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EXHIBIT
10.15
CHANGE IN CONTROL
AGREEMENT
CHANGE IN CONTROL AGREEMENT
by and between Webster Financial Corporation, a Delaware
corporation (the “Company”) and Gerald P. Plush (the
“Executive”), dated as of the 1 st day of January, 2008 (this
“Agreement”).
WHEREAS, the Executive and
the Company are parties to that certain Change of Control
Agreement, dated as of July 5, 2006 (the “ Original
Agreement ”);
WHEREAS, the Company now
desires to make certain amendments to the Original Agreement as
deemed advisable to prevent an inclusion of income or imposition of
penalties under Section 409A of the Internal Revenue Code of
1986, as amended (the “ Code ”) or as deemed
advisable to facilitate compliance with Section 409A of the
Code and to otherwise make certain revisions to the Original
Agreement to update them to current practice, including changes to
reflect the Company’s current benefit plans and practices;
and]
WHEREAS, the Board of
Directors of the Company (the “Board”), has determined
that it is in the best interests of the Company and its
shareholders to assure that the Company will have the continued
dedication of the Executive, notwithstanding the possibility,
threat or occurrence of a Change in Control (as defined below) of
the Company. The Board believes it is imperative to diminish the
inevitable distraction of the Executive by virtue of the personal
uncertainties and risks created by a pending or threatened Change
in Control and to encourage the Executive’s full attention
and dedication to the Company currently and in the event of any
threatened or pending Change in Control, and to provide the
Executive with compensation and benefits arrangements upon a Change
in Control that ensure that the compensation and benefits
expectations of the Executive will be satisfied and which are
competitive with those of other corporations. Therefore, in order
to accomplish these objectives, the Board has caused the Company to
enter into this Agreement.
NOW, THEREFORE, IT IS HEREBY
AGREED AS FOLLOWS:
1. Certain Definitions
.
(a) The “Effective
Date” shall mean the first date during the Change in Control
Period (as defined in Section 1(b)) on which a Change in
Control (as defined in Section 2) occurs. Anything in this
Agreement to the contrary notwithstanding, if a Change in Control
occurs and if the Executive’s employment with the Company is
terminated within the 12-month period prior to the date on which
the Change in Control occurs, and if it is reasonably demonstrated
by the Executive that such termination of employment (i) was
at the request of a third party that has taken steps reasonably
calculated to effect a Change in Control or (ii) otherwise
arose in connection with or anticipation of a Change in Control
(such a termination of employment, an “Anticipatory
Termination”), then for all purposes of this Agreement the
“Effective Date” shall mean the date immediately prior
to the date of such termination of employment.
(b) The “Change in
Control Period” shall mean the period commencing on the date
hereof and ending on the second anniversary of the date hereof;
provided, however , that commencing on the date one year
after the date hereof, and on each annual anniversary of such date
(such date and each annual anniversary thereof shall be hereinafter
referred to as the “Renewal Date”), unless previously
terminated, the Change in Control Period shall be automatically
extended so as to terminate two years from such Renewal Date,
unless at least 60 days prior to the Renewal Date the Company shall
give notice to the Executive that the Change in Control Period
shall not be so extended.
(c) “Affiliated
Companies” shall include any company controlled by,
controlling or under common control with the Company.
2. Change in Control .
For the purpose of this Agreement, a “Change in
Control” shall mean:
(a) Any individual, entity or
group (within the meaning of Section 13(d)(3) or 14(d)(2) of
the Securities Exchange Act of 1934, as amended (the
“Exchange Act”)) (a “Person”) becomes the
beneficial owner (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 20% or more of either (i) the then
outstanding shares of common stock of the Company (the
“Outstanding Company Common Stock”) or (ii) the
combined voting power of the then outstanding voting securities of
the Company entitled to vote generally in the election of directors
(the “Outstanding Company Voting Securities”);
provided, however , that for purposes of this subsection
(a), the following acquisitions shall not constitute a Change in
Control: (i) any acquisition directly from the Company,
(ii) any acquisition by the Company, (iii) any
acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any Affiliated Company or
(iv) any acquisition pursuant to a transaction which complies
with clauses (i), (ii) and (iii) of subsection
(c) of this Section 2; or
(b) Any time at which
individuals who, as of the date hereof, constitute the Board (the
“Incumbent Board”) cease for any reason to constitute
at least a majority of the Board; provided, however , that
any individual becoming a director subsequent to the date hereof
whose election, or nomination for election by the Company’s
shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered
as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened
election contest with respect to the election or removal of
directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board;
or
(c) Consummation of a
reorganization, merger, statutory share exchange or consolidation
or similar transaction involving the Company or any of its
subsidiaries, a sale or other disposition of all or substantially
all of the assets of the Company, or the acquisition of assets or
stock of another entity by the Company or any of its subsidiaries
(each a “Business Combination”), in each case, unless,
following such Business Combination, (i) all or substantially
all of the individuals and entities that were the beneficial
owners, respectively, of the Outstanding Company Common Stock and
the Outstanding Company Voting Securities immediately prior to such
Business Combination beneficially own, directly or indirectly, more
than 50% of, respectively, the then outstanding shares of common
stock (or, for a non-corporate entity, equivalent securities) and
the combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors (or, for a
non-corporate entity, equivalent governing body), as the case may
be, of the entity resulting from such Business Combination
(including, without limitation, an entity that, as a result of such
transaction owns the Company or all or substantially all of the
Company’s assets either directly or through one or more
subsidiaries) in substantially the same proportions as their
ownership, immediately prior to such Business Combination of the
Outstanding Company Common Stock and the Outstanding Company Voting
Securities, as the case may be, (ii) no Person (excluding any
corporation resulting from such Business Combination or any
employee benefit plan (or related trust) of the Company or such
corporation resulting from such Business Combination) beneficially
owns, directly or indirectly, 20% or more of, respectively, the
then outstanding shares of common stock of the corporation
resulting from such Business Combination or the combined voting
power of the then outstanding voting securities of such
corporation,
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except to the extent that such ownership
existed prior to the Business Combination and (iii) at least a
majority of the members of the board of directors (or, for a
non-corporate entity, equivalent governing body) of the entity
resulting from such Business Combination were members of the
Incumbent Board at the time of the execution of the initial
agreement, or of the action of the Board, providing for such
Business Combination; or
(d) Approval by the
shareholders of the Company of a complete liquidation or
dissolution of the Company.
3. Employment Period .
The Company hereby agrees to continue the Executive in its employ,
and the Executive hereby agrees to remain in the employ of the
Company, subject to the terms and conditions of this Agreement, for
the period commencing on the Effective Date and ending on the
second anniversary of the Effective Date (the “Employment
Period”). The Employment Period shall terminate upon the
Executive’s termination of employment for any
reason.
4. Terms of Employment
.
(a) Position and
Duties .
(i) During the Employment
Period, (A) the Executive’s position (including status,
offices, titles and reporting requirements), authority, duties and
responsibilities shall be at least commensurate in all material
respects with the most significant of those held, exercised and
assigned at any time during the 120-day period immediately
preceding the Effective Date and (B) the Executive’s
services shall be performed at the office where the Executive was
employed immediately preceding the Effective Date or at any other
office or location less than 35 miles from such office.
(ii) During the Employment
Period, and excluding any periods of vacation and sick leave to
which the Executive is entitled, the Executive agrees to devote
reasonable attention and time during normal business hours to the
business and affairs of the Company and, to the extent necessary to
discharge the responsibilities assigned to the Executive hereunder,
to use the Executive’s reasonable best efforts to perform
faithfully and efficiently such responsibilities. During the
Employment Period it shall not be a violation of this Agreement for
the Executive to (A) serve on corporate, civic or charitable
boards or committees, (B) deliver lectures, fulfill speaking
engagements or teach at educational institutions and
(C) manage personal investments, so long as such activities do
not significantly interfere with the performance of the
Executive’s responsibilities as an employee of the Company in
accordance with this Agreement. It is expressly understood and
agreed that to the extent that any such activities have been
conducted by the Executive prior to the Effective Date, the
continued conduct of such activities (or the conduct of activities
similar in nature and scope thereto) subsequent to the Effective
Date shall not thereafter be deemed to interfere with the
performance of the Executive’s responsibilities to the
Company.
(b) Compensation
.
(i) Base Salary .
During the Employment Period, the Executive shall receive an annual
base salary (“Annual Base Salary”), which shall be paid
at a monthly rate, at least equal to twelve times the highest
monthly base salary paid or payable, including any base salary that
has been earned but deferred, to the Executive by the Company and
the Affiliated Companies in respect of the twelve-month period
immediately preceding the month in which the Effective Date occurs.
During the Employment Period, the Annual Base Salary shall be
reviewed no more than 12 months after the last salary increase
awarded to the Executive prior to the Effective Date and thereafter
at least annually. Any increase in the Annual Base Salary shall not
serve to limit or reduce any other obligation to the Executive
under this Agreement. The Annual Base Salary shall not be reduced
after any such increase and the term “Annual Base
Salary” as utilized in this Agreement shall refer to the
Annual Base Salary as so increased.
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(ii) Annual Bonus . In
addition to Annual Base Salary, the Executive shall be awarded, for
each fiscal year ending during the Employment Period, an annual
bonus (the “Annual Bonus”) in cash at least equal to
the Executive’s highest bonus under the Webster Financial
Corporation and Webster Bank Annual Incentive Compensation Plan, or
any comparable bonus under any predecessor or successor plan, paid
with respect to any one of the last three Company fiscal years
prior to the Effective Date (the “Recent Annual
Bonus”). For purposes of determining the Recent Annual Bonus
under the foregoing sentence, if the Executive was not employed by
the Company for the whole of any of the last three fiscal years
prior to the Effective Date, then the bonus paid with respect to
such fiscal year shall be deemed to be the greater of (x) the
Executive’s target bonus as set forth in the
Executive’s employment offer letter, or (y) the actual
Annual Bonus paid to the Executive with respect to such fiscal
year. Each such Annual Bonus shall be paid no later than two and a
half months after the end of the fiscal for which the Annual Bonus
is awarded, unless the Executive shall elect to defer the receipt
of such Annual Bonus pursuant to an arrangement that meets the
requirements of Section 409A of the Internal Revenue Code of
1986, as amended (the “Code”).
(iii) Incentive, Savings
and Retirement Plans . During the Employment Period, the
Executive shall be entitled to participate in all cash and equity
incentive, savings and retirement plans, practices, policies and
programs applicable generally to other peer executives of the
Company and the Affiliated Companies, but in no event shall such
plans, practices, policies and programs provide the Executive with
incentive opportunities (measured with respect to both regular and
special incentive opportunities, to the extent, if any, that such
distinction is applicable), savings opportunities and retirement
benefit opportunities, in each case, less favorable, in the
aggregate, than the most favorable of those provided by the Company
and the Affiliated Companies for the Executive under such plans,
practices, policies and programs as in effect at any time during
the 120-day period immediately preceding the Effective Date or if
more favorable to the Executive, those provided generally at any
time after the Effective Date to other peer executives of the
Company and the Affiliated Companies.
(iv) Welfare Benefit
Plans . During the Employment Period, the Executive and/or the
Executive’s family, as the case may be, shall be eligible for
participation in and shall receive all benefits under welfare
benefit plans, practices, policies and programs provided by the
Company and the Affiliated Companies (including, without
limitation, medical, prescription, dental, disability, employee
life, group life, accidental death and travel accident insurance
plans and programs) to the extent applicable generally to other
peer executives of the Company and the Affiliated Companies, but in
no event shall such plans, practices, policies and programs provide
the Executive with benefits that are less favorable, in the
aggregate, than the most favorable of such plans, practices,
policies and programs in effect for the Executive at any time
during the 120-day period immediately preceding the Effective Date
or, if more favorable to the Executive, those provided generally at
any time after the Effective Date to other peer executives of the
Company and the Affiliated Companies.
(v) Expenses . During
the Employment Period, the Executive shall be entitled to receive
prompt reimbursement for all reasonable expenses incurred by the
Executive in accordance with the most favorable policies, practices
and procedures of the Company and the Affiliated Companies in
effect for the Executive at any time during the 120-day period
immediately preceding the Effective Date or, if more favorable to
the Executive, as in effect generally at any time thereafter with
respect to other peer executives of the Company and the Affiliated
Companies.
(vi) Fringe Benefits .
During the Employment Period, the Executive shall be entitled to
fringe benefits, including, without limitation, tax and financial
planning services, payment of
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club dues, and, if applicable, use of an
automobile and payment of related expenses, in accordance with the
most favorable plans, practices, programs and policies of the
Company and the Affiliated Companies in effect for the Executive at
any time during the 120-day period immediately preceding the
Effective Date or, if more favorable to the Executive, as in effect
generally at any time thereafter with respect to other peer
executives of the Company and the Affiliated Companies.
(vii) Office and Support
Staff . During the Employment Period, the Executive shall be
entitled to an office or offices of a size and with furnishings and
other appointments, and to exclusive personal secretarial and other
assistance, at least equal to the most favorable of the foregoing
provided to the Executive by the Company and the Affiliated
Companies at any time during the 120-day period immediately
preceding the Effective Date or, if more favorable to the
Executive, as provided generally at any time thereafter with
respect to other peer executives of the Company and the Affiliated
Companies.
(viii) Vacation .
During the Employment Period, the Executive shall be entitled to
paid vacation in accordance with the most favorable plans,
policies, programs and practices of the Company and the Affiliated
Companies as in effect for the Executive at any time during the
120-day period immediately preceding the Effective Date or, if more
favorable to the Executive, as in effect generally at any time
thereafter with respect to other peer executives of the Company and
the Affiliated Companies.
5. Termination of
Employment .
(a) Death or
Disability . The Executive’s employment shall terminate
automatically upon the Executive’s death during the
Employment Period. If the Company determines in good faith that the
Disability of the Executive has occurred during the Employment
Period (pursuant to the definition of Disability set forth below),
it may give to the Executive written notice in accordance with
Section 12(b) of this Agreement of its intention to terminate
the Executive’s employment. In such event, the
Executive’s employment with the Company shall terminate
effective on the 30th day after receipt of such notice by the
Executive (the “Disability Effective Date”),
provided that, within the 30 days after such receipt, the
Executive shall not have returned to full-time performance of the
Executive’s duties. For purposes of this Agreement,
“Disability” shall mean the absence of the Executive
from the Executive’s duties with the Company on a full-time
basis for 180 consecutive business days as a result of incapacity
due to mental or physical illness that is determined to be total
and permanent by a physician selected by the Company or its
insurers and acceptable to the Executive or the Executive’s
legal representative.
(b) Cause . The
Company may terminate the Executive’s employment during the
Employment Period with or without Cause. For purposes of this
Agreement, “Cause” shall mean:
(i) the willful and continued
failure of the Executive to perform substantially the
Executive’s duties with the Company or one of its affiliates
(other than any such failure resulting from incapacity due to
physical or mental illness or following the Executive’s
delivery of a Notice of Termination for Good Reason), after a
written demand for substantial performance is delivered to the
Executive by the Board or the Chief Executive Officer of the
Company that specifically identifies the manner in which the Board
or the Chief Executive Officer believes that the Executive has not
substantially performed the Executive’s duties, or
(ii) the willful engaging by
the Executive in illegal conduct or gross misconduct that is
materially and demonstrably injurious to the Company.
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For purposes of this
Section 5(b), no act or failure to act, on the part of the
Executive, shall be considered “willful” unless it is
done, or omitted to be done, by the Executive in bad faith or
without reasonable belief that the Executive’s action or
omission was in the best interests of the Company. Any act, or
failure to act, based upon authority (A) given pursuant to a
resolution duly adopted by the Board, or if the Company is not the
ultimate parent corporation of the Affiliated Companies and is not
publicly-traded, the board of directors of the ultimate parent of
the Company (the “Applicable Board”), (B) upon the
instructions of the Chief Executive Officer of the Company or a
senior officer of the Company or (C) based upon the advice of
counsel for the Company shall be conclusively presumed to be done,
or omitted to be done, by the Executive in good faith and in the
best interests of the Company. The cessation of employment of the
Executive shall not be deemed to be for Cause unless and until
there shall have been delivered to the Executive a copy of a
resolution duly adopted by the affirmative vote of not less than
three-quarters of the entire membership of the Applicable Board at
a meeting of the Applicable Board called and held for such purpose
(after reasonable notice is provided to the Executive and the
Executive is given an opportunity, together with counsel for the
Executive, to be heard before the Applicable Board), finding that,
in the good faith opinion of the board, the Executive is guilty of
the conduct described in subparagraph (i) or (ii) above,
and specifying the particulars thereof in detail.
(c) Good Reason . The
Executive’s employment may be terminated by the Executive for
Good Reason or by the Executive voluntarily without Good Reason.
For purposes of this Agreement, “Good Reason” shall
mean:
(i) the assignment to the
Executive of any duties inconsistent in any respect with the
Executive’s position (including status, offices, titles and
reporting requirements), authority, duties or responsibilities as
contemplated by Section 4(a) of this Agreement, or any other
action by the Company which results in a diminution in such
position, authority, duties or responsibilities, excluding for this
purpose an isolated, insubstantial and inadvertent action not taken
in bad faith and that is remedied by the Company promptly after
receipt of notice thereof given by the Executive;
(ii) any failure by the
Company to comply with any of the provisions of Section 4(b)
of this Agreement, other than an isolated, insubstantial and
inadvertent failure not occurring in bad faith and that is remedied
by the Company promptly after receipt of notice thereof given by
the Executive;
(iii) the Company’s
requiring the Executive to be based at any office or location other
than as provided in Section 4(a)(i)(B) hereof or the
Company’s requiring the Executive to travel on Company
business to a substantially greater extent than required
immediately prior to the Effective Date;
(iv) any purported
termination by the Company of the Executive’s employment
otherwise than as expressly permitted by this Agreement;
or
(v) any failure by the
Company to comply with and satisfy Section 11(c) of this
Agreement.
For purposes of this
Section 5(c), any good faith determination of “Good
Reason” made by the Executive shall be conclusive. The
Executive’s mental or physical incapacity following the
occurrence of an event described above in clauses (i) through
(v) shall not affect the Executive’s ability to
terminate employment for Good Reason.
(d) Notice of
Termination . Any termination by the Company for Cause, or by
the Executive for Good Reason, shall be communicated by Notice of
Termination to the other party hereto
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given in accordance with
Section 12(b) of this Agreement. For purposes of this
Agreement, a “Notice of Termination” means a written
notice that (i) indicates the specific termination provision
in this Agreement relied upon, (ii) to the extent applicable,
sets forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of the Executive’s
employment under the provision so indicated and (iii) if the
Date of Termination (as defined below) is other than the date of
receipt of such notice, specifies the termination date (which date
shall be not more than thirty days after the giving of such
notice). The failure by the Executive or the Company to set forth
in the Notice of Termination any fact or circumstance that
contributes to a showing of Good Reason or Cause shall not waive
any right of the Executive or the Company, respectively, hereunder
or
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