Exhibit 10.09





Exhibit 10.09




THE FEDERAL HOME LOAN BANK




OF NEW YORK




NONQUALIFIED PROFIT SHARING PLAN



 


 









 





TABLE OF CONTENTS




	 	 	 	 	 
	ARTICLE	 	PAGE	 
	 
	 	 	 	 
	I DEFINITIONS 
	 	 	2	 
	 
	 	 	 	 
	II MEMBERSHIP 
	 	 	4	 
	 
	 	 	 	 
	III AMOUNT AND PAYMENT OF BENEFITS 
	 	 	5	 
	 
	 	 	 	 
	IV AMOUNT AND METHOD OF PAYMENT 
	 	 	9	 
	 
	 	 	 	 
	V DESIGNATION OF BENEFICIARIES 
	 	 	10	 
	 
	 	 	 	 
	VI ADMINISTRATION OF PLAN 
	 	 	11	 
	 
	 	 	 	 
	VII AMENDMENT AND TERMINATION 
	 	 	13	 
	 
	 	 	 	 
	VIII GENERAL PROVISIONS 
	 	 	14	 





 


 









 





THE FEDERAL HOME LOAN BANK OF NEW YORK

NONQUALIFIED PROFIT SHARING PLAN




This Plan is adopted by the Federal Home Loan Bank of New York (the “Bank”) in order to
provide additional benefits to certain employees of the Bank who are ineligible for certain
benefits under the Pentegra Defined Benefit Plan for Financial Institutions, a qualified defined
benefit pension plan, as adopted by the Bank. This Plan is unfunded, and all benefits payable
under the Plan shall be paid solely out of the general assets of the Bank.


 


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Article I. Definitions





When used in the Plan, the following terms shall have the following meanings:



1.01 “Bank” means the Federal Home Loan Bank of New York and each subsidiary or
affiliated company thereof which participate in the Plan.



1.02 “Bank Service” has the same meaning as is given to “Service” under the
Retirement Plan, except that such term shall include only the Member’s “Service” (as defined by the
Retirement Plan) as an employee of the Bank and shall exclude any and all “Service” with any other
employer that may be credited to the Member under the Retirement Plan.



1.03 “Benefit Equalization Plan” means the Federal Home Loan Bank of New York Benefit
Equalization Plan as adopted by the Bank as of June 18, 1987, to be effective as of January 1,
1988, as the same has heretofore been and may hereafter be amended.



1.04 “Nonqualified Plan Committee” means the Benefit Equalization Plan Committee
appointed by the Board of Directors pursuant to Section 6.01 to administer the Plan.




1.05 “Board of Directors” or “Board” means the Board of Directors of the Bank.



1.06 “Compensation Committee” means the Compensation and Human Resources Committee of
the Board of Directors.




1.07 “Effective Date” means July 1, 2008.



1.08 “IRC” means the Internal Revenue Code of 1986, as amended from time to time, or
any successor thereto.


 


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1.09 “Member” means any person included in the membership of the Plan as provided in
Article 2.



1.10 “Plan” means the Federal Home Loan Bank of New York Nonqualified Profit Sharing
Plan, as set forth herein and as amended from time to time.



1.11 “Profit Sharing Benefit” means and refers to the benefit determined pursuant to
Article III.



1.12 “Profit Sharing Benefit Account” means and refers to the account maintained for
each Member pursuant to Section 3.02.



1.13 “Retirement Plan” means the Pentegra Defined Benefit Plan for Financial
Institutions, a qualified and tax-exempt defined benefit pension plan and trust under IRC Sections
401(a) and 501(a), as adopted by the Bank.



1.14 “Separation from Service” has the meaning set forth in Section 1.408A-1(h) of the
Regulations promulgated under IRC Section 409A.


 


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Article II. Membership




2.01 Each employee of the Bank who is included in the membership of the Retirement Plan and
derives his benefit thereunder in whole or in part under the amended terms and conditions of the
Retirement Plan, as amended effective July 1, 2008, shall become a Member of the Plan on the latest
of (i) the date on which he shall have attained five (5) years of Bank Service, (ii) the date on
which he shall have become a Member of the Retirement Plan Component of the Benefit Equalization
Plan, and (iii) the Effective Date.



2.02 Notwithstanding any other provision of this Plan to the contrary, the Nonqualified Plan
Committee, in its sole and absolute discretion, shall exclude from membership and participation in
the Plan any employee who is not one of a select group of management and highly compensated
employees, or who does not meet such criteria and requirements for membership in the Plan as the
Nonqualified Plan Committee shall fix and determine.


 


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Article III. Amount and Payment of Benefits




3.01 For the calendar year 2008 and for each calendar year thereafter, the Members of the Plan
during such calendar year shall be credited with a Profit Sharing Benefit under the Plan in such
aggregate amount, if any, as the Compensation Committee shall determine in accordance with Section
3.02, based upon the evaluation by the Compensation Committee of the Bank’s performance of certain
Bank-wide performance goals used in the Bank’s Incentive Compensation Plan for such calendar year
established by the Board of Directors, or by such Committee as the Board of Directors shall
designate for that purpose, or such other performance criteria as may be established by the Board
of Directors or such Committee as the Board of Directors shall designate for that purpose, for such
calendar year, which determination shall be made by the Compensation Committee as soon as
practicable after the end of such calendar year.



3.02 The amount of the Profit Sharing Benefit with which a Member is credited for any calendar
year in accordance with Section 3.01 shall be determined as follows:



(a) If the Board of Directors, or such Committee as the Board of Directors shall designate, in
its sole and absolute discretion, determines that the Bank has achieved the threshold limits of
performance of the criteria established for such calendar year pursuant to Section 3.01, the amount
of the Profit Sharing Benefit with which each Member of the Plan who is such a Member at the
commencement of such calendar year shall be credited for such calendar year shall be equal to eight
percent (8%) of the Member’s Salary for such calendar year.



(b) If the Board of Directors, or such Committee as the Board of Directors shall designate, in
its sole and absolute discretion, determines that the Bank has not achieved the threshold level of
performance of such criteria established for such calendar year, no Member shall be credited with
any Profit Sharing Benefit for such calendar year.



(c) Notwithstanding any provision of paragraph (a) or (b) of this Section 3.02 above, the
Compensation Committee may credit such higher or lower amount of Profit Sharing Benefit for any calendar year as it may determine, in its sole and absolute discretion, is
appropriate in light of all relevant facts and circumstances.



 


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3.03 The Bank shall maintain a Profit Sharing Benefit Account on the books and records of the
Bank for each Member and shall credit to such Profit Sharing Benefit Account all Profit Sharing
Benefits with which such Member shall be credited, pursuant to Section 3.02, as soon as practicable
following the determination of the amount of such Profit Sharing Benefits by the Compensation
Committee in accordance with the provisions of Sections 3.01 and 3.02.



3.04 A Member shall not be entitled to a Profit Sharing Benefit under this Article III for any
calendar year unless, on the date the determination referred to in Section 3.02(a) is made by the
Compensation Committee, (i) he is an employee of the Bank and (ii) he is eligible to be a Member
under the provisions of Section 2.01; provided, that a Member whose employment during any calendar
year shall have ceased prior to the last day of such calendar year by reason of his death during
such calendar year shall be entitled to have credited to his Profit Sharing Benefit Account the
Profit Sharing Benefit that would have been credited to his Profit Sharing Benefit Account for such
calendar year but for his death.



3.05 There shall be credited to the Profit Sharing Benefit Account of each Member from time to
time notional interest at such rate or rates or in such amount or amounts as may be determined by
the Nonqualified Plan Committee in its sole and absolute discretion.


  


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3.06 The right of any Member to receive all or any part of the amount credited to his Profit
Sharing Benefit Account shall be subject to the following vesting rules:



(a) Each Member shall have a vested and nonforfeitable right to the balance in his Profit
Sharing Benefit Account upon the earliest to occur of (i) his completion of five (5) years of Bank
Service, (ii) his attainment of his Normal Retirement Date, (iii) his attainment of his Disability
Retirement Date, or (iv) his death, in each case while he is an employee of the Bank. If a Member
has any Separation from Service with the Bank prior to the earliest to occur of such dates, neither
he nor any other person claiming in his right shall be entitled to any benefits under the Plan.



(b) As used in the Plan, (i) “Salary” means the Member’s base salary for such calendar year
including any elective contribution the Member may make under Article 4 of the Benefit Equalization
Plan with respect to such calendar year and any award of benefits under the Bank’s Incentive
Compensation Plan made with respect to such calendar year; provided, that a Member’s Salary for the
calendar year 2008 shall be deemed to be equal to fifty percent (50%) of his Salary for such
calendar year as determined without regard to this clause (b), and (ii) the terms “Normal
Retirement Date” and “Disability Retirement Date” shall have the same meanings as are given to
them, respectively, under the Retirement Plan.



 


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3.07 The balance credited to the Profit Sharing Benefit Account of a Member who has met the
vesting rules in Section 3.06 shall be paid to him in a lump sum payment as soon as reasonably
practicable following his Separation from Service with the Bank, or at such other date or dates or
in such other form as the Member shall have elected in writing on a form prescribed by the
Nonqualified Plan Committee which is filed by the Member with the Nonqualified Plan Committee
within thirty (30) days following (i) the Effective Date, in the case of a Member who is such on
the Effective Date, or (ii) in the case of a Member who becomes such after the Effective Date, the
date on which he becomes a Member; provided, that such balance credited to the Profit Sharing
Benefits Account of a Member shall in no event be payable earlier than the earliest of (i) the
Member’s Separation from Service with the Bank, (ii) the date of the Member’s death or (iii) the
date the Member becomes disabled, within the meaning of IRC Section 409A(a)(2)(c), and that the
time or schedule of payments of the balance credited to the Profit Sharing Benefit Account of a
Member shall not be accelerated, except as provided in Regulations promulgated pursuant to IRC
Section 409A, nor shall any payment of benefits under the Plan be deferred to a date other than the
date fixed for such payment in this Article III; provided, that a Member may, by a subsequent
election, as defined in § 1.409A-2(b)(1) of the Regulations promulgated pursuant to IRC Section
409A, delay the time or change the form of a payment of all or any part of the balance credited to
the Member’s Profit Sharing Benefit Account if, and only if, such subsequent election meets all of
the following requirements: (i) such election shall not be made less than twelve (12) months prior to the date of the first scheduled payment of the
balance credited to the Member’s Profit Sharing Benefit Account; (ii) such election shall not take
effect until at least twelve (12) months after the date on which the election is made; (iii) the
payment with respect to which such election is made shall be deferred for a period of not less than
five (5) years from the date such payment would otherwise have been made; and (iv) such election
shall comply with any and all other requirements of such Regulations applicable thereto. If a
Member dies while an employee of the Bank prior to receiving the balance credited to his Profit
Sharing Benefit Account, the balance in his Profit Sharing Benefit Account at the date of the
Member’s death shall be paid in a lump sum payment as soon as reasonably practicable following the
Member’s death in accordance with the provisions of Article V.


 


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Article IV. Source and Method of Payments




All payments of benefits under the Plan, shall be paid from, and shall only be a general claim
upon, the general assets of the Bank, notwithstanding that the Bank, in its discretion, may
establish a bookkeeping reserve or a grantor trust (as such term is used in IRC Sections 611
through 677) to reflect or to aid it in meeting its obligations under the Plan with respect to any
Member or prospective Member or beneficiary. No benefit whatever provided by the Plan shall be
payable from the assets of the Retirement Fund or the Thrift Plan. No Member shall have any right,
title or interest whatever in or to any investments which the Bank may make or any specific assets
which the Bank may reserve to aid it in meeting its obligations under the Plan.


 


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Article V. Designation of Beneficiaries




5.01 Each Member of the Plan may file with the Nonqualified Plan Committee a written
designation of one or more person as the beneficiary who shall be entitled to receive the amount,
if any, payable under the Plan upon his death. A Member may, from time to time, revoke or change
his beneficiary designation without the consent of any prior beneficiary by filing a new
designation with the Nonqualified Plan Committee. The last such written designation received by
the Nonqualified Plan Committee shall be controlling; provided, however, that no designation, or
change or revocation thereof, shall be effective unless received by the Nonqualified Plan Committee
prior to the Member’s death, and in no even shall it be effective as of a date prior to such
receipt.



5.02 If no such beneficiary designation is in effect at the time of the Member’s death, or if
no designated beneficiary survives the Member, or if, in the opinion of the Nonqualified Plan
Committee, such designation conflicts with applicable law, the Member’s estate shall be deemed to
have been designated as his beneficiary and shall be paid the amount, if any, payable under the
Plan upon the Member’s death. If the Nonqualified Plan Committee is in doubt as to the right of any
person to receive such amount, the Committee may retain such amount, without liability for any
interest thereon, until the rights thereto are determined, or the Nonqualified Plan Committee may
pay such amount into any court of appropriate jurisdiction and such payment shall be a complete
discharge of the liability of the Plan and the Bank therefor.


 


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Article VI. Administration of Plan




6.01 The Board of Directors has delegated to the Nonqualified Plan Committee, subject to those
powers which the Board has reserved to itself or to the Compensation Committee as described in
Article III of the Plan, general authority over and responsibility for the administration and
interpretation of the Plan. The Nonqualified Plan Committee shall have full power and authority to
interpret and construe the Plan, to make all determinations considered necessary or advisable for
the administration of the Plan and any trust referred to in Article V of the Plan and the
calculation of the amount of benefits payable under the Plan, and to review claims for benefits
under the Plan. The Nonqualified Plan Committee’s interpretations and constructions of the Plan and
its decisions or actions thereunder shall be binding and conclusive on all persons for all
purposes, except to the extent of the powers which the Board has reserved to itself or to the
Compensation Committee referred to in the first sentence of this Section 6.01.



6.02 If the Nonqualified Plan Committee deems it advisable, it shall arrange for the
engagement of legal counsel and certified public accountants (who may be counsel to or accountants
for the Bank) and other consultants, and make use of agents and clerical or other personnel, for
purposes of the Plan. The Nonqualified Plan Committee may rely upon the written opinions of such
counsel, accountants, and consultants, and upon any information supplied by the Retirement Plan for
purposes of Article III of the Plan, and delegate to any agent or to any subcommittee or
Nonqualified Plan Committee member its authority to perform any act hereunder, including, without
limitation, those matters involving the exercise of discretion; provided, however, that such
delegation shall be subject to revocation at any time at the discretion of the Nonqualified Plan
Committee. The Nonqualified Plan Committee shall report to the Compensation Committee, or to a
committee designated by the Board, at such intervals as shall be specified by the Compensation
Committee or such designated committee, with regard to the matters for which it is responsible
under the Plan.




 


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6.03 All claims for benefits under the Plan shall be submitted in writing to the Nonqualified
Plan Committee. Written notice of the decision on each such claim shall be furnished with reasonable promptness to the Member or his beneficiary (the “claimant”).
The claimant may request a review by the Nonqualified Plan Committee of any decision denying the
claim in whole or in part. Such request shall be made in writing and filed with the Nonqualified
Plan Committee within 30 days of such denial. A request for review shall contain all additional
information which the claimant wishes the Nonqualified Plan Committee to consider. The
Nonqualified Plan Committee may hold any hearing or conduct any independent investigation which it
deems desirable to render its decision and the decision on review shall be made as soon as feasible
after the Nonqualified Plan Committee’s receipt of the request for review. Written notice of the
decision shall be furnished to the claimant. For all purposes under the Plan, such decisions on
claims (where no review is requested) and decisions on review (where review is requested) shall be
final, binding, and conclusive on all interested persons as to all matters relating to the Plan.



6.04 All expenses incurred by the Nonqualified Plan Committee in its administration of the
Plan shall be paid by the Bank.


 


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Article VII. Amendment and Termination




The Board of Directors may amend, suspend, or terminate, in whole or in part, the Plan without
the consent of the Nonqualified Plan Committee or any Member, beneficiary or other person, except
that no amendment, suspension or termination shall retroactively impair or otherwise adversely
affect the rights of any Member, beneficiary or other person to benefits under the Plan which have
vested prior to the date of such action, as determined by the Nonqualified Plan Committee in its
sole discretion. The Nonqualified Plan Committee may adopt any amendment or take any other action
which may be necessary or appropriate to facilitate the administration, management and
interpretation of the Plan or to conform the Plan thereto, provided any such amendment or action
does not have a material effect on the then currently estimated cost to the Bank of maintaining the
Plan.


 


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Article VIII. General Provisions




8.01 The Plan shall be binding upon and inure to the benefit of the Bank, and its successors
and assigns, and the Members, and their successors, assigns, designees and estates. The Plan shall
also be binding upon and inure to the benefit of any successor organization succeeding to
substantially all of the assets and business of the Bank, but nothing in the Plan shall preclude
the Bank from merging or consolidating into or with, or transferring all or substantially all of
its assets to, another organization which assumes the Plan and all obligations of the Bank
hereunder. The Bank agrees that it will make appropriate provision for the preservation of
Members’ rights under the Plan in any agreement or plan which it may enter into effect any merger,
reorganization or transfer of assets and assumption of Plan obligations of the Bank, the term
“Bank” shall refer to such other organization and the Plan shall continue in full force and effect.



8.02 Neither the Plan nor any action taken thereunder shall be construed as giving to a Member
the right to be retained in the employ of the Bank or as affecting the right of the Bank to dismiss
any Member from its employ.



8.03 The Bank shall withhold or cause to be withheld from all benefits payable under the Plan
in all federal, state, local and other taxes required by applicable law be withheld with respect to
such payments.



8.04 No right or interest of a Member under the Plan may be assigned, sold, encumbered,
transferred or otherwise disposed of and any attempted disposition of such right or interest shall
be null and void.



8.05 If the Nonqualified Plan Committee shall find that any person to whom any amount is or
was payable under the Plan is unable to care for his affairs because of illness or accident, or is
a minor, or has died, then any payment, or any part thereof, due to such person or his estate
(unless a prior claim therefor has been made by a duly appointed legal representative), may, if the
Nonqualified Plan Committee is so inclined, be paid to such person’s spouse, child or other
relative, an institution maintaining or having custody of such person, or any other person deemed
by the Nonqualified Plan Committee to be a proper recipient on behalf of such person otherwise
entitled to payment. Any such payment shall be in complete discharge of the liability of the Plan and the Bank
therefor.



 


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8.06 To the extent that any person acquires a right to receive payments from the Bank under
the Plan, such right shall be no greater than the right of an unsecured general creditor of the
Bank.



8.07 All elections, designations, requests, notices, instructions and other communications
from a Member, beneficiary or other person to the Committee required or permitted under the Plan
shall be in such form as is prescribed from time to time by the Nonqualified Plan Committee and
shall be mailed by first-class mail or delivered to such location as shall be specified by the
Nonqualified Plan Committee and shall be deemed to have been given and delivered only upon actual
receipt thereof at such location.



8.08 The benefits payable under the Plan shall be in addition to all other benefits provided
for employees of the Bank and shall not be deemed salary or other compensation by the Bank for the
purpose of computing benefits to which he may be entitled under any other plan or arrangement of
the Bank.



8.09 No Nonqualified Plan Committee member shall be personally liable by reason of, any
instrument executed by him or on his behalf, or action taken by him, in his capacity as a
Nonqualified Plan Committee member nor for any mistake of judgment made in good faith. The Bank
shall indemnify and hold harmless the Retirement Plan and each Nonqualified Plan Committee member
and each employee, officer or director of the Bank or the Retirement Plan, to whom any duty, power,
function or action in respect of the Plan may be delegated or assigned, or from whom any
information is requested for Plan purposes, against any cost or expense (including fees of legal
counsel) and liability (including any sum paid in settlement of a claim or legal action with the
approval of the Bank) arising out of anything done or omitted to be done in connection with the
Plan, unless arising out of such person’s fraud or bad faith.



 


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8.10 As used in the Plan, the masculine gender shall be deemed to refer to the feminine, and
the singular person shall be deemed to refer to the plural, wherever appropriate.


8.11 The captions preceding the sections of the Plan have been inserted solely as a matter of
convenience and shall not in any manner define or limit the scope or intent of any provisions of
the Plan.



8.12 The Plan shall be construed according to the laws of the State of New York in effect from
time to time.




 


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