Exhibit 10.5(a)
Form of Change in Control Agreement
– Senior Executive Vice President
CHANGE IN CONTROL
AGREEMENT
THIS CHANGE IN CONTROL AGREEMENT
(this “ Agreement ”) is entered into as of the
day of
,
20 between People’s United Financial,
Inc. (the “ Company ”), and
,
an officer of the Company or its wholly-owned subsidiary,
People’s United Bank (the “Bank”) or one of the
Bank’s wholly-owned subsidiaries (the “
Executive ”).
W I T N E S S E T H
WHEREAS the Board of Directors of
the Company (the “ Board ”) has determined that
it is in the best interests of the Company and its stockholders to
secure Executive’s continued services and to ensure
Executive’s continued dedication to Executive’s duties
in the event of any threat or occurrence of a Change in Control (as
defined in Section 2(e)); and
WHEREAS the Company desires to enter
into this Agreement with Executive according to the terms set forth
herein, and Executive desires to enter into this Agreement with the
Company on such terms.
NOW, THEREFORE, in consideration of
the mutual agreements set forth herein, the parties agree as
follows:
1. Term of Agreement
.
(a) This Agreement is effective on
the date hereof and shall continue in effect until the third
anniversary of the date hereof; provided , that ,
notwithstanding the occurrence of such third anniversary, this
Agreement shall continue in effect until the end of the Protection
Period (as defined in Section 1(b)) if a Change in Control
shall have occurred during the term of this Agreement. This
Agreement shall terminate if (1) either Executive or the
Company terminates Executive’s employment for any reason
before a Change in Control, or (2) a Change in Control occurs
and Executive’s employment continues through the end of the
Protection Period.
(b) For purposes of this Agreement,
the “ Protection Period ” means the period
commencing on the date on which a Change in Control occurs and
ending on the third anniversary of such date.
2. Termination .
(a) Rights and Duties . If
Executive’s employment terminates for any reason during the
Protection Period, Executive shall be entitled to receive the
payment and benefits shown on the applicable row of the following
table, subject to the balance of this Section 2, beyond which
the Company and Executive shall have no further obligations to each
other, except: (1) Executive’s obligations under
Section 3; (2) the Company’s obligation’s
under Sections 2, 4 and 18; (3) the Company’s and
Executive’s
respective obligations under Sections 8 and 10;
and (4) as set forth in any written agreement the parties may
subsequently enter into. The parties hereto acknowledge and agree
that, upon a Change in Control, all equity or equity-based awards
that have been granted to Executive by the Company, its
subsidiaries and/or their affiliates shall be subject to the terms
and conditions contained in the applicable plans and award
agreements. For purposes of clarity, Executive shall not be
entitled to any payment under this Section 2 if
Executive’s Employment does not terminate during the
Protection Period.
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(i) DISCHARGE FOR CAUSE DURING THE
PROTECTION PERIOD
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Payment when due of any unpaid base salary,
awarded but unpaid cash bonus, and expense reimbursements; plus
base salary for any accrued but unused vacation.
In addition, Executive shall be
entitled to any rights and benefits under any retirement and
non-retirement employee benefit plans and programs (including
deferred compensation programs) and under any outstanding long-term
incentives in accordance with the terms and conditions of the
relevant plan or program.
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(ii) DISCHARGE OTHER THAN FOR CAUSE DURING
THE PROTECTION PERIOD
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Same as “Discharge for Cause” EXCEPT
that, in exchange for Executive’s execution of a claims
release in accordance with this Section 2 and subject to Sections
8, 13, and 18 below, in addition, Executive shall
receive:
(1) additional cash severance equal
to three times the sum of (i) Executive’s annual base salary
as of the date immediately before Executive’s termination,
and (ii) the amount of Executive’s target annual cash bonus
for the year prior to the Change in Control (the amount in clause
(ii) of this paragraph is referred to as the “ Target
Bonus Level ”);
(2) a pro rata amount of
Executive’s annual cash bonus during the year of termination
based on the Target Bonus Level;
(3) an amount equal to the
retirement benefits that Executive would have earned, if Executive
had remained employed for two additional years following the Date
of Termination (assuming that Executive’s annual base salary
as of the date immediately before Executive’s termination and
the Target Bonus Level continued during such years), under the
People’s Bank Employee’s Retirement Plan, the
People’s Bank Cap Excess Plan, the People’s Bank
Enhanced Senior Pension Plan (to the extent that the Bank continues
to maintain such plans), and any other supplemental retirement
agreement covering Executive (such amount to be paid at the same
time as benefits under the applicable nonqualified plan are
payable); and
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(4) for two years, Executive,
Executive’s spouse and dependents (if any) will continue to
be entitled to participate in the Company’s group health
plans in which Executive participates immediately prior to the Date
of Termination at the Company’s expense, provided that
Executive timely elects continuation coverage under COBRA, and
provided that if the Company is unable to provide such coverage
after the end of the COBRA continuation period under the
Company’s group health plan, the Company shall, following the
expiration of the COBRA coverage period, provide Executive and
Executive’s dependents with substantially identical medical
coverage to that provided under the Company’s group health
plan during the remainder of such post-COBRA period.
For purposes of this Agreement,
“ Date of Termination ” means (i) the effective
date on which Executive’s employment with the Company
terminates as specified in a prior written notice by the Company or
Executive, as the case may be, to the other, delivered pursuant to
Section 12, or (ii) if Executive’s employment by the Company
terminates by reason of death, the date of death of
Executive.
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(iii) RESIGNATION WITHOUT GOOD REASON
DURING THE PROTECTION PERIOD
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Same as above
for “Discharge for Cause During the Protection
Period.”
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(iv)
RESIGNATION FOR GOOD REASON DURING THE PROTECTION
PERIOD
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Same as above
for “Discharge Other Than for Cause During the Protection
Period”
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(v) DEATH OR
DISABILITY DURING THE PROTECTION PERIOD
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Same as “Discharge for Cause During the
Protection Period” EXCEPT that, in addition, Executive shall
receive:
(1) cash severance equal to one
times Executive’s annual base salary at the rate applicable
as of the Date of Termination due to Executive’s death or
disability; and
(2) a pro rata amount of
Executive’s annual bonus during the year of termination,
based on the Target Bonus Level.
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(b) Discharge for Cause . The
Company may terminate Executive’s employment at any time for
Cause. “ Cause ” shall mean
(i) Executive’s willful failure to perform or
substantially perform Executive’s duties with the Company or
People’s United Bank (a wholly owned subsidiary of the
Company (the “ Bank ”)); (ii) illegal
conduct or gross misconduct by Executive that is willful and
demonstrably and materially injurious to the Company’s or the
Bank’s business, monetarily or otherwise; (iii) a
willful and material breach by Executive of Section 3 of this
Agreement or the Company’s written code of conduct;
(iv) Executive’s indictment for, or entry of a plea of
guilty or nolo contendere with respect to, a felony crime or a
crime involving moral turpitude, fraud, forgery, embezzlement or
similar conduct; or (v) Executive is removed and/or
permanently prohibited from participating in the conduct of the
Company’s affairs pursuant to an order issued under
Section 21C(f) of the Securities Exchange Act of 1934 or in
the Bank’s affairs by an order issued under
Section 8(e)(4) or 8(g)(1) of the Federal Deposit Insurance
Act; provided , however , that the actions in
(i) through (iii), above, shall not be considered Cause unless
Executive has failed to cure such actions within 30 days of
receiving written notice specifying with particularity the events
allegedly giving rise to Cause and that such actions shall not be
considered Cause unless the Company provides such written notice
within 180 days of any Board member (other than Executive, if
applicable at the time of such notice) having knowledge of the
relevant action. Further, no act or failure to act by the Executive
shall be deemed “willful” unless done or omitted to be
done not in good faith and without reasonable belief that such
action or omission was in the Company’s best interests, and
any act or omission by Executive pursuant to authority given
pursuant to a resolution duly adopted by the Board or on the advice
of counsel for the Company will be deemed made in good faith and in
the best interests of the Company. Executive shall not be deemed to
be discharged for Cause hereunder unless and until there is
delivered to Executive a copy of a resolution duly adopted by the
affirmative vote of not less than a majority of the entire
membership of the Board (excluding Executive, if applicable), at a
meeting called and duly held for such purpose (after reasonable
notice to Executive and an opportunity for Executive and
Executive’s counsel to be heard before the Board), finding in
good faith that Executive is guilty of the conduct set forth above
and specifying the particulars thereof in detail.
(c) Discharge Other Than for
Cause or Resignation for Good Reason, in each case during the
Protection Period . The Company may terminate the
Executive’s employment at any time for any reason, and
without advance notice. If, during the Protection Period, the
Executive’s employment is terminated by the Company other
than for Cause or Executive resigns for Good Reason, then Executive
will only receive the special benefits provided under
Section 2(a) if Executive signs and delivers a release of
claims in the form of Annex 1 in favor of the Company and
its related companies and affiliates within 21 days following the
date of Executive’s termination. Unless such release is
timely executed and delivered in accordance herewith and such
release becomes effective in accordance with applicable law
following the expiration of any applicable revocation period, no
payments or benefits shall be provided to Executive pursuant to
Section 2 of this Agreement. Within 30 days following the
earlier of the effective date of the general release and the 30th
day following the Date of Termination,
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the Company shall pay Executive a lump sum equal
to any cash payments that Executive is entitled in accordance with
Section 2(a) of this Agreement (it being acknowledged by the
parties that this Agreement is intended to provide for payments
that satisfy the short term deferral exception under Treas. Reg.
1.409A-1(b)(4) and are thus not intended to be deferred
compensation under Internal Revenue Code section 409A).
(d) Resignation . During the
Protection Period, Executive shall not resign from employment
without giving the Company at least 30 days advance written notice
unless Executive has Good Reason to resign. The Company may accept
Executive’s resignation effective on the date set forth in
Executive’s notice or any earlier date. “ Good
Reason ” for resignation shall exist upon (i) a
material diminution of Executive’s duties or
responsibilities, authorities, powers, or functions without
Executive’s written consent, (ii) any material reduction
in Executive’s rate of annual base salary or target annual
cash bonus, in each case as in effect immediately prior to the date
of the Change in Control, (iii) a relocation that would result
in Executive’s principal location of employment being moved
fifty miles or more away from the Executive’s principal
location immediately prior to a Change in Control, or (iv) the
Company’s material breach of this Agreement without
Executive’s written consent, provided , however
, that the actions in (i) through and (iv), above, shall not
be considered Good Reason unless Executive notifies the Company in
writing within 30 days of Executive’s knowledge of the
actions giving rise to the Good Reason, and the Company has failed
to cure such actions within 30 days of receiving written notice
thereof.
(e) Change in Control . For
purposes of this Agreement, “ Change in Control
” means the occurrence of any one or more of the following
events during the term of this Agreement:
(i) Any individual, entity or group
(within the meaning of Sections 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended (“Exchange
Act”)) (“Person”) becomes the beneficial owner
(within the meaning of Rule 13d-3 promulgated under the Exchange
Act) of 25% or more of either (A) the then-outstanding shares
of common stock of the Company (the “Outstanding Company
Common Stock”) or (B) 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 paragraph, the following acquisitions
shall not constitute a Change in Control: (X) any acquisition
by the Company, (Y) any acquisition by any employee benefit
plan (or related trust) sponsored or maintained by the Company or
any of its affiliates or (Z) any acquisition pursuant to a
transaction that complies with Sections 2(e)(iii)(A), 2(e)(iii)(B),
and 2(e)(iii)(C) of this Agreement;
(ii) Individuals who, as of the date
hereof, constitute the Company’s Board (the “Incumbent
Board”) cease for any reason to constitute a majority of the
Board; provided , however , that any individual
becoming a director
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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 was a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of either (A) 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 (B) agreement with any third party;
(iii) Consummation of a
reorganization, merger, statutory share exchange or consolidation
or similar transaction involving the Company or the Bank (or the
issuance of stock by the Company), a sale or other disposition of
all or substantially all of the assets of the Company or the
deposits of the Bank, or the acquisition of assets or stock of
another entity by the Company (each, a “ Business
Combination ”), in each case unless, following such
Business Combination, (A) all or substantially all of the
individuals and entities that were the beneficial owners 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 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, (B) 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, 25% 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, except to the extent that such ownership existed prior
to the Business Combination, and (C) 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;
(iv) Approval by the shareholders of
the Company of a complete liquidation or dissolution of the
Company; or
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(v) Any event that would be
described in Section 2(e)(i), (ii), (iii) or (iv) if
the term “Bank” were substituted for the term
“Company” therein.
(f) Golden Parachute Tax and
Related Limitations .
(i) If there is a change in
ownership or control of any member of the Bank’s or the
Company’s “affiliated group” (within the meaning
of Treas. Reg. 1.280G-1 or any successor thereto) (collectively,
the “ Company Group ”) that causes any payment
or distribution by any member of the Bank, the Company or any other
person or entity to Executive or for Executive’s benefit
(whether paid or payable or distributed or distributable pursuant
to the terms of this Agreement or otherwise, but determined without
regard to any additional payments required under this Section) (a
“ Payment ”) to be subject to the excise tax
imposed by Section 4999 of the Code (such excise tax, together
with any interest or penalties incurred by Executive with respect
to such excise tax, the “ Excise Tax ”), then
Executive shall be entitled to receive an additional payment (a
“ Gross-Up Payment ”) in an amount such that
after payment by Executive of all taxes (including any interest or
penalties imposed with respect to such taxes), including any income
taxes (and any interest and penalties imposed with respect thereto)
and Excise Tax imposed upon the Gross-Up Payment, Executive will
retain an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments. Notwithstanding the foregoing, if it is
determined that Executive would otherwise be entitled to a Gross-Up
Payment but that the Payments would not be subject to the Excise
Tax if the Payments were reduced by an amount that is less than 10%
of the Payments, then Executive will not receive the Gross-Up
Payment, and the Payments will be reduced to the maximum amount
that would not result in the imposition of the Excise Tax. The
payments to be reduced will be determined in a manner which has the
least economic cost to Executive and, to the extent the economic
cost is equivalent, will be reduced in the inverse order of when
payment would have been made to Executive until the 10% reduction
is achieved.
(ii) Subject to the provisions of
this Section 2(ii), all determinations required to be made
under this Section, including whether and when a Gross-Up Payment
is required and the amount of such Gross-Up Payment and the
assumptions to be utilized in arriving at such determination, shall
be made by an outside nationally recognized accounting firm
selected by the Company or the Board, in its sole and absolute
discretion (the “ Accounting Firm ”), which
shall provide detailed supporting calculations both to the Company
and Executive within 15 business days of the receipt of notice from
Executive that there has been a Payment, or such earlier time as is
requested by the Company. In the event that the Accounting Firm is
serving as accountant or auditor for the individual, entity or
group effecting the Change in Control, the Company shall appoint
another nationally recognized accounting firm to make the
determinations required hereunder (which accounting firm shall then
be referred to as the Accounting
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Firm hereunder). All fees and
expenses of the Accounting Firm shall be borne solely by the
Company. Any Gross-Up Payment, if applicable, as determined
pursuant to this Section 2(f), shall be paid by the Company to
the Executive within 30 days of the receipt of the Accounting
Firm’s determinati