusted accounting accruals which would
be
required of the Bank through the earlier of the Director’s death or
Benefit Age, (i) pursuant to APB Opinion No. 12, as amended by FAS
106 and
(ii) assuming a discount rate equal to ten percent (10%) per annum,
in
order to provide a portion of the unfunded, non-qualified Supplemental
Retirement Income Benefit. Director has elected a monthly, pre-tax
deferral of board fees, committee fess and/or retainer in the amount
of
$1,000
per month until the last deferral has been made on December 1,
2011.
|
4.
|
For
purposes of this Agreement, and benefit calculations under this Agreement,
future increases in Board Fees after 2006 will be limited to the
actual
increase or four percent (4%), whichever is
less.
|
Exhibit
A
5.
|
Supplemental
Retirement Income Benefit means an actuarially determined annual
amount
equal to Forty-Nine Thousand One Hundred and Ninety-Three Dollars
($49,193) at age 65 if paid entirely from the Accrued Benefit Account
or
Thirty-One Thousand Four Hundred and Eighty-Four Dollars ($31,484)
at age
65 if paid from the Retirement Income Trust
Fund.
|
The
Supplemental Retirement Income Benefit:
|
!
|
the
definition of Supplemental Retirement Income Benefit has been incorporated
into the Agreement for the sole purpose of actuarially establishing
the
amount of annual Contributions (or Phantom Contributions) to the
Retirement Income Trust Fund (or Accrued Benefit Account). The amount
of
any actual retirement, pre-retirement or disability benefit payable
pursuant to the Agreement will be a function of (i) the amount and
timing
of Contributions (or Phantom Contributions) to the Retirement Income
Trust
Fund (or Accrued Benefit Account) and (ii) the actual investment
experience of such Contributions (or the monthly compounding rate
of
Phantom Contributions).
|
6.
|
Schedule
of Annual Gross Contributions/Phantom
Contributions
|
|
|
|
|
Plan
Year
|
Elective
Contributions
|
Emeritus
Contributions
|
Total
Contributions
|
2004
|
$12,670
|
$28,213
|
$40,883
|
2005
|
13,997
|
11,750
|
25,747
|
2006
|
15,463
|
21,508
|
36,971
|
2007
|
17,082
|
24,009
|
41,091
|
2008
|
18,871
|
26,737
|
45,608
|
2009
|
20,847
|
29,710
|
50,557
|
2010
|
23,029
|
32,947
|
55,976
|
2011
|
25,441
|
36,472
|
61,913
|
2012
|
15,435
|
40,306
|
55,741
|
2013
|
16,727
|
27,344
|
44,071
|
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Exhibit
A
- Cont
=
d.
RESTATED
DIRECTOR
SUPPLEMENTAL RETIREMENT INCOME and
DEFERRED
COMPENSATION AGREEMENT
BENEFICIARY
DESIGNATION
The
Director, under the terms of the Restated Director Supplemental Retirement
Income and Deferred Compensation Agreement executed by the Bank, dated the
1st
day of February, 2004, as amended and restated effective January 1, 2006, hereby
designates the following Beneficiary(ies) to receive any guaranteed payments
or
death benefits under such Agreement, following his death:
PRIMARY
BENEFICIARY:
|
|
|
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SECONDARY
BENEFICIARY:
|
|
This
Beneficiary Designation hereby revokes any prior Beneficiary Designation which
may have been in effect.
Such
Beneficiary Designation is revocable.
DATE:
______________________, 20__
Exhibit
B
RESTATED
DIRECTOR
SUPPLEMENTAL RETIREMENT INCOME and
DEFERRED
COMPENSATION AGREEMENT
NOTICE
OF ELECTION TO CHANGE FORM OF PAYMENT
I
hereby
give notice of my election to change the form of payment of my Supplemental
Retirement Income Benefit, as specified below.
I
understand that such notice,
in
order to be effective, must be submitted in accordance with the time
requirements described in Subsection 1.27 of my Restated Director Supplemental
Retirement Income and Deferred Compensation Agreement.
|
G
|
I
hereby elect to change the form of payment of my benefits from monthly
installments throughout my Payout Period to a lump sum benefit
payment.
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|
G
|
I
hereby elect to change the form of payment of my benefits from a
lump sum
benefit payment to monthly installments throughout my Payout Period.
Such
election hereby revokes my previous notice of election to receive
a lump
sum form of benefit payments.
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DIRECTOR
|
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DATE
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ACKNOWLEDGED
|
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BY:
|
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TITLE:
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DATE
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Exhibit
C
RESTATED
DIRECTOR
SUPPLEMENTAL RETIREMENT INCOME and
DEFERRED
COMPENSATION AGREEMENT
NOTICE
OF ADJUSTMENT OF ELECTIVE CONTRIBUTION
I
hereby
give notice of my election to adjust the amount of my Elective Contribution
in
accordance with my Restated Director Supplemental Retirement Income and Deferred
Compensation Agreement, dated the 1
st
day of
February, 2004, as amended and restated effective January 1, 2006. This notice
is submitted thirty (30) days prior to January 1st, and shall become effective
January 1st, as specified below.
Adjust
deferral as of:
|
January
1st, 2___
|
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Previous
Deferral Amount
|
____________
per month
|
New
Deferral Amount
|
____________
per month
|
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(to
discontinue deferral, enter $0)
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DIRECTOR
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DATE
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ACKNOWLEDGED
BY
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TITLE
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DATE
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Exhibit
D
Exhibit
10.8
RESTATED
DIRECTOR
SUPPLEMENTAL RETIREMENT
INCOME
and DEFERRED COMPENSATION AGREEMENT
FOR
MARTIN LUKACS
MAGYAR
BANK
New
Brunswick, New Jersey
January
1, 2006
Financial
Institution Consulting Corporation
700
Colonial Road, Suite 102
Memphis,
Tennessee 38117
WATS:
1-800-873-0089
FAX:
(901) 684-7414
(901)
684-7400
RESTATED
DIRECTOR
SUPPLEMENTAL RETIREMENT
INCOME
and DEFERRED COMPENSATION AGREEMENT
FOR
MARTIN LUKACS
This
Restated Director Supplemental Retirement Income and Deferred Compensation
Agreement for Martin Lukacs (the "Agreement"), effective as of the 1st day
of
January, 2006, amends and restates the Director Supplemental Retirement Income
and Deferred Compensation Agreement for Martin Lukacs dated February 1, 2004,
and formalizes the understanding by and between MAGYAR BANK (the "Bank"), a
state chartered savings bank having its principal place of business in New
Brunswick, New Jersey, and MARTIN LUKACS (hereinafter referred to as
"Director"). All prior non-qualified Director deferred compensation agreements,
including any and all Joinder Agreements, with respect to the Director and
MAGYAR BANK, are hereby superseded and replaced by this Agreement
W
I T N E S S E T H :
WHEREAS
,
the
Director serves the Bank as a member of the board; and
WHEREAS
,
the
Bank recognizes the valuable services heretofore performed by the Director
and
wishes to encourage his continued service; and
WHEREAS
,
the
Director wishes to be assured that the Director will be entitled to a certain
amount of additional compensation for some definite period of time from and
after retirement from active service with the Bank or other termination of
service and wishes to provide his beneficiary with benefits from and after
death; and
WHEREAS
,
the
Bank and the Director wish to provide the terms and conditions upon which the
Bank shall pay such additional compensation to the Director after retirement
or
other termination of service and/or death benefits to his beneficiary after
death; and
WHEREAS
,
the
Bank has adopted this Director Supplemental Retirement Income and Deferred
Compensation Agreement which controls all issues relating to benefits as
described herein; and
WHEREAS
,
Section
409A of the Internal Revenue Code of 1986 (“Code”), as amended, requires that
certain deferred compensation arrangements comply with its terms or subject
the
recipient of the compensation to potential taxes and penalties; and
WHEREAS
,
the
Bank desires to amend and restate the Agreement to comply with Code Section
409A
and any Treasury Regulations promulgated thereunder; and
WHEREAS
,
the
Board of Directors of the Bank has conditionally approved
the
amendment and restatement of the Agreement, subject to the approval of the
New
Jersey Department of Banking and Insurance.
NOW,
THEREFORE,
in
consideration of the premises and of the mutual promises herein contained,
the
Bank and the Director agree as follows:
SECTION
I
DEFINITIONS
When
used
herein, the following words and phrases shall have the meanings below unless
the
context clearly indicates otherwise:
1.1
|
"Accrued
Benefit Account" shall be
represented
by
the bookkeeping entries required to record the Director
=
s
(i) Phantom Contributions plus (ii) accrued interest, equal to the
Interest Factor, earned to-date on such amounts. However, neither
the
existence of such bookkeeping entries nor the Accrued Benefit Account
itself shall be deemed to create either a trust of any kind, or a
fiduciary relationship between the Bank and the Director or any
Beneficiary.
|
1.2
|
"Act"
means the Employee Retirement Income Security Act of 1974, as amended
from
time to time.
|
1.3
|
A
Administrator
@
means the Bank.
|
1.4
|
"Bank"
means MAGYAR BANK and any successor
thereto.
|
1.5
|
"Beneficiary"
means the person or persons (and their heirs) designated as Beneficiary
in
Exhibit B of this Agreement to whom the deceased Director
=
s
benefits are payable. If no Beneficiary is so designated, then the
Director
=
s
Spouse, if living, will be deemed the Beneficiary. If the
Director
=
s
Spouse is not living, then the Children of the Director will be deemed
the
Beneficiaries and will take on a per stirpes basis. If there are
no
Children, then the Estate of the Director will be deemed the
Beneficiary.
|
1.6
|
"Benefit
Age" means the later of: (i) the Director's sixty-fifth (65th) birthday
or
(ii) the actual date the Director
=
s
full-time service with the Bank terminates.
|
1.7
|
"Benefit
Eligibility Date" means the date on which the Director is entitled
to
receive any benefit(s) pursuant to Section(s) III or V of this Agreement.
It shall be the first day of the month following both the attainment
of
the Directors’ Benefit Age and his actual retirement from the Board of
Directors.
|
1.8
|
"Board
of Directors" means the board of directors of the
Bank.
|
1.9
|
"Cause"
means termination of the Director
=
s
service on the Board of Directors due to: (i) actions or inactions
which
constitute a breach of the bylaws of the Bank or (ii) the
Director
=
s
personal dishonesty, willful misconduct, willful malfeasance, breach
of
fiduciary duty involving personal profit, intentional failure to
perform
stated duties, willful violation of any law, rule, regulation (other
than
traffic violations or similar offenses), or final cease-and-desist
order,
material breach of any provision of this Plan, or gross negligence
in
matters of material importance to the
Bank.
|
1.10
|
“Change
in Control” shall mean a change in the ownership of the Bank or Company
under paragraph (a) below, a change in effective control of the Bank
or
Company under paragraph (b) below, or a change in the ownership of
a
substantial portion of the assets of the Bank or Company under paragraph
(c) below. For all purposes hereunder, the definition of Change in
Control
shall be construed to be consistent with the requirements of Proposed
Treasury Regulation Section 1.409A-3(g), except to the extent that
such
proposed regulations are superseded by subsequent
guidance.
|
For
this
subsection “persons acting as a group” is defined as follows; Persons will be
considered to be acting as a group if they are owners of a corporation that
enters into a merger, consolidation, purchase or acquisition of stock, or
similar business transaction with the corporation. Persons will not be
considered to be acting as a group solely because they purchase or own stock
of
the same corporation at the same time, or as a result of the same public
offering. If a person, including an entity, owns stock in both corporations
that
enter into a merger, consolidation, purchase or acquisition of stock, or similar
transaction, such shareholder is considered to be acting as a group with other
shareholders in a corporation only with respect to the ownership in that
corporation prior to the transaction giving rise to the change and not with
respect to the ownership interest in the other corporation.
|
(a)
|
Change
in Ownership of the Bank or Company
|
Change
in
the ownership occurs on the date that any one person, or more than one person
acting as a group (as defined above), acquires ownership of stock of the Bank
or
Company that, together with stock held by such person or group, constitutes
more
than 50 percent of the total fair market value or total voting power of the
stock of such corporation. However, if any one person or more than one person
acting as a group, is considered to own more than 50 percent of the total fair
market value or total voting power of the stock of a corporation, the
acquisition of additional stock by the same person or persons is not considered
to cause a change in the ownership of the corporation or to cause a change
in
the effective control of the corporation.
|
(b)
|
Change
in the Effective Control of the Bank or
Company
|
A
change
in the effective control of the Bank or Company occurs on the date that either
-
(1)
Any
one person, or more than one person acting as a group (as defined above),
acquires (or has acquired during the 12-month period ending on the date of
the
most recent acquisition by such person or persons) ownership of stock of the
Company possessing 20 percent or more of the total voting power of the stock
of
the Company (except that if an individual Director’s agreement becomes subject
to Code Section 409A, then the required percentage of acquired ownership of
stock under this Subsection 1.10 (b)(1) shall be 35 percent or more); or
(2)
a
majority of members of the Company’s board of directors is replaced during any
12-month period by directors whose appointment or election is not endorsed
by a
majority of the members of the Company’s board of directors prior to the date of
the appointment or election.
|
(c)
|
Change
in the Ownership of a Substantial Portion of the Bank’s or Company’s
Assets.
|
Change
in
the ownership of a substantial portion of the Bank or Company’s assets occurs on
the date that any one person, or more than one person acting as a group (as
defined above), acquires (or has acquired during the 12-month period ending
on
the date of the most recent acquisition by such person or persons) assets from
the corporation that have a total gross fair market value equal to or more
than
40 percent of the total gross fair market value of all of the assets of the
Bank
or Company immediately prior to such acquisition or acquisitions. For this
purpose, gross fair market value means the value of the assets of the Bank
or
Company, or the value of the assets being disposed of, determined without regard
to any liabilities associated with such assets.
1.11
|
"Children"
means all natural or adopted children of the Director and issue of
any
predeceased child or children.
|
1.12
|
"Code"
means the Internal Revenue Code of 1986, as amended from time to
time.
|
1.13
|
“Company”
shall mean Magyar Bancorp, Inc.
|
1.14
|
"Contribution(s)"
means those annual total contributions comprised of both the Elective
Contributions and the Emeritus Contributions which the Bank is required
to
make to the Retirement Income Trust Fund on behalf of the Director
in
accordance with Subsection 2.1(a) and in the amounts set forth in
Exhibit
A of the Agreement. Such Contributions, for the first Plan Year,
shall
include any and all amounts accrued by the Bank to pay the benefits
promised to the Director under any prior non-qualified deferred
compensation agreements including any Joinder Agreements previously
executed by the Bank and the Director.
|
1.15
|
(a)
"Disability Benefit" means the benefit payable to the Director following
a
determination, in accordance with Subsection 6.1(a), that he is no
longer
able, properly and satisfactorily, to perform his duties at the
Bank.
|
(b)
"Disability Benefit-Supplemental" (if applicable) means the benefit payable
to
the Director
=
s
Beneficiary upon the Director
=
s
death
in accordance with Subsection 6.1(b).
1.16
|
"Effective
Date" of this Agreement shall be January 1, 2006. The original effective
date of this Agreement was February 1, 2004. The Agreement is hereby
amended and restated effective January 1, 2006 in order to conform
to Code
Section 409A.
|
1.17
|
“Elective
Contribution” shall refer to the Director’s voluntary monthly pre-tax
deferral of board fees, committee fees and/or retainer plus interest
compounded annually at a rate equal to the Interest Factor. The Director
may elect to change his voluntary deferral amount by submitting to
the
Bank a Notice of Adjustment of Elective Contribution thirty (30)
days
prior to the end of any Plan Year.
|
1.18
|
“Emeritus
Contribution” shall refer to the amounts necessary to support an annual
amount payable to the Director at Benefit Age based upon a percentage,
as
stated in Appendix A, of the Director’s total board fees, committee fees
and/or retainer in the twelve months prior to the Director’s Benefit
Eligibility Date. The percentage shall be determined by the following
formula: ten percent (10%) plus two and one-half percent (2 ½%) for each
year of service as a Director, with a minimum of fifty percent (50%),
provided the Director has served for at least five (5) years, and
a
maximum of sixty percent (60%). Notwithstanding the foregoing, any
Director who serves as Board Chairman for a five-year term (other
than the
current Chairman) shall be entitled to receive seventy-five percent
(75%).
|
1.19
|
"Estate"
means the estate of the Director.
|
1.20
|
"Interest
Factor" means monthly compounding, discounting or annuitizing, as
applicable, at a rate set forth in
Exhibit A.
|
1.21
|
"Payout
Period" means the time frame during which certain benefits payable
hereunder shall be distributed. Payments shall be made in monthly
installments commencing on the first day of the month following the
occurrence of the event which triggers distribution and continuing
for a
period of one hundred eighty (180) months. Should the Director make
a
Timely Election to receive a lump sum benefit payment, the
Director
=
s
Payout Period shall be deemed to be one (1) month.
|
1.22
|
"Phantom
Contributions" means those annual Contributions which the Bank is
no
longer required to make on behalf of the Director to the Retirement
Income
Trust Fund. Rather, once the Director has exercised the withdrawal
rights
provided for in Subsection 2.2, the Bank shall be required to record
the
annual amounts set forth in Exhibit A of the Agreement in the
Director
=
s
Accrued Benefit Account, pursuant to Subsection 2.1.
|
1.23
|
"Plan
Year" shall mean the twelve (12) month period commencing January
1 and
ending December 31.
|
1.24
|
"Retirement
Income Trust Fund" means the trust fund account established by the
Director and into which annual Contributions will be made by the
Bank on
behalf of the Director pursuant to Subsection 2.1. The contractual
rights
of the Bank and the Director with respect to the Retirement Income
Trust
Fund shall be outlined in a separate writing to be known as the Martin
Lukacs Grantor Trust agreement.
|
1.25
|
A
Spouse
@
means the individual to whom the Director is legally married at the
time
of the Director
=
s
death, provided, however, that the term
A
Spouse
@
shall not refer to an individual to whom the Director is legally
married
at the time of death if the Director and such individual have entered
into
a formal separation agreement or initiated divorce
proceedings.
|
1.26
|
"Supplemental
Retirement Income Benefit" means an annual amount (
before
taking into account federal and state income taxes), payable in monthly
installments throughout the Payout Period. Such benefit is projected
pursuant to the Agreement for the purpose of determining the Contributions
to be made to the Retirement Income Trust Fund (or Phantom Contributions
to be recorded in the Accrued Benefit Account). The annual Contributions
and Phantom
|
Contributions
have been actuarially determined, using the assumptions set forth in Exhibit
A,
in order to fund for the projected Supplemental Retirement Income Benefit.
The
Supplemental Retirement Income Benefit for which Contributions (or Phantom
Contributions) are being made (or recorded) is set forth in Exhibit A.
1.27
|
"Timely
Election" means the Director has made an election to change the form
of
his benefit payment(s) from the Retirement Income Trust Fund by filing
with the Administrator a Notice of Election to Change Form of Payment
(Exhibit C of this Agreement). In the case of benefits payable from
the
Retirement Income Trust Fund, such election may be made at any time.
In
the case of benefits payable from the Accrued Benefit Account, such
election generally shall have been made prior to December 31, 2006
(i.e.
the last day of the “Transition Period” for bringing plans into compliance
with Code Section 409A). Unless the Transition Period is extended
by the
Internal Revenue Service, if the Director makes an election subsequent
to
December 31, 2006 with respect to distributions from the Accrued
Benefit
Account, then (i) such election may not take effect until at least
twelve
(12) months after the date on which the election is made, (ii) in
the case
of an election related to a payment other than due to disability
or death,
the first payment with respect to which such election is made must
be
deferred for a period of not less than five (5) years from the date
such
payment would otherwise have been made, and (iii) any election related
to
a distribution at a specified time or pursuant to a fixed schedule
may not
be made less than twelve (12) months prior to the date of the first
scheduled payment.
|
SECTION
II
BENEFIT
FUNDING
2.1
|
(a)
Retirement
Income Trust Fund and Accrued Benefit Account
.
The Director shall establish the Martin Lukacs Grantor Trust into
which
the Bank shall be required to make annual Contributions on the
Director
=
s
behalf, pursuant to Exhibit A and this Section II of the Agreement.
A
trustee shall be selected by the Director. The trustee shall maintain
an
account, separate and distinct from the Director
=
s
personal contributions, which account shall constitute the Retirement
Income Trust Fund. The trustee shall be charged with the responsibility
of
investing all contributed funds. Distributions from the Retirement
Income
Trust Fund of the Martin Lukacs Grantor Trust may be made by the
trustee
to the Director, for purposes of payment of any income or employment
taxes
|
due
and
owing on Contributions by the Bank to the Retirement Income Trust Fund, if
any,
and on any taxable earnings associated with such Contributions which the
Director shall be required to pay from year to year, under applicable law,
prior
to actual receipt of any benefit payments from the Retirement Income Trust
Fund.
If the Director exercises his withdrawal rights pursuant to Subsection 2.2,
the
Bank
=
s
obligation to make Contributions to the Retirement Income Trust Fund shall
cease
and the Bank
=
s
obligation to record Phantom Contributions in the Accrued Benefit Account shall
immediately commence pursuant to Exhibit A and this Section II of the Agreement.
To the extent this Agreement is inconsistent with the Martin Lukacs Grantor
Trust Agreement, the Martin Lukacs Grantor Trust Agreement shall supersede
this
Agreement.
The
annual Contributions (or Phantom Contributions) required to be made by the
Bank
to the Retirement Income Trust Fund (or recorded by the Bank in the Accrued
Benefit Account) have been actuarially determined and are set forth in Exhibit
A
which is attached hereto and incorporated herein by reference. Contributions
shall be made by the Bank to the Retirement Income Trust Fund (i) within
seventy-five (75) days of establishment of such trust, and (ii) within the
first
thirty (30) days of the beginning of each subsequent Plan Year, unless this
Section expressly provides otherwise. Phantom Contributions, if any, shall
be
recorded in the Accrued Benefit Account within the first thirty (30) days of
the
beginning of each applicable Plan Year, unless this Section expressly provides
otherwise. Phantom Contributions shall accrue interest at a rate equal to the
Interest Factor, during the Payout Period, until the balance of the Accrued
Benefit Account has been fully distributed. Interest on any Phantom Contribution
shall not commence until such Payout Period commences.
The
Administrator shall review the schedule of annual Contributions (or Phantom
Contributions) provided for in Exhibit A (i) within thirty (30) days prior
to
the close of each Plan Year and (ii) if the Director is employed by the Bank
until attaining Benefit Age, on or immediately before attainment of such Benefit
Age. Such review shall consist of an evaluation of the accuracy of all
assumptions used to establish the schedule of Contributions (or Phantom
Contributions). Provided that (i) the Director has not exercised his withdrawal
rights pursuant to Subsection 2.2 and (ii) the investments contained in the
Retirement Income Trust Fund have been deemed reasonable by the Bank, the
Administrator shall prospectively amend or supplement the schedule of
Contributions provided for in Exhibit A should the Administrator determine
during any such
review
that
an
increase
in or
supplement
to
the
schedule of Contributions is necessary in order to adequately fund the
Retirement Income Trust Fund so as to provide an annual benefit (or to provide
the lump sum equivalent of such benefit, as applicable) equal to the
Supplemental Retirement Income Benefit, on an after-tax basis, commencing at
Benefit Age and payable for the duration of the Payout Period.
(b)
Withdrawal
Rights Not Exercised.
(1)
Contributions
Made Annually
If
the
Director does not exercise any withdrawal rights pursuant to Subsection 2.2,
the
annual Contributions to the Retirement Income Trust Fund shall continue each
year, unless this Subsection 2.1(b) specifically states otherwise, until the
earlier of (i) the last Plan Year that Contributions are required pursuant
to
Exhibit A, or (ii) the Plan Year of the Director's termination of
service.
(2)
Termination
Following a Change in Control
If
the
Director does not exercise his withdrawal rights pursuant to Subsection 2.2
and
a Change in Control occurs at the Bank, followed within thirty-six (36) months
by either (i) the Director's involuntary termination of service, or (ii)
Director's voluntary termination of service after: (A) a material change in
the
Director's function, duties, or responsibilities, which change would cause
the
Director's position to become one of lesser responsibility, importance, or
scope
from the position the Director held at the time of the Change in Control, (B)
a
relocation of the Director's principal place of service by more than thirty
(30)
miles from its location prior to the Change in Control, or (C) a material
reduction in the benefits and perquisites to the Director from those being
provided at the time of the Change in Control, the Emeritus Contributions as
set
forth on Schedule A shall continue to be required of the Bank. The Bank shall
be
required to make an immediate lump sum Contribution to the Director's Retirement
Income Trust Fund in an amount equal to: (i) the full Emeritus Contribution
required for the Plan Year in which such termination occurs, if not yet made,
plus (ii) the present value (computed using a discount rate equal to the
Interest Factor) of all remaining Emeritus Contributions to the Retirement
Income Trust Fund, and (iii) the present value (computed using the a discount
rate equal to the Interest Factor) of the interest only component of the
Elective Contribution; provided, however, that, if necessary, an additional
amount shall be contributed to the Retirement Income Trust Fund which is
sufficient to
provide
the Director with after-tax benefits (assuming a constant tax rate equal to
the
rate in effect as of the date of Director
=
s
termination) beginning at Benefit Age following such termination, equal in
amount to that benefit which would have been payable to the Director if no
secular trust had been implemented and the benefit obligation had been accrued
under APB Opinion No. 12, as amended by FAS 106.
(3)
Termination
For Cause
If
the
Director does not exercise his withdrawal rights pursuant to Subsection 2.2,
and
is terminated for Cause pursuant to Subsection 5.2, no further Contribution(s)
to the Retirement Income Trust Fund shall be required of the Bank, and if not
yet made, no Contribution shall be required for the Plan Year in which such
termination for Cause occurs.
(4)
Voluntary or Involuntary Termination of Service
.
If
the
Director does not exercise his withdrawal rights pursuant to
Subsection 2.2, and the Director's service with the Bank is voluntarily or
involuntarily terminated for any reason, including a termination due to
disability of the Director but excluding termination for Cause, or termination
following a Change in Control within thirty-six (36) months of such Change
in
Control, no further Contribution(s), as defined in Subsection 1.14, to the
Retirement Income Trust Fund shall be required of the Bank, and if not yet
made,
no Contribution shall be required for the Plan Year in which such termination
occurs. Notwithstanding the above, the Bank will be required to make annual
payments to Director’s Retirement Income Trust Fund determined as
follows:
|
1.
|
Determine
what the accrued liability would have been as of the Director’s date of
termination, had no secular trust been
implemented.
|
|
2.
|
Determine
the benefit payable, beginning at the Benefit Age, for 180 months
which
that accrued liability would support had interest been added to that
liability on an annual basis using the Accrued Benefit Interest Factor
set
forth in Exhibit A.
|
|
3.
|
The
Bank shall make payments to the Director’s Retirement Income Trust Fund on
an annual basis in amounts equal to the accrued interest expense
which
would have been recorded absent the secular trust
arrangement.
|
(5)
Death
During Service
.
If
the
Director does not exercise any withdrawal rights pursuant to
Subsection 2.2, and dies while employed by the Bank, and if, following the
Director
=
s
death,
the assets of the Retirement Income Trust Fund are insufficient to provide
the
Supplemental Retirement Income Benefit to which the Director is entitled, the
Bank shall be required to make a Contribution to the Retirement Income Trust
Fund equal to the sum of the remaining Contributions set forth on Exhibit A,
after taking into consideration any payments under any life insurance policies
that may have been obtained on the Director
=
s
life by
the Retirement Income Trust Fund. Such final contribution shall be payable
in a
lump sum to the Retirement Income Trust Fund within thirty (30) days of the
Director
=
s
death.
(c)
Withdrawal
Rights Exercised.
(1)
Phantom
Contributions Made Annually
.
If
the
Director exercises his withdrawal rights pursuant to Subsection 2.2, no further
Contributions to the Retirement Income Trust Fund shall be required of the
Bank.
Thereafter, Phantom Contributions shall be recorded annually in the Director's
Accrued Benefit Account within thirty (30) days of the beginning of each Plan
Year, commencing with the first Plan Year following the Plan Year in which
the
Director exercises his withdrawal rights. Such Phantom Contributions shall
continue to be recorded annually, unless this Subsection 2.1(c) specifically
states otherwise, until the earlier of (i) the last Plan Year that Phantom
Contributions are required pursuant to Exhibit A, or (ii) the Plan Year of
the
Director's termination of service.
(2)
Termination
Following a Change in Control
If
the
Director exercises his withdrawal rights pursuant to Subsection 2.2, Phantom
Contributions shall commence in the Plan Year following the Plan Year in which
the Director first exercises his withdrawal rights. If a Change in Control
occurs at the Bank, and within thirty-six (36) months of such Change in Control,
the Director's service is either (i) involuntarily terminated, or (ii)
voluntarily terminated by the Director after: (A) a material change in the
Director's function, duties, or responsibilities, which change would cause
the
Director's position to become one of lesser responsibility, importance, or
scope
from the position the Director held at the time of the Change in Control, (B)
a
relocation of the Director's principal place of service by more than thirty
(30)
miles from its location prior to the Change in Control, or (C) a material
reduction in the benefits and perquisites to the Director from those being
provided at the time of the Change in
Control,
the Phantom Contribution set forth below shall be required of the Bank. The
Bank
shall be required to record a lump sum Phantom Contribution in the Accrued
Benefit Account within ten (10) days of the Director
=
s
termination of service equal to (i) the full Emeritus Contribution required
for
the Plan Year in which such termination occurs, if not yet made, plus (ii)
the
present value (computed using a discount rate equal to the Interest Factor)
of
all remaining Emeritus Contributions to the Retirement Income Trust Fund, and
(iii) the present value (computed using the a discount rate equal to the
Interest Factor) of the interest only component of the Elective Contribution.
The amount of such final Phantom Contribution shall be actuarially determined
based on the Phantom Contribution required, at such time, in order to provide
a
benefit via this Agreement equal in amount to that benefit which would have
been
payable to the Director if no secular trust had been implemented and the benefit
obligation had been accrued under APB Opinion No. 12, as amended by FAS 106.
(Such actuarial determination shall reflect the fact that amounts shall be
payable from both the Accrued Benefit Account as well as the Retirement Income
Trust Fund and shall also reflect the amount and timing of any withdrawal(s)
made by the Director from the Retirement Income Trust Fund pursuant to
Subsection 2.2.)
(3)
Termination
For Cause
If
the
Director is terminated for Cause pursuant to Subsection 5.2, the entire balance
of the Director
=
s
Accrued
Benefit Account at the time of such termination, which shall include any Phantom
Contributions which have been recorded plus interest accrued on such Phantom
Contributions, shall be forfeited.
(4)
Voluntary
and
Involuntary
Termination of Service
.
If
the
Director exercises his withdrawal rights pursuant to Subsection 2.2, and the
Director's service with the Bank is voluntarily or involuntarily terminated
for
any reason including termination due to disability of the Director, but
excluding termination for Cause, or termination following a Change in Control,
within thirty (30) days of such termination of service, no further Phantom
Contributions shall be required of the Bank. Interest, at a rate equal to the
Interest Factor, shall accrue on such Phantom Contributions until the Director’s
Benefit Eligibility Date.
(5)
Death
During Service
.
If
the
Director exercises his withdrawal rights pursuant to Subsection 2.2, and
dies while employed by the Bank, Phantom Contributions included on Exhibit
A
shall be required of the Bank. Such Phantom Contributions shall commence in
the
Plan Year following the Plan Year in which the Director exercises his withdrawal
rights and shall continue through the Plan Year in which the Director dies.
The
Bank shall also be required to record a final Phantom Contribution within thirty
(30) days of the Director
=
s
death.
The amount of such final Phantom Contribution shall be actuarially determined
based on the Phantom Contribution required at such time (if any), in order
to
provide a benefit via this Agreement equivalent to the Supplemental Retirement
Income Benefit commencing within thirty (30) days of the date the Administrator
receives notice of the Director
=
s
death
and continuing for the duration of the Payout Period. (Such actuarial
determination shall reflect the fact that amounts shall be payable from the
Accrued Benefit Account as well as the Retirement Income Trust Fund and shall
also reflect the amount and timing of any withdrawal(s) made by the Director
pursuant to Subsection 2.2.)
2.2
|
Withdrawals
From Retirement Income Trust
Fund.
|
Exercise
of withdrawal rights by the Director pursuant to the Martin Lukacs Grantor
Trust
agreement shall terminate the Bank's obligation to make any further
Contributions to the Retirement Income Trust Fund, and the Bank
=
s
obligation to record Phantom Contributions pursuant to Subsection 2.1(c) shall
commence. For purposes of this Subsection 2.2,
A
exercise
of withdrawal rights
@
shall
mean those withdrawal rights to which the Director is entitled under Article
III
of the Martin Lukacs Grantor Trust agreement and shall exclude any distributions
made by the trustee of the Retirement Income Trust Fund to the Director for
purposes of payment of income taxes in accordance with Subsection 2.1 of this
Agreement and the tax reimbursement formula contained in the trust document,
or
other trust expenses properly payable from the Martin Lukacs Grantor Trust
pursuant to the provisions of the trust document.
2.3
|
Benefits
Payable From Retirement Income Trust
Fund
|
Notwithstanding
anything else to the contrary in this Agreement, in the event that the trustee
of the Retirement Income Trust Fund purchases a life insurance policy with
the
Contributions to and, if applicable, earnings of the Trust, and such life
insurance policy is intended to continue in force beyond the Payout Period
for
the disability or retirement benefits payable from the Retirement Income Trust
Fund pursuant to this Agreement, then the trustee shall have discretion
to
determine the portion of the cash value of such policy available for purposes
of
annuitizing the Retirement Income Trust Fund (it being understood that for
purposes of this Section 2.3,
A
annuitizing
@
does not
mean surrender of such policy and annuitizing of the cash value received upon
such surrender) to provide the disability or retirement benefits payable under
this Agreement, after taking into consideration the amounts reasonably believed
to be required in order to maintain the cash value of such policy to continue
such policy in effect until the death of the Director and payment of death
benefits thereunder.
SECTION
III
RETIREMENT
BENEFIT
3.1
|
(a)
Normal
form of payment
.
|
If
(i)
the Director is employed with the Bank until reaching his Benefit Age and (ii)
the Director has not made a Timely Election to receive a lump sum benefit,
this
Subsection 3.1(a) shall be controlling with respect to retirement
benefits.
The
Retirement Income Trust Fund, measured as of the Director's Benefit Age, shall
be annuitized (using the Interest Factor) into monthly installments and shall
be
payable for the Payout Period. Such benefit payments shall commence on the
Director's Benefit Eligibility Date. Should Retirement Income Trust Fund assets
actually earn a rate of return, following the date such balance is annuitized,
which is less than the rate of return used to annuitize the Retirement Income
Trust Fund, no additional contributions to the Retirement Income Trust Fund
shall be required by the Bank in order to fund the final benefit payment(s)
and
make up for any shortage attributable to the less-than-expected rate of return.
Should Retirement Income Trust Fund assets actually earn a rate of return,
following the date such balance is annuitized, which is greater than the rate
of
return used to annuitize the Retirement Income Trust Fund, the final benefit
payment to the Director (or his Beneficiary) shall distribute the excess amounts
attributable to the greater-than-expected rate of return. The Director may
at
anytime during the Payout Period request to receive the unpaid balance of his
Retirement Income Trust Fund in a lump sum payment. If such a lump sum payment
is requested by the Director, payment of the balance of the Retirement Income
Trust Fund in such lump sum form shall be made only if the Director gives notice
to both the Administrator and trustee in writing. Such lump sum payment shall
be
payable within thirty
(30)
days
of such notice. In the event the Director dies at any time after attaining
his
Benefit Age, but prior to commencement or completion of all monthly payments
due
and owing hereunder, (i) the trustee of the Retirement Income Trust Fund shall
pay to the Director's Beneficiary the monthly installments (or a continuation
of
such monthly installments if they have already commenced) for the balance of
months remaining in the Payout Period, or (ii) the Director's Beneficiary may
request to receive the unpaid balance of the Director's Retirement Income Trust
Fund in a lump sum payment. If a lump sum payment is requested by the
Beneficiary, payment of the balance of the Retirement Income Trust Fund in
such
lump sum form shall be made only if the Director's Beneficiary notifies both
the
Administrator and trustee in writing of such election within ninety (90) days
of
the Director's death. Such lump sum payment shall be payable within thirty
(30)
days of such notice.
The
Director
=
s
Accrued
Benefit Account (if applicable), measured as of the Director
=
s
Benefit
Age, shall be annuitized (using the Interest Factor) into monthly installments
and shall be payable for the Payout Period. Such benefit payments shall commence
on the Director
=
s
Benefit
Eligibility Date. In the event the Director dies at any time after attaining
his
Benefit Age, but prior to commencement or completion of all the payments due
and
owing hereunder, (i) the Bank shall pay to the Director
=
s
Beneficiary the same monthly installments (or a continuation of such monthly
installments if they have already commenced) for the balance of months remaining
in the Payout Period.
(b)
Alternative
payout option.
If
(i)
the Director is employed with the Bank until reaching his Benefit Age, and
(ii)
the Director has made a Timely Election to receive a lump sum benefit, this
Subsection 3.1(b) shall be controlling with respect to retirement benefits.
The
balance of the Retirement Income Trust Fund and the Accrued Benefit Account
(if
applicable), measured as of the Director
=
s
Benefit
Age, shall be paid to the Director in a lump sum on his Benefit Eligibility
Date. In the event the Director dies after becoming eligible for such payment
(upon attainment of his Benefit Age), but before the actual payment is made,
his
Beneficiary shall be entitled to receive the lump sum benefit in accordance
with
this Subsection 3.1(b) within thirty (30) days of the date the Administrator
receives notice of the Director’s death.
Notwithstanding
the foregoing, unless the Director has made a Timely Election to receive a
lump
sum distribution from the Accrued Benefit Account, distributions from the
Accrued Benefit Account will be paid over the Payout Period, commencing within
thirty (30) days of the Director’s Benefit Age.
SECTION
IV
PRE-RETIREMENT
DEATH BENEFIT
4.1
|
(a)
Normal
form of payment
.
|
If
(i)
the Director dies while employed by the Bank, and (ii) the Director has not
made
a Timely Election to receive a lump sum benefit, this Subsection 4.1(a) shall
be
controlling with respect to pre-retirement death benefits.
The
balance of the Director
=
s
Retirement Income Trust Fund, measured as of the later of (i) the
Director
=
s
death,
or (ii) the date any final lump sum Contribution is made pursuant to Subsection
2.1(b), shall be annuitized (using the Interest Factor) into monthly
installments and shall be payable for the Payout Period. Such benefits shall
commence within thirty (30) days of the date the Administrator receives notice
of the Director
=
s
death.
Should Retirement Income Trust Fund assets actually earn a rate of return,
following the date such balance is annuitized, which is less than the rate
of
return used to annuitize the Retirement Income Trust Fund, no additional
contributions to the Retirement Income Trust Fund shall be required by the
Bank
in order to fund the final benefit payment(s) and make up for any shortage
attributable to the less-than-expected rate of return. Should Retirement Income
Trust Fund assets actually earn a rate of return, following the date such
balance is annuitized, which is greater than the rate of return used to
annuitize the Retirement Income Trust Fund, the final benefit payment to the
Director
=
s
Beneficiary shall distribute the excess amounts attributable to the
greater-than-expected rate of return. The Director
=
s
Beneficiary may request to receive the unpaid balance of the
Director
=
s
Retirement Income Trust Fund in a lump sum payment. If a lump sum payment is
requested by the Beneficiary, payment of the balance of the Retirement Income
Trust Fund in such lump sum form shall be made only if the Director
=
s
Beneficiary notifies both the Administrator and trustee in writing of such
election within ninety (90) days of the Director
=
s
death.
Such lump sum payment shall be made within thirty (30) days of such
notice.
The
Director
=
s
Accrued
Benefit Account (if applicable), measured as of the later of (i) the
Director's death or (ii) the date any final lump sum Phantom Contribution is
recorded in the Accrued Benefit Account pursuant to Subsection 2.1(c), shall
be
annuitized (using the Interest Factor) into monthly installments and shall
be
payable to the Director's Beneficiary for the Payout Period. Such benefit
payments shall commence within thirty (30) days of the date the Administrator
receives notice of the Director
=
s
death,
or if later, within thirty (30) days after any final lump sum Phantom
Contribution is recorded in the Accrued Benefit Account in accordance with
Subsection 2.1(c).
(b)
Alternative
payout option
.
If
(i)
the Director dies while employed by the Bank, and (ii) the Director has made
a
Timely Election to receive a lump sum benefit, this Subsection 4.1(b) shall
be
controlling with respect to pre-retirement death benefits.
The
balance of the Director
=
s
Retirement Income Trust Fund and the Accrued Benefit Account (if applicable),
measured as of the later of (i) the Director
=
s
death,
or (ii) the date any final lump sum Contribution is made pursuant to Subsection
2.1(b), shall be paid to the Director's Beneficiary in a lump sum within thirty
(30) days of the date the Administrator receives notice of the Director's
death.
Notwithstanding the foregoing, unless the Director has made a Timely Election
to
receive a lump sum distribution with respect to the Accrued Benefit Account,
distributions from the Accrued Benefit Account will be paid over the Payout
Period commencing within thirty (30) days of the date the Administrator receives
notice of the Director
=
s
death.
SECTION
V
BENEFIT(S)
IN THE EVENT OF TERMINATION OF SERVICE
PRIOR
TO BENEFIT AGE
5.1
|
Voluntary
or Involuntary Termination of Service Other Than for Cause
.
In the event the Director
=
s
service with the Bank is voluntarily or involuntarily terminated
prior to
Benefit Age, for any reason, including a Change in Control, but excluding
(i) any disability related termination for which the Board of Directors
has approved early payment of benefits pursuant to Subsection 6.1,
(ii)
the Director's pre-retirement death, which shall be covered in Section
IV,
(iii) or
|
termination
for Cause, which shall be covered in Subsection 5.2, the Director (or his
Beneficiary) shall be entitled to receive benefits in accordance with this
Subsection 5.1. Payments of benefits pursuant to this Subsection 5.1 shall
be
made in accordance with Subsection 5.1(a) or 5.1(b) below, as
applicable.
(a)
Normal
form of payment
.
(1)
Director
Lives Until Benefit Age
If
(i)
after such termination, the Director lives until attaining his Benefit Age,
and
(ii) the Director has not made a Timely Election to receive a lump sum benefit,
this Subsection 5.1(a)(1) shall be controlling with respect to retirement
benefits.
The
Retirement Income Trust Fund, measured as of the Director's Benefit Age, shall
be annuitized (using the Interest Factor) into monthly installments and shall
be
payable for the Payout Period. Such payments shall commence on the Director's
Benefit Eligibility Date. Should Retirement Income Trust Fund assets actually
earn a rate of return, following the date such balance is annuitized, which
is
less than the rate of return used to annuitize the Retirement Income Trust
Fund,
no additional contributions to the Retirement Income Trust Fund shall be
required by the Bank in order to fund the final benefit payment(s) and make
up
for any shortage attributable to the less-than-expected rate of return. Should
Retirement Income Trust Fund assets actually earn a rate of return, following
the date such balance is annuitized, which is greater than the rate of return
used to annuitize the Retirement Income Trust Fund, the final benefit payment
to
the Director (or his Beneficiary) shall distribute the excess amounts
attributable to the greater-than-expected rate of return. The Director may
at
anytime during the Payout Period request to receive the unpaid balance of his
Retirement Income Trust Fund in a lump sum payment. If such a lump sum payment
is requested by the Director, payment of the balance of the Retirement Income
Trust Fund in such lump sum form shall be made only if the Director gives notice
to both the Administrator and trustee in writing. Such lump sum payment shall
be
payable within thirty (30) days of such notice. In the event the Director dies
at any time after attaining his Benefit Age, but prior to commencement or
completion of all monthly payments due and owing hereunder, (i) the trustee
of
the Retirement Income Trust Fund shall pay to the Director's Beneficiary the
monthly installments (or a continuation of the monthly installments if they
have
already commenced) for the balance of months remaining in the Payout Period,
or
(ii) the Director's
Beneficiary
may request to receive the unpaid balance of the Director's Retirement Income
Trust Fund in a lump sum payment. If a lump sum payment is requested by the
Beneficiary, payment of the balance of the Retirement Income Trust Fund in
such
lump sum form shall be made only if the Director's Beneficiary notifies both
the
Administrator and trustee in writing of such election within ninety (90) days
of
the Director's death. Such lump sum payment shall be made within thirty (30)
days of such notice.
The
Director
=
s
Accrued
Benefit Account (if applicable), measured as of the Director
=
s
Benefit
Age, shall be annuitized (using the Interest Factor) into monthly installments
and shall be payable for the Payout Period. Such benefit payments shall commence
on the Director
=
s
Benefit
Eligibility Date. In the event the Director dies at any time after attaining
his
Benefit Age, but prior to commencement or completion of all the payments due
and
owing hereunder, (i) the Bank shall pay to the Director
=
s
Beneficiary the same monthly installments (or a continuation of such monthly
installments if they have already commenced) for the balance of months remaining
in the Payout Period.
(2)
Director
Dies Prior to Benefit Age
If
(i)
after such termination, the Director dies prior to attaining his Benefit Age,
and (ii) the Director has not made a Timely Election to receive a lump sum
benefit, this Subsection 5.1(a)(2) shall be controlling with respect to
retirement benefits.
The
Retirement Income Trust Fund, measured as of the date of the Director's death,
shall be annuitized (using the Interest Factor) into monthly installments and
shall be payable for the Payout Period. Such payments shall commence within
thirty (30) days of the date the Administrator receives notice of the Director's
death. Should Retirement Income Trust Fund assets actually earn a rate of
return, following the date such balance is annuitized, which is less than the
rate of return used to annuitize the Retirement Income Trust Fund, no additional
contributions to the Retirement Income Trust Fund shall be required by the
Bank
in order to fund the final benefit payment(s) and make up for any shortage
attributable to the less-than-expected rate of return. Should Retirement Income
Trust Fund assets actually earn a rate of return, following the date such
balance is annuitized, which is greater than the rate of return used to
annuitize the Retirement Income Trust Fund, the final benefit payment to the
Director's
Beneficiary
shall distribute the excess amounts attributable to the greater-than-expected
rate of return. The Director's Beneficiary may request to receive the unpaid
balance of the Director's Retirement Income Trust Fund in the form of a lump
sum
payment. If a lump sum payment is requested by the Beneficiary, payment of
the
balance of the Retirement Income Trust Fund in such lump sum form shall be
made
only if the Director's Beneficiary notifies both the Administrator and trustee
in writing of such election within ninety (90) days of the Director's death.
Such lump sum payment shall be made within thirty (30) days of such
notice.
The
Director
=
s
Accrued
Benefit Account (if applicable), measured as of the date of the
Director
=
s
death,
shall be annuitized (using the Interest Factor) into monthly installments and
shall be payable for the Payout Period. Such payments shall commence within
thirty (30) days of the date the Administrator receives notice of the
Director
=
s
death.
(b)
Alternative
Payout Option
.
(1)
Director
Lives Until Benefit Age
If
(i)
after such termination, the Director lives until attaining his Benefit Age,
and
(ii) the Director has made a Timely Election to receive a lump sum benefit,
this
Subsection 5.1(b)(1) shall be controlling with respect to retirement benefits.
The
balance of the Retirement Income Trust Fund and the Accrued Benefit Account
(if
applicable), measured as of the Director's Benefit Age, shall be paid to the
Director in a lump sum on his Benefit Eligibility Date. In the event the
Director dies after becoming eligible for such payment (upon attainment of
his
Benefit Age), but before the actual payment is made, his Beneficiary shall
be
entitled to receive the lump sum benefit in accordance with this Subsection
5.1(b)(1) within thirty (30) days of the date the Administrator receives notice
of the Director's death.
Notwithstanding the foregoing, unless the Director has made a Timely Election
to
receive a lump sum distribution from the Accrued Benefit Account, distributions
from the Accrued Benefit Account will be paid over the Payout Period, commencing
within thirty (30) days of the Director’s Benefit Age.
(2)
Director
Dies Prior to Benefit Age
If
(i)
after such termination, the Director dies prior to attaining his Benefit Age,
and (ii) the Director has made a Timely Election to receive a lump sum benefit,
this Subsection 5.1(b)(2) shall be controlling with respect to pre-retirement
death benefits.
The
balance of the Retirement Income Trust Fund and the Accrued Benefit Account (if
applicable), measured as of the date of the Director's death, shall be paid
to
the Director's Beneficiary within thirty (30) days of the date the Administrator
receives notice of the Director's death.
Notwithstanding the foregoing, unless the Director has made a Timely Election
to
receive a lump sum distribution with respect to the Accrued Benefit Account,
distributions from the Accrued Benefit Account will be paid over the Payout
Period commencing within thirty (30) days of the date the Administrator receives
notice of the Director
=
s
death.
5.2
|
Termination
For Cause
.
|
If
the
Director is terminated for Cause, all benefits under this Agreement, other
than
those which can be paid from previous Contributions to the Retirement Income
Trust Fund (and earnings on such Contributions), shall be forfeited.
Furthermore, no further Contributions (or Phantom Contributions, as applicable)
shall be required of the Bank for the year in which such termination for Cause
occurs (if not yet made). The Director shall be entitled to receive a benefit
in
accordance with this Subsection 5.2.
The
balance of the Director
=
s
Retirement Income Trust Fund shall be paid to the Director in a lump sum on
his
Benefit Eligibility Date. In the event the Director dies prior to his Benefit
Eligibility Date, his Beneficiary shall be entitled to receive the balance
of
the Director's Retirement Income Trust Fund in a lump sum within thirty (30)
days of the date the Administrator receives notice of the Director's death.
SECTION
VI
OTHER
BENEFITS
6.1
|
(a)
Disability
Benefit
.
|
If
the
Director's service is terminated prior to Benefit Age due to a disability that
meets the criteria set forth below, the Director may request to receive the
Disability Benefit in lieu of the retirement benefit(s) available pursuant
to
Section 5.1 (which is (are) not available prior to the Director's Benefit
Eligibility Date).
In
any
instance in which it is determined by a duly licensed, independent physician
selected by the Bank, that the Director
is
“disabled,”
the
Director shall be entitled to receive a lump sum Disability Benefit
hereunder.
For
these
purposes, a distribution from the Accrued Benefit Account (but not the
Retirement Income Trust Fund) shall require a determination that the Director
is
“disabled”
within the meaning of proposed Treasury Regulation Section
1.409A-3(g)(4).
The
Director shall be entitled to the following lump sum benefit(s) in lieu of
any
benefits under Subsection 5.1. The lump sum benefit(s) to which the Director
is
entitled shall include: (i) the balance of the Retirement Income Trust Fund,
plus (ii) the balance of the Accrued Benefit Account (if applicable). The
benefit(s) shall be paid within thirty (30) days following the date of the
Director's final disability determination. In the event the Director dies after
becoming eligible for such payment(s) but before the actual payment(s) is (are)
made, his Beneficiary shall be entitled to receive the benefit(s) provided
for
in this Subsection 6.1(a) within thirty (30) days of the date the Administrator
receives notice of the Director's death.
(b)
Disability
Benefit - Supplemental
.
Furthermore,
if Board of Director approval is obtained within thirty (30) days of the
Director
=
s
death,
the Bank shall make a direct, lump sum payment to the Director's Beneficiary
in
an amount equal to the sum of all remaining Contributions (or Phantom
Contributions) set forth in Exhibit A, but not required pursuant to Subsection
2.1(b) (or 2.1(c)) due to the Director's disability-related termination. Such
lump sum payment, if approved by the Board of Directors, shall be payable to
the
Director
=
s
Beneficiary within thirty (30) days of such Board of Director
approval.
6.2
|
Additional
Death Benefit - Burial Expense
.
|
Upon
the
Director
=
s
death,
the Director
=
s
Beneficiary shall also be entitled to receive a one-time lump sum death benefit
in the amount of Ten Thousand Dollars ($10,000). This benefit shall be paid
directly from the Bank to the Beneficiary and shall be provided specifically
for
the purpose of providing payment for burial and/or funeral expenses of the
Director. Such death benefit shall be payable within thirty (30) days of the
date the Administrator receives notice of the Director
=
s
death.
The Director
=
s
Beneficiary shall not be entitled to such benefit if the Director is terminated
for Cause prior to death.
SECTION
VII
BENEFICIARY
DESIGNATION
The
Director shall make an initial designation of primary and secondary
Beneficiaries upon execution of this Agreement and shall have the right to
change such designation, at any subsequent time, by submitting to (i) the
Administrator,
and
(ii) the
trustee of the Retirement Income Trust Fund, in substantially the form attached
as Exhibit B to this Agreement, a written designation of primary and secondary
Beneficiaries. Any Beneficiary designation made subsequent to execution of
this
Agreement shall become effective only when receipt thereof is acknowledged
in
writing by the Administrator.
SECTION
VIII
DIRECTOR'S
RIGHT TO ASSETS
The
rights of the Director, any Beneficiary, or any other person claiming through
the Director under this Agreement, shall be solely those of an unsecured general
creditor of the Bank. The Director, the Beneficiary, or any other person
claiming through the Director, shall only have the right to receive from the
Bank those payments or amounts so specified under this Agreement. The Director
agrees that he, his Beneficiary, or any other person claiming through him shall
have no rights or interests whatsoever in any asset of the Bank, including
any
insurance policies or contracts which the Bank may possess or obtain to
informally fund this Agreement. Any asset used or acquired by the Bank in
connection with the liabilities it has assumed under this Agreement shall not
be
deemed to be held under any trust for the benefit of the Director or his
Beneficiaries, unless such asset is contained in the rabbi trust described
in
Section
XII of this Agreement. Any such asset shall be and remain a general, unpledged
asset of the Bank in the event of the Bank
=
s
insolvency.
SECTION
IX
RESTRICTIONS
UPON FUNDING
The
Bank
shall have no obligation to set aside, earmark or entrust any fund or money
with
which to pay its obligations under this Agreement, other than those
Contributions required to be made to the Retirement Income Trust Fund. The
Director, his Beneficiaries or any successor in interest to him shall be and
remain simply a general unsecured creditor of the Bank in the same manner as
any
other creditor having a general claim for matured and unpaid compensation.
The
Bank reserves the absolute right in its sole discretion to either purchase
assets to meet its obligations undertaken by this Agreement or to refrain from
the same and to determine the extent, nature, and method of such asset
purchases. Should the Bank decide to purchase assets such as life insurance,
mutual funds, disability policies or annuities, the Bank reserves the absolute
right, in its sole discretion, to replace such assets from time to time or
to
terminate its investment in such assets at any time, in whole or in part. At
no
time shall the Director be deemed to have any lien, right, title or interest
in
or to any specific investment or to any assets of the Bank. If the Bank elects
to invest in a life insurance, disability or annuity policy upon the life of
the
Director, then the Director shall assist the Bank by freely submitting to a
physical examination and by supplying such additional information necessary
to
obtain such insurance or annuities.
SECTION
X
ACT
PROVISIONS
10.1
|
Named
Fiduciary and Administrator
.
The Bank, as Administrator, shall be the Named Fiduciary of this
Agreement. As Administrator, the Bank shall be responsible for the
management, control and administration of the Agreement as established
herein. The Administrator may delegate to others certain aspects
of the
management and operational responsibilities of the Agreement, including
the employment of advisors and the delegation of ministerial duties
to
qualified individuals.
|
10.2
|
Claims
Procedure and Arbitration
.
In the event that benefits under this Agreement are not paid to the
Director (or to his Beneficiary in the case of the Director's death)
and
such claimants feel they are entitled to receive such benefits, then
a
written claim must be made to the Administrator within sixty (60)
days
from the date payments are refused. The Administrator shall review
the
written claim and, if the claim is denied, in whole or in part, it
shall
provide in writing, within ninety (90) days of receipt of such claim,
its
specific reasons for such denial, reference to the provisions of
this
Agreement upon which the denial is based, and any additional material
or
information necessary to perfect the claim. Such writing by the
Administrator shall further indicate the additional steps which must
be
undertaken by claimants if an additional review of the claim denial
is
desired.
|
If
claimants desire a second review, they shall notify the Administrator in writing
within sixty (60) days of the first claim denial. Claimants may review this
Agreement or any documents relating thereto and submit any issues and comments,
in writing, they may feel appropriate. In its sole discretion, the Administrator
shall then review the second claim and provide a written decision within sixty
(60) days of receipt of such claim. This decision shall state the specific
reasons for the decision and shall include reference to specific provisions
of
this Agreement upon which the decision is based.
If
claimants continue to dispute the benefit denial based upon completed
performance of this Plan and the Agreement or the meaning and effect of the
terms and conditions thereof, then claimants may submit the dispute to
mediation, administered by the American Arbitration Association (
A
AAA
@
)
(or a
mediator selected by the parties) in accordance with the AAA
=
s
Commercial Mediation Rules. If mediation is not successful in resolving the
dispute, it shall be settled by arbitration administered by the AAA under its
Commercial Arbitration Rules, and judgment on the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction
thereof.
SECTION
XI
MISCELLANEOUS
11.1
|
No
Effect on Employment Rights
.
Nothing contained herein will confer upon the Director the right
to be
retained in the service of the Bank nor limit the right of the Bank
to
discharge or otherwise deal with the Director without regard to the
existence of the Agreement.
|
11.2
|
Governing
Law
.
The Agreement is established under, and will be construed according
to,
the laws of the state of New Jersey, to the extent such laws are
not
preempted by the Act or other applicable federal law and valid regulations
published thereunder.
|
11.3
|
Construction
and Severability
.
The funding of and payment of benefits from the Accrued Benefit Account
is
deemed to be a nonqualified deferred compensation arrangement within
the
meaning of Code Section 409A. To the extent that the funding of a
benefit
under the Retirement Income Trust Fund under this Agreement is deemed
to
be a nonqualified deferred compensation arrangement, then that part
of
this Agreement shall also be operated, administered and construed
consistent with Code Section 409A. To the extent that a provision
of the
Agreement fails to comply with Code Section 409A and a construction
consistent with Code Section 409A is not possible, such provision
shall be
void
ab
initio
.
In addition, the Agreement shall be subject to amendment, with or
without
advance notice to Director and other interested parties, and on a
prospective or retroactive basis, including but not limited to amendment
in a manner that adversely affects the rights of Directors and other
interested parties, to the extent necessary to effect compliance
with Code
Section 409A. In the event that any of the provisions of this Agreement
or
portion thereof, are held to be inoperative or invalid by any court
of
competent jurisdiction, then: (1) insofar as is reasonable, effect
will be
given to the intent manifested in the provisions held invalid or
inoperative, and (2) the validity and enforceability of the remaining
provisions will not be affected
thereby.
|
11.4
|
Treatment
as a Director
.
For purposes of this Agreement, it is assumed that the Director is
treated
as a “director” in accordance with Proposed Treasury Regulation Section
1.409A-1(h)(2). If under future guidance or rulings promulgated by
the
Internal Revenue Service or Treasury Department under Code Section
409A it
is determined that the Director should properly be
|
treated
as an “employee” for purposes of this Agreement, distributions to the Director
due to Separation from Service will be made in accordance with the provisions
of
Proposed Treasury Regulation Section 1.409A-1(h)(1).
11.5
|
Incapacity
of Recipient
.
In the event the Director is declared incompetent and a conservator
or
other person legally charged with the care of his person or Estate
is
appointed, any benefits under the Agreement to which such Director
is
entitled shall be paid to such conservator or other person legally
charged
with the care of his person or Estate.
|
11.6
|
Unclaimed
Benefit
.
The Director shall keep the Bank informed of his current address
and the
current address of his Beneficiaries. The Bank shall not be obligated
to
search for the whereabouts of any person. If the location of the
Director
is not made known to the Bank as of the date upon which any payment
of any
benefits from the Accrued Benefit Account may first be made, the
Bank
shall delay payment of the Director's benefit payment(s) until the
location of the Director is made known to the Bank; however, the
Bank
shall only be obligated to hold such benefit payment(s) for the Director
until the expiration of thirty-six (36) months.
|
11.7
|
Limitations
on Liability
.
Notwithstanding any of the preceding provisions of the Agreement,
no
individual acting as an employee or agent of the Bank, or as a member
of
the Board of Directors shall be personally liable to the Director
or any
other person for any claim, loss, liability or expense incurred in
connection with the Agreement.
|
11.8
|
Gender
.
Whenever in this Agreement words are used in the masculine or neuter
gender, they shall be read and construed as in the masculine, feminine
or
neuter gender, whenever they should so
apply.
|
11.9
|
Effect
on Other Corporate Benefit Agreements
.
Nothing contained in this Agreement shall affect the right of the
Director
to participate in or be covered by any qualified or non-qualified
pension,
profit sharing, group, bonus or other supplemental compensation or
fringe
benefit agreement constituting a part of the Bank's existing or future
compensation structure.
|
11.10
|
Suicide
.
Notwithstanding anything to the contrary in this Agreement, if the
Director's death results from suicide, whether sane or insane, within
twenty-six (26) months after execution of this
|
Agreement,
all further Contributions to the Retirement Income Trust Fund (or Phantom
Contributions recorded in the Accrued Benefit Account) shall thereupon cease,
and no Contribution (or Phantom Contribution) shall be made by the Bank to
the
Retirement Income Trust Fund (or recorded in the Accrued Benefit Account) in
the
year such death resulting from suicide occurs (if not yet made). All benefits
other than those available from previous Contributions to the Retirement Income
Trust Fund under this Agreement shall be forfeited, and this Agreement shall
become null and void. The balance of the Retirement Income Trust Fund, measured
as of the Director's date of death, shall be paid to the Beneficiary within
thirty (30) days of the date the Administrator receives notice of the Director's
death.
11.11
|
Inurement
.
This Agreement shall be binding upon and shall inure to the benefit
of the
Bank, its successors and assigns, and the Director, his successors,
heirs,
executors, administrators, and
Beneficiaries.
|
11.12
|
Headings
.
Headings and sub-headings in this Agreement are inserted for reference
and
convenience only and shall not be deemed a part of this
Agreement.
|
11.13
|
Establishment
of a Rabbi Trust.
The Bank shall establish a rabbi trust into which the Bank shall
contribute assets which shall be held therein, subject to the claims
of
the Bank's creditors in the event of the Bank's "Insolvency" (as
defined
in such rabbi trust agreement), until the contributed assets are
paid to
the Director and/or his Beneficiary in such manner and at such times
as
specified in this Agreement. It is the intention of the Bank that
the
contribution or contributions to the rabbi trust shall provide the
Bank
with a source of funds to assist it in meeting the liabilities of
this
Agreement.
|
11.14
|
Source
of Payments
.
All payments provided in this Agreement shall be timely paid in cash
or
check from the general funds of the Bank or the assets of the rabbi
trust,
to the extent made from the Accrued Benefit Account.
|
SECTION
XII
AMENDMENT/PLAN
TERMINATION
12.1
|
Amendment
or Plan Termination
.
The Bank intends this Agreement to be permanent,
but
reserves the right to amend or terminate the Agreement when such
amendment
or termination is required due to objection to the plan by the Bank's
regulatory authorities.
The
Agreement may not be amended or terminated without the express written
consent of the parties. Any amendment or termination of the Agreement
shall be made pursuant to a resolution of the Board of Directors
of the
Bank and shall be effective as of the date of such resolution. No
amendment or termination of the Agreement shall directly or indirectly
deprive the Director of all or any portion of the Director's Retirement
Income Trust Fund (and Accrued Benefit Account, if applicable) as
of the
effective date of the resolution amending or terminating the
Agreement.
|
Notwithstanding
the foregoing, if an individual Director’s agreement is subject to Code Section
409A, :the Bank may terminate this Agreement only under the following
circumstances and conditions:
|
(a)
|
The
Board of Directors may terminate the Agreement within 12 months of
a
corporate dissolution taxed under Code Section 331, or with approval
of a
bankruptcy court pursuant to 11 U.S.C. §503(b)(1)(A), provided that the
amounts deferred under the Agreement are included in the Director’s gross
income in the latest of (i) the calendar year in which the Agreement
terminates; (ii) the calendar year in which the amount is no longer
subject to a substantial risk of forfeiture; or (iii) the first calendar
year in which the payment is administratively
practicable.
|
|
(b)
|
The
Board of Directors may terminate the Agreement within the 30 days
preceding a Change in Control (but not following a Change in Control),
provided that the Agreement shall only be treated as terminated if
all
substantially similar arrangements sponsored by the Bank are terminated
so
that the Director and all participants under substantially similar
arrangements are required to receive all amounts of compensation
deferred
under the terminated arrangements within 12 months of the date of
the
termination of the
arrangements.
|
|
(c)
|
The
Board of Directors may terminate the Agreement provided that (i)
all
arrangements sponsored by the Bank that would be aggregated with
this
Agreement under Proposed Regulation Section 1.409A-1(c) if the Director
covered by this Agreement was also covered by any of those other
arrangements are also terminated; (ii) no payments other than payments
that would be payable under the terms of the arrangement if the
termination had not occurred are made within 12 months of the termination
of the arrangement; (iii) all payments are made within 24 months
of the
termination of the arrangements; and (iv) the Bank does not adopt
a new
arrangement that would be aggregated with any terminated arrangement
under
Proposed Regulation Section 1.409A-1(c) if the Director participated
in
both arrangements, at any time within five years following the date
of
termination of the arrangement.
|
12.2
|
Director's
Right to Payment Following Plan Termination
.
In the event of a termination of the Agreement, the Director shall
be
entitled to the balance, if any, of his Retirement Income Trust Fund
(and
Accrued Benefit Account, if applicable). However, if such termination
is
done in anticipation of or pursuant to a
A
Change
in Control,
@
such balance(s) shall include the final Contribution (or final Phantom
Contribution) made (or recorded) pursuant to Subsection 2.1(b)(2)
(or
2.1(c)(2)). Payment of the balance(s) of the Director's Retirement
Income
Trust Fund (and Accrued Benefit Account, if applicable) shall not
be
dependent upon his continuation of service with the Bank following
the
termination date of the Agreement. Payment of the balance(s) of the
Director's Retirement Income Trust Fund (and Accrued Benefit Account,
if
applicable) shall be made in a lump sum within thirty (30) days of
the
date of termination of the
Agreement.
|
SECTION
XIII
EXECUTION
13.1
|
This
Agreement and the Martin Lukacs Grantor Trust Agreement set forth
the
entire understanding of the parties hereto with respect to the
transactions contemplated hereby, and any previous agreements or
understandings between the parties hereto regarding the subject matter
hereof are merged into and superseded by this Agreement and the Martin
Lukacs Grantor Trust Agreement.
|
13.2
|
This
Agreement shall be executed in triplicate, each copy of which, when
so
executed and delivered, shall be an original, but all three copies
shall
together constitute one and the same
instrument.
|
[Remainder
of Page
Intentionally
Left Blank]
IN
WITNESS WHEREOF, the Bank and the Director have caused this Agreement to be
executed on the day and date first above written.
ATTEST:
|
|
MAGYAR
BANK:
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/s/
|
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By:
|
/s/
Elizabeth E. Hance
|
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Title:
|
President/CEO
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WITNESS:
|
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DIRECTOR:
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/s/
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/s/
Martin Lukacs
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|
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CONDITIONS,
ASSUMPTIONS,
AND
SCHEDULE
OF CONTRIBUTIONS AND PHANTOM CONTRIBUTIONS
1.
|
Interest
Factor - for purposes of:
|
|
a.
|
the
Accrued Benefit Account - shall be six percent (6%) per annum, compounded
monthly.
|
|
b.
|
the
Elective Contributions - shall be ten percent (10%) per annum, compounded
monthly.
|
|
c.
|
the
Emeritus Contributions - shall be six percent (6%) per annum, compounded
monthly.
|
|
d.
|
the
Retirement Income Trust Fund - for purposes of annuitizing the balance
of
the Retirement Income Trust Fund over the Payout Period, the trustee
of
the Martin Lukacs Grantor Trust shall exercise discretion in selecting
the
appropriate rate given the nature of the investments contained in
the
Retirement Income Trust Fund and the expected return associated with
the
investments. For these purposes, if the trustee of the Retirement
Income
Trust Fund has purchased a life insurance policy, the trustee shall
have
the discretion to determine the portion of the cash value of such
policy
available for purposes of annuitizing the Retirement Income Trust
Fund, in
accordance with Section 2.3 of the Agreement.
|
2.
|
The
amount of the annual Emeritus Contributions (or Phantom Contributions)
to
the Retirement Income Trust Fund (or Accrued Benefit Account) has
been
based on the annual interest-adjusted accounting accruals which would
be
required of the Bank through the earlier of the Director
=
s
death or Benefit Age, (i) pursuant to APB Opinion No. 12, as amended
by
FAS 106 and (ii) assuming a discount rate equal to six percent (6%)
per
annum, in order to provide a portion of the unfunded, non-qualified
Supplemental Retirement Income Benefit. The Emeritus Contributions
are
calculated to support a benefit based upon
50%
of
the Director’s total board fees, committee fees and/or retainer in the
twelve months prior to Director’s Benefit Eligibility Date.
|
3.
|
The
amount of the annual Elective Contributions (or Phantom Contributions)
to
the Retirement Income Trust Fund (or Accrued Benefit Account) has
been
based on the annual interest-adjusted accounting accruals which would
be
required of the Bank through the earlier of the Director’s death or
Benefit Age, (i) pursuant to APB Opinion No. 12, as amended by FAS
106 and
(ii) assuming a discount rate equal to ten percent (10%) per annum,
in
order to provide a portion of the unfunded, non-qualified Supplemental
Retirement Income Benefit. Director has elected a monthly, pre-tax
deferral of board fees, committee fess and/or retainer in the amount
of
$1,500
per month until the last deferral has been made on August 1,
2010.
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4.
|
For
purposes of this Agreement, and benefit calculations under this Agreement,
future increases in Board Fees after 2006 will be limited to the
actual
increase or four percent (4%), whichever is
less.
|
Exhibit
A
5.
|
Supplemental
Retirement Income Benefit means an actuarially determined annual
amount
equal to Sixty-Two Thousand Five Hundred and Twelve Dollars ($62,512)
at
age 65 if paid entirely from the Accrued Benefit Account or Forty
Thousand
Seven Dollars ($40,007) at age 65 if paid from the Retirement Income
Trust
Fund.
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The
Supplemental Retirement Income Benefit:
|
!
|
the
definition of Supplemental Retirement Income Benefit has been incorporated
into the Agreement for the sole purpose of actuarially establishing
the
amount of annual Contributions (or Phantom Contributions) to the
Retirement Income Trust Fund (or Accrued Benefit Account). The amount
of
any actual retirement, pre-retirement or disability benefit payable
pursuant to the Agreement will be a function of (i) the amount and
timing
of Contributions (or Phantom Contributions) to the Retirement Income
Trust
Fund (or Accrued Benefit Account) and (ii) the actual investment
experience of such Contributions (or the monthly compounding rate
of
Phantom Contributions).
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6.
|
Schedule
of Annual Gross Contributions/Phantom
Contributions
|
Plan
Year
|
Elective
Contributions
|
Emeritus
Contributions
|
Total
Contributions
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2004
|
$74,261
|
$38,805
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$113,066
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2005
|
26,782
|
14,169
|
40,951
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2006
|
29,586
|
28,219
|
57,805
|
2007
|
32,684
|
31,498
|
64,182
|
2008
|
36,106
|
35,075
|
71,181
|
2009
|
39,887
|
38,973
|
78,860
|
2010
|
37,938
|
43,218
|
81,156
|
2011
|
28,480
|
27,984
|
56,464
|
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Exhibit
A
- Cont
=
d.
RESTATED
DIRECTOR
SUPPLEMENTAL RETIREMENT INCOME and
DEFERRED
COMPENSATION AGREEMENT
BENEFICIARY
DESIGNATION
The
Director, under the terms of the Restated Director Supplemental Retirement
Income and Deferred Compensation Agreement executed by the Bank, dated the
1st
day of February, 2004, as amended and restated effective January 1, 2006, hereby
designates the following Beneficiary(ies) to receive any guaranteed payments
or
death benefits under such Agreement, following his death:
PRIMARY
BENEFICIARY:
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SECONDARY
BENEFICIARY:
|
|
This
Beneficiary Designation hereby revokes any prior Beneficiary Designation which
may have been in effect.
Such
Beneficiary Designation is revocable.
DATE:
______________________, 20__
Exhibit
B
RESTATED
DIRECTOR
SUPPLEMENTAL RETIREMENT INCOME and
DEFERRED
COMPENSATION AGREEMENT
NOTICE
OF ELECTION TO CHANGE FORM OF PAYMENT
I
hereby
give notice of my election to change the form of payment of my Supplemental
Retirement Income Benefit, as specified below.
I
understand that such notice,
in
order to be effective, must be submitted in accordance with the time
requirements described in Subsection 1.27 of my Restated Director Supplemental
Retirement Income and Deferred Compensation Agreement.
|
G
|
I
hereby elect to change the form of payment of my benefits from monthly
installments throughout my Payout Period to a lump sum benefit
payment.
|
|
G
|
I
hereby elect to change the form of payment of my benefits from a
lump sum
benefit payment to monthly installments throughout my Payout Period.
Such
election hereby revokes my previous notice of election to receive
a lump
sum form of benefit payments.
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DIRECTOR
|
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DATE
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ACKNOWLEDGED
|
|
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BY:
|
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TITLE:
|
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|
DATE
|
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Exhibit
C
RESTATED
DIRECTOR
SUPPLEMENTAL RETIREMENT INCOME and
DEFERRED
COMPENSATION AGREEMENT
NOTICE
OF ADJUSTMENT OF ELECTIVE CONTRIBUTION
I
hereby
give notice of my election to adjust the amount of my Elective Contribution
in
accordance with my Restated Director Supplemental Retirement Income and Deferred
Compensation Agreement, dated the 1
st
day of
February, 2004, as amended and restated effective January 1, 2006. This notice
is submitted thirty (30) days prior to January 1st, and shall become effective
January 1st, as specified below.
Adjust
deferral as of:
|
January
1st, 2___
|
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Previous
Deferral Amount
|
____________
per month
|
New
Deferral Amount
|
____________
per month
|
|
(to
discontinue deferral, enter $0)
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DIRECTOR
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DATE
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ACKNOWLEDGED
BY
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TITLE
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DATE
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Exhibit
D
Exhibit
10.9
RESTATED
DIRECTOR
SUPPLEMENTAL RETIREMENT
INCOME
and DEFERRED COMPENSATION AGREEMENT
FOR
THOMAS LANKEY
MAGYAR
BANK
New
Brunswick, New Jersey
January
1, 2006
Financial
Institution Consulting Corporation
700
Colonial Road, Suite 102
Memphis,
Tennessee 38117
WATS:
1-800-873-0089
FAX:
(901) 684-7414
(901)
684-7400
RESTATED
DIRECTOR
SUPPLEMENTAL RETIREMENT
INCOME
and DEFERRED COMPENSATION AGREEMENT
FOR
THOMAS LANKEY
This
Restated Director Supplemental Retirement Income and Deferred Compensation
Agreement for Thomas Lankey (the "Agreement"), effective as of the 1st day
of
January, 2006, amends and restates the Director Supplemental Retirement Income
and Deferred Compensation Agreement for Thomas Lankey dated February 1, 2004,
and formalizes the understanding by and between MAGYAR BANK (the "Bank"), a
state chartered savings bank having its principal place of business in New
Brunswick, New Jersey, and THOMAS LANKEY (hereinafter referred to as
"Director"). All prior non-qualified Director deferred compensation agreements,
including any and all Joinder Agreements, with respect to the Director and
MAGYAR BANK, are hereby superseded and replaced by this Agreement
W
I T N E S S E T H :
WHEREAS
,
the
Director serves the Bank as a member of the board; and
WHEREAS
,
the
Bank recognizes the valuable services heretofore performed by the Director
and
wishes to encourage his continued service; and
WHEREAS
,
the
Director wishes to be assured that the Director will be entitled to a certain
amount of additional compensation for some definite period of time from and
after retirement from active service with the Bank or other termination of
service and wishes to provide his beneficiary with benefits from and after
death; and
WHEREAS
,
the
Bank and the Director wish to provide the terms and conditions upon which the
Bank shall pay such additional compensation to the Director after retirement
or
other termination of service and/or death benefits to his beneficiary after
death; and
WHEREAS
,
the
Bank has adopted this Director Supplemental Retirement Income and Deferred
Compensation Agreement which controls all issues relating to benefits as
described herein; and
WHEREAS
,
Section
409A of the Internal Revenue Code of 1986 (“Code”), as amended, requires that
certain deferred compensation arrangements comply with its terms or subject
the
recipient of the compensation to potential taxes and penalties; and
WHEREAS
,
the
Bank desires to amend and restate the Agreement to comply with Code Section
409A
and any Treasury Regulations promulgated thereunder; and
WHEREAS
,
the
Board of Directors of the Bank has conditionally approved
the
amendment and restatement of the Agreement, subject to the approval of the
New
Jersey Department of Banking and Insurance.
NOW,
THEREFORE,
in
consideration of the premises and of the mutual promises herein contained,
the
Bank and the Director agree as follows:
SECTION
I
DEFINITIONS
When
used
herein, the following words and phrases shall have the meanings below unless
the
context clearly indicates otherwise:
1.1
|
"Accrued
Benefit Account" shall be
represented
by
the bookkeeping entries required to record the Director
=
s
(i) Phantom Contributions plus (ii) accrued interest, equal to the
Interest Factor, earned to-date on such amounts. However, neither
the
existence of such bookkeeping entries nor the Accrued Benefit Account
itself shall be deemed to create either a trust of any kind, or a
fiduciary relationship between the Bank and the Director or any
Beneficiary.
|
1.2
|
"Act"
means the Employee Retirement Income Security Act of 1974, as amended
from
time to time.
|
1.3
|
A
Administrator
@
means the Bank.
|
1.4
|
"Bank"
means MAGYAR BANK and any successor
thereto.
|
1.5
|
"Beneficiary"
means the person or persons (and their heirs) designated as Beneficiary
in
Exhibit B of this Agreement to whom the deceased Director
=
s
benefits are payable. If no Beneficiary is so designated, then the
Director
=
s
Spouse, if living, will be deemed the Beneficiary. If the
Director
=
s
Spouse is not living, then the Children of the Director will be deemed
the
Beneficiaries and will take on a per stirpes basis. If there are
no
Children, then the Estate of the Director will be deemed the
Beneficiary.
|
1.6
|
"Benefit
Age" means the later of: (i) the Director's sixty-fifth (65th) birthday
or
(ii) the actual date the Director
=
s
full-time service with the Bank terminates.
|
1.7
|
"Benefit
Eligibility Date" means the date on which the Director is entitled
to
receive any benefit(s) pursuant to Section(s) III or V of this Agreement.
It shall be the first day of the month following both the attainment
of
the Directors’ Benefit Age and his actual retirement from the Board of
Directors.
|
1.8
|
"Board
of Directors" means the board of directors of the
Bank.
|
1.9
|
"Cause"
means termination of the Director
=
s
service on the Board of Directors due to: (i) actions or inactions
which
constitute a breach of the bylaws of the Bank or (ii) the
Director
=
s
personal dishonesty, willful misconduct, willful malfeasance, breach
of
fiduciary duty involving personal profit, intentional failure to
perform
stated duties, willful violation of any law, rule, regulation (other
than
traffic violations or similar offenses), or final cease-and-desist
order,
material breach of any provision of this Plan, or gross negligence
in
matters of material importance to the
Bank.
|
1.10
|
“Change
in Control” shall mean a change in the ownership of the Bank or Company
under paragraph (a) below, a change in effective control of the Bank
or
Company under paragraph (b) below, or a change in the ownership of
a
substantial portion of the assets of the Bank or Company under paragraph
(c) below. For all purposes hereunder, the definition of Change in
Control
shall be construed to be consistent with the requirements of Proposed
Treasury Regulation Section 1.409A-3(g), except to the extent that
such
proposed regulations are superseded by subsequent
guidance.
|
For
this
subsection “persons acting as a group” is defined as follows; Persons will be
considered to be acting as a group if they are owners of a corporation that
enters into a merger, consolidation, purchase or acquisition of stock, or
similar business transaction with the corporation. Persons will not be
considered to be acting as a group solely because they purchase or own stock
of
the same corporation at the same time, or as a result of the same public
offering. If a person, including an entity, owns stock in both corporations
that
enter into a merger, consolidation, purchase or acquisition of stock, or similar
transaction, such shareholder is considered to be acting as a group with other
shareholders in a corporation only with respect to the ownership in that
corporation prior to the transaction giving rise to the change and not with
respect to the ownership interest in the other corporation.
|
(a)
|
Change
in Ownership of the Bank or Company
|
Change
in
the ownership occurs on the date that any one person, or more than one person
acting as a group (as defined above), acquires ownership of stock of the Bank
or
Company that, together with stock held by such person or group, constitutes
more
than 50 percent of the total fair market value or total voting power of the
stock of such corporation. However, if any one person or more than one person
acting as a group, is considered to own more than 50 percent of the total fair
market value or total voting power of the stock of a corporation, the
acquisition of additional stock by the same person or persons is not considered
to cause a change in the ownership of the corporation or to cause a change
in
the effective control of the corporation.
|
(b)
|
Change
in the Effective Control of the Bank or
Company
|
A
change
in the effective control of the Bank or Company occurs on the date that either
-
(1)
Any
one person, or more than one person acting as a group (as defined above),
acquires (or has acquired during the 12-month period ending on the date of
the
most recent acquisition by such person or persons) ownership of stock of the
Company possessing 20 percent or more of the total voting power of the stock
of
the Company (except that if an individual Director’s agreement becomes subject
to Code Section 409A, then the required percentage of acquired ownership of
stock under this Subsection 1.10 (b)(1) shall be 35 percent or more); or
(2)
a
majority of members of the Company’s board of directors is replaced during any
12-month period by directors whose appointment or election is not endorsed
by a
majority of the members of the Company’s board of directors prior to the date of
the appointment or election.
|
(c)
|
Change
in the Ownership of a Substantial Portion of the Bank’s or Company’s
Assets.
|
Change
in
the ownership of a substantial portion of the Bank or Company’s assets occurs on
the date that any one person, or more than one person acting as a group (as
defined above), acquires (or has acquired during the 12-month period ending
on
the date of the most recent acquisition by such person or persons) assets from
the corporation that have a total gross fair market value equal to or more
than
40 percent of the total gross fair market value of all of the assets of the
Bank
or Company immediately prior to such acquisition or acquisitions. For this
purpose, gross fair market value means the value of the assets of the Bank
or
Company, or the value of the assets being disposed of, determined without regard
to any liabilities associated with such assets.
1.11
|
"Children"
means all natural or adopted children of the Director and issue of
any
predeceased child or children.
|
1.12
|
"Code"
means the Internal Revenue Code of 1986, as amended from time to
time.
|
1.13
|
“Company”
shall mean Magyar Bancorp, Inc.
|
1.14
|
"Contribution(s)"
means those annual total contributions comprised of both the Elective
Contributions and the Emeritus Contributions which the Bank is required
to
make to the Retirement Income Trust Fund on behalf of the Director
in
accordance with Subsection 2.1(a) and in the amounts set forth in
Exhibit
A of the Agreement. Such Contributions, for the first Plan Year,
shall
include any and all amounts accrued by the Bank to pay the benefits
promised to the Director under any prior non-qualified deferred
compensation agreements including any Joinder Agreements previously
executed by the Bank and the Director.
|
1.15
|
(a)
"Disability Benefit" means the benefit payable to the Director following
a
determination, in accordance with Subsection 6.1(a), that he is no
longer
able, properly and satisfactorily, to perform his duties at the
Bank.
|
(b)
"Disability Benefit-Supplemental" (if applicable) means the benefit payable
to
the Director
=
s
Beneficiary upon the Director
=
s
death
in accordance with Subsection 6.1(b).
1.16
|
"Effective
Date" of this Agreement shall be January 1, 2006. The original effective
date of this Agreement was February 1, 2004. The Agreement is hereby
amended and restated effective January 1, 2006 in order to conform
to Code
Section 409A.
|
1.17
|
“Elective
Contribution” shall refer to the Director’s voluntary monthly pre-tax
deferral of board fees, committee fees and/or retainer plus interest
compounded annually at a rate equal to the Interest Factor. The Director
may elect to change his voluntary deferral amount by submitting to
the
Bank a Notice of Adjustment of Elective Contribution thirty (30)
days
prior to the end of any Plan Year.
|
1.18
|
“Emeritus
Contribution” shall refer to the amounts necessary to support an annual
amount payable to the Director at Benefit Age based upon a percentage,
as
stated in Appendix A, of the Director’s total board fees, committee fees
and/or retainer in the twelve months prior to the Director’s Benefit
Eligibility Date. The percentage shall be determined by the following
formula: ten percent (10%) plus two and one-half percent (2 ½%) for each
year of service as a Director, with a minimum of fifty percent (50%),
provided the Director has served for at least five (5) years, and
a
maximum of sixty percent (60%). Notwithstanding the foregoing, any
Director who serves as Board Chairman for a five-year term (other
than the
current Chairman) shall be entitled to receive seventy-five percent
(75%).
|
1.19
|
"Estate"
means the estate of the Director.
|
1.20
|
"Interest
Factor" means monthly compounding, discounting or annuitizing, as
applicable, at a rate set forth in
Exhibit A.
|
1.21
|
"Payout
Period" means the time frame during which certain benefits payable
hereunder shall be distributed. Payments shall be made in monthly
installments commencing on the first day of the month following the
occurrence of the event which triggers distribution and continuing for a
period of one hundred eighty (180) months. Should the Director make
a
Timely Election to receive a lump sum benefit payment, the
Director
=
s
Payout Period shall be deemed to be one (1) month.
|
1.22
|
"Phantom
Contributions" means those annual Contributions which the Bank is
no
longer required to make on behalf of the Director to the Retirement
Income
Trust Fund. Rather, once the Director has exercised the withdrawal
rights
provided for in Subsection 2.2, the Bank shall be required to record
the
annual amounts set forth in Exhibit A of the Agreement in the
Director
=
s
Accrued Benefit Account, pursuant to Subsection 2.1.
|
1.23
|
"Plan
Year" shall mean the twelve (12) month period commencing January
1 and
ending December 31.
|
1.24
|
"Retirement
Income Trust Fund" means the trust fund account established by the
Director and into which annual Contributions will be made by the
Bank on
behalf of the Director pursuant to Subsection 2.1. The contractual
rights
of the Bank and the Director with respect to the Retirement Income
Trust
Fund shall be outlined in a separate writing to be known as the Thomas
Lankey Grantor Trust agreement.
|
1.25
|
A
Spouse
@
means the individual to whom the Director is legally married at the
time
of the Director
=
s
death, provided, however, that the term
A
Spouse
@
shall not refer to an individual to whom the Director is legally
married
at the time of death if the Director and such individual have entered
into
a formal separation agreement or initiated divorce
proceedings.
|
1.26
|
"Supplemental
Retirement Income Benefit" means an annual amount (
before
taking into account federal and state income taxes), payable in monthly
installments throughout the Payout Period. Such benefit is projected
pursuant to the Agreement for the purpose of determining the Contributions
to be made to the Retirement Income Trust Fund (or Phantom Contributions
to be recorded in the Accrued Benefit Account). The annual Contributions
and Phantom
|
Contributions
have been actuarially determined, using the assumptions set forth in Exhibit
A,
in order to fund for the projected Supplemental Retirement Income Benefit.
The
Supplemental Retirement Income Benefit for which Contributions (or Phantom
Contributions) are being made (or recorded) is set forth in Exhibit A.
1.27
|
"Timely
Election" means the Director has made an election to change the form
of
his benefit payment(s) from the Retirement Income Trust Fund by filing
with the Administrator a Notice of Election to Change Form of Payment
(Exhibit C of this Agreement). In the case of benefits payable from
the
Retirement Income Trust Fund, such election may be made at any time.
In
the case of benefits payable from the Accrued Benefit Account, such
election generally shall have been made prior to December 31, 2006
(i.e.
the last day of the “Transition Period” for bringing plans into compliance
with Code Section 409A). Unless the Transition Period is extended
by the
Internal Revenue Service, if the Director makes an election subsequent
to
December 31, 2006 with respect to distributions from the Accrued
Benefit
Account, then (i) such election may not take effect until at least
twelve
(12) months after the date on which the election is made, (ii) in
the case
of an election related to a payment other than due to disability
or death,
the first payment with respect to which such election is made must
be
deferred for a period of not less than five (5) years from the date
such
payment would otherwise have been made, and (iii) any election related
to
a distribution at a specified time or pursuant to a fixed schedule
may not
be made less than twelve (12) months prior to the date of the first
scheduled payment.
|
SECTION
II
BENEFIT
FUNDING
2.1
|
(a)
Retirement
Income Trust Fund and Accrued Benefit Account
.
The Director shall establish the Thomas Lankey Grantor Trust into
which
the Bank shall be required to make annual Contributions on the
Director
=
s
behalf, pursuant to Exhibit A and this Section II of the Agreement.
A
trustee shall be selected by the Director. The trustee shall maintain
an
account, separate and distinct from the Director
=
s
personal contributions, which account shall constitute the Retirement
Income Trust Fund. The trustee shall be charged with the responsibility
of
investing all contributed funds. Distributions from the Retirement
Income
Trust Fund of the Thomas Lankey Grantor Trust may be made by the
trustee
to the Director, for purposes of payment of
any
|
income
or
employment taxes due and owing on Contributions by the Bank to the Retirement
Income Trust Fund, if any, and on any taxable earnings associated with such
Contributions which the Director shall be required to pay from year to year,
under applicable law, prior to actual receipt of any benefit payments from
the
Retirement Income Trust Fund. If the Director exercises his withdrawal rights
pursuant to Subsection 2.2, the Bank
=
s
obligation to make Contributions to the Retirement Income Trust Fund shall
cease
and the Bank
=
s
obligation to record Phantom Contributions in the Accrued Benefit Account shall
immediately commence pursuant to Exhibit A and this Section II of the Agreement.
To the extent this Agreement is inconsistent with the Thomas Lankey Grantor
Trust Agreement, the Thomas Lankey Grantor Trust Agreement shall supersede
this
Agreement.
The
annual Contributions (or Phantom Contributions) required to be made by the
Bank
to the Retirement Income Trust Fund (or recorded by the Bank in the Accrued
Benefit Account) have been actuarially determined and are set forth in Exhibit
A
which is attached hereto and incorporated herein by reference. Contributions
shall be made by the Bank to the Retirement Income Trust Fund (i) within
seventy-five (75) days of establishment of such trust, and (ii) within the
first
thirty (30) days of the beginning of each subsequent Plan Year, unless this
Section expressly provides otherwise. Phantom Contributions, if any, shall
be
recorded in the Accrued Benefit Account within the first thirty (30) days of
the
beginning of each applicable Plan Year, unless this Section expressly provides
otherwise. Phantom Contributions shall accrue interest at a rate equal to the
Interest Factor, during the Payout Period, until the balance of the Accrued
Benefit Account has been fully distributed. Interest on any Phantom Contribution
shall not commence until such Payout Period commences.
The
Administrator shall review the schedule of annual Contributions (or Phantom
Contributions) provided for in Exhibit A (i) within thirty (30) days prior
to
the close of each Plan Year and (ii) if the Director is employed by the Bank
until attaining Benefit Age, on or immediately before attainment of such Benefit
Age. Such review shall consist of an evaluation of the accuracy of all
assumptions used to establish the schedule of Contributions (or Phantom
Contributions). Provided that (i) the Director has not exercised his withdrawal
rights pursuant to Subsection 2.2 and (ii) the investments contained in the
Retirement Income Trust Fund have been deemed reasonable by the Bank, the
Administrator shall prospectively amend or supplement the
schedule
of
Contributions provided for in Exhibit A should the Administrator determine
during any such review that
an
increase
in or
supplement
to
the
schedule of Contributions is necessary in order to adequately fund the
Retirement Income Trust Fund so as to provide an annual benefit (or to provide
the lump sum equivalent of such benefit, as applicable) equal to the
Supplemental Retirement Income Benefit, on an after-tax basis, commencing at
Benefit Age and payable for the duration of the Payout Period.
(b)
Withdrawal
Rights Not Exercised.
(1)
Contributions
Made Annually
If
the
Director does not exercise any withdrawal rights pursuant to Subsection 2.2,
the
annual Contributions to the Retirement Income Trust Fund shall continue each
year, unless this Subsection 2.1(b) specifically states otherwise, until the
earlier of (i) the last Plan Year that Contributions are required pursuant
to
Exhibit A, or (ii) the Plan Year of the Director's termination of
service.
(2)
Termination
Following a Change in Control
If
the
Director does not exercise his withdrawal rights pursuant to Subsection 2.2
and
a Change in Control occurs at the Bank, followed within thirty-six (36) months
by either (i) the Director's involuntary termination of service, or (ii)
Director's voluntary termination of service after: (A) a material change in
the
Director's function, duties, or responsibilities, which change would cause
the
Director's position to become one of lesser responsibility, importance, or
scope
from the position the Director held at the time of the Change in Control, (B)
a
relocation of the Director's principal place of service by more than thirty
(30)
miles from its location prior to the Change in Control, or (C) a material
reduction in the benefits and perquisites to the Director from those being
provided at the time of the Change in Control, the Emeritus Contributions as
set
forth on Schedule A shall continue to be required of the Bank. The Bank shall
be
required to make an immediate lump sum Contribution to the Director's Retirement
Income Trust Fund in an amount equal to: (i) the full Emeritus Contribution
required for the Plan Year in which such termination occurs, if not yet made,
plus (ii) the present value (computed using a discount rate equal to the
Interest Factor) of all remaining Emeritus Contributions to the Retirement
Income Trust Fund, and (iii) the present value (computed using the a discount
rate equal to the Interest Factor) of the interest only component of the
Elective Contribution; provided, however, that, if necessary,
an
additional
amount shall be contributed to the Retirement Income Trust Fund which is
sufficient to provide the Director with after-tax benefits (assuming a constant
tax rate equal to the rate in effect as of the date of Director
=
s
termination) beginning at Benefit Age following such termination, equal in
amount to that benefit which would have been payable to the Director if no
secular trust had been implemented and the benefit obligation had been accrued
under APB Opinion No. 12, as amended by FAS 106.
(3)
Termination
For Cause
If
the
Director does not exercise his withdrawal rights pursuant to Subsection 2.2,
and
is terminated for Cause pursuant to Subsection 5.2, no further Contribution(s)
to the Retirement Income Trust Fund shall be required of the Bank, and if not
yet made, no Contribution shall be required for the Plan Year in which such
termination for Cause occurs.
(4)
Voluntary or Involuntary Termination of Service
.
If
the
Director does not exercise his withdrawal rights pursuant to
Subsection 2.2, and the Director's service with the Bank is voluntarily or
involuntarily terminated for any reason, including a termination due to
disability of the Director but excluding termination for Cause, or termination
following a Change in Control within thirty-six (36) months of such Change
in
Control, no further Contribution(s), as defined in Subsection 1.14, to the
Retirement Income Trust Fund shall be required of the Bank, and if not yet
made,
no Contribution shall be required for the Plan Year in which such termination
occurs. Notwithstanding the above, the Bank will be required to make annual
payments to Director’s Retirement Income Trust Fund determined as
follows:
|
1.
|
Determine
what the accrued liability would have been as of the Director’s date of
termination, had no secular trust been
implemented.
|
|
2.
|
Determine
the benefit payable, beginning at the Benefit Age, for 180 months
which
that accrued liability would support had interest been added to that
liability on an annual basis using the Accrued Benefit Interest Factor
set
forth in Exhibit A.
|
|
3.
|
The
Bank shall make payments to the Director’s Retirement Income Trust Fund on
an annual basis in amounts equal to the accrued interest expense
which
would have been recorded absent the secular trust
arrangement.
|
(5)
Death
During Service
.
If
the
Director does not exercise any withdrawal rights pursuant to
Subsection 2.2, and dies while employed by the Bank, and if, following the
Director
=
s
death,
the assets of the Retirement Income Trust Fund are insufficient to provide
the
Supplemental Retirement Income Benefit to which the Director is entitled, the
Bank shall be required to make a Contribution to the Retirement Income Trust
Fund equal to the sum of the remaining Contributions set forth on Exhibit A,
after taking into consideration any payments under any life insurance policies
that may have been obtained on the Director
=
s
life by
the Retirement Income Trust Fund. Such final contribution shall be payable
in a
lump sum to the Retirement Income Trust Fund within thirty (30) days of the
Director
=
s
death.
(c)
Withdrawal
Rights Exercised.
(1)
Phantom
Contributions Made Annually
.
If
the
Director exercises his withdrawal rights pursuant to Subsection 2.2, no further
Contributions to the Retirement Income Trust Fund shall be required of the
Bank.
Thereafter, Phantom Contributions shall be recorded annually in the Director's
Accrued Benefit Account within thirty (30) days of the beginning of each Plan
Year, commencing with the first Plan Year following the Plan Year in which
the
Director exercises his withdrawal rights. Such Phantom Contributions shall
continue to be recorded annually, unless this Subsection 2.1(c) specifically
states otherwise, until the earlier of (i) the last Plan Year that Phantom
Contributions are required pursuant to Exhibit A, or (ii) the Plan Year of
the
Director's termination of service.
(2)
Termination
Following a Change in Control
If
the
Director exercises his withdrawal rights pursuant to Subsection 2.2, Phantom
Contributions shall commence in the Plan Year following the Plan Year in which
the Director first exercises his withdrawal rights. If a Change in Control
occurs at the Bank, and within thirty-six (36) months of such Change in Control,
the Director's service is either (i) involuntarily terminated, or (ii)
voluntarily terminated by the Director after: (A) a material change in the
Director's function, duties, or responsibilities, which change would cause
the
Director's position to become one of lesser responsibility, importance, or
scope
from the position the Director held at the time of the Change in Control, (B)
a
relocation of the Director's principal place of service by more than thirty
(30)
miles from its location prior to the Change in Control, or (C) a material
reduction in the
benefits
and perquisites to the Director from those being provided at the time of the
Change in Control, the Phantom Contribution set forth below shall be required
of
the Bank. The Bank shall be required to record a lump sum Phantom Contribution
in the Accrued Benefit Account within ten (10) days of the Director
=
s
termination of service equal to (i) the full Emeritus Contribution required
for
the Plan Year in which such termination occurs, if not yet made, plus (ii)
the
present value (computed using a discount rate equal to the Interest Factor)
of
all remaining Emeritus Contributions to the Retirement Income Trust Fund, and
(iii) the present value (computed using the a discount rate equal to the
Interest Factor) of the interest only component of the Elective Contribution.
The amount of such final Phantom Contribution shall be actuarially determined
based on the Phantom Contribution required, at such time, in order to provide
a
benefit via this Agreement equal in amount to that benefit which would have
been
payable to the Director if no secular trust had been implemented and the benefit
obligation had been accrued under APB Opinion No. 12, as amended by FAS 106.
(Such actuarial determination shall reflect the fact that amounts shall be
payable from both the Accrued Benefit Account as well as the Retirement Income
Trust Fund and shall also reflect the amount and timing of any withdrawal(s)
made by the Director from the Retirement Income Trust Fund pursuant to
Subsection 2.2.)
(3)
Termination
For Cause
If
the
Director is terminated for Cause pursuant to Subsection 5.2, the entire balance
of the Director
=
s
Accrued
Benefit Account at the time of such termination, which shall include any Phantom
Contributions which have been recorded plus interest accrued on such Phantom
Contributions, shall be forfeited.
(4)
Voluntary
and
Involuntary
Termination of Service
.
If
the
Director exercises his withdrawal rights pursuant to Subsection 2.2, and the
Director's service with the Bank is voluntarily or involuntarily terminated
for
any reason including termination due to disability of the Director, but
excluding termination for Cause, or termination following a Change in Control,
within thirty (30) days of such termination of service, no further Phantom
Contributions shall be required of the Bank. Interest, at a rate equal to the
Interest Factor, shall accrue on such Phantom Contributions until the Director’s
Benefit Eligibility Date.
(5)
Death
During Service
.
If
the
Director exercises his withdrawal rights pursuant to Subsection 2.2, and
dies while employed by the Bank, Phantom Contributions included on Exhibit
A
shall be required of the Bank. Such Phantom Contributions shall commence in
the
Plan Year following the Plan Year in which the Director exercises his withdrawal
rights and shall continue through the Plan Year in which the Director dies.
The
Bank shall also be required to record a final Phantom Contribution within thirty
(30) days of the Director
=
s
death.
The amount of such final Phantom Contribution shall be actuarially determined
based on the Phantom Contribution required at such time (if any), in order
to
provide a benefit via this Agreement equivalent to the Supplemental Retirement
Income Benefit commencing within thirty (30) days of the date the Administrator
receives notice of the Director
=
s
death
and continuing for the duration of the Payout Period. (Such actuarial
determination shall reflect the fact that amounts shall be payable from the
Accrued Benefit Account as well as the Retirement Income Trust Fund and shall
also reflect the amount and timing of any withdrawal(s) made by the Director
pursuant to Subsection 2.2.)
2.2
|
Withdrawals
From Retirement Income Trust
Fund.
|
Exercise
of withdrawal rights by the Director pursuant to the Thomas Lankey Grantor
Trust
agreement shall terminate the Bank's obligation to make any further
Contributions to the Retirement Income Trust Fund, and the Bank
=
s
obligation to record Phantom Contributions pursuant to Subsection 2.1(c) shall
commence. For purposes of this Subsection 2.2,
A
exercise
of withdrawal rights
@
shall
mean those withdrawal rights to which the Director is entitled under Article
III
of the Thomas Lankey Grantor Trust agreement and shall exclude any distributions
made by the trustee of the Retirement Income Trust Fund to the Director for
purposes of payment of income taxes in accordance with Subsection 2.1 of this
Agreement and the tax reimbursement formula contained in the trust document,
or
other trust expenses properly payable from the Thomas Lankey Grantor Trust
pursuant to the provisions of the trust document.
2.3
|
Benefits
Payable From Retirement Income Trust
Fund
|
Notwithstanding
anything else to the contrary in this Agreement, in the event that the trustee
of the Retirement Income Trust Fund purchases a life insurance policy with
the
Contributions to and, if applicable, earnings of the Trust, and such life
insurance policy is intended to continue in force beyond the Payout Period
for
the disability or retirement benefits payable from the
Retirement
Income Trust Fund pursuant to this Agreement, then the trustee shall have
discretion to determine the portion of the cash value of such policy available
for purposes of annuitizing the Retirement Income Trust Fund (it being
understood that for purposes of this Section 2.3,
A
annuitizing
@
does not
mean surrender of such policy and annuitizing of the cash value received upon
such surrender) to provide the disability or retirement benefits payable under
this Agreement, after taking into consideration the amounts reasonably believed
to be required in order to maintain the cash value of such policy to continue
such policy in effect until the death of the Director and payment of death
benefits thereunder.
SECTION
III
RETIREMENT
BENEFIT
3.1
|
(a)
Normal
form of payment
.
|
If
(i)
the Director is employed with the Bank until reaching his Benefit Age and (ii)
the Director has not made a Timely Election to receive a lump sum benefit,
this
Subsection 3.1(a) shall be controlling with respect to retirement
benefits.
The
Retirement Income Trust Fund, measured as of the Director's Benefit Age, shall
be annuitized (using the Interest Factor) into monthly installments and shall
be
payable for the Payout Period. Such benefit payments shall commence on the
Director's Benefit Eligibility Date. Should Retirement Income Trust Fund assets
actually earn a rate of return, following the date such balance is annuitized,
which is less than the rate of return used to annuitize the Retirement Income
Trust Fund, no additional contributions to the Retirement Income Trust Fund
shall be required by the Bank in order to fund the final benefit payment(s)
and
make up for any shortage attributable to the less-than-expected rate of return.
Should Retirement Income Trust Fund assets actually earn a rate of return,
following the date such balance is annuitized, which is greater than the rate
of
return used to annuitize the Retirement Income Trust Fund, the final benefit
payment to the Director (or his Beneficiary) shall distribute the excess amounts
attributable to the greater-than-expected rate of return. The Director may
at
anytime during the Payout Period request to receive the unpaid balance of his
Retirement Income Trust Fund in a lump sum payment. If such a lump sum payment
is requested by the Director, payment of the balance of the Retirement Income
Trust Fund in such lump sum form shall be made only if the Director gives notice
to both
the
Administrator and trustee in writing. Such lump sum payment shall be payable
within thirty (30) days of such notice. In the event the Director dies at any
time after attaining his Benefit Age, but prior to commencement or completion
of
all monthly payments due and owing hereunder, (i) the trustee of the Retirement
Income Trust Fund shall pay to the Director's Beneficiary the monthly
installments (or a continuation of such monthly installments if they have
already commenced) for the balance of months remaining in the Payout Period,
or
(ii) the Director's Beneficiary may request to receive the unpaid balance of
the
Director's Retirement Income Trust Fund in a lump sum payment. If a lump sum
payment is requested by the Beneficiary, payment of the balance of the
Retirement Income Trust Fund in such lump sum form shall be made only if the
Director's Beneficiary notifies both the Administrator and trustee in writing
of
such election within ninety (90) days of the Director's death. Such lump sum
payment shall be payable within thirty (30) days of such notice.
The
Director
=
s
Accrued
Benefit Account (if applicable), measured as of the Director
=
s
Benefit
Age, shall be annuitized (using the Interest Factor) into monthly installments
and shall be payable for the Payout Period. Such benefit payments shall commence
on the Director
=
s
Benefit
Eligibility Date. In the event the Director dies at any time after attaining
his
Benefit Age, but prior to commencement or completion of all the payments due
and
owing hereunder, (i) the Bank shall pay to the Director
=
s
Beneficiary the same monthly installments (or a continuation of such monthly
installments if they have already commenced) for the balance of months remaining
in the Payout Period.
(b)
Alternative
payout option.
If
(i)
the Director is employed with the Bank until reaching his Benefit Age, and
(ii)
the Director has made a Timely Election to receive a lump sum benefit, this
Subsection 3.1(b) shall be controlling with respect to retirement benefits.
The
balance of the Retirement Income Trust Fund and the Accrued Benefit Account
(if
applicable), measured as of the Director
=
s
Benefit
Age, shall be paid to the Director in a lump sum on his Benefit Eligibility
Date. In the event the Director dies after becoming eligible for such payment
(upon attainment of his Benefit Age), but before the actual payment is made,
his
Beneficiary
shall be entitled to receive the lump sum benefit in accordance with this
Subsection 3.1(b) within thirty (30) days of the date the Administrator receives
notice of the Director’s death.
Notwithstanding
the foregoing, unless the Director has made a Timely Election to receive a
lump
sum distribution from the Accrued Benefit Account, distributions from the
Accrued Benefit Account will be paid over the Payout Period, commencing within
thirty (30) days of the Director’s Benefit Age.
SECTION
IV
PRE-RETIREMENT
DEATH BENEFIT
4.1
|
(a)
Normal
form of payment
.
|
If
(i)
the Director dies while employed by the Bank, and (ii) the Director has not
made
a Timely Election to receive a lump sum benefit, this Subsection 4.1(a) shall
be
controlling with respect to pre-retirement death benefits.
The
balance of the Director
=
s
Retirement Income Trust Fund, measured as of the later of (i) the
Director
=
s
death,
or (ii) the date any final lump sum Contribution is made pursuant to Subsection
2.1(b), shall be annuitized (using the Interest Factor) into monthly
installments and shall be payable for the Payout Period. Such benefits shall
commence within thirty (30) days of the date the Administrator receives notice
of the Director
=
s
death.
Should Retirement Income Trust Fund assets actually earn a rate of return,
following the date such balance is annuitized, which is less than the rate
of
return used to annuitize the Retirement Income Trust Fund, no additional
contributions to the Retirement Income Trust Fund shall be required by the
Bank
in order to fund the final benefit payment(s) and make up for any shortage
attributable to the less-than-expected rate of return. Should Retirement Income
Trust Fund assets actually earn a rate of return, following the date such
balance is annuitized, which is greater than the rate of return used to
annuitize the Retirement Income Trust Fund, the final benefit payment to the
Director
=
s
Beneficiary shall distribute the excess amounts attributable to the
greater-than-expected rate of return. The Director
=
s
Beneficiary may request to receive the unpaid balance of the
Director
=
s
Retirement Income Trust Fund in a lump sum payment. If a lump sum payment is
requested by the Beneficiary, payment of the balance of the Retirement Income
Trust Fund in such lump sum form shall be made only if the Director
=
s
Beneficiary notifies both the Administrator and trustee
in
writing of such election within ninety (90) days of the Director
=
s
death.
Such lump sum payment shall be made within thirty (30) days of such
notice.
The
Director
=
s
Accrued
Benefit Account (if applicable), measured as of the later of (i) the
Director's death or (ii) the date any final lump sum Phantom Contribution is
recorded in the Accrued Benefit Account pursuant to Subsection 2.1(c), shall
be
annuitized (using the Interest Factor) into monthly installments and shall
be
payable to the Director's Beneficiary for the Payout Period. Such benefit
payments shall commence within thirty (30) days of the date the Administrator
receives notice of the Director
=
s
death,
or if later, within thirty (30) days after any final lump sum Phantom
Contribution is recorded in the Accrued Benefit Account in accordance with
Subsection 2.1(c).
(b)
Alternative
payout option
.
If
(i)
the Director dies while employed by the Bank, and (ii) the Director has made
a
Timely Election to receive a lump sum benefit, this Subsection 4.1(b) shall
be
controlling with respect to pre-retirement death benefits.
The
balance of the Director
=
s
Retirement Income Trust Fund and the Accrued Benefit Account (if applicable),
measured as of the later of (i) the Director
=
s
death,
or (ii) the date any final lump sum Contribution is made pursuant to Subsection
2.1(b), shall be paid to the Director's Beneficiary in a lump sum within thirty
(30) days of the date the Administrator receives notice of the Director's
death.
Notwithstanding the foregoing, unless the Director has made a Timely Election
to
receive a lump sum distribution with respect to the Accrued Benefit Account,
distributions from the Accrued Benefit Account will be paid over the Payout
Period commencing within thirty (30) days of the date the Administrator receives
notice of the Director
=
s
death.
SECTION
V
BENEFIT(S)
IN THE EVENT OF TERMINATION OF SERVICE
PRIOR
TO BENEFIT AGE
5.1
|
Voluntary
or Involuntary Termination of Service Other Than for Cause
.
In the event the Director
=
s
service with the Bank is voluntarily or involuntarily terminated
prior to
Benefit Age,
|
for
any
reason, including a Change in Control, but excluding (i) any disability related
termination for which the Board of Directors has approved early payment of
benefits pursuant to Subsection 6.1, (ii) the Director's pre-retirement death,
which shall be covered in Section IV, (iii) or termination for Cause, which
shall be covered in Subsection 5.2, the Director (or his Beneficiary) shall
be
entitled to receive benefits in accordance with this Subsection 5.1. Payments
of
benefits pursuant to this Subsection 5.1 shall be made in accordance with
Subsection 5.1(a) or 5.1(b) below, as applicable.
(a)
Normal
form of payment
.
(1)
Director
Lives Until Benefit Age
If
(i)
after such termination, the Director lives until attaining his Benefit Age,
and
(ii) the Director has not made a Timely Election to receive a lump sum benefit,
this Subsection 5.1(a)(1) shall be controlling with respect to retirement
benefits.
The
Retirement Income Trust Fund, measured as of the Director's Benefit Age, shall
be annuitized (using the Interest Factor) into monthly installments and shall
be
payable for the Payout Period. Such payments shall commence on the Director's
Benefit Eligibility Date. Should Retirement Income Trust Fund assets actually
earn a rate of return, following the date such balance is annuitized, which
is
less than the rate of return used to annuitize the Retirement Income Trust
Fund,
no additional contributions to the Retirement Income Trust Fund shall be
required by the Bank in order to fund the final benefit payment(s) and make
up
for any shortage attributable to the less-than-expected rate of return. Should
Retirement Income Trust Fund assets actually earn a rate of return, following
the date such balance is annuitized, which is greater than the rate of return
used to annuitize the Retirement Income Trust Fund, the final benefit payment
to
the Director (or his Beneficiary) shall distribute the excess amounts
attributable to the greater-than-expected rate of return. The Director may
at
anytime during the Payout Period request to receive the unpaid balance of his
Retirement Income Trust Fund in a lump sum payment. If such a lump sum payment
is requested by the Director, payment of the balance of the Retirement Income
Trust Fund in such lump sum form shall be made only if the Director gives notice
to both the Administrator and trustee in writing. Such lump sum payment shall
be
payable within thirty (30) days of such notice. In the event the Director dies
at any time after attaining his Benefit Age, but prior to commencement or
completion of all monthly payments due and owing hereunder, (i)
the
trustee of the Retirement Income Trust Fund shall pay to the Director's
Beneficiary the monthly installments (or a continuation of the monthly
installments if they have already commenced) for the balance of months remaining
in the Payout Period, or (ii) the Director's Beneficiary may request to receive
the unpaid balance of the Director's Retirement Income Trust Fund in a lump
sum
payment. If a lump sum payment is requested by the Beneficiary, payment of
the
balance of the Retirement Income Trust Fund in such lump sum form shall be
made
only if the Director's Beneficiary notifies both the Administrator and trustee
in writing of such election within ninety (90) days of the Director's death.
Such lump sum payment shall be made within thirty (30) days of such
notice.
The
Director
=
s
Accrued
Benefit Account (if applicable), measured as of the Director
=
s
Benefit
Age, shall be annuitized (using the Interest Factor) into monthly installments
and shall be payable for the Payout Period. Such benefit payments shall commence
on the Director
=
s
Benefit
Eligibility Date. In the event the Director dies at any time after attaining
his
Benefit Age, but prior to commencement or completion of all the payments due
and
owing hereunder, (i) the Bank shall pay to the Director
=
s
Beneficiary the same monthly installments (or a continuation of such monthly
installments if they have already commenced) for the balance of months remaining
in the Payout Period.
(2)
Director
Dies Prior to Benefit Age
If
(i)
after such termination, the Director dies prior to attaining his Benefit Age,
and (ii) the Director has not made a Timely Election to receive a lump sum
benefit, this Subsection 5.1(a)(2) shall be controlling with respect to
retirement benefits.
The
Retirement Income Trust Fund, measured as of the date of the Director's death,
shall be annuitized (using the Interest Factor) into monthly installments and
shall be payable for the Payout Period. Such payments shall commence within
thirty (30) days of the date the Administrator receives notice of the Director's
death. Should Retirement Income Trust Fund assets actually earn a rate of
return, following the date such balance is annuitized, which is less than the
rate of return used to annuitize the Retirement Income Trust Fund, no additional
contributions to the Retirement Income Trust Fund shall be required by the
Bank
in order to fund the final benefit payment(s) and make up for any shortage
attributable to the less-than-expected
rate
of
return. Should Retirement Income Trust Fund assets actually earn a rate of
return, following the date such balance is annuitized, which is greater than
the
rate of return used to annuitize the Retirement Income Trust Fund, the final
benefit payment to the Director's Beneficiary shall distribute the excess
amounts attributable to the greater-than-expected rate of return. The Director's
Beneficiary may request to receive the unpaid balance of the Director's
Retirement Income Trust Fund in the form of a lump sum payment. If a lump sum
payment is requested by the Beneficiary, payment of the balance of the
Retirement Income Trust Fund in such lump sum form shall be made only if the
Director's Beneficiary notifies both the Administrator and trustee in writing
of
such election within ninety (90) days of the Director's death. Such lump sum
payment shall be made within thirty (30) days of such notice.
The
Director
=
s
Accrued
Benefit Account (if applicable), measured as of the date of the
Director
=
s
death,
shall be annuitized (using the Interest Factor) into monthly installments and
shall be payable for the Payout Period. Such payments shall commence within
thirty (30) days of the date the Administrator receives notice of the
Director
=
s
death.
(b)
Alternative
Payout Option
.
(1)
Director
Lives Until Benefit Age
If
(i)
after such termination, the Director lives until attaining his Benefit Age,
and
(ii) the Director has made a Timely Election to receive a lump sum benefit,
this
Subsection 5.1(b)(1) shall be controlling with respect to retirement benefits.
The
balance of the Retirement Income Trust Fund and the Accrued Benefit Account
(if
applicable), measured as of the Director's Benefit Age, shall be paid to the
Director in a lump sum on his Benefit Eligibility Date. In the event the
Director dies after becoming eligible for such payment (upon attainment of
his
Benefit Age), but before the actual payment is made, his Beneficiary shall
be
entitled to receive the lump sum benefit in accordance with this Subsection
5.1(b)(1) within thirty (30) days of the date the Administrator receives notice
of the Director's death.
Notwithstanding the foregoing, unless the Director has made a Timely Election
to
receive a lump sum distribution from the Accrued Benefit Account, distributions
from the Accrued Benefit Account will be paid over the Payout Period, commencing
within thirty (30) days of the Director’s Benefit Age.
(2)
Director
Dies Prior to Benefit Age
If
(i)
after such termination, the Director dies prior to attaining his Benefit Age,
and (ii) the Director has made a Timely Election to receive a lump sum benefit,
this Subsection 5.1(b)(2) shall be controlling with respect to pre-retirement
death benefits.
The
balance of the Retirement Income Trust Fund and the Accrued Benefit Account
(if
applicable), measured as of the date of the Director's death, shall be paid
to
the Director's Beneficiary within thirty (30) days of the date the Administrator
receives notice of the Director's death.
Notwithstanding the foregoing, unless the Director has made a Timely Election
to
receive a lump sum distribution with respect to the Accrued Benefit Account,
distributions from the Accrued Benefit Account will be paid over the Payout
Period commencing within thirty (30) days of the date the Administrator receives
notice of the Director
=
s
death.
5.2
|
Termination
For Cause
.
|
If
the
Director is terminated for Cause, all benefits under this Agreement, other
than
those which can be paid from previous Contributions to the Retirement Income
Trust Fund (and earnings on such Contributions), shall be forfeited.
Furthermore, no further Contributions (or Phantom Contributions, as applicable)
shall be required of the Bank for the year in which such termination for Cause
occurs (if not yet made). The Director shall be entitled to receive a benefit
in
accordance with this Subsection 5.2.
The
balance of the Director
=
s
Retirement Income Trust Fund shall be paid to the Director in a lump sum on
his
Benefit Eligibility Date. In the event the Director dies prior to his Benefit
Eligibility Date, his Beneficiary shall be entitled to receive the balance
of
the Director's Retirement Income Trust Fund in a lump sum within thirty (30)
days of the date the Administrator receives notice of the Director's death.
SECTION
VI
OTHER
BENEFITS
6.1
|
(a)
Disability
Benefit
.
|
If
the
Director's service is terminated prior to Benefit Age due to a disability that
meets the criteria set forth below, the Director may request to receive the
Disability Benefit in lieu of the retirement benefit(s) available pursuant
to
Section 5.1 (which is (are) not available prior to the Director's Benefit
Eligibility Date).
In
any
instance in which it is determined by a duly licensed, independent physician
selected by the Bank, that the Director
is
“disabled,”
the
Director shall be entitled to receive a lump sum Disability Benefit
hereunder.
For
these
purposes, a distribution from the Accrued Benefit Account (but not the
Retirement Income Trust Fund) shall require a determination that the Director
is
“disabled”
within the meaning of proposed Treasury Regulation Section
1.409A-3(g)(4).
The
Director shall be entitled to the following lump sum benefit(s) in lieu of
any
benefits under Subsection 5.1. The lump sum benefit(s) to which the Director
is
entitled shall include: (i) the balance of the Retirement Income Trust Fund,
plus (ii) the balance of the Accrued Benefit Account (if applicable). The
benefit(s) shall be paid within thirty (30) days following the date of the
Director's final disability determination. In the event the Director dies after
becoming eligible for such payment(s) but before the actual payment(s) is (are)
made, his Beneficiary shall be entitled to receive the benefit(s) provided
for
in this Subsection 6.1(a) within thirty (30) days of the date the Administrator
receives notice of the Director's death.
(b)
Disability
Benefit - Supplemental
.
Furthermore,
if Board of Director approval is obtained within thirty (30) days of the
Director
=
s
death,
the Bank shall make a direct, lump sum payment to the Director's Beneficiary
in
an amount equal to the sum of all remaining Contributions (or Phantom
Contributions) set forth in Exhibit A, but not required pursuant to Subsection
2.1(b) (or 2.1(c)) due to the Director's disability-related termination. Such
lump sum payment, if approved by the Board of Directors, shall be payable to
the
Director
=
s
Beneficiary within thirty (30) days of such Board of Director
approval.
6.2
|
Additional
Death Benefit - Burial Expense
.
|
Upon
the
Director
=
s
death,
the Director
=
s
Beneficiary shall also be entitled to receive a one-time lump sum death benefit
in the amount of Ten Thousand Dollars ($10,000). This benefit shall be paid
directly from the Bank to the Beneficiary and shall be provided specifically
for
the purpose of providing payment for burial and/or funeral expenses of the
Director. Such death benefit shall be payable within thirty (30) days of the
date the Administrator receives notice of the Director
=
s
death.
The Director
=
s
Beneficiary shall not be entitled to such benefit if the Director is terminated
for Cause prior to death.
SECTION
VII
BENEFICIARY
DESIGNATION
The
Director shall make an initial designation of primary and secondary
Beneficiaries upon execution of this Agreement and shall have the right to
change such designation, at any subsequent time, by submitting to (i) the
Administrator,
and
(ii) the
trustee of the Retirement Income Trust Fund, in substantially the form attached
as Exhibit B to this Agreement, a written designation of primary and secondary
Beneficiaries. Any Beneficiary designation made subsequent to execution of
this
Agreement shall become effective only when receipt thereof is acknowledged
in
writing by the Administrator.
SECTION
VIII
DIRECTOR'S
RIGHT TO ASSETS
The
rights of the Director, any Beneficiary, or any other person claiming through
the Director under this Agreement, shall be solely those of an unsecured general
creditor of the Bank. The Director, the Beneficiary, or any other person
claiming through the Director, shall only have the right to receive from the
Bank those payments or amounts so specified under this Agreement. The Director
agrees that he, his Beneficiary, or any other person claiming through him shall
have no rights or interests whatsoever in any asset of the Bank, including
any
insurance policies or contracts which the Bank may possess or obtain to
informally fund this Agreement. Any asset used or acquired by the Bank in
connection with the liabilities it has assumed under this Agreement shall not
be
deemed to be held under any trust for the benefit of the Director or his
Beneficiaries, unless such asset is contained in the rabbi trust described
in
Section
XII of this Agreement. Any such asset shall be and remain a general, unpledged
asset of the Bank in the event of the Bank
=
s
insolvency.
SECTION
IX
RESTRICTIONS
UPON FUNDING
The
Bank
shall have no obligation to set aside, earmark or entrust any fund or money
with
which to pay its obligations under this Agreement, other than those
Contributions required to be made to the Retirement Income Trust Fund. The
Director, his Beneficiaries or any successor in interest to him shall be and
remain simply a general unsecured creditor of the Bank in the same manner as
any
other creditor having a general claim for matured and unpaid compensation.
The
Bank reserves the absolute right in its sole discretion to either purchase
assets to meet its obligations undertaken by this Agreement or to refrain from
the same and to determine the extent, nature, and method of such asset
purchases. Should the Bank decide to purchase assets such as life insurance,
mutual funds, disability policies or annuities, the Bank reserves the absolute
right, in its sole discretion, to replace such assets from time to time or
to
terminate its investment in such assets at any time, in whole or in part. At
no
time shall the Director be deemed to have any lien, right, title or interest
in
or to any specific investment or to any assets of the Bank. If the Bank elects
to invest in a life insurance, disability or annuity policy upon the life of
the
Director, then the Director shall assist the Bank by freely submitting to a
physical examination and by supplying such additional information necessary
to
obtain such insurance or annuities.
SECTION
X
ACT
PROVISIONS
10.1
|
Named
Fiduciary and Administrator
.
The Bank, as Administrator, shall be the Named Fiduciary of this
Agreement. As Administrator, the Bank shall be responsible for the
management, control and administration of the Agreement as established
herein. The Administrator may delegate to others certain aspects
of the
management and operational responsibilities of the Agreement, including
the employment of advisors and the delegation of ministerial duties
to
qualified individuals.
|
10.2
|
Claims
Procedure and Arbitration
.
In the event that benefits under this Agreement are not paid to the
Director (or to his Beneficiary in the case of the Director's death)
and
such claimants feel they are entitled to receive such benefits, then
a
written claim must be made to the Administrator within sixty (60)
days
from the date payments are refused. The Administrator shall review
the
written claim and, if the claim is denied, in whole or in part, it
shall
provide in writing, within ninety (90) days of receipt of such claim,
its
specific reasons for such denial, reference to the provisions of
this
Agreement upon which the denial is based, and any additional material
or
information necessary to perfect the claim. Such writing by the
Administrator shall further indicate the additional steps which must
be
undertaken by claimants if an additional review of the claim denial
is
desired.
|
If
claimants desire a second review, they shall notify the Administrator in writing
within sixty (60) days of the first claim denial. Claimants may review this
Agreement or any documents relating thereto and submit any issues and comments,
in writing, they may feel appropriate. In its sole discretion, the Administrator
shall then review the second claim and provide a written decision within sixty
(60) days of receipt of such claim. This decision shall state the specific
reasons for the decision and shall include reference to specific provisions
of
this Agreement upon which the decision is based.
If
claimants continue to dispute the benefit denial based upon completed
performance of this Plan and the Agreement or the meaning and effect of the
terms and conditions thereof, then claimants may submit the dispute to
mediation, administered by the American Arbitration Association (
A
AAA
@
)
(or a
mediator selected by the parties) in accordance with the AAA
=
s
Commercial Mediation Rules. If mediation is not successful in resolving the
dispute, it shall be settled by arbitration administered by the AAA under its
Commercial Arbitration Rules, and judgment on the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction
thereof.
SECTION
XI
MISCELLANEOUS
11.1
|
No
Effect on Employment Rights
.
Nothing contained herein will confer upon the Director the right
to be
retained in the service of the Bank nor limit the right of the Bank
to
discharge or otherwise deal with the Director without regard to the
existence of the Agreement.
|
11.2
|
Governing
Law
.
The Agreement is established under, and will be construed according
to,
the laws of the state of New Jersey, to the extent such laws are
not
preempted by the Act or other applicable federal law and valid regulations
published thereunder.
|
11.3
|
Construction
and Severability
.
The funding of and payment of benefits from the Accrued Benefit Account
is
deemed to be a nonqualified deferred compensation arrangement within
the
meaning of Code Section 409A. To the extent that the funding of a
benefit
under the Retirement Income Trust Fund under this Agreement is deemed
to
be a nonqualified deferred compensation arrangement, then that part
of
this Agreement shall also be operated, administered and construed
consistent with Code Section 409A. To the extent that a provision
of the
Agreement fails to comply with Code Section 409A and a construction
consistent with Code Section 409A is not possible, such provision
shall be
void
ab
initio
.
In addition, the Agreement shall be subject to amendment, with or
without
advance notice to Director and other interested parties, and on a
prospective or retroactive basis, including but not limited to amendment
in a manner that adversely affects the rights of Directors and other
interested parties, to the extent necessary to effect compliance
with Code
Section 409A. In the event that any of the provisions of this Agreement
or
portion thereof, are held to be inoperative or invalid by any court
of
competent jurisdiction, then: (1) insofar as is reasonable, effect
will be
given to the intent manifested in the provisions held invalid or
inoperative, and (2) the validity and enforceability of the remaining
provisions will not be affected
thereby.
|
11.4
|
Treatment
as a Director
.
For purposes of this Agreement, it is assumed that the Director is
treated
as a “director” in accordance with Proposed Treasury Regulation Section
1.409A-1(h)(2). If under future guidance or rulings promulgated by
the
Internal Revenue Service or Treasury Department under Code Section
409A it
is determined that the Director should properly be
|
treated
as an “employee” for purposes of this Agreement, distributions to the Director
due to Separation from Service will be made in accordance with the provisions
of
Proposed Treasury Regulation Section 1.409A-1(h)(1).
11.5
|
Incapacity
of Recipient
.
In the event the Director is declared incompetent and a conservator
or
other person legally charged with the care of his person or Estate
is
appointed, any benefits under the Agreement to which such Director
is
entitled shall be paid to such conservator or other person legally
charged
with the care of his person or Estate.
|
11.6
|
Unclaimed
Benefit
.
The Director shall keep the Bank informed of his current address
and the
current address of his Beneficiaries. The Bank shall not be obligated
to
search for the whereabouts of any person. If the location of the
Director
is not made known to the Bank as of the date upon which any payment
of any
benefits from the Accrued Benefit Account may first be made, the
Bank
shall delay payment of the Director's benefit payment(s) until the
location of the Director is made known to the Bank; however, the
Bank
shall only be obligated to hold such benefit payment(s) for the Director
until the expiration of thirty-six (36) months.
|
11.7
|
Limitations
on Liability
.
Notwithstanding any of the preceding provisions of the Agreement,
no
individual acting as an employee or agent of the Bank, or as a member
of
the Board of Directors shall be personally liable to the Director
or any
other person for any claim, loss, liability or expense incurred in
connection with the Agreement.
|
11.8
|
Gender
.
Whenever in this Agreement words are used in the masculine or neuter
gender, they shall be read and construed as in the masculine, feminine
or
neuter gender, whenever they should so
apply.
|
11.9
|
Effect
on Other Corporate Benefit Agreements
.
Nothing contained in this Agreement shall affect the right of the
Director
to participate in or be covered by any qualified or non-qualified
pension,
profit sharing, group, bonus or other supplemental compensation or
fringe
benefit agreement constituting a part of the Bank's existing or future
compensation structure.
|
11.10
|
Suicide
.
Notwithstanding anything to the contrary in this Agreement, if the
Director's death results from suicide, whether sane or insane, within
twenty-six (26) months after execution of this
|
Agreement,
all further Contributions to the Retirement Income Trust Fund (or Phantom
Contributions recorded in the Accrued Benefit Account) shall thereupon cease,
and no Contribution (or Phantom Contribution) shall be made by the Bank to
the
Retirement Income Trust Fund (or recorded in the Accrued Benefit Account) in
the
year such death resulting from suicide occurs (if not yet made). All benefits
other than those available from previous Contributions to the Retirement Income
Trust Fund under this Agreement shall be forfeited, and this Agreement shall
become null and void. The balance of the Retirement Income Trust Fund, measured
as of the Director's date of death, shall be paid to the Beneficiary within
thirty (30) days of the date the Administrator receives notice of the Director's
death.
11.11
|
Inurement
.
This Agreement shall be binding upon and shall inure to the benefit
of the
Bank, its successors and assigns, and the Director, his successors,
heirs,
executors, administrators, and
Beneficiaries.
|
11.12
|
Headings
.
Headings and sub-headings in this Agreement are inserted for reference
and
convenience only and shall not be deemed a part of this
Agreement.
|
11.13
|
Establishment
of a Rabbi Trust.
The Bank shall establish a rabbi trust into which the Bank shall
contribute assets which shall be held therein, subject to the claims
of
the Bank's creditors in the event of the Bank's "Insolvency" (as
defined
in such rabbi trust agreement), until the contributed assets are
paid to
the Director and/or his Beneficiary in such manner and at such times
as
specified in this Agreement. It is the intention of the Bank that
the
contribution or contributions to the rabbi trust shall provide the
Bank
with a source of funds to assist it in meeting the liabilities of
this
Agreement.
|
11.14
|
Source
of Payments
.
All payments provided in this Agreement shall be timely paid in cash
or
check from the general funds of the Bank or the assets of the rabbi
trust,
to the extent made from the Accrued Benefit Account.
|
SECTION
XII
AMENDMENT/PLAN
TERMINATION
12.1
|
Amendment
or Plan Termination
.
The Bank intends this Agreement to be permanent,
but
reserves the right to amend or terminate the Agreement when such
amendment
or termination is required due to objection to the plan by the Bank's
regulatory authorities.
The
Agreement may not be amended or terminated without the express written
consent of the parties. Any amendment or termination of the Agreement
shall be made pursuant to a resolution of the Board of Directors
of the
Bank and shall be effective as of the date of such resolution. No
amendment or termination of the Agreement shall directly or indirectly
deprive the Director of all or any portion of the Director's Retirement
Income Trust Fund (and Accrued Benefit Account, if applicable) as
of the
effective date of the resolution amending or terminating the
Agreement.
|
Notwithstanding
the foregoing, if an individual Director’s agreement is subject to Code Section
409A, :the Bank may terminate this Agreement only under the following
circumstances and conditions:
|
(a)
|
The
Board of Directors may terminate the Agreement within 12 months of
a
corporate dissolution taxed under Code Section 331, or with approval
of a
bankruptcy court pursuant to 11 U.S.C. §503(b)(1)(A), provided that the
amounts deferred under the Agreement are included in the Director’s gross
income in the latest of (i) the calendar year in which the Agreement
terminates; (ii) the calendar year in which the amount is no longer
subject to a substantial risk of forfeiture; or (iii) the first calendar
year in which the payment is administratively
practicable.
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(b)
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The
Board of Directors may terminate the Agreement within the 30 days
preceding a Change in Control (but not following a Change in Control),
provided that the Agreement shall only be treated as terminated if
all
substantially similar arrangements sponsored by the Bank are terminated
so
that the Director and all participants under substantially similar
arrangements are required to receive all amounts of compensation
deferred
under the terminated arrangements within 12 months of the date of
the
termination of the
arrangements.
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(c)
|
The
Board of Directors may terminate the Agreement provided that (i)
all
arrangements sponsored by the Bank that would be aggregated with
this
Agreement under Proposed Regulation Section 1.409A-1(c) if the Director
covered by this Agreement was also covered by any of those other
arrangements are also terminated; (ii) no payments other than payments
that would be payable under the terms of the arrangement if the
termination had not occurred are made within 12 months of the termination
of the arrangement; (iii) all payments are made within 24 months
of the
termination of the arrangements; and (iv) the Bank does not adopt
a new
arrangement that would be aggregated with any terminated arrangement
under
Proposed Regulation Section 1.409A-1(c) if the Director participated
in
both arrangements, at any time within five years following the date
of
termination of the arrangement.
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12.2
|
Director's
Right to Payment Following Plan Termination
.
In the event of a termination of the Agreement, the Director shall
be
entitled to the balance, if any, of his Retirement Income Trust Fund
(and
Accrued Benefit Account, if applicable). However, if such termination
is
done in anticipation of or pursuant to a
A
Change
in Control,
@
such balance(s) shall include the final Contribution (or final Phantom
Contribution) made (or recorded) pursuant to Subsection 2.1(b)(2)
(or
2.1(c)(2)). Payment of the balance(s) of the Director's Retirement
Income
Trust Fund (and Accrued Benefit Account, if applicable) shall not
be
dependent upon his continuation of service with the Bank following
the
termination date of the Agreement. Payment of the balance(s) of the
Director's Retirement Income Trust Fund (and Accrued Benefit Account,
if
applicable) shall be made in a lump sum within thirty (30) days of
the
date of termination of the
Agreement.
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SECTION
XIII
EXECUTION
13.1
|
This
Agreement and the Thomas Lankey Grantor Trust Agreement set forth
the
entire understanding of the parties hereto with respect to the
transactions contemplated hereby, and any previous agreements or
understandings between the parties hereto regarding the subject matter
hereof are merged into and superseded by this Agreement and the Thomas
Lankey Grantor Trust Agreement.
|
13.2
|
This
Agreement shall be executed in triplicate, each copy of which, when
so
executed and delivered, shall be an original, but all three copies
shall
together constitute one and the same
instrument.
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[Remainder
of Page
Intentionally
Left Blank]
IN
WITNESS WHEREOF, the Bank and the Director have caused this Agreement to be
executed on the day and date first above written.
ATTEST:
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MAGYAR
BANK:
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/s/
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By:
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/s/
Elizabeth E. Hance
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Title:
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President/CEO
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WITNESS:
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DIRECTOR:
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/s/
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/s/
Thomas Lankey
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CONDITIONS,
ASSUMPTIONS,
AND
SCHEDULE
OF CONTRIBUTIONS AND PHANTOM CONTRIBUTIONS
1.
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Interest
Factor - for purposes of:
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a.
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the
Accrued Benefit Account - shall be six percent (6%) per annum, compounded
monthly.
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b.
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the
Elective Contributions - shall be ten percent (10%) per annum, compounded
monthly.
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c.
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the
Emeritus Contributions - shall be six percent (6%) per annum, compounded
monthly.
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d.
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the
Retirement Income Trust Fund - for purposes of annuitizing the balance
of
the Retirement Income Trust Fund over the Payout Period, the trustee
of
the Thomas Lankey Grantor Trust shall exercise discretion in selecting
the
appropriate rate given the nature of the investments contained in
the
Retirement Income Trust Fund and the expected return associated with
the
investments. For these purposes, if the trustee of the Retirement
Income
Trust Fund has purchased a life insurance policy, the trustee shall
have
the discretion to determine the portion of the cash value of such
policy
available for purposes of annuitizing the Retirement Income Trust
Fund, in
accordance with Section 2.3 of the Agreement.
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2.
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The
amount of the annual Emeritus Contributions (or Phantom Contributions)
to
the Retirement Income Trust Fund (or Accrued Benefit Account) has
been
based on the annual interest-adjusted accounting accruals which would
be
required of the Bank through the earlier of the Director
=
s
death or Benefit Age, (i) pursuant to APB Opinion No. 12, as amended
by
FAS 106 and (ii) assuming a discount rate equal to six percent (6%)
per
annum, in order to provide a portion of the unfunded, non-qualified
Supplemental Retirement Income Benefit. The Emeritus Contributions
are
calculated to support a benefit based upon
60%
of
the Director’s total board fees, committee fees and/or retainer in the
twelve months prior to Director’s Benefit Eligibility Date.
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3.
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The
amount of the annual Elective Contributions (or Phantom Contributions)
to
the Retirement Income Trust Fund (or Accrued Benefit Account) has
been
based on the annual interest-adjusted accounting accruals which would
be
required of the Bank through the earlier of the Director’s death or
Benefit Age, (i) pursuant to APB Opinion No. 12, as amended by FAS
106 and
(ii) assuming a discount rate equal to ten percent (10%) per annum,
in
order to provide a portion of the unfunded, non-qualified Supplemental
Retirement Income Benefit. Director has elected a monthly, pre-tax
deferral of board fees, committee fess and/or retainer in the amount
of
$500
per month ending January 2006.
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4.
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For
purposes of this Agreement, and benefit calculations under this Agreement,
future increases in Board Fees after 2006 will be limited to the
actual
increase or four percent (4%), whichever is
less.
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Exhibit
A
5.
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Supplemental
Retirement Income Benefit means an actuarially determined annual
amount
equal to Seventy-One Thousand and Thirteen Dollars ($71,013) at age
65 if
paid entirely from the Accrued Benefit Account or Forty-Five Thousand
Four
Hundred and Forty-Eight Dollars ($45,448) at age 65 if paid from
the
Retirement Income Trust Fund.
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The
Supplemental Retirement Income Benefit:
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!
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the
definition of Supplemental Retirement Income Benefit has been incorporated
into the Agreement for the sole purpose of actuarially establishing
the
amount of annual Contributions (or Phantom Contributions) to the
Retirement Income Trust Fund (or Accrued Benefit Account). The amount
of
any actual retirement, pre-retirement or disability benefit payable
pursuant to the Agreement will be a function of (i) the amount and
timing
of Contributions (or Phantom Contributions) to the Retirement Income
Trust
Fund (or Accrued Benefit Account) and (ii) the actual investment
experience of such Contributions (or the monthly compounding rate
of
Phantom Contributions).
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6.
Schedule
of Annual Gross Contributions/Phantom Contributions
Plan
Year
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Elective
Contributions
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Emeritus
Contributions
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Total
Contributions
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2004
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$6,335
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$19,486
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$25,821
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2005
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6,999
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7,239
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14,238
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2006
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1,948
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10,203
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12,151
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2007
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1,600
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11,359
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12,959
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2008
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1,768
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12,620
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14,388
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2009
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1,953
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13,993
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15,946
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2010
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2,157
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15,488
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17,645
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2011
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2,383
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17,113
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19,496
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2012
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2,633
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18,881
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21,514
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2013
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2,908
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20,801
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23,709
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2014
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3,213
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22,886
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26,099
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2015
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3,549
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25,149
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28,698
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2016
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3,921
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27,604
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31,525
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2017
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4,332
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30,267
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34,599
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2018
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4,785
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33,153
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37,938
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2019
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5,286
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36,279
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41,565
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2020
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5,840
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39,666
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45,506
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2021
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6,451
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43,332
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49,783
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2022
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7,127
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47,299
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54,426
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2023
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7,873
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51,591
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59,464
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2024
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8,698
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56,233
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64,931
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2025
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9,367
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42,777
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52,144
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Exhibit
A
- Cont
=
d.
RESTATED
DIRECTOR
SUPPLEMENTAL RETIREMENT INCOME and
DEFERRED
COMPENSATION AGREEMENT
BENEFICIARY
DESIGNATION
The
Director, under the terms of the Restated Director Supplemental Retirement
Income and Deferred Compensation Agreement executed by the Bank, dated the
1st
day of February, 2004, as amended and restated effective January 1, 2006, hereby
designates the following Beneficiary(ies) to receive any guaranteed payments
or
death benefits under such Agreement, following his death:
PRIMARY
BENEFICIARY:
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SECONDARY
BENEFICIARY:
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This
Beneficiary Designation hereby revokes any prior Beneficiary Designation which
may have been in effect.
Such
Beneficiary Designation is revocable.
DATE:
______________________, 20__
Exhibit
B
RESTATED
DIRECTOR
SUPPLEMENTAL RETIREMENT INCOME and
DEFERRED
COMPENSATION AGREEMENT
NOTICE
OF ELECTION TO CHANGE FORM OF PAYMENT
I
hereby
give notice of my election to change the form of payment of my Supplemental
Retirement Income Benefit, as specified below.
I
understand that such notice,
in
order to be effective, must be submitted in accordance with the time
requirements described in Subsection 1.27 of my Restated Director Supplemental
Retirement Income and Deferred Compensation Agreement.
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G
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I
hereby elect to change the form of payment of my benefits from monthly
installments throughout my Payout Period to a lump sum benefit
payment.
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G
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I
hereby elect to change the form of payment of my benefits from a
lump sum
benefit payment to monthly installments throughout my Payout Period.
Such
election hereby revokes my previous notice of election to receive
a lump
sum form of benefit payments.
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DIRECTOR
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DATE
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ACKNOWLEDGED
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BY:
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TITLE:
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DATE
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Exhibit
C
RESTATED
DIRECTOR
SUPPLEMENTAL RETIREMENT INCOME and
DEFERRED
COMPENSATION AGREEMENT
NOTICE
OF ADJUSTMENT OF ELECTIVE CONTRIBUTION
I
hereby
give notice of my election to adjust the amount of my Elective Contribution
in
accordance with my Restated Director Supplemental Retirement Income and Deferred
Compensation Agreement, dated the 1
st
day of
February, 2004, as amended and restated effective January 1, 2006. This notice
is submitted thirty (30) days prior to January 1st, and shall become effective
January 1st, as specified below.
Adjust
deferral as of:
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January
1st, 2___
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Previous
Deferral Amount
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____________
per month
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New
Deferral Amount
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____________
per month
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(to
discontinue deferral, enter $0)
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DIRECTOR
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DATE
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ACKNOWLEDGED
BY
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TITLE
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DATE
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Exhibit
D
Exhibit
10.10
RESTATED
DIRECTOR
SUPPLEMENTAL RETIREMENT
INCOME
and DEFERRED COMPENSATION AGREEMENT
FOR
ANDREW HODULIK
MAGYAR
BANK
New
Brunswick, New Jersey
January
1, 2006
Financial
Institution Consulting Corporation
700
Colonial Road, Suite 102
Memphis,
Tennessee 38117
WATS:
1-800-873-0089
FAX:
(901) 684-7414
(901)
684-7400
RESTATED
DIRECTOR
SUPPLEMENTAL RETIREMENT
INCOME
and DEFERRED COMPENSATION AGREEMENT
FOR
ANDREW HODULIK
This
Restated Director Supplemental Retirement Income and Deferred Compensation
Agreement for Andrew Hodulik (the "Agreement"), effective as of the 1st day
of
January, 2006, amends and restates the Director Supplemental Retirement Income
and Deferred Compensation Agreement for Andrew Hodulik dated February 1, 2004,
and formalizes the understanding by and between MAGYAR BANK (the "Bank"), a
state chartered savings bank having its principal place of business in New
Brunswick, New Jersey, and ANDREW HODULIK (hereinafter referred to as
"Director"). All prior non-qualified Director deferred compensation agreements,
including any and all Joinder Agreements, with respect to the Director and
MAGYAR BANK, are hereby superseded and replaced by this Agreement
W
I T N E S S E T H :
WHEREAS
,
the
Director serves the Bank as a member of the board; and
WHEREAS
,
the
Bank recognizes the valuable services heretofore performed by the Director
and
wishes to encourage his continued service; and
WHEREAS
,
the
Director wishes to be assured that the Director will be entitled to a certain
amount of additional compensation for some definite period of time from and
after retirement from active service with the Bank or other termination of
service and wishes to provide his beneficiary with benefits from and after
death; and
WHEREAS
,
the
Bank and the Director wish to provide the terms and conditions upon which the
Bank shall pay such additional compensation to the Director after retirement
or
other termination of service and/or death benefits to his beneficiary after
death; and
WHEREAS
,
the
Bank has adopted this Director Supplemental Retirement Income and Deferred
Compensation Agreement which controls all issues relating to benefits as
described herein; and
WHEREAS
,
Section
409A of the Internal Revenue Code of 1986 (“Code”), as amended, requires that
certain deferred compensation arrangements comply with its terms or subject
the
recipient of the compensation to potential taxes and penalties; and
WHEREAS
,
the
Bank desires to amend and restate the Agreement to comply with Code Section
409A
and any Treasury Regulations promulgated thereunder; and
WHEREAS
,
the
Board of Directors of the Bank has conditionally approved
the
amendment and restatement of the Agreement, subject to the approval of the
New
Jersey Department of Banking and Insurance.
NOW,
THEREFORE,
in
consideration of the premises and of the mutual promises herein contained,
the
Bank and the Director agree as follows:
SECTION
I
DEFINITIONS
When
used
herein, the following words and phrases shall have the meanings below unless
the
context clearly indicates otherwise:
1.1
|
"Accrued
Benefit Account" shall be
represented
by
the bookkeeping entries required to record the Director
=
s
(i) Phantom Contributions plus (ii) accrued interest, equal to the
Interest Factor, earned to-date on such amounts. However, neither
the
existence of such bookkeeping entries nor the Accrued Benefit Account
itself shall be deemed to create either a trust of any kind, or a
fiduciary relationship between the Bank and the Director or any
Beneficiary.
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1.2
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"Act"
means the Employee Retirement Income Security Act of 1974, as amended
from
time to time.
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1.3
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A
Administrator
@
means the Bank.
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1.4
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"Bank"
means MAGYAR BANK and any successor
thereto.
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1.5
|
"Beneficiary"
means the person or persons (and their heirs) designated as Beneficiary
in
Exhibit B of this Agreement to whom the deceased Director
=
s
benefits are payable. If no Beneficiary is so designated, then the
Director
=
s
Spouse, if living, will be deemed the Beneficiary. If the
Director
=
s
Spouse is not living, then the Children of the Director will be deemed
the
Beneficiaries and will take on a per stirpes basis. If there are
no
Children, then the Estate of the Director will be deemed the
Beneficiary.
|
1.6
|
"Benefit
Age" means the later of: (i) the Director's sixty-fifth (65th) birthday
or
(ii) the actual date the Director
=
s
full-time service with the Bank terminates.
|
1.7
|
"Benefit
Eligibility Date" means the date on which the Director is entitled
to
receive any benefit(s) pursuant to Section(s) III or V of this Agreement.
It shall be the first day of the month following both the attainment
of
the Directors’ Benefit Age and his actual retirement from the Board of
Directors.
|
1.8
|
"Board
of Directors" means the board of directors of the
Bank.
|
1.9
|
"Cause"
means termination of the Director
=
s
service on the Board of Directors due to: (i) actions or inactions
which
constitute a breach of the bylaws of the Bank or (ii) the
Director
=
s
personal dishonesty, willful misconduct, willful malfeasance, breach
of
fiduciary duty involving personal profit, intentional failure to
perform
stated duties, willful violation of any law, rule, regulation (other
than
traffic violations or similar offenses), or final cease-and-desist
order,
material breach of any provision of this Plan, or gross negligence
in
matters of material importance to the
Bank.
|
1.10
|
“Change
in Control” shall mean a change in the ownership of the Bank or Company
under paragraph (a) below, a change in effective control of the Bank
or
Company under paragraph (b) below, or a change in the ownership of
a
substantial portion of the assets of the Bank or Company under paragraph
(c) below. For all purposes hereunder, the definition of Change in
Control
shall be construed to be consistent with the requirements of Proposed
Treasury Regulation Section 1.409A-3(g), except to the extent that
such
proposed regulations are superseded by subsequent
guidance.
|
For
this
subsection “persons acting as a group” is defined as follows; Persons will be
considered to be acting as a group if they are owners of a corporation that
enters into a merger, consolidation, purchase or acquisition of stock, or
similar business transaction with the corporation. Persons will not be
considered to be acting as a group solely because they purchase or own stock
of
the same corporation at the same time, or as a result of the same public
offering. If a person, including an entity, owns stock in both corporations
that
enter into a merger, consolidation, purchase or acquisition of stock, or similar
transaction, such shareholder is considered to be acting as a group with other
shareholders in a corporation only with respect to the ownership in that
corporation prior to the transaction giving rise to the change and not with
respect to the ownership interest in the other corporation.
|
(a)
|
Change
in Ownership of the Bank or Company
|
Change
in
the ownership occurs on the date that any one person, or more than one person
acting as a group (as defined above), acquires ownership of stock of the Bank
or
Company that, together with stock held by such person or group, constitutes
more
than 50 percent of the total fair market value or total voting power of the
stock of such corporation. However, if any one person or more than one person
acting as a group, is considered to own more than 50 percent of the total fair
market value or total voting power of the stock of a corporation, the
acquisition of additional stock by the same person or persons is not considered
to cause a change in the ownership of the corporation or to cause a change
in
the effective control of the corporation.
|
(b)
|
Change
in the Effective Control of the Bank or
Company
|
A
change
in the effective control of the Bank or Company occurs on the date that either
-
(1)
Any
one person, or more than one person acting as a group (as defined above),
acquires (or has acquired during the 12-month period ending on the date of
the
most recent acquisition by such person or persons) ownership of stock of the
Company possessing 20 percent or more of the total voting power of the stock
of
the Company (except that if an individual Director’s agreement becomes subject
to Code Section 409A, then the required percentage of acquired ownership of
stock under this Subsection 1.10 (b)(1) shall be 35 percent or more); or
(2)
a
majority of members of the Company’s board of directors is replaced during any
12-month period by directors whose appointment or election is not endorsed
by a
majority of the members of the Company’s board of directors prior to the date of
the appointment or election.
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(c)
|
Change
in the Ownership of a Substantial Portion of the Bank’s or Company’s
Assets.
|
Change
in
the ownership of a substantial portion of the Bank or Company’s assets occurs on
the date that any one person, or more than one person acting as a group (as
defined above), acquires (or has acquired during the 12-month period ending
on
the date of the most recent acquisition by such person or persons) assets from
the corporation that have a total gross fair market value equal to or more
than
40 percent of the total gross fair market value of all of the assets of the
Bank
or Company immediately prior to such acquisition or acquisitions. For this
purpose, gross fair market value means the value of the assets of the Bank
or
Company, or the value of the assets being disposed of, determined without regard
to any liabilities associated with such assets.
1.11
|
"Children"
means all natural or adopted children of the Director and issue of
any
predeceased child or children.
|
1.12
|
"Code"
means the Internal Revenue Code of 1986, as amended from time to
time.
|
1.13
|
“Company”
shall mean Magyar Bancorp, Inc.
|
1.14
|
"Contribution(s)"
means those annual total contributions comprised of both the Elective
Contributions and the Emeritus Contributions which the Bank is required
to
make to the Retirement Income Trust Fund on behalf of the Director
in
accordance with Subsection 2.1(a) and in the amounts set forth in
Exhibit
A of the Agreement. Such Contributions, for the first Plan Year,
shall
include any and all amounts accrued by the Bank to pay the benefits
promised to the Director under any prior non-qualified deferred
compensation agreements including any Joinder Agreements previously
executed by the Bank and the Director.
|
1.15
|
(a)
"Disability Benefit" means the benefit payable to the Director following
a
determination, in accordance with Subsection 6.1(a), that he is no
longer
able, properly and satisfactorily, to perform his duties at the
Bank.
|
(b)
"Disability Benefit-Supplemental" (if applicable) means the benefit payable
to
the Director
=
s
Beneficiary upon the Director
=
s
death
in accordance with Subsection 6.1(b).
1.16
|
"Effective
Date" of this Agreement shall be January 1, 2006. The original effective
date of this Agreement was February 1, 2004. The Agreement is hereby
amended and restated effective January 1, 2006 in order to conform
to Code
Section 409A.
|
1.17
|
“Elective
Contribution” shall refer to the Director’s voluntary monthly pre-tax
deferral of board fees, committee fees and/or retainer plus interest
compounded annually at a rate equal to the Interest Factor. The Director
may elect to change his voluntary deferral amount by submitting to
the
Bank a Notice of Adjustment of Elective Contribution thirty (30)
days
prior to the end of any Plan Year.
|
1.18
|
“Emeritus
Contribution” shall refer to the amounts necessary to support an annual
amount payable to the Director at Benefit Age based upon a percentage,
as
stated in Appendix A, of the Director’s total board fees, committee fees
and/or retainer in the twelve months prior to the Director’s Benefit
Eligibility Date. The percentage shall be determined by the following
formula: ten percent (10%) plus two and one-half percent (2 ½%) for each
year of service as a Director, with a minimum of fifty percent (50%),
provided the Director has served for at least five (5) years, and
a
maximum of sixty percent (60%). Notwithstanding the foregoing, any
Director who serves as Board Chairman for a five-year term (other
than the
current Chairman) shall be entitled to receive seventy-five percent
(75%).
|
1.19
|
"Estate"
means the estate of the Director.
|
1.20
|
"Interest
Factor" means monthly compounding, discounting or annuitizing, as
applicable, at a rate set forth in
Exhibit A.
|
1.21
|
"Payout
Period" means the time frame during which certain benefits payable
hereunder shall be distributed. Payments shall be made in monthly
installments commencing on the first day of the month following the
occurrence of the event which triggers distribution and continuing
for a
period of one hundred eighty (180) months. Should the Director make
a
Timely Election to receive a lump sum benefit payment, the
Director
=
s
Payout Period shall be deemed to be one (1) month.
|
1.22
|
"Phantom
Contributions" means those annual Contributions which the Bank is
no
longer required to make on behalf of the Director to the Retirement
Income
Trust Fund. Rather, once the Director has exercised the withdrawal
rights
provided for in Subsection 2.2, the Bank shall be required to record
the
annual amounts set forth in Exhibit A of the Agreement in the
Director
=
s
Accrued Benefit Account, pursuant to Subsection 2.1.
|
1.23
|
"Plan
Year" shall mean the twelve (12) month period commencing January
1 and
ending December 31.
|
1.24
|
"Retirement
Income Trust Fund" means the trust fund account established by the
Director and into which annual Contributions will be made by the
Bank on
behalf of the Director pursuant to Subsection 2.1. The contractual
rights
of the Bank and the Director with respect to the Retirement Income
Trust
Fund shall be outlined in a separate writing to be known as the Andrew
Hodulik Grantor Trust agreement.
|
1.25
|
A
Spouse
@
means the individual to whom the Director is legally married at the
time
of the Director
=
s
death, provided, however, that the term
A
Spouse
@
shall not refer to an individual to whom the Director is legally
married
at the time of death if the Director and such individual have entered
into
a formal separation agreement or initiated divorce
proceedings.
|
1.26
|
"Supplemental
Retirement Income Benefit" means an annual amount (
before
taking into account federal and state income taxes), payable in monthly
installments throughout the Payout Period. Such benefit is projected
pursuant to the Agreement for the purpose of determining the Contributions
to be made to the Retirement Income Trust Fund (or Phantom Contributions
to be recorded in the Accrued Benefit Account). The annual Contributions
and Phantom
|
Contributions
have been actuarially determined, using the assumptions set forth in Exhibit
A,
in order to fund for the projected Supplemental Retirement Income Benefit.
The
Supplemental Retirement Income Benefit for which Contributions (or Phantom
Contributions) are being made (or recorded) is set forth in Exhibit A.
1.27
|
"Timely
Election" means the Director has made an election to change the form
of
his benefit payment(s) from the Retirement Income Trust Fund by filing
with the Administrator a Notice of Election to Change Form of Payment
(Exhibit C of this Agreement). In the case of benefits payable from
the
Retirement Income Trust Fund, such election may be made at any time.
In
the case of benefits payable from the Accrued Benefit Account, such
election generally shall have been made prior to December 31, 2006
(i.e.
the last day of the “Transition Period” for bringing plans into compliance
with Code Section 409A). Unless the Transition Period is extended
by the
Internal Revenue Service, if the Director makes an election subsequent
to
December 31, 2006 with respect to distributions from the Accrued
Benefit
Account, then (i) such election may not take effect until at least
twelve
(12) months after the date on which the election is made, (ii) in
the case
of an election related to a payment other than due to disability
or death,
the first payment with respect to which such election is made must
be
deferred for a period of not less than five (5) years from the date
such
payment would otherwise have been made, and (iii) any election related
to
a distribution at a specified time or pursuant to a fixed schedule
may not
be made less than twelve (12) months prior to the date of the first
scheduled payment.
|
SECTION
II
BENEFIT
FUNDING
2.1
|
(a)
Retirement
Income Trust Fund and Accrued Benefit Account
.
The Director shall establish the Andrew Hodulik Grantor Trust into
which
the Bank shall be required to make annual Contributions on the
Director
=
s
behalf, pursuant to Exhibit A and this Section II of the Agreement.
A
trustee shall be selected by the Director. The trustee shall maintain
an
account, separate and distinct from the Director
=
s
personal contributions, which account shall constitute the Retirement
Income Trust Fund. The trustee shall be charged with the responsibility
of
investing all contributed funds. Distributions from the Retirement
Income
Trust Fund of the Andrew Hodulik Grantor Trust may be made by the
trustee
to the Director, for purposes of payment of
|
any
income or employment taxes due and owing on Contributions by the Bank to the
Retirement Income Trust Fund, if any, and on any taxable earnings associated
with such Contributions which the Director shall be required to pay from year
to
year, under applicable law, prior to actual receipt of any benefit payments
from
the Retirement Income Trust Fund. If the Director exercises his withdrawal
rights pursuant to Subsection 2.2, the Bank
=
s
obligation to make Contributions to the Retirement Income Trust Fund shall
cease
and the Bank
=
s
obligation to record Phantom Contributions in the Accrued Benefit Account shall
immediately commence pursuant to Exhibit A and this Section II of the Agreement.
To the extent this Agreement is inconsistent with the Andrew Hodulik Grantor
Trust Agreement, the Andrew Hodulik Grantor Trust Agreement shall supersede
this
Agreement.
The
annual Contributions (or Phantom Contributions) required to be made by the
Bank
to the Retirement Income Trust Fund (or recorded by the Bank in the Accrued
Benefit Account) have been actuarially determined and are set forth in Exhibit
A
which is attached hereto and incorporated herein by reference. Contributions
shall be made by the Bank to the Retirement Income Trust Fund (i) within
seventy-five (75) days of establishment of such trust, and (ii) within the
first
thirty (30) days of the beginning of each subsequent Plan Year, unless this
Section expressly provides otherwise. Phantom Contributions, if any, shall
be
recorded in the Accrued Benefit Account within the first thirty (30) days of
the
beginning of each applicable Plan Year, unless this Section expressly provides
otherwise. Phantom Contributions shall accrue interest at a rate equal to the
Interest Factor, during the Payout Period, until the balance of the Accrued
Benefit Account has been fully distributed. Interest on any Phantom Contribution
shall not commence until such Payout Period commences.
The
Administrator shall review the schedule of annual Contributions (or Phantom
Contributions) provided for in Exhibit A (i) within thirty (30) days prior
to
the close of each Plan Year and (ii) if the Director is employed by the Bank
until attaining Benefit Age, on or immediately before attainment of such Benefit
Age. Such review shall consist of an evaluation of the accuracy of all
assumptions used to establish the schedule of Contributions (or Phantom
Contributions). Provided that (i) the Director has not exercised his withdrawal
rights pursuant to Subsection 2.2 and (ii) the investments contained in the
Retirement Income Trust Fund have been deemed reasonable by the Bank, the
Administrator shall prospectively amend or supplement the schedule
of
Contributions provided for in Exhibit A should the Administrator determine
during any such review that
an
increase
in or
supplement
to
the
schedule of Contributions is necessary in order to adequately fund the
Retirement Income Trust Fund so as to provide an annual benefit (or to provide
the lump sum equivalent of such benefit, as applicable) equal to the
Supplemental Retirement Income Benefit, on an after-tax basis, commencing at
Benefit Age and payable for the duration of the Payout Period.
(b)
Withdrawal
Rights Not Exercised.
(1)
Contributions
Made Annually
If
the
Director does not exercise any withdrawal rights pursuant to Subsection 2.2,
the
annual Contributions to the Retirement Income Trust Fund shall continue each
year, unless this Subsection 2.1(b) specifically states otherwise, until the
earlier of (i) the last Plan Year that Contributions are required pursuant
to
Exhibit A, or (ii) the Plan Year of the Director's termination of
service.
(2)
Termination
Following a Change in Control
If
the
Director does not exercise his withdrawal rights pursuant to Subsection 2.2
and
a Change in Control occurs at the Bank, followed within thirty-six (36) months
by either (i) the Director's involuntary termination of service, or (ii)
Director's voluntary termination of service after: (A) a material change in
the
Director's function, duties, or responsibilities, which change would cause
the
Director's position to become one of lesser responsibility, importance, or
scope
from the position the Director held at the time of the Change in Control, (B)
a
relocation of the Director's principal place of service by more than thirty
(30)
miles from its location prior to the Change in Control, or (C) a material
reduction in the benefits and perquisites to the Director from those being
provided at the time of the Change in Control, the Emeritus Contributions as
set
forth on Schedule A shall continue to be required of the Bank. The Bank shall
be
required to make an immediate lump sum Contribution to the Director's Retirement
Income Trust Fund in an amount equal to: (i) the full Emeritus Contribution
required for the Plan Year in which such termination occurs, if not yet made,
plus (ii) the present value (computed using a discount rate equal to the
Interest Factor) of all remaining Emeritus Contributions to the Retirement
Income Trust Fund, and (iii) the present value (computed using the a discount
rate equal to the Interest Factor) of the interest only component of the
Elective Contribution; provided, however, that, if necessary, an
additional
amount shall be contributed to the Retirement Income Trust Fund which is
sufficient to provide the Director with after-tax benefits (assuming a constant
tax rate equal to the rate in effect as of the date of Director
=
s
termination) beginning at Benefit Age following such termination, equal in
amount to that benefit which would have been payable to the Director if no
secular trust had been implemented and the benefit obligation had been accrued
under APB Opinion No. 12, as amended by FAS 106.
(3)
Termination
For Cause
If
the
Director does not exercise his withdrawal rights pursuant to Subsection 2.2,
and
is terminated for Cause pursuant to Subsection 5.2, no further Contribution(s)
to the Retirement Income Trust Fund shall be required of the Bank, and if not
yet made, no Contribution shall be required for the Plan Year in which such
termination for Cause occurs.
(4)
Voluntary or Involuntary Termination of Service
.
If
the
Director does not exercise his withdrawal rights pursuant to
Subsection 2.2, and the Director's service with the Bank is voluntarily or
involuntarily terminated for any reason, including a termination due to
disability of the Director but excluding termination for Cause, or termination
following a Change in Control within thirty-six (36) months of such Change
in
Control, no further Contribution(s), as defined in Subsection 1.14, to the
Retirement Income Trust Fund shall be required of the Bank, and if not yet
made,
no Contribution shall be required for the Plan Year in which such termination
occurs. Notwithstanding the above, the Bank will be required to make annual
payments to Director’s Retirement Income Trust Fund determined as
follows:
|
1.
|
Determine
what the accrued liability would have been as of the Director’s date of
termination, had no secular trust been
implemented.
|
|
2.
|
Determine
the benefit payable, beginning at the Benefit Age, for 180 months
which
that accrued liability would support had interest been added to that
liability on an annual basis using the Accrued Benefit Interest Factor
set
forth in Exhibit A.
|
|
3.
|
The
Bank shall make payments to the Director’s Retirement Income Trust Fund on
an annual basis in amounts equal to the accrued interest expense
which
would have been recorded absent the secular trust
arrangement.
|
(5)
Death
During Service
.
If
the
Director does not exercise any withdrawal rights pursuant to
Subsection 2.2, and dies while employed by the Bank, and if, following the
Director
=
s
death,
the assets of the Retirement Income Trust Fund are insufficient to provide
the
Supplemental Retirement Income Benefit to which the Director is entitled, the
Bank shall be required to make a Contribution to the Retirement Income Trust
Fund equal to the sum of the remaining Contributions set forth on Exhibit A,
after taking into consideration any payments under any life insurance policies
that may have been obtained on the Director
=
s
life by
the Retirement Income Trust Fund. Such final contribution shall be payable
in a
lump sum to the Retirement Income Trust Fund within thirty (30) days of the
Director
=
s
death.
(c)
Withdrawal
Rights Exercised.
(1)
Phantom
Contributions Made Annually
.
If
the
Director exercises his withdrawal rights pursuant to Subsection 2.2, no further
Contributions to the Retirement Income Trust Fund shall be required of the
Bank.
Thereafter, Phantom Contributions shall be recorded annually in the Director's
Accrued Benefit Account within thirty (30) days of the beginning of each Plan
Year, commencing with the first Plan Year following the Plan Year in which
the
Director exercises his withdrawal rights. Such Phantom Contributions shall
continue to be recorded annually, unless this Subsection 2.1(c) specifically
states otherwise, until the earlier of (i) the last Plan Year that Phantom
Contributions are required pursuant to Exhibit A, or (ii) the Plan Year of
the
Director's termination of service.
(2)
Termination
Following a Change in Control
If
the
Director exercises his withdrawal rights pursuant to Subsection 2.2, Phantom
Contributions shall commence in the Plan Year following the Plan Year in which
the Director first exercises his withdrawal rights. If a Change in Control
occurs at the Bank, and within thirty-six (36) months of such Change in Control,
the Director's service is either (i) involuntarily terminated, or (ii)
voluntarily terminated by the Director after: (A) a material change in the
Director's function, duties, or responsibilities, which change would cause
the
Director's position to become one of lesser responsibility, importance, or
scope
from the position the Director held at the time of the Change in Control, (B)
a
relocation of the Director's principal place of service by more than thirty
(30)
miles from its location prior to the Change in Control, or (C) a material
reduction in the benefits and perquisites to the Director from those being
provided at the time of the Change in Control, the Phantom Contribution set
forth below shall be required of the Bank. The Bank shall be required to record
a lump sum Phantom Contribution in the Accrued Benefit Account within ten (10)
days of the Director
=
s
termination of service equal to (i) the full Emeritus Contribution required
for
the Plan Year in which such termination occurs, if not yet made, plus (ii)
the
present value (computed using a discount rate equal to the Interest Factor)
of
all remaining Emeritus Contributions to the Retirement Income Trust Fund, and
(iii) the present value (computed using the a discount rate equal to the
Interest Factor) of the interest only component of the Elective Contribution.
The amount of such final Phantom Contribution shall be actuarially determined
based on the Phantom Contribution required, at such time, in order to provide
a
benefit via this Agreement equal in amount to that benefit which would have
been
payable to the Director if no secular trust had been implemented and the benefit
obligation had been accrued under APB Opinion No. 12, as amended by FAS 106.
(Such actuarial determination shall reflect the fact that amounts shall be
payable from both the Accrued Benefit Account as well as the Retirement Income
Trust Fund and shall also reflect the amount and timing of any withdrawal(s)
made by the Director from the Retirement Income Trust Fund pursuant to
Subsection 2.2.)
(3)
Termination
For Cause
If
the
Director is terminated for Cause pursuant to Subsection 5.2, the entire balance
of the Director
=
s
Accrued
Benefit Account at the time of such termination, which shall include any Phantom
Contributions which have been recorded plus interest accrued on such Phantom
Contributions, shall be forfeited.
(4)
Voluntary
and
Involuntary
Termination of Service
.
If
the
Director exercises his withdrawal rights pursuant to Subsection 2.2, and the
Director's service with the Bank is voluntarily or involuntarily terminated
for
any reason including termination due to disability of the Director, but
excluding termination for Cause, or termination following a Change in Control,
within thirty (30) days of such termination of service, no further Phantom
Contributions shall be required of the Bank. Interest, at a rate equal to the
Interest Factor, shall accrue on such Phantom Contributions until the Director’s
Benefit Eligibility Date.
(5)
Death
During Service
.
If
the
Director exercises his withdrawal rights pursuant to Subsection 2.2, and
dies while employed by the Bank, Phantom Contributions included on Exhibit
A
shall be required of the Bank. Such Phantom Contributions shall commence in
the
Plan Year following the Plan Year in which the Director exercises his withdrawal
rights and shall continue through the Plan Year in which the Director dies.
The
Bank shall also be required to record a final Phantom Contribution within thirty
(30) days of the Director
=
s
death.
The amount of such final Phantom Contribution shall be actuarially determined
based on the Phantom Contribution required at such time (if any), in order
to
provide a benefit via this Agreement equivalent to the Supplemental Retirement
Income Benefit commencing within thirty (30) days of the date the Administrator
receives notice of the Director
=
s
death
and continuing for the duration of the Payout Period. (Such actuarial
determination shall reflect the fact that amounts shall be payable from the
Accrued Benefit Account as well as the Retirement Income Trust Fund and shall
also reflect the amount and timing of any withdrawal(s) made by the Director
pursuant to Subsection 2.2.)
2.2
|
Withdrawals
From Retirement Income Trust
Fund.
|
Exercise
of withdrawal rights by the Director pursuant to the Andrew Hodulik Grantor
Trust agreement shall terminate the Bank's obligation to make any further
Contributions to the Retirement Income Trust Fund, and the Bank
=
s
obligation to record Phantom Contributions pursuant to Subsection 2.1(c) shall
commence. For purposes of this Subsection 2.2,
A
exercise
of withdrawal rights
@
shall
mean those withdrawal rights to which the Director is entitled under Article
III
of the Andrew Hodulik Grantor Trust agreement and shall exclude any
distributions made by the trustee of the Retirement Income Trust Fund to the
Director for purposes of payment of income taxes in accordance with Subsection
2.1 of this Agreement and the tax reimbursement formula contained in the trust
document, or other trust expenses properly payable from the Andrew Hodulik
Grantor Trust pursuant to the provisions of the trust document.
2.3
|
Benefits
Payable From Retirement Income Trust
Fund
|
Notwithstanding
anything else to the contrary in this Agreement, in the event that the trustee
of the Retirement Income Trust Fund purchases a life insurance policy with
the
Contributions to and, if applicable, earnings of the Trust, and such life
insurance policy is intended to continue in
force
beyond the Payout Period for the disability or retirement benefits payable
from
the Retirement Income Trust Fund pursuant to this Agreement, then the trustee
shall have discretion to determine the portion of the cash value of such policy
available for purposes of annuitizing the Retirement Income Trust Fund (it
being
understood that for purposes of this Section 2.3,
A
annuitizing
@
does not
mean surrender of such policy and annuitizing of the cash value received upon
such surrender) to provide the disability or retirement benefits payable under
this Agreement, after taking into consideration the amounts reasonably believed
to be required in order to maintain the cash value of such policy to continue
such policy in effect until the death of the Director and payment of death
benefits thereunder.
SECTION
III
RETIREMENT
BENEFIT
3.1
|
(a)
Normal
form of payment
.
|
If
(i)
the Director is employed with the Bank until reaching his Benefit Age and (ii)
the Director has not made a Timely Election to receive a lump sum benefit,
this
Subsection 3.1(a) shall be controlling with respect to retirement
benefits.
The
Retirement Income Trust Fund, measured as of the Director's Benefit Age, shall
be annuitized (using the Interest Factor) into monthly installments and shall
be
payable for the Payout Period. Such benefit payments shall commence on the
Director's Benefit Eligibility Date. Should Retirement Income Trust Fund assets
actually earn a rate of return, following the date such balance is annuitized,
which is less than the rate of return used to annuitize the Retirement Income
Trust Fund, no additional contributions to the Retirement Income Trust Fund
shall be required by the Bank in order to fund the final benefit payment(s)
and
make up for any shortage attributable to the less-than-expected rate of return.
Should Retirement Income Trust Fund assets actually earn a rate of return,
following the date such balance is annuitized, which is greater than the rate
of
return used to annuitize the Retirement Income Trust Fund, the final benefit
payment to the Director (or his Beneficiary) shall distribute the excess amounts
attributable to the greater-than-expected rate of return. The Director may
at
anytime during the Payout Period request to receive the unpaid balance of his
Retirement Income Trust Fund in a lump sum payment. If such a lump sum payment
is requested by the Director, payment of the balance of the Retirement
Income
Trust Fund in such lump sum form shall be made only if the Director gives notice
to both the Administrator and trustee in writing. Such lump sum payment shall
be
payable within thirty (30) days of such notice. In the event the Director dies
at any time after attaining his Benefit Age, but prior to commencement or
completion of all monthly payments due and owing hereunder, (i) the trustee
of
the Retirement Income Trust Fund shall pay to the Director's Beneficiary the
monthly installments (or a continuation of such monthly installments if they
have already commenced) for the balance of months remaining in the Payout
Period, or (ii) the Director's Beneficiary may request to receive the unpaid
balance of the Director's Retirement Income Trust Fund in a lump sum payment.
If
a lump sum payment is requested by the Beneficiary, payment of the balance
of
the Retirement Income Trust Fund in such lump sum form shall be made only if
the
Director's Beneficiary notifies both the Administrator and trustee in writing
of
such election within ninety (90) days of the Director's death. Such lump sum
payment shall be payable within thirty (30) days of such notice.
The
Director
=
s
Accrued
Benefit Account (if applicable), measured as of the Director
=
s
Benefit
Age, shall be annuitized (using the Interest Factor) into monthly installments
and shall be payable for the Payout Period. Such benefit payments shall commence
on the Director
=
s
Benefit
Eligibility Date. In the event the Director dies at any time after attaining
his
Benefit Age, but prior to commencement or completion of all the payments due
and
owing hereunder, (i) the Bank shall pay to the Director
=
s
Beneficiary the same monthly installments (or a continuation of such monthly
installments if they have already commenced) for the balance of months remaining
in the Payout Period.
(b)
Alternative
payout option.
If
(i)
the Director is employed with the Bank until reaching his Benefit Age, and
(ii)
the Director has made a Timely Election to receive a lump sum benefit, this
Subsection 3.1(b) shall be controlling with respect to retirement benefits.
The
balance of the Retirement Income Trust Fund and the Accrued Benefit Account
(if
applicable), measured as of the Director
=
s
Benefit
Age, shall be paid to the Director in a lump sum on his Benefit Eligibility
Date. In the event the Director dies after becoming eligible for such payment
(upon attainment of his Benefit Age), but before the actual payment is made,
his
Beneficiary
shall be entitled to receive the lump sum benefit in accordance with this
Subsection 3.1(b) within thirty (30) days of the date the Administrator receives
notice of the Director’s death.
Notwithstanding
the foregoing, unless the Director has made a Timely Election to receive a
lump
sum distribution from the Accrued Benefit Account, distributions from the
Accrued Benefit Account will be paid over the Payout Period, commencing within
thirty (30) days of the Director’s Benefit Age.
SECTION
IV
PRE-RETIREMENT
DEATH BENEFIT
4.1
|
(a)
Normal
form of payment
.
|
If
(i)
the Director dies while employed by the Bank, and (ii) the Director has not
made
a Timely Election to receive a lump sum benefit, this Subsection 4.1(a) shall
be
controlling with respect to pre-retirement death benefits.
The
balance of the Director
=
s
Retirement Income Trust Fund, measured as of the later of (i) the
Director
=
s
death,
or (ii) the date any final lump sum Contribution is made pursuant to Subsection
2.1(b), shall be annuitized (using the Interest Factor) into monthly
installments and shall be payable for the Payout Period. Such benefits shall
commence within thirty (30) days of the date the Administrator receives notice
of the Director
=
s
death.
Should Retirement Income Trust Fund assets actually earn a rate of return,
following the date such balance is annuitized, which is less than the rate
of
return used to annuitize the Retirement Income Trust Fund, no additional
contributions to the Retirement Income Trust Fund shall be required by the
Bank
in order to fund the final benefit payment(s) and make up for any shortage
attributable to the less-than-expected rate of return. Should Retirement Income
Trust Fund assets actually earn a rate of return, following the date such
balance is annuitized, which is greater than the rate of return used to
annuitize the Retirement Income Trust Fund, the final benefit payment to the
Director
=
s
Beneficiary shall distribute the excess amounts attributable to the
greater-than-expected rate of return. The Director
=
s
Beneficiary may request to receive the unpaid balance of the
Director
=
s
Retirement Income Trust Fund in a lump sum payment. If a lump sum payment is
requested by the Beneficiary, payment of the balance of the Retirement Income
Trust Fund in such lump sum form shall be made only if the Director
=
s
Beneficiary notifies both the Administrator and trustee
in
writing of such election within ninety (90) days of the Director
=
s
death.
Such lump sum payment shall be made within thirty (30) days of such
notice.
The
Director
=
s
Accrued
Benefit Account (if applicable), measured as of the later of (i) the
Director's death or (ii) the date any final lump sum Phantom Contribution is
recorded in the Accrued Benefit Account pursuant to Subsection 2.1(c), shall
be
annuitized (using the Interest Factor) into monthly installments and shall
be
payable to the Director's Beneficiary for the Payout Period. Such benefit
payments shall commence within thirty (30) days of the date the Administrator
receives notice of the Director
=
s
death,
or if later, within thirty (30) days after any final lump sum Phantom
Contribution is recorded in the Accrued Benefit Account in accordance with
Subsection 2.1(c).
(b)
Alternative
payout option
.
If
(i)
the Director dies while employed by the Bank, and (ii) the Director has made
a
Timely Election to receive a lump sum benefit, this Subsection 4.1(b) shall
be
controlling with respect to pre-retirement death benefits.
The
balance of the Director
=
s
Retirement Income Trust Fund and the Accrued Benefit Account (if applicable),
measured as of the later of (i) the Director
=
s
death,
or (ii) the date any final lump sum Contribution is made pursuant to Subsection
2.1(b), shall be paid to the Director's Beneficiary in a lump sum within thirty
(30) days of the date the Administrator receives notice of the Director's
death.
Notwithstanding the foregoing, unless the Director has made a Timely Election
to
receive a lump sum distribution with respect to the Accrued Benefit Account,
distributions from the Accrued Benefit Account will be paid over the Payout
Period commencing within thirty (30) days of the date the Administrator receives
notice of the Director
=
s
death.
SECTION
V
BENEFIT(S)
IN THE EVENT OF TERMINATION OF SERVICE
PRIOR
TO BENEFIT AGE
5.1
|
Voluntary
or Involuntary Termination of Service Other Than for Cause
.
In the event the Director
=
s
service with the Bank is voluntarily or involuntarily terminated
prior to
Benefit Age,
|
for
any
reason, including a Change in Control, but excluding (i) any disability related
termination for which the Board of Directors has approved early payment of
benefits pursuant to Subsection 6.1, (ii) the Director's pre-retirement death,
which shall be covered in Section IV, (iii) or termination for Cause, which
shall be covered in Subsection 5.2, the Director (or his Beneficiary) shall
be
entitled to receive benefits in accordance with this Subsection 5.1. Payments
of
benefits pursuant to this Subsection 5.1 shall be made in accordance with
Subsection 5.1(a) or 5.1(b) below, as applicable.
(a)
Normal
form of payment
.
(1)
Director
Lives Until Benefit Age
If
(i)
after such termination, the Director lives until attaining his Benefit Age,
and
(ii) the Director has not made a Timely Election to receive a lump sum benefit,
this Subsection 5.1(a)(1) shall be controlling with respect to retirement
benefits.
The
Retirement Income Trust Fund, measured as of the Director's Benefit Age, shall
be annuitized (using the Interest Factor) into monthly installments and shall
be
payable for the Payout Period. Such payments shall commence on the Director's
Benefit Eligibility Date. Should Retirement Income Trust Fund assets actually
earn a rate of return, following the date such balance is annuitized, which
is
less than the rate of return used to annuitize the Retirement Income Trust
Fund,
no additional contributions to the Retirement Income Trust Fund shall be
required by the Bank in order to fund the final benefit payment(s) and make
up
for any shortage attributable to the less-than-expected rate of return. Should
Retirement Income Trust Fund assets actually earn a rate of return, following
the date such balance is annuitized, which is greater than the rate of return
used to annuitize the Retirement Income Trust Fund, the final benefit payment
to
the Director (or his Beneficiary) shall distribute the excess amounts
attributable to the greater-than-expected rate of return. The Director may
at
anytime during the Payout Period request to receive the unpaid balance of his
Retirement Income Trust Fund in a lump sum payment. If such a lump sum payment
is requested by the Director, payment of the balance of the Retirement Income
Trust Fund in such lump sum form shall be made only if the Director gives notice
to both the Administrator and trustee in writing. Such lump sum payment shall
be
payable within thirty (30) days of such notice. In the event the Director dies
at any time after attaining his Benefit Age, but prior to commencement or
completion of all monthly payments due and owing hereunder, (i)
the
trustee of the Retirement Income Trust Fund shall pay to the Director's
Beneficiary the monthly installments (or a continuation of the monthly
installments if they have already commenced) for the balance of months remaining
in the Payout Period, or (ii) the Director's Beneficiary may request to receive
the unpaid balance of the Director's Retirement Income Trust Fund in a lump
sum
payment. If a lump sum payment is requested by the Beneficiary, payment of
the
balance of the Retirement Income Trust Fund in such lump sum form shall be
made
only if the Director's Beneficiary notifies both the Administrator and trustee
in writing of such election within ninety (90) days of the Director's death.
Such lump sum payment shall be made within thirty (30) days of such
notice.
The
Director
=
s
Accrued
Benefit Account (if applicable), measured as of the Director
=
s
Benefit
Age, shall be annuitized (using the Interest Factor) into monthly installments
and shall be payable for the Payout Period. Such benefit payments shall commence
on the Director
=
s
Benefit
Eligibility Date. In the event the Director dies at any time after attaining
his
Benefit Age, but prior to commencement or completion of all the payments due
and
owing hereunder, (i) the Bank shall pay to the Director
=
s
Beneficiary the same monthly installments (or a continuation of such monthly
installments if they have already commenced) for the balance of months remaining
in the Payout Period.
(2)
Director
Dies Prior to Benefit Age
If
(i)
after such termination, the Director dies prior to attaining his Benefit Age,
and (ii) the Director has not made a Timely Election to receive a lump sum
benefit, this Subsection 5.1(a)(2) shall be controlling with respect to
retirement benefits.
The
Retirement Income Trust Fund, measured as of the date of the Director's death,
shall be annuitized (using the Interest Factor) into monthly installments and
shall be payable for the Payout Period. Such payments shall commence within
thirty (30) days of the date the Administrator receives notice of the Director's
death. Should Retirement Income Trust Fund assets actually earn a rate of
return, following the date such balance is annuitized, which is less than the
rate of return used to annuitize the Retirement Income Trust Fund, no additional
contributions to the Retirement Income Trust Fund shall be required by the
Bank
in order to fund the final benefit payment(s) and make up for any shortage
attributable to the less-than-expected
rate
of
return. Should Retirement Income Trust Fund assets actually earn a rate of
return, following the date such balance is annuitized, which is greater than
the
rate of return used to annuitize the Retirement Income Trust Fund, the final
benefit payment to the Director's Beneficiary shall distribute the excess
amounts attributable to the greater-than-expected rate of return. The Director's
Beneficiary may request to receive the unpaid balance of the Director's
Retirement Income Trust Fund in the form of a lump sum payment. If a lump sum
payment is requested by the Beneficiary, payment of the balance of the
Retirement Income Trust Fund in such lump sum form shall be made only if the
Director's Beneficiary notifies both the Administrator and trustee in writing
of
such election within ninety (90) days of the Director's death. Such lump sum
payment shall be made within thirty (30) days of such notice.
The
Director
=
s
Accrued
Benefit Account (if applicable), measured as of the date of the
Director
=
s
death,
shall be annuitized (using the Interest Factor) into monthly installments and
shall be payable for the Payout Period. Such payments shall commence within
thirty (30) days of the date the Administrator receives notice of the
Director
=
s
death.
(b)
Alternative
Payout Option
.
(1)
Director
Lives Until Benefit Age
If
(i)
after such termination, the Director lives until attaining his Benefit Age,
and
(ii) the Director has made a Timely Election to receive a lump sum benefit,
this
Subsection 5.1(b)(1) shall be controlling with respect to retirement benefits.
The
balance of the Retirement Income Trust Fund and the Accrued Benefit Account
(if
applicable), measured as of the Director's Benefit Age, shall be paid to the
Director in a lump sum on his Benefit Eligibility Date. In the event the
Director dies after becoming eligible for such payment (upon attainment of
his
Benefit Age), but before the actual payment is made, his Beneficiary shall
be
entitled to receive the lump sum benefit in accordance with this Subsection
5.1(b)(1) within thirty (30) days of the date the Administrator receives notice
of the Director's death.
Notwithstanding the foregoing, unless the Director has made a Timely Election
to
receive a lump sum distribution from the Accrued Benefit Account, distributions
from the Accrued Benefit Account will be paid over the Payout Period, commencing
within thirty (30) days of the Director’s Benefit Age.
(2)
Director
Dies Prior to Benefit Age
If
(i)
after such termination, the Director dies prior to attaining his Benefit Age,
and (ii) the Director has made a Timely Election to receive a lump sum benefit,
this Subsection 5.1(b)(2) shall be controlling with respect to pre-retirement
death benefits.
The
balance of the Retirement Income Trust Fund and the Accrued Benefit Account
(if
applicable), measured as of the date of the Director's death, shall be paid
to
the Director's Beneficiary within thirty (30) days of the date the Administrator
receives notice of the Director's death.
Notwithstanding the foregoing, unless the Director has made a Timely Election
to
receive a lump sum distribution with respect to the Accrued Benefit Account,
distributions from the Accrued Benefit Account will be paid over the Payout
Period commencing within thirty (30) days of the date the Administrator receives
notice of the Director
=
s
death.
5.2
|
Termination
For Cause
.
|
If
the
Director is terminated for Cause, all benefits under this Agreement, other
than
those which can be paid from previous Contributions to the Retirement Income
Trust Fund (and earnings on such Contributions), shall be forfeited.
Furthermore, no further Contributions (or Phantom Contributions, as applicable)
shall be required of the Bank for the year in which such termination for Cause
occurs (if not yet made). The Director shall be entitled to receive a benefit
in
accordance with this Subsection 5.2.
The
balance of the Director
=
s
Retirement Income Trust Fund shall be paid to the Director in a lump sum on
his
Benefit Eligibility Date. In the event the Director dies prior to his Benefit
Eligibility Date, his Beneficiary shall be entitled to receive the balance
of
the Director's Retirement Income Trust Fund in a lump sum within thirty (30)
days of the date the Administrator receives notice of the Director's death.
SECTION
VI
OTHER
BENEFITS
6.1
|
(a)
Disability
Benefit
.
|
If
the
Director's service is terminated prior to Benefit Age due to a disability that
meets the criteria set forth below, the Director may request to receive the
Disability Benefit in lieu of the retirement benefit(s) available pursuant
to
Section 5.1 (which is (are) not available prior to the Director's Benefit
Eligibility Date).
In
any
instance in which it is determined by a duly licensed, independent physician
selected by the Bank, that the Director
is
“disabled,”
the
Director shall be entitled to receive a lump sum Disability Benefit
hereunder.
For
these
purposes, a distribution from the Accrued Benefit Account (but not the
Retirement Income Trust Fund) shall require a determination that the Director
is
“disabled”
within the meaning of proposed Treasury Regulation Section
1.409A-3(g)(4).
The
Director shall be entitled to the following lump sum benefit(s) in lieu of
any
benefits under Subsection 5.1. The lump sum benefit(s) to which the Director
is
entitled shall include: (i) the balance of the Retirement Income Trust Fund,
plus (ii) the balance of the Accrued Benefit Account (if applicable). The
benefit(s) shall be paid within thirty (30) days following the date of the
Director's final disability determination. In the event the Director dies after
becoming eligible for such payment(s) but before the actual payment(s) is (are)
made, his Beneficiary shall be entitled to receive the benefit(s) provided
for
in this Subsection 6.1(a) within thirty (30) days of the date the Administrator
receives notice of the Director's death.
(b)
Disability
Benefit - Supplemental
.
Furthermore,
if Board of Director approval is obtained within thirty (30) days of the
Director
=
s
death,
the Bank shall make a direct, lump sum payment to the Director's Beneficiary
in
an amount equal to the sum of all remaining Contributions (or Phantom
Contributions) set forth in Exhibit A, but not required pursuant to Subsection
2.1(b) (or 2.1(c)) due to the Director's disability-related termination. Such
lump sum payment, if approved by the Board of Directors, shall be payable to
the
Director
=
s
Beneficiary within thirty (30) days of such Board of Director
approval.
6.2
|
Additional
Death Benefit - Burial Expense
.
|
Upon
the
Director
=
s
death,
the Director
=
s
Beneficiary shall also be entitled to receive a one-time lump sum death benefit
in the amount of Ten Thousand Dollars ($10,000). This benefit shall be paid
directly from the Bank to the Beneficiary and shall be provided specifically
for
the purpose of providing payment for burial and/or funeral expenses of the
Director. Such death benefit shall be payable within thirty (30) days of the
date the Administrator receives notice of the Director
=
s
death.
The Director
=
s
Beneficiary shall not be entitled to such benefit if the Director is terminated
for Cause prior to death.
SECTION
VII
BENEFICIARY
DESIGNATION
The
Director shall make an initial designation of primary and secondary
Beneficiaries upon execution of this Agreement and shall have the right to
change such designation, at any subsequent time, by submitting to (i) the
Administrator,
and
(ii) the
trustee of the Retirement Income Trust Fund, in substantially the form attached
as Exhibit B to this Agreement, a written designation of primary and secondary
Beneficiaries. Any Beneficiary designation made subsequent to execution of
this
Agreement shall become effective only when receipt thereof is acknowledged
in
writing by the Administrator.
SECTION
VIII
DIRECTOR'S
RIGHT TO ASSETS
The
rights of the Director, any Beneficiary, or any other person claiming through
the Director under this Agreement, shall be solely those of an unsecured general
creditor of the Bank. The Director, the Beneficiary, or any other person
claiming through the Director, shall only have the right to receive from the
Bank those payments or amounts so specified under this Agreement. The Director
agrees that he, his Beneficiary, or any other person claiming through him shall
have no rights or interests whatsoever in any asset of the Bank, including
any
insurance policies or contracts which the Bank may possess or obtain to
informally fund this Agreement. Any asset used or acquired by the Bank in
connection with the liabilities it has assumed under this Agreement shall not
be
deemed to be held under any trust for the benefit of the Director or his
Beneficiaries, unless such asset is contained in the rabbi trust described
in
Section
XII of this Agreement. Any such asset shall be and remain a general, unpledged
asset of the Bank in the event of the Bank
=
s
insolvency.
SECTION
IX
RESTRICTIONS
UPON FUNDING
The
Bank
shall have no obligation to set aside, earmark or entrust any fund or money
with
which to pay its obligations under this Agreement, other than those
Contributions required to be made to the Retirement Income Trust Fund. The
Director, his Beneficiaries or any successor in interest to him shall be and
remain simply a general unsecured creditor of the Bank in the same manner as
any
other creditor having a general claim for matured and unpaid compensation.
The
Bank reserves the absolute right in its sole discretion to either purchase
assets to meet its obligations undertaken by this Agreement or to refrain from
the same and to determine the extent, nature, and method of such asset
purchases. Should the Bank decide to purchase assets such as life insurance,
mutual funds, disability policies or annuities, the Bank reserves the absolute
right, in its sole discretion, to replace such assets from time to time or
to
terminate its investment in such assets at any time, in whole or in part. At
no
time shall the Director be deemed to have any lien, right, title or interest
in
or to any specific investment or to any assets of the Bank. If the Bank elects
to invest in a life insurance, disability or annuity policy upon the life of
the
Director, then the Director shall assist the Bank by freely submitting to a
physical examination and by supplying such additional information necessary
to
obtain such insurance or annuities.
SECTION
X
ACT
PROVISIONS
10.1
|
Named
Fiduciary and Administrator
.
The Bank, as Administrator, shall be the Named Fiduciary of this
Agreement. As Administrator, the Bank shall be responsible for the
management, control and administration of the Agreement as established
herein. The Administrator may delegate to others certain aspects
of the
management and operational responsibilities of the Agreement, including
the employment of advisors and the delegation of ministerial duties
to
qualified individuals.
|
10.2
|
Claims
Procedure and Arbitration
.
In the event that benefits under this Agreement are not paid to the
Director (or to his Beneficiary in the case of the Director's death)
and
such claimants feel they are entitled to receive such benefits, then
a
written claim must be made to the Administrator within sixty (60)
days
from the date payments are refused. The Administrator shall review
the
written claim and, if the claim is denied, in whole or in part, it
shall
provide in writing, within ninety (90) days of receipt of such claim,
its
specific reasons for such denial, reference to the provisions of
this
Agreement upon which the denial is based, and any additional material
or
information necessary to perfect the claim. Such writing by the
Administrator shall further indicate the additional steps which must
be
undertaken by claimants if an additional review of the claim denial
is
desired.
|
If
claimants desire a second review, they shall notify the Administrator in writing
within sixty (60) days of the first claim denial. Claimants may review this
Agreement or any documents relating thereto and submit any issues and comments,
in writing, they may feel appropriate. In its sole discretion, the Administrator
shall then review the second claim and provide a written decision within sixty
(60) days of receipt of such claim. This decision shall state the specific
reasons for the decision and shall include reference to specific provisions
of
this Agreement upon which the decision is based.
If
claimants continue to dispute the benefit denial based upon completed
performance of this Plan and the Agreement or the meaning and effect of the
terms and conditions thereof, then claimants may submit the dispute to
mediation, administered by the American Arbitration Association (
A
AAA
@
)
(or a
mediator selected by the parties) in accordance with the AAA
=
s
Commercial Mediation Rules. If mediation is not successful in resolving the
dispute, it shall be settled by arbitration administered by the AAA under its
Commercial Arbitration Rules, and judgment on the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction
thereof.
SECTION
XI
MISCELLANEOUS
11.1
|
No
Effect on Employment Rights
.
Nothing contained herein will confer upon the Director the right
to be
retained in the service of the Bank nor limit the right of the Bank
to
discharge or otherwise deal with the Director without regard to the
existence of the Agreement.
|
11.2
|
Governing
Law
.
The Agreement is established under, and will be construed according
to,
the laws of the state of New Jersey, to the extent such laws are
not
preempted by the Act or other applicable federal law and valid regulations
published thereunder.
|
11.3
|
Construction
and Severability
.
The funding of and payment of benefits from the Accrued Benefit Account
is
deemed to be a nonqualified deferred compensation arrangement within
the
meaning of Code Section 409A. To the extent that the funding of a
benefit
under the Retirement Income Trust Fund under this Agreement is deemed
to
be a nonqualified deferred compensation arrangement, then that part
of
this Agreement shall also be operated, administered and construed
consistent with Code Section 409A. To the extent that a provision
of the
Agreement fails to comply with Code Section 409A and a construction
consistent with Code Section 409A is not possible, such provision
shall be
void
ab
initio
.
In addition, the Agreement shall be subject to amendment, with or
without
advance notice to Director and other interested parties, and on a
prospective or retroactive basis, including but not limited to amendment
in a manner that adversely affects the rights of Directors and other
interested parties, to the extent necessary to effect compliance
with Code
Section 409A. In the event that any of the provisions of this Agreement
or
portion thereof, are held to be inoperative or invalid by any court
of
competent jurisdiction, then: (1) insofar as is reasonable, effect
will be
given to the intent manifested in the provisions held invalid or
inoperative, and (2) the validity and enforceability of the remaining
provisions will not be affected
thereby.
|
11.4
|
Treatment
as a Director
.
For purposes of this Agreement, it is assumed that the Director is
treated
as a “director” in accordance with Proposed Treasury Regulation Section
1.409A-1(h)(2). If under future guidance or rulings promulgated by
the
Internal Revenue Service or Treasury Department under Code Section
409A it
is determined that the Director should properly be
|
treated
as an “employee” for purposes of this Agreement, distributions to the Director
due to Separation from Service will be made in accordance with the provisions
of
Proposed Treasury Regulation Section 1.409A-1(h)(1).
11.5
|
Incapacity
of Recipient
.
In the event the Director is declared incompetent and a conservator
or
other person legally charged with the care of his person or Estate
is
appointed, any benefits under the Agreement to which such Director
is
entitled shall be paid to such conservator or other person legally
charged
with the care of his person or Estate.
|
11.6
|
Unclaimed
Benefit
.
The Director shall keep the Bank informed of his current address
and the
current address of his Beneficiaries. The Bank shall not be obligated
to
search for the whereabouts of any person. If the location of the
Director
is not made known to the Bank as of the date upon which any payment
of any
benefits from the Accrued Benefit Account may first be made, the
Bank
shall delay payment of the Director's benefit payment(s) until the
location of the Director is made known to the Bank; however, the
Bank
shall only be obligated to hold such benefit payment(s) for the Director
until the expiration of thirty-six (36) months.
|
11.7
|
Limitations
on Liability
.
Notwithstanding any of the preceding provisions of the Agreement,
no
individual acting as an employee or agent of the Bank, or as a member
of
the Board of Directors shall be personally liable to the Director
or any
other person for any claim, loss, liability or expense incurred in
connection with the Agreement.
|
11.8
|
Gender
.
Whenever in this Agreement words are used in the masculine or neuter
gender, they shall be read and construed as in the masculine, feminine
or
neuter gender, whenever they should so
apply.
|
11.9
|
Effect
on Other Corporate Benefit Agreements
.
Nothing contained in this Agreement shall affect the right of the
Director
to participate in or be covered by any qualified or non-qualified
pension,
profit sharing, group, bonus or other supplemental compensation or
fringe
benefit agreement constituting a part of the Bank's existing or future
compensation structure.
|
11.10
|
Suicide
.
Notwithstanding anything to the contrary in this Agreement, if the
Director's death results from suicide, whether sane or insane, within
twenty-six (26) months after execution of this
|
Agreement,
all further Contributions to the Retirement Income Trust Fund (or Phantom
Contributions recorded in the Accrued Benefit Account) shall thereupon cease,
and no Contribution (or Phantom Contribution) shall be made by the Bank to
the
Retirement Income Trust Fund (or recorded in the Accrued Benefit Account) in
the
year such death resulting from suicide occurs (if not yet made). All benefits
other than those available from previous Contributions to the Retirement Income
Trust Fund under this Agreement shall be forfeited, and this Agreement shall
become null and void. The balance of the Retirement Income Trust Fund, measured
as of the Director's date of death, shall be paid to the Beneficiary within
thirty (30) days of the date the Administrator receives notice of the Director's
death.
11.11
|
Inurement
.
This Agreement shall be binding upon and shall inure to the benefit
of the
Bank, its successors and assigns, and the Director, his successors,
heirs,
executors, administrators, and
Beneficiaries.
|
11.12
|
Headings
.
Headings and sub-headings in this Agreement are inserted for reference
and
convenience only and shall not be deemed a part of this
Agreement.
|
11.13
|
Establishment
of a Rabbi Trust.
The Bank shall establish a rabbi trust into which the Bank shall
contribute assets which shall be held therein, subject to the claims
of
the Bank's creditors in the event of the Bank's "Insolvency" (as
defined
in such rabbi trust agreement), until the contributed assets are
paid to
the Director and/or his Beneficiary in such manner and at such times
as
specified in this Agreement. It is the intention of the Bank that
the
contribution or contributions to the rabbi trust shall provide the
Bank
with a source of funds to assist it in meeting the liabilities of
this
Agreement.
|
11.14
|
Source
of Payments
.
All payments provided in this Agreement shall be timely paid in cash
or
check from the general funds of the Bank or the assets of the rabbi
trust,
to the extent made from the Accrued Benefit Account.
|
SECTION
XII
AMENDMENT/PLAN
TERMINATION
12.1
|
Amendment
or Plan Termination
.
The Bank intends this Agreement to be permanent,
but
reserves the right to amend or terminate the Agreement when such
amendment
or termination is required due to objection to the plan by the Bank's
regulatory authorities.
The
Agreement may not be amended or terminated without the express written
consent of the parties. Any amendment or termination of the Agreement
shall be made pursuant to a resolution of the Board of Directors
of the
Bank and shall be effective as of the date of such resolution. No
amendment or termination of the Agreement shall directly or indirectly
deprive the Director of all or any portion of the Director's Retirement
Income Trust Fund (and Accrued Benefit Account, if applicable) as
of the
effective date of the resolution amending or terminating the
Agreement.
|
Notwithstanding
the foregoing, if an individual Director’s agreement is subject to Code Section
409A, :the Bank may terminate this Agreement only under the following
circumstances and conditions:
|
(a)
|
The
Board of Directors may terminate the Agreement within 12 months of
a
corporate dissolution taxed under Code Section 331, or with approval
of a
bankruptcy court pursuant to 11 U.S.C. §503(b)(1)(A), provided that the
amounts deferred under the Agreement are included in the Director’s gross
income in the latest of (i) the calendar year in which the Agreement
terminates; (ii) the calendar year in which the amount is no longer
subject to a substantial risk of forfeiture; or (iii) the first calendar
year in which the payment is administratively
practicable.
|
|
(b)
|
The
Board of Directors may terminate the Agreement within the 30 days
preceding a Change in Control (but not following a Change in Control),
provided that the Agreement shall only be treated as terminated if
all
substantially similar arrangements sponsored by the Bank are terminated
so
that the Director and all participants under substantially similar
arrangements are required to receive all amounts of compensation
deferred
under the terminated arrangements within 12 months of the date of
the
termination of the
arrangements.
|
|
(c)
|
The
Board of Directors may terminate the Agreement provided that (i)
all
arrangements sponsored by the Bank that would be aggregated with
this
Agreement under Proposed Regulation Section 1.409A-1(c) if the Director
covered by this Agreement was also covered by any of those other
arrangements are also terminated; (ii) no payments other than payments
that would be payable under the terms of the arrangement if the
termination had not occurred are made within 12 months of the termination
of the arrangement; (iii) all payments are made within 24 months
of the
termination of the arrangements; and (iv) the Bank does not adopt
a new
arrangement that would be aggregated with any terminated arrangement
under
Proposed Regulation Section 1.409A-1(c) if the Director participated
in
both arrangements, at any time within five years following the date
of
termination of the arrangement.
|
12.2
|
Director's
Right to Payment Following Plan Termination
.
In the event of a termination of the Agreement, the Director shall
be
entitled to the balance, if any, of his Retirement Income Trust Fund
(and
Accrued Benefit Account, if applicable). However, if such termination
is
done in anticipation of or pursuant to a
A
Change
in Control,
@
such balance(s) shall include the final Contribution (or final Phantom
Contribution) made (or recorded) pursuant to Subsection 2.1(b)(2)
(or
2.1(c)(2)). Payment of the balance(s) of the Director's Retirement
Income
Trust Fund (and Accrued Benefit Account, if applicable) shall not
be
dependent upon his continuation of service with the Bank following
the
termination date of the Agreement. Payment of the balance(s) of the
Director's Retirement Income Trust Fund (and Accrued Benefit Account,
if
applicable) shall be made in a lump sum within thirty (30) days of
the
date of termination of the
Agreement.
|
SECTION
XIII
EXECUTION
13.1
|
This
Agreement and the Andrew Hodulik Grantor Trust Agreement set forth
the
entire understanding of the parties hereto with respect to the
transactions contemplated hereby, and any previous agreements or
understandings between the parties hereto regarding the subject matter
hereof are merged into and superseded by this Agreement and the Andrew
Hodulik Grantor Trust Agreement.
|
13.2
|
This
Agreement shall be executed in triplicate, each copy of which, when
so
executed and delivered, shall be an original, but all three copies
shall
together constitute one and the same
instrument.
|
[Remainder
of Page
Intentionally
Left Blank]
IN
WITNESS WHEREOF, the Bank and the Director have caused this Agreement to be
executed on the day and date first above written.
ATTEST:
|
|
MAGYAR
BANK:
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/
|
|
By:
|
/s/
Elizabeth E. Hance
|
|
|
|
|
|
|
Title:
|
President/CEO
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
WITNESS:
|
|
DIRECTOR:
|
|
|
|
|
/s/
|
|
/s/
Andrew Hodulik
|
|
|
|
|
|
|
|
|
|
|
|
|
CONDITIONS,
ASSUMPTIONS,
AND
SCHEDULE
OF CONTRIBUTIONS AND PHANTOM CONTRIBUTIONS
1.
|
Interest
Factor - for purposes of:
|
|
a.
|
the
Accrued Benefit Account - shall be six percent (6%) per annum, compounded
monthly.
|
|
b.
|
the
Elective Contributions - shall be ten percent (10%) per annum, compounded
monthly.
|
|
c.
|
the
Emeritus Contributions - shall be six percent (6%) per annum, compounded
monthly.
|
|
d.
|
the
Retirement Income Trust Fund - for purposes of annuitizing the balance
of
the Retirement Income Trust Fund over the Payout Period, the trustee
of
the Andrew Hodulik Grantor Trust shall exercise discretion in selecting
the appropriate rate given the nature of the investments contained
in the
Retirement Income Trust Fund and the expected return associated with
the
investments. For these purposes, if the trustee of the Retirement
Income
Trust Fund has purchased a life insurance policy, the trustee shall
have
the discretion to determine the portion of the cash value of such
policy
available for purposes of annuitizing the Retirement Income Trust
Fund, in
accordance with Section 2.3 of the Agreement.
|
2.
|
The
amount of the annual Emeritus Contributions (or Phantom Contributions)
to
the Retirement Income Trust Fund (or Accrued Benefit Account) has
been
based on the annual interest-adjusted accounting accruals which would
be
required of the Bank through the earlier of the Director
=
s
death or Benefit Age, (i) pursuant to APB Opinion No. 12, as amended
by
FAS 106 and (ii) assuming a discount rate equal to six percent (6%)
per
annum, in order to provide a portion of the unfunded, non-qualified
Supplemental Retirement Income Benefit. The Emeritus Contributions
are
calculated to support a benefit based upon
60%
of
the Director’s total board fees, committee fees and/or retainer in the
twelve months prior to Director’s Benefit Eligibility Date.
|
3.
|
The
amount of the annual Elective Contributions (or Phantom Contributions)
to
the Retirement Income Trust Fund (or Accrued Benefit Account) has
been
based on the annual interest-adjusted accounting accruals which would
be
required of the Bank through the earlier of the Director’s death or
Benefit Age, (i) pursuant to APB Opinion No. 12, as amended by FAS
106 and
(ii) assuming a discount rate equal to ten percent (10%) per annum,
in
order to provide a portion of the unfunded, non-qualified Supplemental
Retirement Income Benefit. Director has elected a monthly, pre-tax
deferral of board fees, committee fess and/or retainer in the amount
of
$1,750
per month ending January 2006.
|
4.
|
For
purposes of this Agreement, and benefit calculations under this Agreement,
future increases in Board Fees after 2006 will be limited to the
actual
increase or four percent (4%), whichever is
less.
|
Exhibit
A
5.
|
Supplemental
Retirement Income Benefit means an actuarially determined annual
amount
equal to One Hundred Ninety-Five Thousand Three Hundred and Forty-Seven
Dollars ($195,347) at age 65 if paid entirely from the Accrued Benefit
Account or One Hundred Twenty-Five Thousand and Twenty-Two Dollars
($125,022) at age 65 if paid from the Retirement Income Trust
Fund.
|
The
Supplemental Retirement Income Benefit:
|
!
|
the
definition of Supplemental Retirement Income Benefit has been incorporated
into the Agreement for the sole purpose of actuarially establishing
the
amount of annual Contributions (or Phantom Contributions) to the
Retirement Income Trust Fund (or Accrued Benefit Account). The amount
of
any actual retirement, pre-retirement or disability benefit payable
pursuant to the Agreement will be a function of (i) the amount and
timing
of Contributions (or Phantom Contributions) to the Retirement Income
Trust
Fund (or Accrued Benefit Account) and (ii) the actual investment
experience of such Contributions (or the monthly compounding rate
of
Phantom Contributions).
|
6.
|
Schedule
of Annual Gross Contributions/Phantom
Contributions
|
Plan
Year
|
Elective
Contributions
|
Emeritus
Contributions
|
Total
Contributions
|
2004
|
$190,576
|
$24,205
|
$214,780
|
2005
|
42,129
|
8,690
|
50,818
|
2006
|
26,300
|
12,843
|
39,143
|
2007
|
27,121
|
14,302
|
41,423
|
2008
|
29,961
|
15,892
|
45,853
|
2009
|
33,098
|
17,624
|
50,722
|
2010
|
36,564
|
19,509
|
56,073
|
2011
|
40,393
|
21,559
|
61,952
|
2012
|
44,623
|
23,789
|
68,412
|
2013
|
49,295
|
26,211
|
75,506
|
2014
|
54,457
|
28,842
|
83,299
|
2015
|
60,160
|
31,697
|
91,857
|
2016
|
66,459
|
34,795
|
101,254
|
2017
|
73,418
|
38,155
|
111,573
|
2018
|
81,106
|
41,796
|
122,902
|
2019
|
89,599
|
45,742
|
135,341
|
2020
|
98.981
|
50,016
|
148,997
|
2021
|
109,043
|
47,945
|
156,988
|
|
|
|
|
Exhibit
A
- Cont
=
d.
RESTATED
DIRECTOR
SUPPLEMENTAL RETIREMENT INCOME and
DEFERRED
COMPENSATION AGREEMENT
BENEFICIARY
DESIGNATION
The
Director, under the terms of the Restated Director Supplemental Retirement
Income and Deferred Compensation Agreement executed by the Bank, dated the
1st
day of February, 2004, as amended and restated effective January 1, 2006, hereby
designates the following Beneficiary(ies) to receive any guaranteed payments
or
death benefits under such Agreement, following his death:
PRIMARY
BENEFICIARY:
|
|
|
|
SECONDARY
BENEFICIARY:
|
|
This
Beneficiary Designation hereby revokes any prior Beneficiary Designation which
may have been in effect.
Such
Beneficiary Designation is revocable.
DATE:
______________________, 20__
Exhibit
B
RESTATED
DIRECTOR
SUPPLEMENTAL RETIREMENT INCOME and
DEFERRED
COMPENSATION AGREEMENT
NOTICE
OF ELECTION TO CHANGE FORM OF PAYMENT
I
hereby
give notice of my election to change the form of payment of my Supplemental
Retirement Income Benefit, as specified below.
I
understand that such notice,
in
order to be effective, must be submitted in accordance with the time
requirements described in Subsection 1.27 of my Restated Director Supplemental
Retirement Income and Deferred Compensation Agreement.
|
G
|
I
hereby elect to change the form of payment of my benefits from monthly
installments throughout my Payout Period to a lump sum benefit
payment.
|
|
G
|
I
hereby elect to change the form of payment of my benefits from a
lump sum
benefit payment to monthly installments throughout my Payout Period.
Such
election hereby revokes my previous notice of election to receive
a lump
sum form of benefit payments.
|
|
|
|
|
|
|
|
|
DIRECTOR
|
|
|
|
|
|
|
|
|
|
|
DATE
|
|
|
|
|
|
|
|
ACKNOWLEDGED
|
|
|
BY:
|
|
|
|
|
|
|
|
TITLE:
|
|
|
|
|
|
|
DATE
|
|
|
Exhibit
C
RESTATED
DIRECTOR
SUPPLEMENTAL RETIREMENT INCOME and
DEFERRED
COMPENSATION AGREEMENT
NOTICE
OF ADJUSTMENT OF ELECTIVE CONTRIBUTION
I
hereby
give notice of my election to adjust the amount of my Elective Contribution
in
accordance with my Restated Director Supplemental Retirement Income and Deferred
Compensation Agreement, dated the 1
st
day of
February, 2004, as amended and restated effective January 1, 2006. This notice
is submitted thirty (30) days prior to January 1st, and shall become effective
January 1st, as specified below.
Adjust
deferral as of:
|
January
1st, 2___
|
|
|
|
|
Previous
Deferral Amount
|
____________
per month
|
New
Deferral Amount
|
____________
per month
|
|
(to
discontinue deferral, enter $0)
|
|
|
|
|
DIRECTOR
|
|
|
|
|
|
|
|
|
DATE
|
|
|
|
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|
|
ACKNOWLEDGED
BY
|
|
|
|
|
|
|
|
|
TITLE
|
|
|
|
|
|
|
|
|
DATE
|
|
Exhibit
D
Exhibit
10.13
EXECUTIVE
SUPPLEMENTAL
RETIREMENT
INCOME AGREEMENT
FOR
JON ANSARI
MAGYAR
BANK
New
Brunswick, New Jersey
January
1, 2006
Financial
Institution Consulting Corporation
700
Colonial Road, Suite 102
Memphis,
Tennessee 38117
WATS:
1-800-873-0089
FAX:
(901) 684-7414
(901)684-7400
EXECUTIVE
SUPPLEMENTAL RETIREMENT INCOME AGREEMENT
FOR
JON ANSARI
This
Executive Supplemental Retirement Income Agreement for Jon Ansari (the
"Agreement"), effective as of the 1st day of January, 2006, formalizes the
understanding by and between MAGYAR BANK (the "Bank"), a state chartered stock
savings bank, and JON ANSARI, hereinafter referred to as
"Executive".
W
I T N E S S E T H :
WHEREAS
,
the
Executive is employed by the Bank; and
WHEREAS
,
the
Bank recognizes the valuable services heretofore performed by the Executive
and
wishes to encourage continued employment; and
WHEREAS
,
the
Executive wishes to be assured that he will be entitled to a certain amount
of
additional compensation for some definite period of time from and after
retirement from active service with the Bank or other termination of employment
and wishes to provide his beneficiary with benefits from and after death; and
WHEREAS
,
the
Bank and the Executive wish to provide the terms and conditions upon which
the
Bank shall pay such additional compensation to the Executive after retirement
or
other termination of employment and/or death benefits to his beneficiary after
death; and
WHEREAS
,
Section
409A of the Internal Revenue Code of 1986 (the "Code"), as amended, requires
that certain deferred compensation arrangements comply with its terms or subject
the recipient of the compensation to potential taxes and penalties;
and
WHEREAS
,
the
Bank desires that the Agreement comply with Code Section 409A and any Treasury
Regulations promulgated thereunder; and
WHEREAS
,
the
Bank has adopted this Executive Supplemental Retirement Income Agreement which
controls all issues relating to benefits as described herein;
and
WHEREAS
,
the
Board of Directors of the Bank has conditionally approved the Agreement, subject
to the approval of the New Jersey Department of Banking and
Insurance.
NOW,
THEREFORE,
in
consideration of the premises and of the mutual promises herein contained,
the
Bank and the Executive agree as follows:
SECTION
I
DEFINITIONS
When
used
herein, the following words and phrases shall have the meanings below unless
the
context clearly indicates otherwise:
1.1
|
"Accrued
Benefit Account" shall be
represented
by
the bookkeeping entries required to record the Executive
=
s
(i) Phantom Contributions plus (ii) accrued interest, equal to the
Interest Factor, earned to-date on such amounts. However, neither
the
existence of such bookkeeping entries nor the Accrued Benefit Account
itself shall be deemed to create either a trust of any kind, or a
fiduciary relationship between the Bank and the Executive or any
Beneficiary.
|
1.2
|
"Act"
means the Employee Retirement Income Security Act of 1974, as amended
from
time to time.
|
1.3
|
"Bank"
means MAGYAR BANK and any successor
thereto.
|
1.4
|
"Beneficiary"
means the person or persons (and their heirs) designated as Beneficiary
in
Exhibit B of this Agreement to whom the deceased Executive
=
s
benefits are payable. If no Beneficiary is so designated, then the
Executive
=
s
Spouse, if living, will be deemed the Beneficiary. If the
Executive
=
s
Spouse is not living, then the Children of the Executive will be
deemed
the Beneficiaries and will take on a per stirpes basis. If there
are no
Children, then the Estate of the Executive will be deemed the
Beneficiary.
|
1.5
|
"Benefit
Age" means the Executive's sixty-fifth (65th) birthday
.
|
1.6
|
"Benefit
Eligibility Date" means the date on which the Executive is entitled
to
receive any benefit(s) pursuant to Section(s) III or V of this Agreement.
It shall be the first day of the month following the month in which
the
Executive attains his Benefit Age.
|
1.7
|
"Board
of Directors" means the board of directors of the
Bank.
|
1.8
|
"Cause"
means personal dishonesty, willful misconduct, willful malfeasance,
breach
of fiduciary duty involving personal profit, intentional failure
to
perform stated duties, willful violation of any law, rule, regulation
(other than traffic violations or similar offenses), or final
cease-and-desist order, material breach of any provision of this
Agreement, or gross negligence in matters of material importance
to the
Bank.
|
1.9
|
“Change
in Control” shall mean a change in the ownership of the Bank or Company
under paragraph (a) below, a change in effective control of the Bank
or
Company under paragraph (b) below, or a change in the ownership of
a
substantial portion of the assets of the Bank or Company under paragraph
(c) below. For all purposes hereunder, the definition of Change in
Control
shall be construed to be consistent with the requirements of proposed
Treasury Regulation Section 1.409A-3(g), except to the extent that
such
proposed regulations are superseded by subsequent
guidance.
|
For
this
section “persons acting as a group” is defined as follows; Persons will be
considered to be acting as a group if they are owners of a corporation that
enters into a merger, consolidation, purchase or acquisition of stock, or
similar business transaction with the corporation. Persons will not be
considered to be acting as a group solely because they purchase or own stock
of
the same corporation at the same time, or as a result of the same public
offering. If a person, including an entity, owns stock in both corporations
that
enter into a merger, consolidation, purchase or acquisition of stock, or similar
transaction, such shareholder is considered to be acting as a group with other
shareholders in a corporation only with respect to the ownership in that
corporation prior to the transaction giving rise to the change and not with
respect to the ownership interest in the other corporation.
|
(a)
|
Change
in Ownership of the Bank or Company
|
Change
in
the ownership occurs on the date that any one person, or more than one person
acting as a group (as defined above), acquires ownership of stock of the Bank
or
Company that, together with stock held by such person or group, constitutes
more
than 50 percent of the total fair market value or total voting power of the
stock of such corporation. However, if any one person or more than one person
acting as a group, is considered to own more than 50 percent of the total fair
market
value
or
total voting power of the stock of a corporation, the acquisition of additional
stock by the same person or persons is not considered to cause a change in
the
ownership of the corporation or to cause a change in the effective control
of
the corporation.
|
(b)
|
Change
in the Effective Control of the Bank or
Company
|
A
change
in the effective control of the Bank or Company occurs on the date that either
—
(1)
Any
one person, or more than one person acting as a group (as defined above),
acquires (or has acquired during the 12-month period ending on the date of
the
most recent acquisition by such person or persons) ownership of stock of the
Company possessing
20
percent or more of the total voting power of the stock of the Company (except
that if an individual Director’s agreement is subject to Code Section 409A, then
the required percentage of acquired ownership of stock under this Subsection
1.10 (b)(1) shall be 35 percent or more);
or
(2)
a
majority of members of the Company’s board of directors is replaced during any
12-month period by directors whose appointment or election is not endorsed
by a
majority of the members of the Company’s board of directors prior to the date of
the appointment or election.
|
(c)
|
Change
in the Ownership of a Substantial Portion of the Bank’s or Company’s
Assets.
|
Change
in
the ownership of a substantial portion of the Bank or Company’s assets occurs on
the date that any one person, or more than one person acting as a group (as
defined above), acquires (or has acquired during the 12-month period ending
on
the date of the most recent acquisition by such person or persons) assets from
the corporation that have a total gross fair market value equal to or more
than
40 percent of the total gross fair market value of all of the assets of the
Bank
or Company immediately prior to such acquisition or acquisitions. For this
purpose, gross fair market value means the value of the assets of the Bank
or
Company, or the value of the assets being disposed of, determined without regard
to any liabilities associated with such assets.
1.10
|
"Children"
means all natural or adopted children of the Executive, and issue
of any
predeceased child or children.
|
1.11
|
"Code"
means the Internal Revenue Code of 1986, as amended from time to
time.
|
1.12
|
"Contribution(s)"
means those annual contributions which the Bank is required to make
to the
Retirement Income Trust Fund on behalf of the Executive in accordance
with
Subsection 2.1(a) and in the amounts set forth in Exhibit A of the
Agreement.
|
1.13
|
“Company”
shall mean Magyar Bancorp, Inc.
|
1.14
|
(a)
"Disability Benefit" means the benefit payable to the Executive following
a determination, in accordance with Subsection 6.1(a), that he is
no
longer able, properly and satisfactorily, to perform his duties at
the
Bank.
|
(b)
"Disability Benefit-Supplemental" (if applicable) means the benefit payable
to
the Executive
=
s
Beneficiary upon the Executive
=
s
death
in accordance with Subsection 6.1(b).
1.15
|
"Effective
Date" of this Agreement shall be January 1st,
2006.
|
1.16
|
"Estate"
means the estate of the Executive.
|
1.17
|
"Interest
Factor" means monthly compounding, discounting or annuitizing, as
applicable, at a rate set forth in
Exhibit A.
|
1.18
|
"Payout
Period" means the time frame during which certain benefits payable
hereunder shall be distributed. Payments shall be made in monthly
installments commencing on the first day of the month following the
occurrence of the event which triggers distribution and continuing
for a
period of one hundred eighty (180) months. Should the Executive make
a
Timely Election to receive a lump sum benefit payment, the
Executive
=
s
Payout Period shall be deemed to be one (1) month. Notwithstanding
anything herein to the contrary, in the event that the Executive
exercises
the Executive’s withdrawal rights and the Executive is considered a
Specified Employee within the meaning of Code section 409A(a)(2)(B)(i)
at
the time of (i) any distribution due to the Executive’s termination of
employment (for reasons other than death or disability), or (ii)
any
payments to the Retirement Income Trust Fund, then such payments
shall be
delayed until the first day of the seventh full month following the
Executive’s Separation from Service. In such case, the first payment made
to the Executive will consist of an amount equal to seven (7) monthly
installments so that the Executive
|
(or
his
Beneficiary, as applicable) will receive his full benefits hereunder over a
period of 180 months following his Separation from Service.
1.19
|
"Phantom
Contributions" means those annual Contributions which the Bank is
no
longer required to make on behalf of the Executive to the Retirement
Income Trust Fund. Rather, once the Executive has exercised the withdrawal
rights provided for in Subsection 2.2, the Bank shall be required
to
record the annual amounts set forth in Exhibit A of the Agreement
in the
Executive
=
s
Accrued Benefit Account, pursuant to Subsection 2.1.
|
1.20
|
"Plan
Year" shall mean the twelve (12) month period commencing January
1 and
ending December 31.
|
1.21
|
“Retirement
Income Trust Fund” means the trust fund account established by the
Executive and into which annual Contributions will be made by the
Bank on
behalf of the Executive pursuant to Subsection 2.1. he contractual
rights
of the Bank and the Executive with respect to the Retirement Income
Trust
fund shall be outlined in a separate writing known as the Jon Ansari
Grantor Trust Agreement.
|
1.22
|
“Separation
from Service” means the Executive’s death, retirement or termination of
employment with the Bank. No Separation from Service shall be deemed
to
occur due to military leave, sick leave or other bona fide leave
of
absence if the period of such leave does not exceed six months or,
if
longer, so long as the Executive’s right to reemployment is provided by
law or contract. If the leave exceeds six months and the Executive’s right
to reemployment is not provided by law or by contract, then the Executive
shall be have a Separation from Service on the first date immediately
following such six-month period.
|
The
Executive shall not be treated as having a Separation from Service if the
Executive provides more than insignificant services for the Bank following
the
Executive’s actual or purported termination of employment with the Bank.
Services shall be treated as not being insignificant if such services are
performed at an annual rate that is at least equal to 20% of the services
rendered by the Executive for the Bank, on average, during the immediately
preceding three full calendar years of employment (or if employed less than
three years, such shorter period of employment) and the annual base compensation
for such services is at least equal to 20% of the average base compensation
earned during the final
three
full calendar years of employment (or if employed less than three years, such
shorter period of employment).
Where
the
Executive continues to provide services to a previous employer in a capacity
other than as an employee, a Separation from Service will not be deemed to
have
occurred if the Executive is providing services at an annual rate that is 50%
or
more of the services rendered, on average, during the immediate preceding three
full calendar years of employment (or if employed less than three years, such
lesser period) and the annual base compensation for such services is 50% or
more
of the annual base compensation earned during the final three full calendar
years of employment (or if less, such lesser period).
1.23
|
“Specified
Employee” means, in the event the Bank or any corporate parent is or
becomes publicly traded, a “key employee” as such term is defined in Code
Section 416(i) without regard to paragraph 5
thereof.
|
1.24
|
"Supplemental
Retirement Income Benefit" means (assuming the normal form of payment
is
applicable) an annual amount (
before
taking into account federal and state income taxes), payable in monthly
installments throughout the Payout Period. Such benefit is projected
pursuant to the Agreement for the purpose of determining the Contributions
to be made to the Retirement Income Trust Fund (or Phantom Contributions
to be recorded in the Accrued Benefit Account). The annual Contributions
and Phantom Contributions have been actuarially determined, using
the
assumptions set forth in Exhibit A, in order to fund for the projected
Supplemental Retirement Income Benefit. The Supplemental Retirement
Income
Benefit for which Contributions (or Phantom Contributions) are being
made
(or recorded) is set forth in Exhibit A.
|
1.25
|
"Timely
Election" means the Executive has made an election to change the
form of
his benefit payment(s) from the Retirement Income Trust Fund by filing
with the Administrator a Notice of Election to Change Form of Payment
(Exhibit C of this Agreement), such election having been made prior
to the
event which triggers distribution and at least two (2) years prior
to the
Executive's Benefit Eligibility Date. In the case of benefits payable
from
the Accrued Benefit Account, such election generally shall have been
made
prior to December 31, 2006 (i.e. the last day of the “Transition Period”
for bringing plans into compliance with Code Section 409A).
Notwithstanding any provision herein to the contrary, in the event
that
the Executive exercises his withdrawal rights pursuant to Section
2.2
|
herein,
the Executive shall only be permitted to make subsequent changes to the time
or
form of distributions under Section 3.1, 4.1 or 5.1 by meeting each of the
following requirements:
(i)
no
election may take effect until at least 12 months after the date on which the
election is made;
ii)
other
than with respect to distributions made on account of death or disability,
the
first payment with respect to which such election is made shall be deferred
for
a period of at least five years from the date such payment would otherwise
have
been made; and
|
(iii)
|
any
such election must be made at least 12 months prior to the date of
the
first scheduled payment under such
paragraph.
|
SECTION
II
BENEFITS
- GENERALLY
2.1
|
(a)
Retirement
Income Trust Fund and Accrued Benefit Account
.
The Executive shall establish the Jon Ansari Grantor Trust into which
the
Bank shall be required to make annual Contributions on the
Executive
=
s
behalf, pursuant to Exhibit A and this Section II of the Agreement.
A
trustee shall be selected by the Executive. The trustee shall maintain
an
account, separate and distinct from the Executive
=
s
personal contributions, which account shall constitute the Retirement
Income Trust Fund. The trustee shall be charged with the responsibility
of
investing all contributed funds. Distributions from the Retirement
Income
Trust Fund of the Jon Ansari Grantor Trust shall be made by the trustee
to
the Executive, for purposes of payment of any income taxes due and
owing
on Contributions by the Bank to the Retirement Income Trust Fund,
if any,
and on any taxable earnings associated with such Contributions which
the
Executive shall be required to pay from year to year under applicable
law
prior to actual receipt of any benefit payments from the Retirement
Income
Trust Fund. If the Executive exercises his withdrawal rights pursuant
to
Subsection 2.2, the Bank
=
s
obligation to make Contributions to the Retirement Income Trust Fund
shall
cease and the Bank
=
s
obligation to record Phantom Contributions in the Accrued Benefit
Account
shall immediately commence pursuant to Exhibit A and this Section
II of
the Agreement. To the extent this Agreement is inconsistent with
the Jon
Ansari Grantor Trust agreement, this Agreement shall supersede the
Jon
Ansari Grantor Trust agreement.
|
The
annual Contributions (or Phantom Contributions) required to be made by the
Bank
to the Retirement Income Trust Fund (or recorded by the Bank in the Accrued
Benefit Account) have been actuarially determined and are set forth in Exhibit
A
which is attached hereto and incorporated herein by reference. Contributions
shall be made by the Bank to the Retirement Income Trust Fund (i) within thirty
(30) days of establishment of such trust, and (ii) within the first five (5)
days of the beginning of each subsequent Plan Year, unless this Section
expressly provides otherwise. Phantom Contributions, if any, shall be recorded
in the Accrued Benefit Account within the first five (5) days of the beginning
of each applicable Plan Year, unless this Section expressly provides otherwise.
Phantom Contributions shall accrue interest at a rate equal to the Interest
Factor, up to and throughout the Payout Period, until the balance of the Accrued
Benefit Account has been fully distributed. Interest on any Phantom Contribution
shall not commence until one (1) calendar year following the date such Phantom
Contribution is initially recorded in the Executive
=
s
Accrued
Benefit Account.
The
Administrator may review the schedule of annual Contributions (or Phantom
Contributions) provided for in Exhibit A within ten (10) days prior to the
close
of each Plan Year. Such review shall consist of an evaluation of the accuracy
of
all assumptions used to establish the schedule of Contributions (or Phantom
Contributions) required to provide the Supplemental Retirement Income Benefit.
The Administrator may prospectively amend the schedule of Contributions (or
Phantom Contributions) provided for in Exhibit A, should the Administrator
determine during any such review that an increase in such Contributions (or
Phantom Contributions) is necessary or desired in order to provide a benefit
equivalent to the Supplemental Retirement Income Benefit on an after-tax
basis.
(b)
Withdrawal
Rights Not Exercised.
(1)
Contributions
Made Annually
If
the
Executive does not exercise any withdrawal rights pursuant to Subsection 2.2,
the annual Contributions to the Retirement Income Trust Fund included on Exhibit
A shall continue each year, unless this Subsection 2.1(b) specifically states
otherwise, until the earlier of (i) the last Plan Year that Contributions are
required pursuant to Exhibit A, or (ii) the Plan Year of the Executive's
termination of employment.
(2)
Termination
Following a Change in Control
If
the
Executive does not exercise his withdrawal rights pursuant to Subsection 2.2
and
a Change in Control occurs at the Bank, followed within sixty (60) months by
either (i) the Executive's involuntary termination of employment, or (ii)
Executive's voluntary termination of employment after: (A) a material change
in
the Executive's function, duties, or responsibilities, which change would cause
the Executive's position to become one of lesser responsibility, importance,
or
scope from the position the Executive held at the time of the Change in Control,
(B) a relocation of the Executive's principal place of employment by more than
thirty (30) miles from its location prior to the Change in Control, or (C)
a
material reduction in the benefits and perquisites to the Executive from those
being provided at the time of the Change in Control, the Contribution set forth
below shall be required of the Bank in addition to all previous annual
Contributions. The Bank shall be required to make a final Contribution to the
Retirement Income Trust Fund within five (5) days of the Executive's termination
of employment (or if the Executive is a Specified Employee, not earlier than
the
first day of the seventh (7th) month following the Executive’s Separation from
Service), in an amount equal to the lesser of (i) the present value (using
the
Interest Factor) of all remaining Contributions which would have been required
to be made on behalf of the Executive, had the Executive remained in the employ
of the Bank until Benefit Age, or (ii) One Dollar ($1.00) less than the total
dollar amount of Contributions which would have resulted in taxation to the
Executive pursuant to sections 280G and 4999 of the Code.
(3)
Termination
For Cause
If
the
Executive (i) does not exercise his withdrawal rights pursuant to Subsection
2.2, and (ii) is terminated for Cause pursuant to Subsection 5.2, no further
Contribution(s) to the Retirement Income Trust Fund shall be required of the
Bank, and if not yet made, no Contribution shall be required for the year in
which such termination for Cause occurs.
(4)
Voluntary
or Involuntary Termination (Not For Cause) of Employment Prior to Benefit
Age
.
If
(i)
the Executive does not exercise his withdrawal rights pursuant to
Subsection 2.2, and (ii) the Executive's employment with the Bank is
voluntarily or involuntarily terminated for any reason other than a termination
related to disability, termination for Cause, or termination following a Change
in Control, within ten (10) days of such voluntary or involuntary termination
of
employment, the Bank shall be required to make a final Contribution to the
Retirement Income Trust Fund, attributable to the Plan Year in which the
termination occurs (unless such Contribution is made prior to termination),
in
an
amount
equal to the full Contribution required for such Plan Year. No further
Contribution(s) shall be required for periods subsequent to the Plan Year in
which the Executive
=
s
employment is terminated.
(5)
Death
During Employment
.
If
the
Executive (i) does not exercise any withdrawal rights pursuant to
Subsection 2.2, and (ii) dies while employed by the Bank (including
employment following a Change in Control), the Contributions included on
Exhibit A shall be required of the Bank through and including the year in
which the Executive dies. Such Contributions to the Retirement Income Trust
Fund
shall commence in the Plan Year in which the Retirement Income Trust Fund is
established and shall continue, annually, through the Plan Year in which the
Executive dies. No additional Contributions shall be required for any Plan
Year
after the year in which the Executive dies.
(6)
Termination
Due to Disability.
If
the
Executive (i) does not exercise his withdrawal rights pursuant to Subsection
2.2, and (ii) terminates service with the Bank due to a disability pursuant
to
Subsection 6.1, all annual Contributions set forth in Exhibit A for all Plan
Years preceding the year in which such termination occurs shall be required
of
the Bank as well as the final Contribution, set forth below, attributable to
the
Plan Year in which termination occurs (unless such Contribution is made prior
to
termination). The final Contribution to be made by the Bank for the Plan Year
in
which the termination occurs, shall be equal to the full Contribution required
for such Plan Year pursuant to Exhibit A and shall be made within ten (10)
days
of the disability determination. No additional Contributions to the Retirement
Income Trust Fund shall be required for periods subsequent to the Plan Year
in
which the Executive
=
s
employment is terminated.
(c)
Withdrawal
Rights Exercised.
(1)
Phantom
Contributions Made Annually
.
If
the
Executive exercises his withdrawal rights pursuant to Subsection 2.2, no further
Contributions to the Retirement Income Trust Fund shall be required of the
Bank.
Thereafter, Phantom Contributions shall be recorded annually in the Executive's
Accrued Benefit Account on or before the last day of each Plan Year, commencing
with the first Plan Year following the Plan Year in which the Executive
exercises his withdrawal rights. Such Phantom Contributions shall continue
to be
recorded annually,
unless
this Subsection 2.1(c) specifically states otherwise, until the earlier of
(i)
the last Plan Year that Phantom Contributions are required pursuant to Exhibit
A, or (ii) the Plan Year of the Executive's termination of
employment.
(2)
Termination
Following a Change in Control
If
the
Executive exercises his withdrawal rights pursuant to Subsection 2.2, Phantom
Contributions shall commence in the first Plan Year following the Plan Year
in
which the Executive first exercises his withdrawal rights. If a Change in
Control occurs at the Bank, and within sixty (60) months of such Change in
Control, the Executive's employment is either (i) involuntarily terminated,
or
(ii) voluntarily terminated by the Executive after: (A) a material change in
the
Executive's function, duties, or responsibilities, which change would cause
the
Executive's position to become one of lesser responsibility, importance, or
scope from the position the Executive held at the time of the Change in Control,
(B) a relocation of the Executive's principal place of employment by more than
thirty (30) miles from its location prior to the Change in Control, or (C)
a
material reduction in the benefits and perquisites to the Executive from those
being provided at the time of the Change in Control, the Phantom Contribution
set forth below shall be required of the Bank in addition to all previous annual
Contributions. The Bank shall be required to record a final lump sum Phantom
Contribution in the Accrued Benefit Account, within five (5) days of such
termination, in an amount equal to the lesser of (i) the present value (using
the Interest Factor) of all remaining Phantom Contributions which would have
been required had the Executive remained in the employ of the Bank until Benefit
Age, or (ii) One Dollar ($1.00) less than the total dollar amount of Phantom
Contributions which would have resulted in taxation to the Executive pursuant
to
sections 280G and 4999 of the Code.
(3)
Termination
For Cause
If
the
Executive is terminated for Cause pursuant to Subsection 5.2, the entire balance
of the Executive
=
s
Accrued
Benefit Account at the time of such termination, which shall include any Phantom
Contributions which have been recorded plus accrued interest, shall be
forfeited.
(4)
Voluntary
or Involuntary Termination (Not For Cause) of Employment Prior to Benefit
Age
.
If
(i)
the Executive exercises his withdrawal rights pursuant to Subsection 2.2, and
(ii) the Executive's employment with the Bank is voluntarily or involuntarily
terminated for any reason other than a termination related to disability,
termination for Cause, or termination following a Change in Control, within
ten
(10) days of such voluntary or involuntary termination of employment, the Bank
shall be
required
to record a final Phantom Contribution in the Executive
=
s
Accrued
Benefit Account, attributable to the Plan Year in which the termination occurs
(unless such Phantom Contribution is recorded prior to termination), in an
amount equal to the full Phantom Contribution required for such Plan Year.
No
further Phantom Contributions shall be required to be recorded for periods
subsequent to the Plan Year in which the Executive
=
s
employment is terminated.
(5)
Death
During Employment
.
If
the
Executive (i) exercises his withdrawal rights pursuant to Subsection 2.2,
and (ii) dies while employed by the Bank (including employment following a
Change in Control), the Phantom Contributions included on Exhibit A shall be
required of the Bank. Such Phantom Contributions to the Accrued Benefit Account
shall commence in the Plan Year in which the Executive exercises his withdrawal
rights and shall continue, annually, through the Plan Year in which the
Executive dies. The final Phantom Contribution, attributable to the Plan Year
of
the Executive
=
s
death,
shall be equal to (i) the full Phantom Contribution required in accordance
with
Exhibit A for all Plan Year in which the Executive dies, if not recorded prior
to death, plus (ii) the sum of the total Phantom Contributions which would
have
been required in accordance with Exhibit A for all Plan Year(s) following the
Plan Year of the Executive
=
s
death.
Such final Phantom Contribution shall be recorded in the Accrued Benefit Account
within (10) days of the Executive
=
s
death.
(6)
Termination
Due to Disability.
If
the
Executive (i) exercises his withdrawal rights pursuant to Subsection 2.2, and
(ii) terminates service with the Bank due to a disability pursuant to Subsection
6.1, the final Phantom Contribution recorded for the Plan Year in which the
termination occurs shall be required for such Plan Year pursuant to Exhibit
A
and shall be recorded in the Accrued Benefit Account within ten (10) days of
the
disability determination. No additional Phantom Contributions shall be required
to be recorded in the Accrued Benefit Account for periods subsequent to the
Plan
Year in which the Executive
=
s
employment is terminated.
2.2
|
Withdrawals
From Retirement Income Trust
Fund.
|
Exercise
of withdrawal rights by the Executive pursuant to the Jon Ansari Grantor Trust
agreement shall terminate the Bank's obligation to make any further
Contributions to the Retirement Income Trust Fund, and the Bank
=
s
obligation to record Phantom Contributions pursuant to Subsection 2.1(c) shall
commence.
For purposes of this Subsection 2.2,
A
exercise
of withdrawal rights
@
shall
mean those withdrawal rights to which the Executive is entitled under Article
III of the Jon Ansari Grantor Trust agreement and shall exclude any
distributions made by the trustee of the Retirement Income Trust Fund to the
Executive for purposes of payment of income taxes in accordance with Subsection
2.1 of this Agreement, or other trust expenses properly payable from the Jon
Ansari Grantor Trust pursuant to the provisions of the trust
document.
2.3
|
Benefits
Payable From Retirement Income Trust
Fund
|
Notwithstanding
anything else to the contrary in this Agreement, in the event that the trustee
of the Retirement Income Trust Fund purchases a life insurance policy with
the
Contributions to and, if applicable, earnings of the Trust, and such life
insurance policy is intended to continue in force beyond the Payout Period
for
the disability or retirement benefits payable from the Retirement Income Trust
Fund pursuant to this Agreement, then the Trustee shall have the absolute and
sole discretion to determine the portion of the cash value of such policy
available for purposes of annuitizing the Retirement Income Trust Fund to
provide the disability or retirement benefits payable under this Agreement,
after taking into consideration the amounts reasonably believed to be required
in order to maintain the cash value of such policy to continue such policy
in
effect until the death of the Executive and payment of death benefits
thereunder.
SECTION
III
RETIREMENT
BENEFIT
3.1
|
(a)
Normal
form of payment
.
|
If
(i)
the Executive is employed with the Bank until reaching his Benefit Age,
including employment with the Bank until Benefit Age following a Change in
Control, and (ii) the Executive has not made a Timely Election to receive a
lump
sum benefit, this Subsection 3.1(a) shall be controlling with respect to
retirement benefits.
The
Retirement Income Trust Fund, measured as of the Executive's Benefit Age, shall
be annuitized (using the Interest Factor) into monthly installments and shall
be
payable for the Payout Period. Such benefit payments shall commence on the
Executive's Benefit Eligibility Date. Should Retirement Income Trust Fund assets
actually earn a rate of return, following the date such balance is annuitized,
which is less than the rate of return used to annuitize the Retirement Income
Trust Fund, no additional contributions to the Retirement Income Trust Fund
shall be required by the Bank in order to fund the
final
benefit payment(s) and make up for any shortage attributable to the
less-than-expected rate of return. Should Retirement Income Trust Fund assets
actually earn a rate of return, following the date such balance is annuitized,
which is greater than the rate of return used to annuitize the Retirement Income
Trust Fund, the final benefit payment to the Executive (or his Beneficiary)
shall distribute the excess amounts attributable to the greater-than-expected
rate of return. In the event the Executive dies at any time after attaining
his
Benefit Age, but prior to commencement or completion of all the payments due
and
owing hereunder, (i) the trustee of the Retirement Income Trust Fund shall
pay
to the Executive's Beneficiary the monthly installments (or a continuation
of
such monthly installments if they have already commenced) for the balance of
months remaining in the Payout Period, or (ii) the Executive's Beneficiary
may
request to receive the unpaid balance of the Executive's Retirement Income
Trust
Fund in a lump sum payment. If a lump sum payment is requested by the
Beneficiary, payment of the balance of the Retirement Income Trust Fund in
such
lump sum form shall be made only if the Executive's Beneficiary (i) obtains
approval from the trustee of the Jon Ansari Grantor Trust and (ii) notifies
the
Administrator in writing of such election within ninety (90) days of the
Executive's death. Such lump sum payment, if approved by the trustee, shall
be
payable within thirty (30) days of such trustee approval.
The
Executive
=
s
Accrued
Benefit Account (if applicable), measured as of the Executive
=
s
Benefit
Age, shall be annuitized (using the Interest Factor) into monthly installments
and shall be payable for the Payout Period. Such benefit payments shall commence
on the Executive
=
s
Benefit
Eligibility Date. In the event the Executive dies at any time after attaining
his Benefit Age, but prior to commencement or completion of all the payments
due
and owing hereunder, the Bank shall pay to the Executive
=
s
Beneficiary the same monthly installments (or a continuation of such monthly
installments if they have already commenced) for the balance of months remaining
in the Payout Period.
(b)
Alternative
Payout Option
If
(i)
the Executive is employed with the Bank until reaching his Benefit Age,
including employment with the Bank until Benefit Age following a Change in
Control, and (ii) the Executive has made a Timely Election to receive a lump
sum
benefit, this Subsection 3.1(b) shall be controlling with respect to retirement
benefits.
The
balance of the Retirement Income Trust Fund and the Accrued Benefit Account
(if
applicable), measured as of the Executive
=
s
Benefit
Age, shall be paid to the Executive in a lump sum on his Benefit Eligibility
Date. In the event the Executive dies after becoming eligible for such payment
(upon
attainment of his Benefit Age), but before the actual payment is made, his
Beneficiary shall be entitled to receive the lump sum benefit in accordance
with
this Subsection 3.1(b) within thirty (30) days of the date the Administrator
receives notice of the Executive's death. Notwithstanding the foregoing, unless
the Executive has made a Timely Election to receive a lump sum distribution
with
respect to the Accrued Benefit Account, distributions from the Accrued Benefit
Account will be paid over the Payout Period commencing within thirty (30) days
of the Executive
=
s
Benefit
Age.
SECTION
IV
PRE-RETIREMENT
DEATH BENEFIT
4.1
|
(a)
Normal
form of payment
.
|
If
(i)
the Executive dies while employed by the Bank, including the
Executive
=
s
death
while employed by the Bank following a Change in Control, and (ii) the Executive
has not made a Timely Election to receive a lump sum benefit, this Subsection
4.1(a) shall be controlling with respect to pre-retirement death
benefits.
The
Executive
=
s
Retirement Income Trust Fund, measured as of the Executive
=
s
date of
death and including any contributions made to the Retirement Income Trust Fund
for the year in which the Executive dies, shall be annuitized (using the
Interest Factor) into monthly installments and shall be payable to the
Executive's Beneficiary for the Payout Period. Such benefit payments shall
commence within thirty (30) days of the date the Administrator receives notice
of the Executive's death. Should Retirement Income Trust Fund assets actually
earn a rate of return, following the date such balance is annuitized, which
is
less than the rate of return used to annuitize the Retirement Income Trust
Fund,
no additional contributions to the Retirement Income Trust Fund shall be
required by the Bank in order to fund the final benefit payment(s) and make
up
for any shortage attributable to the less-than-expected rate of return. Should
Retirement Income Trust Fund assets actually earn a rate of return, following
the date such balance is annuitized, which is greater than the rate of return
used to annuitize the Retirement Income Trust Fund, the final benefit payment
to
the Executive's Beneficiary shall distribute the excess amounts attributable
to
the greater-than-expected rate of return. The Executive's Beneficiary may
request to receive the unpaid balance of the Executive's Retirement Income
Trust
Fund in a lump sum payment. If a lump sum payment is requested by the
Beneficiary, payment of the balance of the Retirement Income Trust Fund in
such
lump sum form shall be made only if the Executive's Beneficiary (i) obtains
approval from the trustee of the Jon Ansari Grantor Trust and (ii) notifies
the
Administrator in writing of such election within ninety (90) days of the
Executive's death.
Such
lump
sum payment, if approved by the trustee, shall be made within thirty (30) days
of such trustee approval.
The
Executive
=
s
Accrued
Benefit Account (if applicable), measured as of the Executive's death, shall
be
annuitized (using the Interest Factor) into monthly installments and shall
be
payable to the Executive's Beneficiary for the Payout Period. Such benefit
payments shall commence within thirty (30) days of the date the Administrator
receives notice of the Executive
=
s
death.
(b)
Alternative
Payout Option
If
(i)
the Executive dies while employed by the Bank, including the Executive's death
while employed by the Bank following a Change in Control, and (ii) the Executive
has made a Timely Election to receive a lump sum benefit, this Subsection 4.1(b)
shall be controlling with respect to pre-retirement death benefits.
The
balance of the Executive
=
s
Retirement Income Trust Fund and the Accrued Benefit Account (if applicable),
measured as of the Executive
=
s
death,
shall be paid to the Executive's Beneficiary in a lump sum within thirty (30)
days of the date the Administrator receives notice of the Executive's death.
Notwithstanding the foregoing, unless the Executive has made a Timely Election
to receive a lump sum distribution with respect to the Accrued Benefit Account,
distributions from the Accrued Benefit Account will be paid over the Payout
Period commencing within thirty (30) days of the date the Administrator receives
notice of the Executive
=
s
death.
SECTION
V
BENEFIT(S)
IN THE EVENT OF TERMINATION OF SERVICE
PRIOR
TO BENEFIT AGE
5.1
|
Voluntary
or Involuntary Termination of Service Other Than for Cause
.
In the event the Executive
=
s
service with the Bank is voluntarily or involuntarily terminated
prior to
Benefit Age, for any reason including a Change in Control, but excluding
(i) any termination related to disability which shall be covered
in
Section VI, (ii) the Executive's pre-retirement death, which shall
be
covered in Section IV, or (iii) termination for Cause, which shall
be
covered in Subsection 5.2, the Executive (or his Beneficiary) shall
be
entitled to receive benefits in accordance with this Subsection 5.1.
Payments of
|
benefits
pursuant to this Subsection 5.1 shall be made in accordance with Subsection
5.1
(a) or 5.1 (b) below, as applicable.
(a)
Normal
form of payment
.
(1)
Executive
Lives Until Benefit Age
If
(i)
after such termination, the Executive lives until attaining his Benefit Age,
and
(ii) the Executive has not made a Timely Election to receive a lump sum benefit,
this Subsection 5.1(a)(1) shall be controlling with respect to retirement
benefits.
The
Retirement Income Trust Fund, measured as of the Executive's Benefit Age, shall
be annuitized (using the Interest Factor) into monthly installments and shall
be
payable for the Payout Period. Such payments shall commence on the Executive's
Benefit Eligibility Date. Should Retirement Income Trust Fund assets actually
earn a rate of return, following the date such balance is annuitized, which
is
less than the rate of return used to annuitize the Retirement Income Trust
Fund,
no additional contributions to the Retirement Income Trust Fund shall be
required by the Bank in order to fund the final benefit payment(s) and make
up
for any shortage attributable to the less-than-expected rate of return. Should
Retirement Income Trust Fund assets actually earn a rate of return, following
the date such balance is annuitized, which is greater than the rate of return
used to annuitize the Retirement Income Trust Fund, the final benefit payment
to
the Executive (or his Beneficiary) shall distribute the excess amounts
attributable to the greater-than-expected rate of return. In the event the
Executive dies at any time after attaining his Benefit Age, but prior to
commencement or completion of all the payments due and owing hereunder, (i)
the
trustee of the Retirement Income Trust Fund shall pay to the Executive's
Beneficiary the monthly installments (or a continuation of the monthly
installments if they have already commenced) for the balance of months remaining
in the Payout Period, or (ii) the Executive's Beneficiary may request to receive
the unpaid balance of the Executive's Retirement Income Trust Fund in a lump
sum
payment. If a lump sum payment is requested by the Beneficiary, payment of
the
balance of the Retirement Income Trust Fund in such lump sum form shall be
made
only if the Executive's Beneficiary (i) obtains approval from the trustee of
the
Jon Ansari Grantor Trust and (ii) notifies the Administrator in writing of
such
election within ninety (90) days of the Executive's death. Such lump sum
payment, if approved by the trustee, shall be made within thirty (30) days
of
such trustee approval.
The
Executive
=
s
Accrued
Benefit Account (if applicable), measured as of the Executive
=
s
Benefit
Age, shall be annuitized (using the Interest Factor) into monthly installments
and shall be payable for the
Payout
Period. Such benefit payments shall commence on the Executive
=
s
Benefit
Eligibility Date. In the event the Executive dies at any time after attaining
his Benefit Age, but prior to commencement or completion of all the payments
due
and owing hereunder, the Bank shall pay to the Executive
=
s
Beneficiary the same monthly installments (or a continuation of such monthly
installments if they have already commenced) for the balance of months remaining
in the Payout Period.
(2)
Executive
Dies Prior to Benefit Age
If
(i)
after such termination, the Executive dies prior to attaining his Benefit Age,
and (ii) the Executive has not made a Timely Election to receive a lump sum
benefit, this Subsection 5.1(a)(2) shall be controlling with respect to
retirement benefits.
The
Retirement Income Trust Fund, measured as of the date of the Executive's death,
shall be annuitized (using the Interest Factor) into monthly installments and
shall be payable for the Payout Period. Such benefit payments shall commence
within thirty (30) days of the date the Administrator receives notice of the
Executive's death. Should Retirement Income Trust Fund assets actually earn
a
rate of return, following the date such balance is annuitized, which is less
than the rate of return used to annuitize the Retirement Income Trust Fund,
no
additional contributions to the Retirement Income Trust Fund shall be required
by the Bank in order to fund the final benefit payment(s) and make up for any
shortage attributable to the less-than-expected rate of return. Should
Retirement Income Trust Fund assets actually earn a rate of return, following
the date such balance is annuitized, which is greater than the rate of return
used to annuitize the Retirement Income Trust Fund as of the date of the
Executive's death, the final benefit payment to the Executive's Beneficiary
shall distribute the excess amounts attributable to the greater-than-expected
rate of return. The Executive's Beneficiary may request to receive the unpaid
balance of the Executive's Retirement Income Trust Fund in the form of a lump
sum payment. If a lump sum payment is requested by the Beneficiary, payment
of
the balance of the Retirement Income Trust Fund in such lump sum form shall
be
made only if the Executive's Beneficiary (i) obtains approval from the trustee
of the Jon Ansari Grantor Trust and (ii) notifies the Administrator in writing
of such election within ninety (90) days of the Executive's death. Such lump
sum
payment, if approved by the trustee, shall be made within thirty (30) days
of
such trustee approval.
The
Executive
=
s
Accrued
Benefit Account (if applicable), measured as of the date of the
Executive
=
s
death,
shall be annuitized (using the Interest Factor) into monthly installments and
shall be payable for the Payout Period. Such payments shall commence within
thirty (30) days of the date the Administrator receives notice of the
Executive
=
s
death.
(b)
Alternative
Payout Option
(1)
Executive
Lives Until Benefit Age
If
(i)
after such termination, the Executive lives until attaining his Benefit Age,
and
(ii) the Executive has made a Timely Election to receive a lump sum benefit,
this Subsection 5.1(b)(1) shall be controlling with respect to retirement
benefits.
The
balance of the Retirement Income Trust Fund and the Accrued Benefit Account
(if
applicable), measured as of the Executive's Benefit Age, shall be paid to the
Executive in a lump sum on his Benefit Eligibility Date. In the event the
Executive dies after becoming eligible for such payment (upon attainment of
his
Benefit Age), but before the actual payment is made, his Beneficiary shall
be
entitled to receive the lump sum benefit in accordance with this Subsection
5.1(b)(1) within thirty (30) days of the date the Administrator receives notice
of the Executive's death. Notwithstanding the foregoing, unless the Executive
has made a Timely Election to receive a lump sum distribution with respect
to
the Accrued Benefit Account, distributions from the Accrued Benefit Account
will
be paid over the Payout Period commencing within thirty (30) days of the
Executive
=
s
Benefit
Age.
(2)
Executive
Dies Prior to Benefit Age
If
(i)
after such termination, the Executive dies prior to attaining his Benefit Age,
and (ii) the Executive has made a Timely Election to receive a lump sum benefit,
this Subsection 5.1(b)(2) shall be controlling with respect to retirement
benefits.
The
balance of the Retirement Income Trust Fund and the Accrued Benefit Account
(if
applicable), measured as of the date of the Executive's death, shall be paid
to
the Executive's Beneficiary within thirty (30) days of the date the
Administrator receives notice of the Executive's death. Notwithstanding the
foregoing, unless the Executive has made a Timely Election to receive a lump
sum
distribution with respect to the Accrued Benefit Account, distributions from
the
Accrued Benefit Account will be paid over the Payout Period commencing within
thirty (30) days of the date the Administrator receives notice of the
Executive
=
s
death.
5.2
|
Termination
For Cause
.
|
If
the
Executive is terminated for Cause, all benefits under this Agreement, other
than
those which can be paid from previous Contributions to the Retirement Income
Trust Fund (and earnings on such Contributions), shall be forfeited.
Furthermore, no further Contributions (or Phantom Contributions, as applicable)
shall be required of the Bank for the year in which such termination for Cause
occurs (if not yet made). The Executive shall be entitled to receive a benefit
in accordance with this Subsection 5.2.
The
balance of the Executive
=
s
Retirement Income Trust Fund shall be paid to the Executive in a lump sum on
his
Benefit Eligibility Date. In the event the Executive dies prior to his Benefit
Eligibility Date, his Beneficiary shall be entitled to receive the balance
of
the Executive's Retirement Income Trust Fund in a lump sum within thirty (30)
days of the date the Administrator receives notice of the Executive's death.
SECTION
VI
OTHER
BENEFITS
6.1
|
(a)
Disability
Benefit
.
|
If
the
Executive's service is terminated prior to Benefit Age due to a disability
which
meets the criteria set forth below, the Executive may request to receive the
Disability Benefit in lieu of the retirement benefit(s) available pursuant
to
Section 5.1 (which is (are) not available prior to the Executive's Benefit
Eligibility Date).
Notwithstanding
any other provision hereof
,
the
Executive shall receive a lump sum Disability Benefit hereunder in any case
in
which it is determined that the Executive is “disabled.” For these purposes, a
distribution from the Accrued Benefit Account (but not the Retirement Income
Trust Fund) due to disability shall require a determination that the Executive
is “disabled” within the meaning of proposed Treasury Regulation Section
1.409A-3(g)(4). The lump sum benefit(s) to which the Executive is entitled
shall
include: (i) the balance of the Retirement Income Trust Fund, plus (ii) the
balance of the Accrued Benefit Account (if applicable), both measured as of
the
disability determination date. The benefit(s) shall be paid within thirty (30)
days following the date of the Executive's final disability determination.
In
the event the Executive dies after becoming eligible for such payment(s) but
before the actual payment(s) is (are) made, his Beneficiary shall be entitled
to
receive
the benefit(s) provided for in this Subsection 6.1(a) within thirty (30) days
of
the date the Administrator receives notice of the Executive's
death.
(b)
Disability
Benefit - Supplemental
.
If
Board
of Director approval is obtained within thirty (30) days of the
Executive
=
s
death,
the Bank shall make a direct, lump sum payment to the Executive's Beneficiary
in
an amount equal to the following: the sum of all remaining Contributions (or
Phantom Contributions) set forth in Exhibit A, but not required pursuant to
Subsection 2.1(b) (or 2.1(c)) due to the Executive's disability-related
termination. Such lump sum payment, if approved by the Board of Directors,
shall
be payable within thirty (30) days of such Board of Director
approval.
SECTION
VII
BENEFICIARY
DESIGNATION
The
Executive shall make an initial designation of primary and secondary
Beneficiaries upon execution of this Agreement and shall have the right to
change such designation, at any subsequent time, by submitting to (i) the
Administrator,
and
(ii) the
trustee of the Retirement Income Trust Fund, in substantially the form attached
as Exhibit B to this Agreement, a written designation of primary and secondary
Beneficiaries. Any Beneficiary designation made subsequent to execution of
this
Agreement shall become effective only when receipt thereof is acknowledged
in
writing by the Administrator.
SECTION
VIII
EXECUTIVE'S
RIGHT TO ASSETS
The
rights of the Executive, any Beneficiary, or any other person claiming through
the Executive under this Agreement, shall be solely those of an unsecured
general creditor of the Bank, unless this Agreement provides otherwise. The
Executive, the Beneficiary, or any other person claiming through the Executive,
shall only have the right to receive from the Bank those payments so specified
under this Agreement. The Executive agrees that he, his Beneficiary, or any
other person claiming through him shall have no rights or interests whatsoever
in any asset of the Bank, including any insurance policies or contracts which
the Bank may possess or obtain to informally fund this Agreement.
Any
asset
used or acquired by the Bank in connection with the liabilities it has assumed
under this Agreement, unless expressly provided herein, shall not be deemed
to
be held under any trust for the benefit of the Executive or his Beneficiaries,
nor shall any asset be considered security for the performance of the
obligations of the Bank. Any such asset shall be and remain, a general,
unpledged, and unrestricted asset of the Bank.
SECTION
IX
RESTRICTIONS
UPON FUNDING
The
Bank
shall have no obligation to set aside, earmark or entrust any fund or money
with
which to pay its obligations under this Agreement, unless this Agreement
provides otherwise. Except as otherwise provided for in this Agreement, the
Executive, his Beneficiaries or any successor in interest to him shall be and
remain simply a general unsecured creditor of the Bank in the same manner as
any
other creditor having a general claim for matured and unpaid compensation.
The
Bank reserves the absolute right in its sole discretion to either purchase
assets to meet its obligations undertaken by this Agreement or to refrain from
the same and to determine the extent, nature, and method of such asset
purchases. Should the Bank decide to purchase assets such as life insurance,
mutual funds, disability policies or annuities, the Bank reserves the absolute
right, in its sole discretion, to terminate such assets at any time, in whole
or
in part. At no time shall the Executive be deemed to have any lien, right,
title
or interest in or to any specific investment or to any assets of the Bank.
If
the Bank elects to invest in a life insurance, disability or annuity policy
upon
the life of the Executive, then the Executive shall assist the Bank by freely
submitting to a physical examination and by supplying such additional
information necessary to obtain such insurance or annuities.
SECTION
X
ACT
PROVISIONS
10.1
|
Named
Fiduciary and Administrator
.
The Bank shall be the Administrator (the "Administrator") of this
Agreement. As Administrator, the Bank shall be responsible for the
management, control and administration of the Agreement as established
herein and shall be responsible for designation of the initial trustee,
of
the related rabbi trust, in accordance with the formal agreement
establishing such trust. The Administrator may delegate to others
certain
aspects of the management and operational responsibilities of the
Agreement, including the employment of advisors and the delegation
of
ministerial duties to qualified
individuals.
|
10.2
|
Claims
Procedure and Arbitration
.
In the event that benefits under this Agreement are not paid to the
Executive (or to his Beneficiary in the case of the Executive's death)
and
such claimants feel they are entitled to receive such benefits, then
a
written claim must be made to the Administrator within sixty (60)
days
from the date payments are refused. The Administrator shall review
the
written claim and, if the claim is denied, in whole or in part, it
shall
provide in writing, within ninety (90) days of receipt of such claim,
its
specific reasons for such denial, reference to the provisions of
this
Agreement upon which the denial is based, and any additional material
or
information necessary to perfect the claim. Such writing by the
Administrator shall further indicate the additional steps which must
be
undertaken by claimants if an additional review of the claim denial
is
desired.
|
If
claimants desire a second review, they shall notify the Administrator in writing
within sixty (60) days of the first claim denial. Claimants may review this
Agreement or any documents relating thereto and submit any issues and comments,
in writing, they may feel appropriate. In its sole discretion, the Administrator
shall then review the second claim and provide a written decision within sixty
(60) days of receipt of such claim. This decision shall state the specific
reasons for the decision and shall include reference to specific provisions
of
this Agreement upon which the decision is based. If such determination is
favorable to the claimants, it shall be binding and conclusive. If such
determination is adverse to such claimants, it shall be binding and conclusive
unless the claimants (i) notify the Administrator within ninety (90) days after
receipt by the claimants of the Administrator's determination, that the
claimants intend to institute legal proceedings challenging the determination
of
the Administrator, and (ii) actually institute such legal proceedings within
one
hundred eighty (180) days of receipt by the claimants of the Administrator's
determination.
SECTION
XI
MISCELLANEOUS
11.1
|
No
Effect on Employment Rights
.
Nothing contained herein will confer upon the Executive the right
to be
retained in the service of the Bank nor limit the right of the Bank
to
discharge or otherwise deal with the Executive, in accordance with
the
bylaws of the Bank, without regard to the existence of the Agreement.
Pursuant to 12 C.F.R.
'
563.39(b), the following conditions shall apply to this
Agreement:
|
|
(1)
|
The
Bank's Board of Directors may terminate the Executive at any time,
but any
termination by the Bank's Board of Directors other than termination
for
Cause shall not prejudice the Executive's vested right to compensation
or
other benefits under the contract. As provided in Subsection 5.2,
the
Executive shall have no right to receive additional compensation
or other
benefits, other than those provided for in Subsection 5.2, after
termination for Cause.
|
|
(2)
|
If
the Executive is suspended and/or temporarily prohibited from
participating in the conduct of the Bank's affairs by a notice served
under Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance
Act (12
U.S.C. 1818(e)(3) and (g)(1)) the Bank's obligations under the contract
shall be suspended (except vested rights) as of the date of termination
of
service unless stayed by appropriate proceedings. If the charges
in the
notice are dismissed, the Bank may in its discretion (i) pay the
Executive
all or part of the compensation withheld while its contract obligations
were suspended and (ii) reinstate (in whole or in part) any of its
obligations which were suspended.
|
|
(3)
|
If
the Executive is terminated and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued
under Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance
Act (12
U.S.C. 1818(e)(4) or (g)(1)), all non-vested obligations of the Bank
under
the contract shall terminate as of the effective date of the order.
|
|
(4)
|
If
the Bank is in default (as defined in Section 3(x)(1) of the Federal
Deposit Insurance Act), all non-vested obligations under the contract
shall terminate as of the date of default.
|
|
(5)
|
All
non-vested obligations under the contract shall be terminated, except
to
the extent determined that continuation of the contract is necessary
for
the continued operation of the
Bank:
|
|
(i)
|
by
the Director of the Federal Deposit Insurance Corporation or his
designee
at the time the Federal Deposit Insurance Corporation enters into
an
|
agreement
to provide assistance to or on behalf of the Bank under the authority contained
in
'
13(c) of
the Federal Deposit Insurance Act; or
|
(ii)
|
by
the Director of the Federal Deposit Insurance Corporation or his designee,
at the time the Director or his designee approves a supervisory merger
to
resolve problems related to operation of the Bank or when the Bank
is
determined by the Director to be in an unsafe or unsound
condition.
|
Any
rights of the parties that have already vested, (i.e., the balance of the
Executive's Retirement Income Trust Fund and the balance of the
Executive
=
s
Accrued
Benefit Account, if applicable), however, shall not be affected by such
action.
11.2
|
Governing
Law
.
The Agreement is established under, and will be construed according
to,
the laws of the state of New Jersey, to the extent such laws are
not
preempted by the Act or other applicable federal law and valid regulations
published thereunder.
|
11.3
|
Construction
and Severability
.
The funding of and payment of benefits from the Accrued Benefit Account
is
deemed to be a nonqualified deferred compensation arrangement within
the
meaning of Code Section 409A. To the extent that the funding of a
benefit
under the Retirement Income Trust Fund under this Agreement is deemed
to
be a nonqualified deferred compensation arrangement, then that part
of
this Agreement shall also be operated, administered and construed
consistent with Code Section 409A. To the extent that a provision
of the
Agreement fails to comply with Code Section 409A and a construction
consistent with Code Section 409A is not possible, such provision
shall be
void
ab
initio
.
In addition, the Agreement shall be subject to amendment, with or
without
advance notice to Executive and other interested parties, and on
a
prospective or retroactive basis, including but not limited to amendment
in a manner that adversely affects the rights of Executives and other
interested parties, to the extent necessary to effect compliance
with Code
Section 409A. In the event that any of the provisions of this Agreement
or
portion thereof, are held to be inoperative or invalid by any court
of
competent jurisdiction, then: (1) insofar as is reasonable, effect
will be
given to the intent manifested in the provisions held invalid or
inoperative, and (2) the validity and enforceability of the remaining
provisions will not be affected
thereby.
|
11.4
|
Incapacity
of Recipient
.
In the event the Executive is declared incompetent and a conservator
or
other person legally charged with the care of his person or Estate
is
appointed, any benefits under the Agreement to which such Executive
is
entitled shall be paid to such conservator or other person legally
charged
with the care of his person or Estate.
|
11.5
|
Unclaimed
Benefit
.
The Executive shall keep the Bank informed of his current address
and the
current address of his Beneficiaries. The Bank shall not be obligated
to
search for the whereabouts of any person. If the location of the
Executive
is not made known to the Bank as of the date upon which any payment
of any
benefits from the Accrued Benefit Account may first be made, the
Bank
shall delay payment of the Executive's benefit payment(s) until the
location of the Executive is made known to the Bank; however, the
Bank
shall only be obligated to hold such benefit payment(s) for the Executive
until the expiration of thirty-six (36) months. Upon expiration of
the
thirty-six (36) month period, the Bank may discharge its obligation
by
payment to the Executive's Beneficiary. If the location of the Executive's
Beneficiary is not made known to the Bank by the end of an additional
two
(2) month period following expiration of the thirty-six (36) month
period,
the Bank may discharge its obligation by payment to the Executive's
Estate. If there is no Estate in existence at such time or if such
fact
cannot be determined by the Bank, the Executive and his Beneficiary(ies)
shall thereupon forfeit any rights to the balance, if any, of the
Executive
=
s
Accrued Benefit Account provided for such Executive and/or Beneficiary
under this Agreement.
|
11.6
|
Limitations
on Liability
.
Notwithstanding any of the preceding provisions of the Agreement,
no
individual acting as an employee or agent of the Bank, or as a member
of
the Board of Directors shall be personally liable to the Executive
or any
other person for any claim, loss, liability or expense incurred in
connection with the Agreement.
|
11.7
|
Gender
.
Whenever in this Agreement words are used in the masculine or neuter
gender, they shall be read and construed as in the masculine, feminine
or
neuter gender, whenever they should so
apply.
|
11.8
|
Effect
on Other Corporate Benefit Agreements
.
Nothing contained in this Agreement shall affect the right of the
Executive to participate in or be covered by any qualified or
non-qualified pension, profit sharing, group, bonus or other supplemental
compensation or fringe benefit agreement constituting a part of the
Bank's
existing or future compensation
structure.
|
11.9
|
Suicide
.
Notwithstanding anything to the contrary in this Agreement, if the
Executive's death results from suicide, whether sane or insane, within
twenty-six (26) months after execution of this Agreement, all further
Contributions to the Retirement Income Trust Fund (or Phantom
Contributions recorded in the Accrued Benefit Account) shall thereupon
cease, and no Contribution (or Phantom Contribution) shall be made
by the
Bank to the Retirement Income Trust Fund (or recorded in the Accrued
Benefit Account) in the year such death resulting from suicide occurs
(if
not yet made). All benefits other than those available from previous
Contributions to the Retirement Income Trust Fund under this Agreement
shall be forfeited, and this Agreement shall become null and void.
The
balance of the Retirement Income Trust Fund, measured as of the
Executive's date of death, shall be paid to the Beneficiary within
thirty
(30) days of the date the Administrator receives notice of the Executive's
death.
|
11.10
|
Inurement
.
This Agreement shall be binding upon and shall inure to the benefit
of the
Bank, its successors and assigns, and the Executive, his successors,
heirs, executors, administrators, and
Beneficiaries.
|
11.11
|
Headings
.
Headings and sub-headings in this Agreement are inserted for reference
and
convenience only and shall not be deemed a part of this
Agreement.
|
11.12
|
Establishment
of a Rabbi Trust.
The Bank shall establish a rabbi trust into which the Bank shall
contribute assets which shall be held therein, subject to the claims
of
the Bank's creditors in the event of the Bank's "Insolvency" (as
defined
in such rabbi trust agreement), until the contributed assets are
paid to
the Executive and/or his Beneficiary in such manner and at such times
as
specified in this Agreement. It is the intention of the Bank that
the
contribution or contributions to the rabbi trust shall provide the
Bank
with a source of funds to assist it in meeting the liabilities of
this
Agreement.
|
SECTION
XII
AMENDMENT/PLAN
TERMINATION
12.1
|
Amendment
or Plan Termination
.
The Bank intends this Agreement to be permanent, but reserves the
right to
amend or terminate the Agreement when such amendment or termination
is
required due to objection to the plan by the Bank's regulatory
authorities, or in the event of a change in existing federal income
tax
laws which would cause this plan to create adverse tax consequences
to the
Bank and/or
|
participants
in the plan. However, any termination of the Agreement which is done in
anticipation of or pursuant to a "Change in Control", as defined in Subsection
1.9, shall be deemed to trigger Subsection 2.1(b)(2) (or 2.1(c)(2), as
applicable) of the Agreement notwithstanding the Executive's continued
employment, and benefit(s) shall be paid from the Retirement Income Trust Fund
(and Accrued Benefit Account, if applicable) in accordance with Subsection
13.2
below and with Subsections 2.1(b)(2) (or 2.1(c)(2), as applicable). Any
amendment or termination of the Agreement shall be made pursuant to a resolution
of the Board of Directors of the Bank and shall be effective as of the date
of
such resolution. No amendment or termination of the Agreement shall directly
or
indirectly deprive the Executive of all or any portion of the Executive's
Retirement Income Trust Fund (and Accrued Benefit Account, if applicable) as
of
the effective date of the resolution amending or terminating the Agreement.
Notwithstanding the foregoing, if an individual Executive’s agreement is subject
to Code Section 409A, the Bank may terminate this Agreement only under the
following circumstances and conditions:
|
(a)
|
The
Board of Directors may terminate the Agreement within 12 months of
a
corporate dissolution taxed under Code Section 331, or with approval
of a
bankruptcy court pursuant to 11 U.S.C. §503(b)(1)(A), provided that the
amounts deferred under the Agreement are included in the Executive’s gross
income in the latest of (i) the calendar year in which the Agreement
terminates; (ii) the calendar year in which the amount is no longer
subject to a substantial risk of forfeiture; or (iii) the first calendar
year in which the payment is administratively
practicable.
|
|
(b)
|
The
Board of Directors may terminate the Agreement within the 30 days
preceding a Change in Control (but not following a Change in Control),
provided that the Agreement shall only be treated as terminated if
all
substantially similar arrangements sponsored by the Bank are terminated
so
that the Executive and all participants under substantially similar
arrangements are required to receive all amounts of compensation
deferred
under the terminated arrangements within 12 months of the date of
the
termination of the arrangements.
|
|
(c)
|
The
Board of Directors may terminate the Agreement provided that (i)
all
arrangements sponsored by the Bank that would be aggregated with
this
Agreement under Proposed Regulation Section 1.409A-1(c) if the Executive
covered by this Agreement was also covered by any of those other
arrangements are also terminated; (ii) no payments other than payments
|
that
would be payable under the terms of the arrangement if the termination had
not
occurred are made within 12 months of the termination of the arrangement; (iii)
all payments are made within 24 months of the termination of the arrangements;
and (iv) the Bank does not adopt a new arrangement that would be aggregated
with
any terminated arrangement under Proposed Regulation Section 1.409A-1(c) if
the
Executive participated in both arrangements, at any time within five years
following the date of termination of the arrangement.
12.2
|
Executive's
Right to Payment Following Plan Termination
.
In the event of a termination of the Agreement, the Executive shall
be
entitled to the balance, if any, of his Retirement Income Trust Fund
(and
Accrued Benefit Account, if applicable), measured as of the date
of plan
termination. However, if such termination is done in anticipation
of or
pursuant to a
A
Change
in Control,
@
such balance(s) shall be measured as of the date the final Contribution
(or Phantom Contribution) is made (or recorded) pursuant to Subsection
2.1(b)(2) (or 2.1(c)(2)). Payment of the balance(s) of the Executive's
Retirement Income Trust Fund (and Accrued Benefit Account, if applicable)
shall not be dependent upon his continuation of employment with the
Bank
following the termination date of the Agreement. Payment of the balance(s)
of the Executive's Retirement Income Trust Fund (and Accrued Benefit
Account, if applicable) shall be made in a lump sum within thirty
(30)
days of the date of termination of the Agreement, provided, however,
to
the extent that Code Section 409A is applicable to a Separation from
Service following a Change in Control and payments are made to the
Retirement Income Trust Fund on account of a Separation from Service,
distributions shall not be made until the first day of the seventh
(7th)
month after Separation from
Service.
|
SECTION
XIII
EXECUTION
13.1
|
This
Agreement and the Jon Ansari Grantor Trust agreement set forth the
entire
understanding of the parties hereto with respect to the transactions
contemplated hereby, and any previous agreements or understandings
between
the parties hereto regarding the subject matter hereof are merged
into and
superseded by this Agreement and the Jon Ansari Grantor Trust agreement.
|
13.2
|
This
Agreement shall be executed in triplicate, each copy of which, when
so
executed and delivered, shall be an original, but all three copies
shall
together constitute one and the same
instrument.
|
IN
WITNESS WHEREOF, the Bank and the Executive have caused this Agreement to be
executed on the day and date first above written.
|
|
MAGYAR
BANK:
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/
|
|
By:
|
/s/
Elizabeth E. Hance
|
Secretary
|
|
|
|
|
|
|
|
|
(Title)
|
President/CEO
|
|
|
|
|
|
|
|
|
|
|
|
|
WITNESS:
|
|
EXECUTIVE:
|
|
|
|
|
/s/
|
|
/s/
Jon Ansari
|
|
|
|
|
|
|
|
|
|
|
|
|
CONDITIONS,
ASSUMPTIONS,
AND
SCHEDULE
OF CONTRIBUTIONS AND PHANTOM CONTRIBUTIONS
1.
|
Interest
Factor - for purposes of:
|
|
a.
|
the
Accrued Benefit Account - shall be Six percent (6%) per annum, compounded
monthly.
|
|
b.
|
the
Retirement Income Trust Fund - for purposes of annuitizing the balance
of
the Retirement Income Trust Fund over the Payout Period, the trustee
of
the Jon Ansari Grantor Trust shall exercise discretion in selecting
the
appropriate rate, given the nature of the investments contained in
the
Retirement Income Trust Fund and the expected return associated with
the
investments.
|
2.
|
The
amount of the annual Contributions (or Phantom Contributions) to
the
Retirement Income Trust Fund (or Accrued Benefit Account) has been
based
on the annual incremental accounting accruals which would be required
of
the Bank until the earlier of the Executive
=
s
death or Benefit Age, (i) pursuant to APB Opinion No. 12, as amended
by
FAS 106 and (ii) assuming a discount rate equal to Six percent (6%)
per
annum, in order to provide the unfunded, non-qualified Supplemental
Retirement Income Benefit.
|
3.
|
Supplemental
Retirement Income Benefit means an actuarially determined annual
amount
equal to One Hundred Forty-One Thousand One Hundred and Forty-Three
Dollars ($141,143) at age 65 if paid entirely from the Accrued Benefit
Account or Ninety Thousand Three Hundred and Thirty-Two Dollars ($90,332)
at age 65 if paid from the Retirement Income Trust
Fund.
|
The
Supplemental Retirement Income Benefit:
|
!
|
the
definition of Supplemental Retirement Income Benefit has been incorporated
into the Agreement for the sole purpose of actuarially establishing
the
amount of annual Contributions (or Phantom Contributions) to the
Retirement Income Trust Fund (or Accrued Benefit Account). The amount
of
any actual retirement, pre-retirement or disability benefit payable
pursuant to the Agreement will be a function of (i) the amount and
timing
of Contributions (or Phantom Contributions) to the Retirement Income
Trust
Fund (or Accrued Benefit Account) and (ii) the actual investment
experience of such Contributions (or the monthly compounding rate
of
Phantom Contributions).
|
Exhibit
A
4.
Schedule
of Annual Gross Contributions/Phantom Contributions
Year
|
Contributions
|
|
|
2006
|
$
40,895
|
2007
|
$
40,895
|
2008
|
$
40,895
|
2009
|
$
40,895
|
2010
|
$
40,895
|
2011
|
$
40,895
|
2012
|
$
40,895
|
2013
|
$
40,895
|
2014
|
$
40,895
|
2015
|
$
40,895
|
2016
|
$
40,895
|
2017
|
$
40,895
|
2018
|
$
40,895
|
2019
|
$
40,895
|
2020
|
$
40,895
|
2021
|
$
40,895
|
2022
|
$
40,895
|
2023
|
$
40,895
|
2024
|
$
40,895
|
2025
|
$
40,895
|
2026
|
$
40,895
|
2027
|
$
40,895
|
2028
|
$
40,895
|
2029
|
$
40,895
|
2030
|
$
40,895
|
2031
|
$
40,895
|
2032
|
$
40,895
|
2033
|
$
40,895
|
2034
|
$
40,895
|
2035
|
$
40,895
|
2036
|
$
40,895
|
2037
|
$
40,895
|
2038
|
$
40,895
|
2039
|
$
40,895
|
Exhibit
A
- continued
EXECUTIVE
SUPPLEMENTAL RETIREMENT INCOME AGREEMENT
BENEFICIARY
DESIGNATION
The
Executive, under the terms of the Executive Supplemental Retirement Income
Agreement executed by the Bank, dated the
day of
,2006,
hereby designates the following Beneficiary(ies) to receive any guaranteed
payments or death benefits under such Agreement, following his
death:
PRIMARY
BENEFICIARY:
|
|
|
|
SECONDARY
BENEFICIARY:
|
|
This
Beneficiary Designation hereby revokes any prior Beneficiary Designation which
may have been in effect.
Such
Beneficiary Designation is revocable.
DATE:
______________________, 20__
|
|
|
(WITNESS)
|
|
DIRECTOR
|
|
|
|
(WITNESS
|
|
|
Exhibit
B
EXECUTIVE
SUPPLEMENTAL RETIREMENT INCOME AGREEMENT
NOTICE
OF ELECTION TO CHANGE FORM OF PAYMENT
I
hereby
give notice of my election to change the form of payment of my Supplemental
Retirement Income Benefit, as specified below.
I
understand that such notice,
in
order to be effective, must be submitted in accordance with the time
requirements described in Subsection 1.25 of my Executive Supplemental
Retirement Income Agreement.
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G
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I
hereby elect to change the form of payment of my benefits from monthly
installments throughout my Payout Period to a lump sum benefit
payment.
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G
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I
hereby elect to change the form of payment of my benefits from a
lump sum
benefit payment to monthly installments throughout my Payout Period.
Such
election hereby revokes my previous notice of election to receive
a lump
sum form of benefit payments.
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Executive
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Date
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Acknowledged
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By:
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Title:
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Date:
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Exhibit
C
Exhibit
10.14
EXECUTIVE
SUPPLEMENTAL
RETIREMENT
INCOME AGREEMENT
FOR
JOHN FITZGERALD
MAGYAR
BANK
New
Brunswick, New Jersey
January
1, 2006
Financial
Institution Consulting Corporation
700
Colonial Road, Suite 102
Memphis,
Tennessee 38117
WATS:
1-800-873-0089
FAX:
(901) 684-7414
(901)
684-7400
EXECUTIVE
SUPPLEMENTAL RETIREMENT INCOME AGREEMENT
FOR
JOHN FITZGERALD
This
Executive Supplemental Retirement Income Agreement for John Fitzgerald (the
"Agreement"), effective as of the 1st day of January, 2006, formalizes the
understanding by and between MAGYAR BANK (the "Bank"), a state chartered stock
savings bank, and JOHN FITZGERALD, hereinafter referred to as
"Executive".
W
I T N E S S E T H :
WHEREAS
,
the
Executive is employed by the Bank; and
WHEREAS
,
the
Bank recognizes the valuable services heretofore performed by the Executive
and
wishes to encourage continued employment; and
WHEREAS
,
the
Executive wishes to be assured that he will be entitled to a certain amount
of
additional compensation for some definite period of time from and after
retirement from active service with the Bank or other termination of employment
and wishes to provide his beneficiary with benefits from and after death; and
WHEREAS
,
the
Bank and the Executive wish to provide the terms and conditions upon which
the
Bank shall pay such additional compensation to the Executive after retirement
or
other termination of employment and/or death benefits to his beneficiary after
death; and
WHEREAS
,
Section
409A of the Internal Revenue Code of 1986 (the "Code"), as amended, requires
that certain deferred compensation arrangements comply with its terms or subject
the recipient of the compensation to potential taxes and penalties;
and
WHEREAS
,
the
Bank desires that the Agreement comply with Code Section 409A and any Treasury
Regulations promulgated thereunder; and
WHEREAS
,
the
Bank has adopted this Executive Supplemental Retirement Income Agreement which
controls all issues relating to benefits as described herein;
and
WHEREAS
,
the
Board of Directors of the Bank has conditionally approved the Agreement, subject
to the approval of the New Jersey Department of Banking and
Insurance.
NOW,
THEREFORE,
in
consideration of the premises and of the mutual promises herein contained,
the
Bank and the Executive agree as follows:
SECTION
I
DEFINITIONS
When
used
herein, the following words and phrases shall have the meanings below unless
the
context clearly indicates otherwise:
1.1
|
"Accrued
Benefit Account" shall be
represented
by
the bookkeeping entries required to record the Executive
=
s
(i) Phantom Contributions plus (ii) accrued interest, equal to the
Interest Factor, earned to-date on such amounts. However, neither
the
existence of such bookkeeping entries nor the Accrued Benefit Account
itself shall be deemed to create either a trust of any kind, or a
fiduciary relationship between the Bank and the Executive or any
Beneficiary.
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1.2
|
"Act"
means the Employee Retirement Income Security Act of 1974, as amended
from
time to time.
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1.3
|
"Bank"
means MAGYAR BANK and any successor
thereto.
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1.4
|
"Beneficiary"
means the person or persons (and their heirs) designated as Beneficiary
in
Exhibit B of this Agreement to whom the deceased Executive
=
s
benefits are payable. If no Beneficiary is so designated, then the
Executive
=
s
Spouse, if living, will be deemed the Beneficiary. If the
Executive
=
s
Spouse is not living, then the Children of the Executive will be
deemed
the Beneficiaries and will take on a per stirpes basis. If there
are no
Children, then the Estate of the Executive will be deemed the
Beneficiary.
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1.5
|
"Benefit
Age" means the Executive's sixty-fifth (65th) birthday
.
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1.6
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"Benefit
Eligibility Date" means the date on which the Executive is entitled
to
receive any benefit(s) pursuant to Section(s) III or V of this Agreement.
It shall be the first day of the month following the month in which
the
Executive attains his Benefit Age.
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1.7
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"Board
of Directors" means the board of directors of the
Bank.
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1.8
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"Cause"
means personal dishonesty, willful misconduct, willful malfeasance,
breach
of fiduciary duty involving personal profit, intentional failure
to
perform stated duties, willful violation of any law, rule, regulation
(other than traffic violations or similar offenses), or final
cease-and-desist order, material breach of any provision of this
Agreement, or gross negligence in matters of material importance
to the
Bank.
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1.9
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“Change
in Control” shall mean a change in the ownership of the Bank or Company
under paragraph (a) below, a change in effective control of the Bank
or
Company under paragraph (b) below, or a change in the ownership of
a
substantial portion of the assets of the Bank or Company under paragraph
(c) below. For all purposes hereunder, the definition of Change in
Control
shall be construed to be consistent with the requirements of proposed
Treasury Regulation Section 1.409A-3(g), except to the extent that
such
proposed regulations are superseded by subsequent
guidance.
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For
this
section “persons acting as a group” is defined as follows; Persons will be
considered to be acting as a group if they are owners of a corporation that
enters into a merger, consolidation, purchase or acquisition of stock, or
similar business transaction with the corporation. Persons will not be
considered to be acting as a group solely because they purchase or own stock
of
the same corporation at the same time, or as a result of the same public
offering. If a person, including an entity, owns stock in both corporations
that
enter into a merger, consolidation, purchase or acquisition of stock, or similar
transaction, such shareholder is considered to be acting as a group with other
shareholders in a corporation only with respect to the ownership in that
corporation prior to the transaction giving rise to the change and not with
respect to the ownership interest in the other corporation.
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(a)
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Change
in Ownership of the Bank or Company
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Change
in
the ownership occurs on the date that any one person, or more than one person
acting as a group (as defined above), acquires ownership of stock of the Bank
or
Company that, together with stock held by such person or group, constitutes
more
than 50 percent of the total fair market value or total voting power of the
stock of such corporation. However, if any one person or more than one person
acting as a group, is considered to own more than 50 percent of the total fair
market
value
or
total voting power of the stock of a corporation, the acquisition of additional
stock by the same person or persons is not considered to cause a change in
the
ownership of the corporation or to cause a change in the effective control
of
the corporation.
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(b)
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Change
in the Effective Control of the Bank or
Company
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A
change
in the effective control of the Bank or Company occurs on the date that either
—
(1)
Any
one person, or more than one person acting as a group (as defined above),
acquires (or has acquired during the 12-month period ending on the date of
the
most recent acquisition by such person or persons) ownership of stock of the
Company possessing
20
percent or more of the total voting power of the stock of the Company (except
that if an individual Director’s agreement is subject to Code Section 409A, then
the required percentage of acquired ownership of stock under this Subsection
1.10 (b)(1) shall be 35 percent or more);
or
(2)
a
majority of members of the Company’s board of directors is replaced during any
12-month period by directors whose appointment or election is not endorsed
by a
majority of the members of the Company’s board of directors prior to the date of
the appointment or election.
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(c)
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Change
in the Ownership of a Substantial Portion of the Bank’s or Company’s
Assets.
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Change
in
the ownership of a substantial portion of the Bank or Company’s assets occurs on
the date that any one person, or more than one person acting as a group (as
defined above), acquires (or has acquired during the 12-month period ending
on
the date of the most recent acquisition by such person or persons) assets from
the corporation that have a total gross fair market value equal to or more
than
40 percent of the total gross fair market value of all of the assets of the
Bank
or Company immediately prior to such acquisition or acquisitions. For this
purpose, gross fair market value means the value of the assets of the Bank
or
Company, or the value of the assets being disposed of, determined without regard
to any liabilities associated with such assets.
1.10
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"Children"
means all natural or adopted children of the Executive, and issue
of any
predeceased child or children.
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1.11
|
"Code"
means the Internal Revenue Code of 1986, as amended from time to
time.
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1.12
|
"Contribution(s)"
means those annual contributions which the Bank is required to make
to the
Retirement Income Trust Fund on behalf of the Executive in accordance
with
Subsection 2.1(a) and in the amounts set forth in Exhibit A of the
Agreement.
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1.13
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“Company”
shall mean Magyar Bancorp, Inc.
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1.14
|
(a)
"Disability Benefit" means the benefit payable to the Executive following
a determination, in accordance with Subsection 6.1(a), that he is
no
longer able, properly and satisfactorily, to perform his duties at
the
Bank.
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(b)
"Disability Benefit-Supplemental" (if applicable) means the benefit payable
to
the Executive
=
s
Beneficiary upon the Executive
=
s
death
in accordance with Subsection 6.1(b).
1.15
|
"Effective
Date" of this Agreement shall be January 1st,
2006.
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1.16
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"Estate"
means the estate of the Executive.
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1.17
|
"Interest
Factor" means monthly compounding, discounting or annuitizing, as
applicable, at a rate set forth in
Exhibit A.
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1.18
|
"Payout
Period" means the time frame during which certain benefits payable
hereunder shall be distributed. Payments shall be made in monthly
installments commencing on the first day of the month following the
occurrence of the event which triggers distribution and continuing
for a
period of one hundred eighty (180) months. Should the Executive make
a
Timely Election to receive a lump sum benefit payment, the
Executive
=
s
Payout Period shall be deemed to be one (1) month. Notwithstanding
anything herein to the contrary, in the event that the Executive
exercises
the Executive’s withdrawal rights and the Executive is considered a
Specified Employee within the meaning of Code section 409A(a)(2)(B)(i)
at
the time of (i) any distribution due to the Executive’s termination of
employment (for reasons other than death or disability), or (ii)
any
payments to the Retirement Income Trust Fund, then such payments
shall be
delayed until the first day of the seventh full month following the
Executive’s Separation from Service. In such case, the first payment made
to the Executive will consist of an amount equal to seven (7) monthly
installments so that the Executive
|
(or
his
Beneficiary, as applicable) will receive his full benefits hereunder over a
period of 180 months following his Separation from Service.
1.19
|
"Phantom
Contributions" means those annual Contributions which the Bank is
no
longer required to make on behalf of the Executive to the Retirement
Income Trust Fund. Rather, once the Executive has exercised the withdrawal
rights provided for in Subsection 2.2, the Bank shall be required
to
record the annual amounts set forth in Exhibit A of the Agreement
in the
Executive
=
s
Accrued Benefit Account, pursuant to Subsection 2.1.
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1.20
|
"Plan
Year" shall mean the twelve (12) month period commencing January
1 and
ending December 31.
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1.21
|
“Retirement
Income Trust Fund” means the trust fund account established by the
Executive and into which annual Contributions will be made by the
Bank on
behalf of the Executive pursuant to Subsection 2.1. he contractual
rights
of the Bank and the Executive with respect to the Retirement Income
Trust
fund shall be outlined in a separate writing known as the John Fitzgerald
Grantor Trust Agreement.
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1.22
|
“Separation
from Service” means the Executive’s death, retirement or termination of
employment with the Bank. No Separation from Service shall be deemed
to
occur due to military leave, sick leave or other bona fide leave
of
absence if the period of such leave does not exceed six months or,
if
longer, so long as the Executive’s right to reemployment is provided by
law or contract. If the leave exceeds six months and the Executive’s right
to reemployment is not provided by law or by contract, then the Executive
shall be have a Separation from Service on the first date immediately
following such six-month period.
|
The
Executive shall not be treated as having a Separation from Service if the
Executive provides more than insignificant services for the Bank following
the
Executive’s actual or purported termination of employment with the Bank.
Services shall be treated as not being insignificant if such services are
performed at an annual rate that is at least equal to 20% of the services
rendered by the Executive for the Bank, on average, during the immediately
preceding three full calendar years of employment (or if employed less than
three years, such shorter period of employment) and the annual base compensation
for such services is at least equal to 20% of the average base compensation
earned during the final
three
full calendar years of employment (or if employed less than three years, such
shorter period of employment).
Where
the
Executive continues to provide services to a previous employer in a capacity
other than as an employee, a Separation from Service will not be deemed to
have
occurred if the Executive is providing services at an annual rate that is 50%
or
more of the services rendered, on average, during the immediate preceding three
full calendar years of employment (or if employed less than three years, such
lesser period) and the annual base compensation for such services is 50% or
more
of the annual base compensation earned during the final three full calendar
years of employment (or if less, such lesser period).
1.23
|
“Specified
Employee” means, in the event the Bank or any corporate parent is or
becomes publicly traded, a “key employee” as such term is defined in Code
Section 416(i) without regard to paragraph 5
thereof.
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1.24
|
"Supplemental
Retirement Income Benefit" means (assuming the normal form of payment
is
applicable) an annual amount (
before
taking into account federal and state income taxes), payable in monthly
installments throughout the Payout Period. Such benefit is projected
pursuant to the Agreement for the purpose of determining the Contributions
to be made to the Retirement Income Trust Fund (or Phantom Contributions
to be recorded in the Accrued Benefit Account). The annual Contributions
and Phantom Contributions have been actuarially determined, using
the
assumptions set forth in Exhibit A, in order to fund for the projected
Supplemental Retirement Income Benefit. The Supplemental Retirement
Income
Benefit for which Contributions (or Phantom Contributions) are being
made
(or recorded) is set forth in Exhibit A.
|
1.25
|
"Timely
Election" means the Executive has made an election to change the
form of
his benefit payment(s) from the Retirement Income Trust Fund by filing
with the Administrator a Notice of Election to Change Form of Payment
(Exhibit C of this Agreement), such election having been made prior
to the
event which triggers distribution and at least two (2) years prior
to the
Executive's Benefit Eligibility Date. In the case of benefits payable
from
the Accrued Benefit Account, such election generally shall have been
made
prior to December 31, 2006 (i.e. the last day of the “Transition Period”
for bringing plans into compliance with Code Section 409A).
Notwithstanding any provision herein to the contrary, in the event
that
the Executive exercises his withdrawal rights pursuant to Section
2.2
|
herein,
the Executive shall only be permitted to make subsequent changes to the time
or
form of distributions under Section 3.1, 4.1 or 5.1 by meeting each of the
following requirements:
(i)
no
election may take effect until at least 12 months after the date on which the
election is made;
(ii)
other
than with respect to distributions made on account of death or disability,
the
first payment with respect to which such election is made shall be deferred
for
a period of at least five years from the date such payment would otherwise
have
been made; and
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(iii)
|
any
such election must be made at least 12 months prior to the date of
the
first scheduled payment under such
paragraph.
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SECTION
II
BENEFITS
- GENERALLY
2.1
|
(a)
Retirement
Income Trust Fund and Accrued Benefit Account
.
The Executive shall establish the John Fitzgerald Grantor Trust into
which
the Bank shall be required to make annual Contributions on the
Executive
=
s
behalf, pursuant to Exhibit A and this Section II of the Agreement.
A
trustee shall be selected by the Executive. The trustee shall maintain
an
account, separate and distinct from the Executive
=
s
personal contributions, which account shall constitute the Retirement
Income Trust Fund. The trustee shall be charged with the responsibility
of
investing all contributed funds. Distributions from the Retirement
Income
Trust Fund of the John Fitzgerald Grantor Trust shall be made by
the
trustee to the Executive, for purposes of payment of any income taxes
due
and owing on Contributions by the Bank to the Retirement Income Trust
Fund, if any, and on any taxable earnings associated with such
Contributions which the Executive shall be required to pay from year
to
year under applicable law prior to actual receipt of any benefit
payments
from the Retirement Income Trust Fund. If the Executive exercises
his
withdrawal rights pursuant to Subsection 2.2, the Bank
=
s
obligation to make Contributions to the Retirement Income Trust Fund
shall
cease and the Bank
=
s
obligation to record Phantom Contributions in the Accrued Benefit
Account
shall immediately commence pursuant to Exhibit A and this Section
II of
the Agreement. To the extent this Agreement is inconsistent with
the John
Fitzgerald Grantor Trust agreement, this Agreement shall supersede
the
John Fitzgerald Grantor Trust
agreement.
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The
annual Contributions (or Phantom Contributions) required to be made by the
Bank
to the Retirement Income Trust Fund (or recorded by the Bank in the Accrued
Benefit Account) have been actuarially determined and are set forth in Exhibit
A
which is attached hereto and incorporated herein by reference. Contributions
shall be made by the Bank to the Retirement Income Trust Fund (i) within thirty
(30) days of establishment of such trust, and (ii) within the first five (5)
days of the beginning of each subsequent Plan Year, unless this Section
expressly provides otherwise. Phantom Contributions, if any, shall be recorded
in the Accrued Benefit Account within the first five (5) days of the beginning
of each applicable Plan Year, unless this Section expressly provides otherwise.
Phantom Contributions shall accrue interest at a rate equal to the Interest
Factor, up to and throughout the Payout Period, until the balance of the Accrued
Benefit Account has been fully distributed. Interest on any Phantom Contribution
shall not commence until one (1) calendar year following the date such Phantom
Contribution is initially recorded in the Executive
=
s
Accrued
Benefit Account.
The
Administrator may review the schedule of annual Contributions (or Phantom
Contributions) provided for in Exhibit A within ten (10) days prior to the
close
of each Plan Year. Such review shall consist of an evaluation of the accuracy
of
all assumptions used to establish the schedule of Contributions (or Phantom
Contributions) required to provide the Supplemental Retirement Income Benefit.
The Administrator may prospectively amend the schedule of Contributions (or
Phantom Contributions) provided for in Exhibit A, should the Administrator
determine during any such review that an increase in such Contributions (or
Phantom Contributions) is necessary or desired in order to provide a benefit
equivalent to the Supplemental Retirement Income Benefit on an after-tax
basis.
(b)
Withdrawal
Rights Not Exercised.
(1)
Contributions
Made Annually
If
the
Executive does not exercise any withdrawal rights pursuant to Subsection 2.2,
the annual Contributions to the Retirement Income Trust Fund included on Exhibit
A shall continue each year, unless this Subsection 2.1(b) specifically states
otherwise, until the earlier of (i) the last Plan Year that Contributions are
required pursuant to Exhibit A, or (ii) the Plan Year of the Executive's
termination of employment.
(2)
Termination
Following a Change in Control
If
the
Executive does not exercise his withdrawal rights pursuant to Subsection 2.2
and
a Change in Control occurs at the Bank, followed within sixty (60) months by
either (i) the Executive's involuntary termination of employment, or (ii)
Executive's voluntary termination of employment after: (A) a material change
in
the Executive's function, duties, or responsibilities, which change would cause
the Executive's position to become one of lesser responsibility, importance,
or
scope from the position the Executive held at the time of the Change in Control,
(B) a relocation of the Executive's principal place of employment by more than
thirty (30) miles from its location prior to the Change in Control, or (C)
a
material reduction in the benefits and perquisites to the Executive from those
being provided at the time of the Change in Control, the Contribution set forth
below shall be required of the Bank in addition to all previous annual
Contributions. The Bank shall be required to make a final Contribution to the
Retirement Income Trust Fund within five (5) days of the Executive's termination
of employment (or if the Executive is a Specified Employee, not earlier than
the
first day of the seventh (7th) month following the Executive’s Separation from
Service), in an amount equal to the lesser of (i) the present value (using
the
Interest Factor) of all remaining Contributions which would have been required
to be made on behalf of the Executive, had the Executive remained in the employ
of the Bank until Benefit Age, or (ii) One Dollar ($1.00) less than the total
dollar amount of Contributions which would have resulted in taxation to the
Executive pursuant to sections 280G and 4999 of the Code.
(3)
Termination
For Cause
If
the
Executive (i) does not exercise his withdrawal rights pursuant to Subsection
2.2, and (ii) is terminated for Cause pursuant to Subsection 5.2, no further
Contribution(s) to the Retirement Income Trust Fund shall be required of the
Bank, and if not yet made, no Contribution shall be required for the year in
which such termination for Cause occurs.
(4)
Voluntary
or Involuntary Termination (Not For Cause) of Employment Prior to Benefit
Age
.
If
(i)
the Executive does not exercise his withdrawal rights pursuant to
Subsection 2.2, and (ii) the Executive's employment with the Bank is
voluntarily or involuntarily terminated for any reason other than a termination
related to disability, termination for Cause, or termination following a Change
in Control, within ten (10) days of such voluntary or involuntary termination
of
employment, the Bank shall be required to make a final Contribution to the
Retirement Income Trust Fund, attributable to the Plan Year in which the
termination occurs (unless such Contribution is made prior to termination),
in
an
amount
equal to the full Contribution required for such Plan Year. No further
Contribution(s) shall be required for periods subsequent to the Plan Year in
which the Executive
=
s
employment is terminated.
(5)
Death
During Employment
.
If
the
Executive (i) does not exercise any withdrawal rights pursuant to
Subsection 2.2, and (ii) dies while employed by the Bank (including
employment following a Change in Control), the Contributions included on
Exhibit A shall be required of the Bank through and including the year in
which the Executive dies. Such Contributions to the Retirement Income Trust
Fund
shall commence in the Plan Year in which the Retirement Income Trust Fund is
established and shall continue, annually, through the Plan Year in which the
Executive dies. No additional Contributions shall be required for any Plan
Year
after the year in which the Executive dies.
(6)
Termination
Due to Disability.
If
the
Executive (i) does not exercise his withdrawal rights pursuant to Subsection
2.2, and (ii) terminates service with the Bank due to a disability pursuant
to
Subsection 6.1, all annual Contributions set forth in Exhibit A for all Plan
Years preceding the year in which such termination occurs shall be required
of
the Bank as well as the final Contribution, set forth below, attributable to
the
Plan Year in which termination occurs (unless such Contribution is made prior
to
termination). The final Contribution to be made by the Bank for the Plan Year
in
which the termination occurs, shall be equal to the full Contribution required
for such Plan Year pursuant to Exhibit A and shall be made within ten (10)
days
of the disability determination. No additional Contributions to the Retirement
Income Trust Fund shall be required for periods subsequent to the Plan Year
in
which the Executive
=
s
employment is terminated.
(c)
Withdrawal
Rights Exercised.
(1)
Phantom
Contributions Made Annually
.
If
the
Executive exercises his withdrawal rights pursuant to Subsection 2.2, no further
Contributions to the Retirement Income Trust Fund shall be required of the
Bank.
Thereafter, Phantom Contributions shall be recorded annually in the Executive's
Accrued Benefit Account on or before the last day of each Plan Year, commencing
with the first Plan Year following the Plan Year in which the Executive
exercises his withdrawal rights. Such Phantom Contributions shall continue
to be
recorded annually,
unless
this Subsection 2.1(c) specifically states otherwise, until the earlier of
(i)
the last Plan Year that Phantom Contributions are required pursuant to Exhibit
A, or (ii) the Plan Year of the Executive's termination of
employment.
(2)
Termination
Following a Change in Control
If
the
Executive exercises his withdrawal rights pursuant to Subsection 2.2, Phantom
Contributions shall commence in the first Plan Year following the Plan Year
in
which the Executive first exercises his withdrawal rights. If a Change in
Control occurs at the Bank, and within sixty (60) months of such Change in
Control, the Executive's employment is either (i) involuntarily terminated,
or
(ii) voluntarily terminated by the Executive after: (A) a material change in
the
Executive's function, duties, or responsibilities, which change would cause
the
Executive's position to become one of lesser responsibility, importance, or
scope from the position the Executive held at the time of the Change in Control,
(B) a relocation of the Executive's principal place of employment by more than
thirty (30) miles from its location prior to the Change in Control, or (C)
a
material reduction in the benefits and perquisites to the Executive from those
being provided at the time of the Change in Control, the Phantom Contribution
set forth below shall be required of the Bank in addition to all previous annual
Contributions. The Bank shall be required to record a final lump sum Phantom
Contribution in the Accrued Benefit Account, within five (5) days of such
termination, in an amount equal to the lesser of (i) the present value (using
the Interest Factor) of all remaining Phantom Contributions which would have
been required had the Executive remained in the employ of the Bank until Benefit
Age, or (ii) One Dollar ($1.00) less than the total dollar amount of Phantom
Contributions which would have resulted in taxation to the Executive pursuant
to
sections 280G and 4999 of the Code.
(3)
Termination
For Cause
If
the
Executive is terminated for Cause pursuant to Subsection 5.2, the entire balance
of the Executive
=
s
Accrued
Benefit Account at the time of such termination, which shall include any Phantom
Contributions which have been recorded plus accrued interest, shall be
forfeited.
(4)
Voluntary
or Involuntary Termination (Not For Cause) of Employment Prior to Benefit
Age
.
If
(i)
the Executive exercises his withdrawal rights pursuant to Subsection 2.2, and
(ii) the Executive's employment with the Bank is voluntarily or involuntarily
terminated for any reason other than a termination related to disability,
termination for Cause, or termination following a Change in Control, within
ten
(10) days of such voluntary or involuntary termination of employment, the Bank
shall be
required
to record a final Phantom Contribution in the Executive
=
s
Accrued
Benefit Account, attributable to the Plan Year in which the termination occurs
(unless such Phantom Contribution is recorded prior to termination), in an
amount equal to the full Phantom Contribution required for such Plan Year.
No
further Phantom Contributions shall be required to be recorded for periods
subsequent to the Plan Year in which the Executive
=
s
employment is terminated.
(5)
Death
During Employment
.
If
the
Executive (i) exercises his withdrawal rights pursuant to Subsection 2.2,
and (ii) dies while employed by the Bank (including employment following a
Change in Control), the Phantom Contributions included on Exhibit A shall be
required of the Bank. Such Phantom Contributions to the Accrued Benefit Account
shall commence in the Plan Year in which the Executive exercises his withdrawal
rights and shall continue, annually, through the Plan Year in which the
Executive dies. The final Phantom Contribution, attributable to the Plan Year
of
the Executive
=
s
death,
shall be equal to (i) the full Phantom Contribution required in accordance
with
Exhibit A for all Plan Year in which the Executive dies, if not recorded prior
to death, plus (ii) the sum of the total Phantom Contributions which would
have
been required in accordance with Exhibit A for all Plan Year(s) following the
Plan Year of the Executive
=
s
death.
Such final Phantom Contribution shall be recorded in the Accrued Benefit Account
within (10) days of the Executive
=
s
death.
(6)
Termination
Due to Disability.
If
the
Executive (i) exercises his withdrawal rights pursuant to Subsection 2.2, and
(ii) terminates service with the Bank due to a disability pursuant to Subsection
6.1, the final Phantom Contribution recorded for the Plan Year in which the
termination occurs shall be required for such Plan Year pursuant to Exhibit
A
and shall be recorded in the Accrued Benefit Account within ten (10) days of
the
disability determination. No additional Phantom Contributions shall be required
to be recorded in the Accrued Benefit Account for periods subsequent to the
Plan
Year in which the Executive
=
s
employment is terminated.
2.2
|
Withdrawals
From Retirement Income Trust
Fund.
|
Exercise
of withdrawal rights by the Executive pursuant to the John Fitzgerald Grantor
Trust agreement shall terminate the Bank's obligation to make any further
Contributions to the Retirement Income Trust Fund, and the Bank
=
s
obligation to record Phantom Contributions pursuant to Subsection
2.1(c)
shall commence. For purposes of this Subsection 2.2,
A
exercise
of withdrawal rights
@
shall
mean those withdrawal rights to which the Executive is entitled under Article
III of the John Fitzgerald Grantor Trust agreement and shall exclude any
distributions made by the trustee of the Retirement Income Trust Fund to the
Executive for purposes of payment of income taxes in accordance with Subsection
2.1 of this Agreement, or other trust expenses properly payable from the John
Fitzgerald Grantor Trust pursuant to the provisions of the trust
document.
2.3
|
Benefits
Payable From Retirement Income Trust
Fund
|
Notwithstanding
anything else to the contrary in this Agreement, in the event that the trustee
of the Retirement Income Trust Fund purchases a life insurance policy with
the
Contributions to and, if applicable, earnings of the Trust, and such life
insurance policy is intended to continue in force beyond the Payout Period
for
the disability or retirement benefits payable from the Retirement Income Trust
Fund pursuant to this Agreement, then the Trustee shall have the absolute and
sole discretion to determine the portion of the cash value of such policy
available for purposes of annuitizing the Retirement Income Trust Fund to
provide the disability or retirement benefits payable under this Agreement,
after taking into consideration the amounts reasonably believed to be required
in order to maintain the cash value of such policy to continue such policy
in
effect until the death of the Executive and payment of death benefits
thereunder.
SECTION
III
RETIREMENT
BENEFIT
3.1
|
(a)
Normal
form of payment
.
|
If
(i)
the Executive is employed with the Bank until reaching his Benefit Age,
including employment with the Bank until Benefit Age following a Change in
Control, and (ii) the Executive has not made a Timely Election to receive a
lump
sum benefit, this Subsection 3.1(a) shall be controlling with respect to
retirement benefits.
The
Retirement Income Trust Fund, measured as of the Executive's Benefit Age, shall
be annuitized (using the Interest Factor) into monthly installments and shall
be
payable for the Payout Period. Such benefit payments shall commence on the
Executive's Benefit Eligibility Date. Should Retirement Income Trust Fund assets
actually earn a rate of return, following the date such balance is annuitized,
which is less than the rate of return used to annuitize the Retirement Income
Trust Fund, no additional contributions to the Retirement Income Trust Fund
shall be required by the Bank in order to fund the
final
benefit payment(s) and make up for any shortage attributable to the
less-than-expected rate of return. Should Retirement Income Trust Fund assets
actually earn a rate of return, following the date such balance is annuitized,
which is greater than the rate of return used to annuitize the Retirement Income
Trust Fund, the final benefit payment to the Executive (or his Beneficiary)
shall distribute the excess amounts attributable to the greater-than-expected
rate of return. In the event the Executive dies at any time after attaining
his
Benefit Age, but prior to commencement or completion of all the payments due
and
owing hereunder, (i) the trustee of the Retirement Income Trust Fund shall
pay
to the Executive's Beneficiary the monthly installments (or a continuation
of
such monthly installments if they have already commenced) for the balance of
months remaining in the Payout Period, or (ii) the Executive's Beneficiary
may
request to receive the unpaid balance of the Executive's Retirement Income
Trust
Fund in a lump sum payment. If a lump sum payment is requested by the
Beneficiary, payment of the balance of the Retirement Income Trust Fund in
such
lump sum form shall be made only if the Executive's Beneficiary (i) obtains
approval from the trustee of the John Fitzgerald Grantor Trust and (ii) notifies
the Administrator in writing of such election within ninety (90) days of the
Executive's death. Such lump sum payment, if approved by the trustee, shall
be
payable within thirty (30) days of such trustee approval.
The
Executive
=
s
Accrued
Benefit Account (if applicable), measured as of the Executive
=
s
Benefit
Age, shall be annuitized (using the Interest Factor) into monthly installments
and shall be payable for the Payout Period. Such benefit payments shall commence
on the Executive
=
s
Benefit
Eligibility Date. In the event the Executive dies at any time after attaining
his Benefit Age, but prior to commencement or completion of all the payments
due
and owing hereunder, the Bank shall pay to the Executive
=
s
Beneficiary the same monthly installments (or a continuation of such monthly
installments if they have already commenced) for the balance of months remaining
in the Payout Period.
(b)
Alternative
Payout Option
If
(i)
the Executive is employed with the Bank until reaching his Benefit Age,
including employment with the Bank until Benefit Age following a Change in
Control, and (ii) the Executive has made a Timely Election to receive a lump
sum
benefit, this Subsection 3.1(b) shall be controlling with respect to retirement
benefits.
The
balance of the Retirement Income Trust Fund and the Accrued Benefit Account
(if
applicable), measured as of the Executive
=
s
Benefit
Age, shall be paid to the Executive in a lump sum on his Benefit Eligibility
Date. In the event the Executive dies after becoming eligible for such payment
(upon
attainment of his Benefit Age), but before the actual payment is made, his
Beneficiary shall be entitled to receive the lump sum benefit in accordance
with
this Subsection 3.1(b) within thirty (30) days of the date the Administrator
receives notice of the Executive's death. Notwithstanding the foregoing, unless
the Executive has made a Timely Election to receive a lump sum distribution
with
respect to the Accrued Benefit Account, distributions from the Accrued Benefit
Account will be paid over the Payout Period commencing within thirty (30) days
of the Executive
=
s
Benefit
Age.
SECTION
IV
PRE-RETIREMENT
DEATH BENEFIT
4.1
|
(a)
Normal
form of payment
.
|
If
(i)
the Executive dies while employed by the Bank, including the
Executive
=
s
death
while employed by the Bank following a Change in Control, and (ii) the Executive
has not made a Timely Election to receive a lump sum benefit, this Subsection
4.1(a) shall be controlling with respect to pre-retirement death
benefits.
The
Executive
=
s
Retirement Income Trust Fund, measured as of the Executive
=
s
date of
death and including any contributions made to the Retirement Income Trust Fund
for the year in which the Executive dies, shall be annuitized (using the
Interest Factor) into monthly installments and shall be payable to the
Executive's Beneficiary for the Payout Period. Such benefit payments shall
commence within thirty (30) days of the date the Administrator receives notice
of the Executive's death. Should Retirement Income Trust Fund assets actually
earn a rate of return, following the date such balance is annuitized, which
is
less than the rate of return used to annuitize the Retirement Income Trust
Fund,
no additional contributions to the Retirement Income Trust Fund shall be
required by the Bank in order to fund the final benefit payment(s) and make
up
for any shortage attributable to the less-than-expected rate of return. Should
Retirement Income Trust Fund assets actually earn a rate of return, following
the date such balance is annuitized, which is greater than the rate of return
used to annuitize the Retirement Income Trust Fund, the final benefit payment
to
the Executive's Beneficiary shall distribute the excess amounts attributable
to
the greater-than-expected rate of return. The Executive's Beneficiary may
request to receive the unpaid balance of the Executive's Retirement Income
Trust
Fund in a lump sum payment. If a lump sum payment is requested by the
Beneficiary, payment of the balance of the Retirement Income Trust Fund in
such
lump sum form shall be made only if the Executive's Beneficiary (i) obtains
approval from the trustee of the John Fitzgerald Grantor Trust and (ii) notifies
the Administrator in writing of such election within ninety (90) days of the
Executive's
death.
Such lump sum payment, if approved by the trustee, shall be made within thirty
(30) days of such trustee approval.
The
Executive
=
s
Accrued
Benefit Account (if applicable), measured as of the Executive's death, shall
be
annuitized (using the Interest Factor) into monthly installments and shall
be
payable to the Executive's Beneficiary for the Payout Period. Such benefit
payments shall commence within thirty (30) days of the date the Administrator
receives notice of the Executive
=
s
death.
(b)
Alternative
Payout Option
If
(i)
the Executive dies while employed by the Bank, including the Executive's death
while employed by the Bank following a Change in Control, and (ii) the Executive
has made a Timely Election to receive a lump sum benefit, this Subsection 4.1(b)
shall be controlling with respect to pre-retirement death benefits.
The
balance of the Executive
=
s
Retirement Income Trust Fund and the Accrued Benefit Account (if applicable),
measured as of the Executive
=
s
death,
shall be paid to the Executive's Beneficiary in a lump sum within thirty (30)
days of the date the Administrator receives notice of the Executive's death.
Notwithstanding the foregoing, unless the Executive has made a Timely Election
to receive a lump sum distribution with respect to the Accrued Benefit Account,
distributions from the Accrued Benefit Account will be paid over the Payout
Period commencing within thirty (30) days of the date the Administrator receives
notice of the Executive
=
s
death.
SECTION
V
BENEFIT(S)
IN THE EVENT OF TERMINATION OF SERVICE
PRIOR
TO BENEFIT AGE
5.1
|
Voluntary
or Involuntary Termination of Service Other Than for Cause
.
In the event the Executive
=
s
service with the Bank is voluntarily or involuntarily terminated
prior to
Benefit Age, for any reason including a Change in Control, but excluding
(i) any termination related to disability which shall be covered
in
Section VI, (ii) the Executive's pre-retirement death, which shall
be
covered in Section IV, or (iii) termination for Cause, which shall
be
covered in Subsection 5.2, the Executive (or his Beneficiary) shall
be
entitled to receive benefits in accordance with this Subsection 5.1.
Payments of
|
benefits
pursuant to this Subsection 5.1 shall be made in accordance with Subsection
5.1
(a) or 5.1 (b) below, as applicable.
(a)
Normal
form of payment
.
(1)
Executive
Lives Until Benefit Age
If
(i)
after such termination, the Executive lives until attaining his Benefit Age,
and
(ii) the Executive has not made a Timely Election to receive a lump sum benefit,
this Subsection 5.1(a)(1) shall be controlling with respect to retirement
benefits.
The
Retirement Income Trust Fund, measured as of the Executive's Benefit Age, shall
be annuitized (using the Interest Factor) into monthly installments and shall
be
payable for the Payout Period. Such payments shall commence on the Executive's
Benefit Eligibility Date. Should Retirement Income Trust Fund assets actually
earn a rate of return, following the date such balance is annuitized, which
is
less than the rate of return used to annuitize the Retirement Income Trust
Fund,
no additional contributions to the Retirement Income Trust Fund shall be
required by the Bank in order to fund the final benefit payment(s) and make
up
for any shortage attributable to the less-than-expected rate of return. Should
Retirement Income Trust Fund assets actually earn a rate of return, following
the date such balance is annuitized, which is greater than the rate of return
used to annuitize the Retirement Income Trust Fund, the final benefit payment
to
the Executive (or his Beneficiary) shall distribute the excess amounts
attributable to the greater-than-expected rate of return. In the event the
Executive dies at any time after attaining his Benefit Age, but prior to
commencement or completion of all the payments due and owing hereunder, (i)
the
trustee of the Retirement Income Trust Fund shall pay to the Executive's
Beneficiary the monthly installments (or a continuation of the monthly
installments if they have already commenced) for the balance of months remaining
in the Payout Period, or (ii) the Executive's Beneficiary may request to receive
the unpaid balance of the Executive's Retirement Income Trust Fund in a lump
sum
payment. If a lump sum payment is requested by the Beneficiary, payment of
the
balance of the Retirement Income Trust Fund in such lump sum form shall be
made
only if the Executive's Beneficiary (i) obtains approval from the trustee of
the
John Fitzgerald Grantor Trust and (ii) notifies the Administrator in writing
of
such election within ninety (90) days of the Executive's death. Such lump sum
payment, if approved by the trustee, shall be made within thirty (30) days
of
such trustee approval.
The
Executive
=
s
Accrued
Benefit Account (if applicable), measured as of the Executive
=
s
Benefit
Age, shall be annuitized (using the Interest Factor) into monthly installments
and shall be payable for the
Payout
Period. Such benefit payments shall commence on the Executive
=
s
Benefit
Eligibility Date. In the event the Executive dies at any time after attaining
his Benefit Age, but prior to commencement or completion of all the payments
due
and owing hereunder, the Bank shall pay to the Executive
=
s
Beneficiary the same monthly installments (or a continuation of such monthly
installments if they have already commenced) for the balance of months remaining
in the Payout Period.
(2)
Executive
Dies Prior to Benefit Age
If
(i)
after such termination, the Executive dies prior to attaining his Benefit Age,
and (ii) the Executive has not made a Timely Election to receive a lump sum
benefit, this Subsection 5.1(a)(2) shall be controlling with respect to
retirement benefits.
The
Retirement Income Trust Fund, measured as of the date of the Executive's death,
shall be annuitized (using the Interest Factor) into monthly installments and
shall be payable for the Payout Period. Such benefit payments shall commence
within thirty (30) days of the date the Administrator receives notice of the
Executive's death. Should Retirement Income Trust Fund assets actually earn
a
rate of return, following the date such balance is annuitized, which is less
than the rate of return used to annuitize the Retirement Income Trust Fund,
no
additional contributions to the Retirement Income Trust Fund shall be required
by the Bank in order to fund the final benefit payment(s) and make up for any
shortage attributable to the less-than-expected rate of return. Should
Retirement Income Trust Fund assets actually earn a rate of return, following
the date such balance is annuitized, which is greater than the rate of return
used to annuitize the Retirement Income Trust Fund as of the date of the
Executive's death, the final benefit payment to the Executive's Beneficiary
shall distribute the excess amounts attributable to the greater-than-expected
rate of return. The Executive's Beneficiary may request to receive the unpaid
balance of the Executive's Retirement Income Trust Fund in the form of a lump
sum payment. If a lump sum payment is requested by the Beneficiary, payment
of
the balance of the Retirement Income Trust Fund in such lump sum form shall
be
made only if the Executive's Beneficiary (i) obtains approval from the trustee
of the John Fitzgerald Grantor Trust and (ii) notifies the Administrator in
writing of such election within ninety (90) days of the Executive's death.
Such
lump sum payment, if approved by the trustee, shall be made within thirty (30)
days of such trustee approval.
The
Executive
=
s
Accrued
Benefit Account (if applicable), measured as of the date of the
Executive
=
s
death,
shall be annuitized (using the Interest Factor) into monthly installments and
shall be payable for
the
Payout Period. Such payments shall commence within thirty (30) days of the
date
the Administrator receives notice of the Executive
=
s
death.
(b)
Alternative
Payout Option
(1)
Executive
Lives Until Benefit Age
If
(i)
after such termination, the Executive lives until attaining his Benefit Age,
and
(ii) the Executive has made a Timely Election to receive a lump sum benefit,
this Subsection 5.1(b)(1) shall be controlling with respect to retirement
benefits.
The
balance of the Retirement Income Trust Fund and the Accrued Benefit Account
(if
applicable), measured as of the Executive's Benefit Age, shall be paid to the
Executive in a lump sum on his Benefit Eligibility Date. In the event the
Executive dies after becoming eligible for such payment (upon attainment of
his
Benefit Age), but before the actual payment is made, his Beneficiary shall
be
entitled to receive the lump sum benefit in accordance with this Subsection
5.1(b)(1) within thirty (30) days of the date the Administrator receives notice
of the Executive's death. Notwithstanding the foregoing, unless the Executive
has made a Timely Election to receive a lump sum distribution with respect
to
the Accrued Benefit Account, distributions from the Accrued Benefit Account
will
be paid over the Payout Period commencing within thirty (30) days of the
Executive
=
s
Benefit
Age.
(2)
Executive
Dies Prior to Benefit Age
If
(i)
after such termination, the Executive dies prior to attaining his Benefit Age,
and (ii) the Executive has made a Timely Election to receive a lump sum benefit,
this Subsection 5.1(b)(2) shall be controlling with respect to retirement
benefits.
The
balance of the Retirement Income Trust Fund and the Accrued Benefit Account
(if
applicable), measured as of the date of the Executive's death, shall be paid
to
the Executive's Beneficiary within thirty (30) days of the date the
Administrator receives notice of the Executive's death. Notwithstanding the
foregoing, unless the Executive has made a Timely Election to receive a lump
sum
distribution with respect to the Accrued Benefit Account, distributions from
the
Accrued Benefit Account will be paid over the Payout Period commencing within
thirty (30) days of the date the Administrator receives notice of the
Executive
=
s
death.
5.2
|
Termination
For Cause
.
|
If
the
Executive is terminated for Cause, all benefits under this Agreement, other
than
those which can be paid from previous Contributions to the Retirement Income
Trust Fund (and earnings on such Contributions), shall be forfeited.
Furthermore, no further Contributions (or Phantom Contributions, as applicable)
shall be required of the Bank for the year in which such termination for Cause
occurs (if not yet made). The Executive shall be entitled to receive a benefit
in accordance with this Subsection 5.2.
The
balance of the Executive
=
s
Retirement Income Trust Fund shall be paid to the Executive in a lump sum on
his
Benefit Eligibility Date. In the event the Executive dies prior to his Benefit
Eligibility Date, his Beneficiary shall be entitled to receive the balance
of
the Executive's Retirement Income Trust Fund in a lump sum within thirty (30)
days of the date the Administrator receives notice of the Executive's death.
SECTION
VI
OTHER
BENEFITS
6.1
|
(a)
Disability
Benefit
.
|
If
the
Executive's service is terminated prior to Benefit Age due to a disability
which
meets the criteria set forth below, the Executive may request to receive the
Disability Benefit in lieu of the retirement benefit(s) available pursuant
to
Section 5.1 (which is (are) not available prior to the Executive's Benefit
Eligibility Date).
Notwithstanding
any other provision hereof
,
the
Executive shall receive a lump sum Disability Benefit hereunder in any case
in
which it is determined that the Executive is “disabled.” For these purposes, a
distribution from the Accrued Benefit Account (but not the Retirement Income
Trust Fund) due to disability shall require a determination that the Executive
is “disabled” within the meaning of proposed Treasury Regulation Section
1.409A-3(g)(4). The lump sum benefit(s) to which the Executive is entitled
shall
include: (i) the balance of the Retirement Income Trust Fund, plus (ii) the
balance of the Accrued Benefit Account (if applicable), both measured as of
the
disability determination date. The benefit(s) shall be paid within thirty (30)
days following the date of the Executive's final disability determination.
In
the event the Executive dies after becoming eligible for such payment(s) but
before the actual payment(s) is (are) made, his Beneficiary shall be entitled
to
receive the benefit(s) provided for in this Subsection 6.1(a) within thirty
(30)
days of the date the Administrator receives notice of the Executive's
death.
(b)
Disability
Benefit - Supplemental
.
If
Board
of Director approval is obtained within thirty (30) days of the
Executive
=
s
death,
the Bank shall make a direct, lump sum payment to the Executive's Beneficiary
in
an amount equal to the following: the sum of all remaining Contributions (or
Phantom Contributions) set forth in Exhibit A, but not required pursuant to
Subsection 2.1(b) (or 2.1(c)) due to the Executive's disability-related
termination. Such lump sum payment, if approved by the Board of Directors,
shall
be payable within thirty (30) days of such Board of Director
approval.
SECTION
VII
BENEFICIARY
DESIGNATION
The
Executive shall make an initial designation of primary and secondary
Beneficiaries upon execution of this Agreement and shall have the right to
change such designation, at any subsequent time, by submitting to (i) the
Administrator,
and
(ii) the
trustee of the Retirement Income Trust Fund, in substantially the form attached
as Exhibit B to this Agreement, a written designation of primary and secondary
Beneficiaries. Any Beneficiary designation made subsequent to execution of
this
Agreement shall become effective only when receipt thereof is acknowledged
in
writing by the Administrator.
SECTION
VIII
EXECUTIVE'S
RIGHT TO ASSETS
The
rights of the Executive, any Beneficiary, or any other person claiming through
the Executive under this Agreement, shall be solely those of an unsecured
general creditor of the Bank, unless this Agreement provides otherwise. The
Executive, the Beneficiary, or any other person claiming through the Executive,
shall only have the right to receive from the Bank those payments so specified
under this Agreement. The Executive agrees that he, his Beneficiary, or any
other person claiming through him shall have no rights or interests whatsoever
in any asset of the Bank, including any insurance policies or contracts which
the Bank may possess or obtain to informally fund this Agreement. Any asset
used
or acquired by the Bank in connection with the liabilities it has assumed under
this Agreement, unless expressly provided herein, shall not be deemed to be
held
under any trust for the benefit of the Executive or his Beneficiaries, nor
shall
any asset be considered security for the performance of the obligations of
the
Bank. Any such asset shall be and remain, a general, unpledged, and unrestricted
asset of the Bank.
SECTION
IX
RESTRICTIONS
UPON FUNDING
The
Bank
shall have no obligation to set aside, earmark or entrust any fund or money
with
which to pay its obligations under this Agreement, unless this Agreement
provides otherwise. Except as otherwise provided for in this Agreement, the
Executive, his Beneficiaries or any successor in interest to him shall be and
remain simply a general unsecured creditor of the Bank in the same manner as
any
other creditor having a general claim for matured and unpaid compensation.
The
Bank reserves the absolute right in its sole discretion to either purchase
assets to meet its obligations undertaken by this Agreement or to refrain from
the same and to determine the extent, nature, and method of such asset
purchases. Should the Bank decide to purchase assets such as life insurance,
mutual funds, disability policies or annuities, the Bank reserves the absolute
right, in its sole discretion, to terminate such assets at any time, in whole
or
in part. At no time shall the Executive be deemed to have any lien, right,
title
or interest in or to any specific investment or to any assets of the Bank.
If
the Bank elects to invest in a life insurance, disability or annuity policy
upon
the life of the Executive, then the Executive shall assist the Bank by freely
submitting to a physical examination and by supplying such additional
information necessary to obtain such insurance or annuities.
SECTION
X
ACT
PROVISIONS
10.1
|
Named
Fiduciary and Administrator
.
The Bank shall be the Administrator (the "Administrator") of this
Agreement. As Administrator, the Bank shall be responsible for the
management, control and administration of the Agreement as established
herein and shall be responsible for designation of the initial trustee,
of
the related rabbi trust, in accordance with the formal agreement
establishing such trust. The Administrator may delegate to others
certain
aspects of the management and operational responsibilities of the
Agreement, including the employment of advisors and the delegation
of
ministerial duties to qualified
individuals.
|
10.2
|
Claims
Procedure and Arbitration
.
In the event that benefits under this Agreement are not paid to the
Executive (or to his Beneficiary in the case of the Executive's death)
and
such claimants feel they are entitled to receive such benefits, then
a
written claim must be made to the Administrator within sixty (60)
days
from the date payments are refused. The Administrator shall review
the
written claim and, if the claim is denied, in whole or in part, it
shall
provide in writing, within ninety (90) days of receipt of such claim,
its
specific reasons for such denial, reference to the provisions of
this
Agreement upon which the denial is based, and any additional material
or
information necessary to perfect the claim. Such writing by the
Administrator shall further indicate the additional steps which must
be
undertaken by claimants if an additional review of the claim denial
is
desired.
|
If
claimants desire a second review, they shall notify the Administrator in writing
within sixty (60) days of the first claim denial. Claimants may review this
Agreement or any documents relating thereto and submit any issues and comments,
in writing, they may feel appropriate. In its sole discretion, the Administrator
shall then review the second claim and provide a written decision within sixty
(60) days of receipt of such claim. This decision shall state the specific
reasons for the decision and shall include reference to specific provisions
of
this Agreement upon which the decision is based. If such determination is
favorable to the claimants, it shall be binding and conclusive. If such
determination is adverse to such claimants, it shall be binding and conclusive
unless the claimants (i) notify the Administrator within ninety (90) days after
receipt by the claimants of the Administrator's determination, that the
claimants intend to institute legal proceedings challenging the determination
of
the
Administrator, and (ii) actually institute such legal proceedings within one
hundred eighty (180) days of receipt by the claimants of the Administrator's
determination.
SECTION
XI
MISCELLANEOUS
11.1
|
No
Effect on Employment Rights
.
Nothing contained herein will confer upon the Executive the right
to be
retained in the service of the Bank nor limit the right of the Bank
to
discharge or otherwise deal with the Executive, in accordance with
the
bylaws of the Bank, without regard to the existence of the Agreement.
Pursuant to 12 C.F.R.
'
563.39(b), the following conditions shall apply to this
Agreement:
|
|
(1)
|
The
Bank's Board of Directors may terminate the Executive at any time,
but any
termination by the Bank's Board of Directors other than termination
for
Cause shall not prejudice the Executive's vested right to compensation
or
other benefits under the contract. As provided in Subsection 5.2,
the
Executive shall have no right to receive additional compensation
or other
benefits, other than those provided for in Subsection 5.2, after
termination for Cause.
|
|
(2)
|
If
the Executive is suspended and/or temporarily prohibited from
participating in the conduct of the Bank's affairs by a notice served
under Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance
Act (12
U.S.C. 1818(e)(3) and (g)(1)) the Bank's obligations under the contract
shall be suspended (except vested rights) as of the date of termination
of
service unless stayed by appropriate proceedings. If the charges
in the
notice are dismissed, the Bank may in its discretion (i) pay the
Executive
all or part of the compensation withheld while its contract obligations
were suspended and (ii) reinstate (in whole or in part) any of its
obligations which were suspended.
|
|
(3)
|
If
the Executive is terminated and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued
under Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance
Act (12
U.S.C. 1818(e)(4) or (g)(1)), all non-vested obligations of the Bank
under
the contract shall terminate as of the effective date of the order.
|
|
(4)
|
If
the Bank is in default (as defined in Section 3(x)(1) of the Federal
Deposit Insurance Act), all non-vested obligations under the contract
shall terminate as of the date of default.
|
|
(5)
|
All
non-vested obligations under the contract shall be terminated, except
to
the extent determined that continuation of the contract is necessary
for
the continued operation of the
Bank:
|
|
(i)
|
by
the Director of the Federal Deposit Insurance Corporation or his
designee
at the time the Federal Deposit Insurance Corporation enters into
an
agreement to provide assistance to or on behalf of the Bank under
the
authority contained in
'
13(c) of the Federal Deposit Insurance Act; or
|
|
(ii)
|
by
the Director of the Federal Deposit Insurance Corporation or his
designee,
at the time the Director or his designee approves a supervisory merger
to
resolve problems related to operation of the Bank or when the Bank
is
determined by the Director to be in an unsafe or unsound
condition.
|
Any
rights of the parties that have already vested, (i.e., the balance of the
Executive's Retirement Income Trust Fund and the balance of the
Executive
=
s
Accrued
Benefit Account, if applicable), however, shall not be affected by such
action.
11.2
|
Governing
Law
.
The Agreement is established under, and will be construed according
to,
the laws of the state of New Jersey, to the extent such laws are
not
preempted by the Act or other applicable federal law and valid regulations
published thereunder.
|
11.3
|
Construction
and Severability
.
The funding of and payment of benefits from the Accrued Benefit Account
is
deemed to be a nonqualified deferred compensation arrangement within
the
meaning of Code Section 409A. To the extent that the funding of a
benefit
under the Retirement Income Trust Fund under this Agreement is deemed
to
be a nonqualified deferred compensation arrangement, then that part
of
this Agreement shall also be operated, administered and construed
consistent with Code Section 409A. To the extent that a provision
of the
Agreement fails to comply with Code Section
|
409A
and
a construction consistent with Code Section 409A is not possible, such provision
shall be
void
ab
initio
.
In
addition, the Agreement shall be subject to amendment, with or without advance
notice to Executive and other interested parties, and on a prospective or
retroactive basis, including but not limited to amendment in a manner that
adversely affects the rights of Executives and other interested parties, to
the
extent necessary to effect compliance with Code Section 409A. In the event
that
any of the provisions of this Agreement or portion thereof, are held to be
inoperative or invalid by any court of competent jurisdiction, then: (1) insofar
as is reasonable, effect will be given to the intent manifested in the
provisions held invalid or inoperative, and (2) the validity and enforceability
of the remaining provisions will not be affected thereby.
11.4
|
Incapacity
of Recipient
.
In the event the Executive is declared incompetent and a conservator
or
other person legally charged with the care of his person or Estate
is
appointed, any benefits under the Agreement to which such Executive
is
entitled shall be paid to such conservator or other person legally
charged
with the care of his person or Estate.
|
11.5
|
Unclaimed
Benefit
.
The Executive shall keep the Bank informed of his current address
and the
current address of his Beneficiaries. The Bank shall not be obligated
to
search for the whereabouts of any person. If the location of the
Executive
is not made known to the Bank as of the date upon which any payment
of any
benefits from the Accrued Benefit Account may first be made, the
Bank
shall delay payment of the Executive's benefit payment(s) until the
location of the Executive is made known to the Bank; however, the
Bank
shall only be obligated to hold such benefit payment(s) for the Executive
until the expiration of thirty-six (36) months. Upon expiration of
the
thirty-six (36) month period, the Bank may discharge its obligation
by
payment to the Executive's Beneficiary. If the location of the Executive's
Beneficiary is not made known to the Bank by the end of an additional
two
(2) month period following expiration of the thirty-six (36) month
period,
the Bank may discharge its obligation by payment to the Executive's
Estate. If there is no Estate in existence at such time or if such
fact
cannot be determined by the Bank, the Executive and his Beneficiary(ies)
shall thereupon forfeit any rights to the balance, if any, of the
Executive
=
s
Accrued Benefit Account provided for such Executive and/or Beneficiary
under this Agreement.
|
11.6
|
Limitations
on Liability
.
Notwithstanding any of the preceding provisions of the Agreement,
no
individual acting as an employee or agent of the Bank, or as a member
of
the Board of Directors shall
|
be
personally liable to the Executive or any other person for any claim, loss,
liability or expense incurred in connection with the Agreement.
11.7
|
Gender
.
Whenever in this Agreement words are used in the masculine or neuter
gender, they shall be read and construed as in the masculine, feminine
or
neuter gender, whenever they should so
apply.
|
11.8
|
Effect
on Other Corporate Benefit Agreements
.
Nothing contained in this Agreement shall affect the right of the
Executive to participate in or be covered by any qualified or
non-qualified pension, profit sharing, group, bonus or other supplemental
compensation or fringe benefit agreement constituting a part of the
Bank's
existing or future compensation
structure.
|
11.9
|
Suicide
.
Notwithstanding anything to the contrary in this Agreement, if the
Executive's death results from suicide, whether sane or insane, within
twenty-six (26) months after execution of this Agreement, all further
Contributions to the Retirement Income Trust Fund (or Phantom
Contributions recorded in the Accrued Benefit Account) shall thereupon
cease, and no Contribution (or Phantom Contribution) shall be made
by the
Bank to the Retirement Income Trust Fund (or recorded in the Accrued
Benefit Account) in the year such death resulting from suicide occurs
(if
not yet made). All benefits other than those available from previous
Contributions to the Retirement Income Trust Fund under this Agreement
shall be forfeited, and this Agreement shall become null and void.
The
balance of the Retirement Income Trust Fund, measured as of the
Executive's date of death, shall be paid to the Beneficiary within
thirty
(30) days of the date the Administrator receives notice of the Executive's
death.
|
11.10
|
Inurement
.
This Agreement shall be binding upon and shall inure to the benefit
of the
Bank, its successors and assigns, and the Executive, his successors,
heirs, executors, administrators, and
Beneficiaries.
|
11.11
|
Headings
.
Headings and sub-headings in this Agreement are inserted for reference
and
convenience only and shall not be deemed a part of this
Agreement.
|
11.12
|
Establishment
of a Rabbi Trust.
The Bank shall establish a rabbi trust into which the Bank shall
contribute assets which shall be held therein, subject to the claims
of
the Bank's creditors in the event of the Bank's "Insolvency" (as
defined
in such rabbi trust agreement), until the contributed assets
are
|
paid
to
the Executive and/or his Beneficiary in such manner and at such times as
specified in this Agreement. It is the intention of the Bank that the
contribution or contributions to the rabbi trust shall provide the Bank with
a
source of funds to assist it in meeting the liabilities of this
Agreement.
SECTION
XII
AMENDMENT/PLAN
TERMINATION
12.1
|
Amendment
or Plan Termination
.
The Bank intends this Agreement to be permanent, but reserves the
right to
amend or terminate the Agreement when such amendment or termination
is
required due to objection to the plan by the Bank's regulatory
authorities, or in the event of a change in existing federal income
tax
laws which would cause this plan to create adverse tax consequences
to the
Bank and/or participants in the plan. However, any termination of
the
Agreement which is done in anticipation of or pursuant to a "Change
in
Control", as defined in Subsection 1.9, shall be deemed to trigger
Subsection 2.1(b)(2) (or 2.1(c)(2), as applicable) of the Agreement
notwithstanding the Executive's continued employment, and benefit(s)
shall
be paid from the Retirement Income Trust Fund (and Accrued Benefit
Account, if applicable) in accordance with Subsection 13.2 below
and with
Subsections 2.1(b)(2) (or 2.1(c)(2), as applicable). Any amendment
or
termination of the Agreement shall be made pursuant to a resolution
of the
Board of Directors of the Bank and shall be effective as of the date
of
such resolution. No amendment or termination of the Agreement shall
directly or indirectly deprive the Executive of all or any portion
of the
Executive's Retirement Income Trust Fund (and Accrued Benefit Account,
if
applicable) as of the effective date of the resolution amending or
terminating the Agreement. Notwithstanding the foregoing, if an individual
Executive’s agreement is subject to Code Section 409A, the Bank may
terminate this Agreement only under the following circumstances and
conditions:
|
|
(a)
|
The
Board of Directors may terminate the Agreement within 12 months of
a
corporate dissolution taxed under Code Section 331, or with approval
of a
bankruptcy court pursuant to 11 U.S.C. §503(b)(1)(A), provided that the
amounts deferred under the Agreement are included in the Executive’s gross
income in the latest of (i) the calendar year in which the Agreement
terminates; (ii) the calendar year in which the amount is no longer
subject to a substantial risk of forfeiture; or (iii) the first calendar
year in which the payment is administratively
practicable.
|
|
(b)
|
The
Board of Directors may terminate the Agreement within the 30 days
preceding a Change in Control (but not following a Change in Control),
provided that the Agreement shall only be treated as terminated if
all
substantially similar arrangements sponsored by the Bank are terminated
so
that the Executive and all participants under substantially similar
arrangements are required to receive all amounts of compensation
deferred
under the terminated arrangements within 12 months of the date of
the
termination of the arrangements.
|
|
(c)
|
The
Board of Directors may terminate the Agreement provided that (i)
all
arrangements sponsored by the Bank that would be aggregated with
this
Agreement under Proposed Regulation Section 1.409A-1(c) if the Executive
covered by this Agreement was also covered by any of those other
arrangements are also terminated; (ii) no payments other than payments
that would be payable under the terms of the arrangement if the
termination had not occurred are made within 12 months of the termination
of the arrangement; (iii) all payments are made within 24 months
of the
termination of the arrangements; and (iv) the Bank does not adopt
a new
arrangement that would be aggregated with any terminated arrangement
under
Proposed Regulation Section 1.409A-1(c) if the Executive participated
in
both arrangements, at any time within five years following the date
of
termination of the arrangement.
|
12.2
|
Executive's
Right to Payment Following Plan Termination
.
In the event of a termination of the Agreement, the Executive shall
be
entitled to the balance, if any, of his Retirement Income Trust Fund
(and
Accrued Benefit Account, if applicable), measured as of the date
of plan
termination. However, if such termination is done in anticipation
of or
pursuant to a
A
Change
in Control,
@
such balance(s) shall be measured as of the date the final Contribution
(or Phantom Contribution) is made (or recorded) pursuant to Subsection
2.1(b)(2) (or 2.1(c)(2)). Payment of the balance(s) of the Executive's
Retirement Income Trust Fund (and Accrued Benefit Account, if applicable)
shall not be dependent upon his continuation of employment with the
Bank
following the termination date of the Agreement. Payment of the balance(s)
of the Executive's Retirement Income Trust Fund (and Accrued Benefit
Account, if applicable) shall be made in a lump sum within thirty
(30)
days of the date of termination of the Agreement, provided, however,
to
the extent that Code Section 409A is applicable to a Separation from
Service following a Change in Control and payments are made to the
Retirement Income Trust Fund on account of a Separation from Service,
distributions shall not be made until the first day of the seventh
(7th)
month after Separation from
Service.
|
SECTION
XIII
EXECUTION
13.1
|
This
Agreement and the John Fitzgerald Grantor Trust agreement set forth
the
entire understanding of the parties hereto with respect to the
transactions contemplated hereby, and any previous agreements or
understandings between the parties hereto regarding the subject matter
hereof are merged into and superseded by this Agreement and the John
Fitzgerald Grantor Trust agreement.
|
13.2
|
This
Agreement shall be executed in triplicate, each copy of which, when
so
executed and delivered, shall be an original, but all three copies
shall
together constitute one and the same
instrument.
|
REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
IN
WITNESS WHEREOF, the Bank and the Executive have caused this Agreement to be
executed on the day and date first above written.
|
|
MAGYAR
BANK:
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/
|
|
By:
|
/s/
Elizabeth E. Hance
|
Secretary
|
|
|
|
|
|
|
|
|
(Title)
|
President/CEO
|
|
|
|
|
|
|
|
|
|
|
|
|
WITNESS:
|
|
EXECUTIVE:
|
|
|
|
|
/s/
|
|
/s/
John Fitzgerald
|
|
|
|
|
|
|
|
|
|
|
|
|
CONDITIONS,
ASSUMPTIONS,
AND
SCHEDULE
OF CONTRIBUTIONS AND PHANTOM CONTRIBUTIONS
1.
|
Interest
Factor - for purposes of:
|
|
a.
|
the
Accrued Benefit Account - shall be Six percent (6%) per annum, compounded
monthly.
|
|
b.
|
the
Retirement Income Trust Fund - for purposes of annuitizing the balance
of
the Retirement Income Trust Fund over the Payout Period, the trustee
of
the John Fitzgerald Grantor Trust shall exercise discretion in selecting
the appropriate rate, given the nature of the investments contained
in the
Retirement Income Trust Fund and the expected return associated with
the
investments.
|
2.
|
The
amount of the annual Contributions (or Phantom Contributions) to
the
Retirement Income Trust Fund (or Accrued Benefit Account) has been
based
on the annual incremental accounting accruals which would be required
of
the Bank until the earlier of the Executive
=
s
death or Benefit Age, (i) pursuant to APB Opinion No. 12, as amended
by
FAS 106 and (ii) assuming a discount rate equal to Six percent (6%)
per
annum, in order to provide the unfunded, non-qualified Supplemental
Retirement Income Benefit.
|
3.
|
Supplemental
Retirement Income Benefit means an actuarially determined annual
amount
equal to One Hundred Two Thousand Three Hundred and Sixty-Two Dollars
($102,362) at age 65 if paid entirely from the Accrued Benefit Account
or
Sixty-Five Thousand Five Hundred and Twelve Dollars ($65,512) at
age 65 if
paid from the Retirement Income Trust
Fund.
|
The
Supplemental Retirement Income Benefit:
|
!
|
the
definition of Supplemental Retirement Income Benefit has been incorporated
into the Agreement for the sole purpose of actuarially establishing
the
amount of annual Contributions (or Phantom Contributions) to the
Retirement Income Trust Fund (or Accrued Benefit Account). The amount
of
any actual retirement, pre-retirement or disability benefit payable
pursuant to the Agreement will be a function of (i) the amount and
timing
of Contributions (or Phantom Contributions) to the Retirement Income
Trust
Fund (or Accrued Benefit Account) and (ii) the actual investment
experience of such Contributions (or the monthly compounding rate
of
Phantom Contributions).
|
Exhibit
A
4.
|
Schedule
of Annual Gross Contributions/Phantom
Contributions
|
Year
|
Contributions
|
|
|
2006
|
$
43,792
|
2007
|
$
43,792
|
2008
|
$
43,792
|
2009
|
$
43,792
|
2010
|
$
43,792
|
2011
|
$
43,792
|
2012
|
$
43,792
|
2013
|
$
43,792
|
2014
|
$
43,792
|
2015
|
$
43,792
|
2016
|
$
43,792
|
2017
|
$
43,792
|
2018
|
$
43,792
|
2019
|
$
43,792
|
2020
|
$
43,792
|
2021
|
$
43,792
|
2022
|
$
43,792
|
2023
|
$
43,792
|
2024
|
$
43,792
|
2025
|
$
43,792
|
2026
|
$
43,792
|
2027
|
$
43,792
|
2028
|
$
43,792
|
2029
|
$
58,276
|
Exhibit
A
- continued
EXECUTIVE
SUPPLEMENTAL RETIREMENT INCOME AGREEMENT
BENEFICIARY
DESIGNATION
The
Executive, under the terms of the Executive Supplemental Retirement Income
Agreement executed by the Bank, dated the
day of
,2006,
hereby designates the following Beneficiary(ies) to receive any guaranteed
payments or death benefits under such Agreement, following his
death:
PRIMARY
BENEFICIARY:
|
|
|
|
SECONDARY
BENEFICIARY:
|
|
This
Beneficiary Designation hereby revokes any prior Beneficiary Designation which
may have been in effect.
Such
Beneficiary Designation is revocable.
DATE:
______________________, 20__
|
|
|
(WITNESS)
|
|
DIRECTOR
|
|
|
|
(WITNESS
|
|
|
Exhibit
B
EXECUTIVE
SUPPLEMENTAL RETIREMENT INCOME AGREEMENT
NOTICE
OF ELECTION TO CHANGE FORM OF PAYMENT
I
hereby
give notice of my election to change the form of payment of my Supplemental
Retirement Income Benefit, as specified below.
I
understand that such notice,
in
order to be effective, must be submitted in accordance with the time
requirements described in Subsection 1.25 of my Executive Supplemental
Retirement Income Agreement.
|
G
|
I
hereby elect to change the form of payment of my benefits from monthly
installments throughout my Payout Period to a lump sum benefit
payment.
|
|
G
|
I
hereby elect to change the form of payment of my benefits from a
lump sum
benefit payment to monthly installments throughout my Payout Period.
Such
election hereby revokes my previous notice of election to receive
a lump
sum form of benefit payments.
|
|
|
|
|
|
|
|
|
Executive
|
|
|
|
|
|
|
|
|
|
|
Date
|
|
|
|
|
|
|
|
Acknowledged
|
|
|
By:
|
|
|
|
|
|
|
|
Title:
|
|
|
|
|
|
|
|
Date:
|
|
|
Exhibit
C
Exhibit
31.1
Certification
of Chief Executive Officer
Pursuant
to Section 302 of the Sarbanes-Oxley Act of 2002
I,
Elizabeth E. Hance, certify that:
1.
|
I
have reviewed this Annual Report on Form 10-KSB of Magyar Bancorp,
Inc.;
|
2.
|
Based
on my knowledge, this report does not contain any untrue statement
of a
material fact or omit to state a material fact necessary to make
the
statements made, in light of the circumstances under which such
statements
were made, not misleading with respect to the period covered by
this
annual report;
|
3.
|
Based
on my knowledge, the financial statements, and other financial
information
included in this report, fairly present in all material respects
the
financial condition, results of operations and cash flows of the
small
business issuer as of, and for, the periods presented in this
report;
|
4.
|
The
small business issuer’s other certifying officers and I are responsible
for establishing and maintaining disclosure controls and procedures
(as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the
small
business issuer and have:
|
|
a)
|
designed
such disclosure controls and procedures or caused such disclosure
controls
and procedures to be designed under our supervision, to ensure
that
material information relating to the small business issuer, including
its
consolidated subsidiaries, is made known to us by others within
those
entities, particularly during the period in which this report is
being
prepared;
|
|
b)
|
evaluated
the effectiveness of the small business issuer’s disclosure controls and
procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of
the end of
the period covered by this report based on such evaluation;
and
|
|
c)
|
disclosed
in this report any change in the small business issuer’s internal control
over financial reporting that occurred during the small business
issuer’s
most recent fiscal quarter (the small business issuer’s fourth fiscal
quarter in the case of an annual report) that has materially affected,
or
is reasonably likely to materially affect, the small business issuer’s
internal control over financial
reporting;
|
5.
|
The
small business issuer’s other certifying officers and I have disclosed,
based on our most recent evaluation of internal control over financial
reporting, to the small business issuer’s auditors and the audit committee
of the small business issuer’s board of directors (or persons performing
the equivalent functions):
|
|
a)
|
all
significant deficiencies and material weaknesses in the design
or
operation of internal control over financial reporting which are
reasonably likely to adversely affect the small business issuer’s ability
to record, process, summarize and report financial information;
and
|
|
b)
|
any
fraud, whether or not material, that involves management or other
employees who have a significant role in the small business issuer’s
internal control over financial
reporting.
|
December
21, 2006
|
/s/
Elizabeth E. Hance
|
Date
|
Elizabeth
E. Hance
|
|
President
and Chief Executive
Officer
|
Exhibit
31.2
Certification
of Chief Financial Officer
Pursuant
to Section 302 of the Sarbanes-Oxley Act of 2002
|
I,
Jon R. Ansari, certify that:
|
1.
|
I
have reviewed this Annual Report on Form 10-KSB of Magyar Bancorp,
Inc.;
|
2.
|
Based
on my knowledge, this report does not contain any untrue statement
of a
material fact or omit to state a material fact necessary to make
the
statements made, in light of the circumstances under which such
statements
were made, not misleading with respect to the period covered by
this
annual report;
|
3.
|
Based
on my knowledge, the financial statements, and other financial
information
included in this report, fairly present in all material respects
the
financial condition, results of operations and cash flows of the
small
business issuer as of, and for, the periods presented in this
report;
|
4.
|
The
small business issuer’s other certifying officers and I are responsible
for establishing and maintaining disclosure controls and procedures
(as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the
small
business issuer and have:
|
|
a)
|
designed
such disclosure controls and procedures or caused such disclosure
controls
and procedures to be designed under our supervision, to ensure
that
material information relating to the small business issuer, including
its
consolidated subsidiaries, is made known to us by others within
those
entities, particularly during the period in which this report is
being
prepared;
|
|
b)
|
evaluated
the effectiveness of the small business issuer’s disclosure controls and
procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of
the end of
the period covered by this report based on such evaluation;
and
|
|
c)
|
disclosed
in this report any change in the small business issuer’s internal control
over financial reporting that occurred during the small business
issuer’s
most recent fiscal quarter (the small business issuer’s fourth fiscal
quarter in the case of an annual report) that has materially affected,
or
is reasonably likely to materially affect, the small business issuer’s
internal control over financial
reporting;
|
5.
|
The
small business issuer’s other certifying officers and I have disclosed,
based on our most recent evaluation of internal control over financial
reporting, to the small business issuer’s auditors and the audit committee
of the small business issuer’s board of directors (or persons performing
the equivalent functions):
|
|
a)
|
all
significant deficiencies and material weaknesses in the design
or
operation of internal control over financial reporting which are
reasonably likely to adversely affect the small business issuer’s ability
to record, process, summarize and report financial information;
and
|
|
b)
|
any
fraud, whether or not material, that involves management or other
employees who have a significant role in the small business issuer’s
internal control over financial
reporting.
|
December
21, 2006
|
/s/
Jon R. Ansari
|
Date
|
Jon
R. Ansari
|
|
Senior
Vice President and Chief Financial
Officer
|
Exhibit
32
Certification
pursuant to
18
U.S.C. Section 1350,
as
adopted pursuant to
Section
906 of the Sarbanes-Oxley Act of 2002
Elizabeth
E. Hance, President and Chief Executive Officer and
Jon
R.
Ansari
,
Senior
Vice President and Chief Financial Officer of Magyar Bancorp, Inc. (the
“Company”) each certify in their capacity as officers of the Company that they
have reviewed the annual report of the Company on Form 10-KSB for the fiscal
year ended September 30, 2006 and that to the best of their
knowledge:
1.
|
the
report fully complies with the requirements of Sections 13(a) of
the
Securities Exchange Act of 1934;
and
|
2.
|
the
information contained in the report fairly presents, in all material
respects, the financial condition and results of operations of the
Company.
|
|
|
December
21, 2006
|
/s/
Elizabeth E. Hance
|
Date
|
Elizabeth
E. Hance
|
|
President
and Chief Executive Officer
|
|
|
|
|
December
21, 2006
|
/s/
Jon R. Ansari
|
Date
|
Jon
R. Ansari
|
|
Senior
Vice President and Chief Financial
Officer
|
The
purpose of this statement is solely to comply with Title 18, Chapter 63, Section
1350 of the United States Code, as amended by Section 906 of the Sarbanes-Oxley
Act of 2002.
A
signed
original of this written statement required by Section 906 has been provided
to
Magyar Bancorp, Inc. and will be retained by Magyar Bancorp, Inc. and furnished
to the Securities and Exchange Commission or its staff upon
request.