EXHIBIT 10.2
The form of Change in Control Agreement (the
“Agreement”) contains blanks where the multiple of the
executive’s base amount and the term of continued benefits
provided under the Agreement vary for certain
executives. The executive officers who entered into the
Agreement, the multiple of the executive’s base amount and
the term of continued benefits provided under the Agreement are
listed in the following chart:
|
|
Number of Times Base Amount
|
Term of Continued Benefits
|
|
Executive Officer
|
Section (4 a)
|
Section (4 b & c)
|
|
Kristen L. DiSanto
|
|
|
|
Senior Vice President, Human Resources of the
Bank
|
1 times
|
12 months
|
|
|
|
|
|
Brenda H. Senak
|
|
|
|
Senior Vice President, Risk Management of the
Bank
|
1 times
|
12 months
|
|
|
|
|
|
Mark. K. W. Gim
|
|
|
|
Executive Vice President and Treasurer of the
Bancorp and the Bank
|
2 times
|
24 months
|
|
|
|
|
CHANGE IN CONTROL AGREEMENT
AGREEMENT made as of this __________
day of _________________ by and among Washington Trust Bancorp,
Inc., a Rhode Island corporation with its principal place of
business in Westerly, Rhode Island (the “Corporation”),
The Washington Trust Company of Westerly, a Rhode Island banking
corporation with its principal place of business in Westerly, Rhode
Island (the “Bank”) and _______________ (the
“Executive”), an individual presently employed as an
executive of the Bank. This Agreement supersedes and
fully replaces any previous executive severance
agreement.
1. Purpose. The Corporation considers it
essential to the best interests of its stockholders to foster the
continuous employment of key management personnel employed by the
Bank. The Board of Directors of the Corporation (the
“Board”) recognizes, however, that, as is the case with
many publicly held corporations, the possibility of a Change in
Control (as defined in Section 2 hereof) exists and that such
possibility, and the uncertainty and questions which it may raise
among management, may result in the departure or distraction of
management personnel to the detriment of the Corporation and its
stockholders. Therefore, the Board has determined that
appropriate steps should be taken to reinforce and encourage the
continued attention and dedication of members of the Corporation
and the Bank’s management, including the Executive, to their
assigned duties without distraction in the face of potentially
disturbing circumstances arising from the possibility of a Change
in Control. Nothing in this Agreement shall be construed
as creating an express or implied contract of employment and,
except as otherwise agreed in writing between the Executive and the
Corporation and/or the Bank, the Executive shall not have any right
to be retained in the employ of the Corporation and/or the
Bank.
2. Change in Control. For purposes of this Agreement, a
“Change in Control” shall mean the occurrence of any
one of the following events:
(a) Consummation by the Corporation of (i) a
reorganization, merger or consolidation, in each case, with respect
to which all or substantially all of the individuals and entities
who were the beneficial owners of the then outstanding shares of
common stock of the Corporation (the “Outstanding Corporation
Common Stock”) immediately prior to such reorganization,
merger or consolidation do not, following such reorganization,
merger or consolidation, beneficially own, directly or indirectly,
more than 40% of the then outstanding shares of common stock of the
corporation resulting from such a reorganization, merger or
consolidation; (ii) a reorganization, merger or consolidation, in
each case, (A) with respect to which all or substantially all of
the individuals and entities who were the beneficial owners of the
Outstanding Corporation Common Stock immediately prior to such
reorganization, merger or consolidation, following such
reorganization, merger or consolidation, beneficially own, directly
or indirectly, more than 40% but less than 50% of the then
outstanding shares of common stock of the corporation resulting
from such a reorganization, merger or consolidation, (B) at least a
majority of the directors then constituting the Incumbent Board do
not approve the transaction and do not designate the transaction as
not constituting a Change in Control, and (C) following the
transaction members of the then Incumbent Board do not continue to
comprise at least a majority of the Board; or (iii) the sale or
other disposition of all or substantially all of the assets of the
Corporation, excluding a sale or other disposition of assets to a
subsidiary of the Corporation; or
(b) Consummation by the Bank of (i) a
reorganization, merger or consolidation, in each case, with respect
to which, following such reorganization, merger or consolidation,
the Corporation does not beneficially own, directly or indirectly,
more than 50% of the then outstanding shares of common stock of the
corporation or bank resulting from such a reorganization, merger or
consolidation or (ii) the sale or other disposition of all or
substantially all of the assets of the Bank, excluding a sale or
other disposition of assets to the Corporation or a subsidiary of
the Corporation.
For purposes of paragraph (a) above, the term
“Incumbent Board” shall mean the individuals who, as of
the date of this Agreement, constitute the Board, provided that any
individual becoming a director subsequent to the date of this
Agreement whose election, or nomination for election by the
Corporation’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 is in connection with
either an actual or threatened election contest (as such terms are
used in
Rule 14a-11 of Regulation 14A promulgated under
the Securities Exchange Act of 1934, as amended) or other actual or
threatened solicitation of proxies or consents by or on behalf of a
person other than the Board.
3. Terminating Event. A “Terminating Event”
shall mean any of the events provided in this Section 3
occurring:
(a) within 12 months following a Change in Control,
termination by the Corporation and/or the Bank of the employment of
the Executive with the Corporation and/or the Bank for any reason
other than for Cause or the death or disability (as determined
under the Corporation’s and/or the Bank’s then existing
long-term disability coverage) of the
Executive. “Cause” shall mean, and shall be
limited to, the occurrence of any one or more of the following
events:
(i) a willful act of dishonesty by the Executive
with respect to any material matter involving the Corporation
and/or the Bank; or
(ii) the commission by or indictment of the
Executive for (A) a felony or (B) any misdemeanor involving moral
turpitude, deceit, dishonesty or fraud (“indictment,”
for these purposes, means an indictment, probable cause hearing or
any other procedure pursuant to which an initial determination of
probable or reasonable cause with respect to such offense is
made);
(iii) the gross or willful failure by the Executive
(other than any such failure after the Executive gives notice of
termination for Good Reason) to substantially perform the
Executive’s duties with the Corporation and/or the Bank and
the continuation of such failure for a period of 30 days after
delivery by the Corporation and/or the Bank to the Executive of
written notice specifying the scope and nature of such failure and
their intention to terminate the Executive for Cause.
A Terminating Event shall not be
deemed to have occurred pursuant to this Section 3(a) solely as a
result of the Executive being an employee of any direct or indirect
successor to the business or assets of the Corporation and/or the
Bank, rather than continuing as an employee of the Corporation
and/or the Bank following a Change in Control. In any
proceeding, judicial or otherwise, the Corporation and/or the Bank
shall have the burden of proving by clear and convincing evidence
that the termination of employment was for
“Cause.” For purposes of clauses (i) and
(iii) of this Section 3(a), no act, or failure to act, on the
Executive’s part shall be deemed “willful” unless
done, or omitted to be done, by the Executive without reasonable
belief that the Executive’s act, or failure to act, was in
the best interest of the Corporation and/or the Bank.
(b) Within 12 months following a Change in Control,
termination by the Executive of the Executive’s employment
with the Corporation and/or the Bank for Good
Reason. “Good Reason” shall mean the
Executive has complied with the “Good Reason Process”
(hereinafter defined) following the occurrence of any of the
following events:
(i) a substantial adverse change, not consented to
by the Executive, in the nature or scope of the
Executive’s responsibilities, authorities, powers, position,
functions, or duties from the responsibilities, authorities,
powers, position, functions, or duties exercised by the Executive
immediately prior to the Change in Control; or
(ii) a material reduction in the Executive’s
annual base salary as in effect on the date hereof or as the same
may be increased from time to time except for across-the-board
salary reductions similarly affecting all or substantially all
management employees; or
(iii) the relocation of the Corporation’s
and/or the Bank’s offices at which the Executive is
principally employed immediately prior to the date of a Change in
Control to a location more than 100 miles from such offices, or the
requirement by the Corporation and/or the Bank for the Executive to
be based anywhere other than the Corporation’s and/or the
Bank’s offices at such location, except for required travel
on the Corporation’s and/or the Bank’s business to an
extent
substantially
consistent with the Executive’s business travel obligations
immediately prior to the Change in Control; or
(iv) the failure by the Corporation and/or the Bank
to obtain an effective agreement from any successor to assume and
agree to perform this Agreement, as required by Section
16.
