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Exhibit 10.18
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EXECUTION COPY
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EMPLOYMENT
AGREEMENT
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This
EMPLOYMENT AGREEMENT ("the Agreement") is made and
entered into as of January 1, 2009 (the "Effective Date") by and
between
WESTFIELD FINANCIAL, INC. , a business corporation
organized and existing under the laws of the Commonwealth of
Massachusetts and having an office at 141 Elm Street, Westfield,
Massachusetts 01085 (the "Company") and GERALD P. CIEJKA
(the "Executive").
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W I T N E S S E T H
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WHEREAS , the
Executive currently serves as Vice President, General Counsel and
Director of Human Resources of the Company, the holding company for
Westfield Bank (the "Bank"), and the Bank;
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WHEREAS , the
Company desires to assure for itself the continued availability of
the Executive's services as provided in this Agreement and the
ability of the Executive to perform such services with a minimum of
personal distraction in the event of a pending or threatened Change
of Control (as hereinafter defined); and
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WHEREAS , the
Executive is willing to continue to serve the Company on the terms
and conditions hereinafter set forth;
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NOW, THEREFORE , in
consideration of the premises and the mutual covenants and
conditions hereinafter set forth, the Company and the Executive
hereby agree as follows:
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Section
1. Employment.
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The Company agrees to
continue to employ the Executive, and the Executive hereby agrees
to such continued employment, during the period and upon the terms
and conditions set forth in this Agreement.
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Section
2. Employment Period; Remaining
Unexpired Employment Period.
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(a) The
terms and conditions of this Agreement shall be and remain in
effect during the period of employment established under this
section 2 ("Employment Period"). The Employment Period shall be for
an initial term of three (3) years beginning on the Effective Date
and ending on the third anniversary date of this Agreement, plus
such extensions, if any, as are provided pursuant to section
2(b).
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(b) The
Board of Directors of the Company (the "Board") shall conduct an
annual review of the Executive's performance on or about each
anniversary of the Effective Date (each, an "Anniversary Date") and
may, on the basis of such review and by written notice to the
Executive, offer to extend the Employment Period for an additional
one (1)-year period. In such event, the Employment Period shall be
deemed extended in the absence of objection from the Executive by
written notice to the Company given within ten (10) business days
after his receipt of the Company's offer of extension. Except as
otherwise expressly provided in this Agreement, any reference in
this Agreement to the term "Remaining Unexpired Employment Period"
as of
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any date shall mean the period beginning on such date and ending
on the day of the third (3rd) anniversary of the last Anniversary
Date as of which the Employment Period was extended pursuant to
this section 2(b).
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(c) Nothing
in this Agreement shall be deemed to prohibit the Company at any
time from terminating the Executive's employment during the
Employment Period with or without notice for any reason;
provided, however , that the relative rights and obligations
of the Company and the Executive in the event of any such
termination shall be determined under this Agreement.
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Section 3.
Duties.
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The Executive shall serve as
Vice President, General Counsel and Director of Human Resources of
the Company and the Bank, having such power, authority and
responsibility and performing such duties as are prescribed by or
under the By-Laws of the Company and as are customarily associated
with such position. Subject to Section 7 of this Agreement, the
Executive shall devote his full business time and attention (other
than during weekends, holidays, approved vacation periods, and
periods of illness or approved leaves of absence) to the business
and affairs of the Company and shall use his best efforts to
advance the interests of the Company.
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Section 4.
Cash Compensation.
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In consideration for the
services to be rendered by the Executive hereunder, the Company
shall continue to pay to him a salary at an annual rate of
$160,000, payable in approximately equal installments in accordance
with the Company's customary payroll practices for senior officers.
The Board of Directors of the Company shall review the Executive's
annual rate of salary at such times during the Employment Period as
it deems appropriate, but not less frequently than once every
twelve (12) months, and may, in its discretion, approve an increase
therein. In addition to salary, the Executive may receive other
cash compensation from the Company for services hereunder at such
times, in such amounts and on such terms and conditions as the
Board may determine from time to time.
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Section 5.
Employee Benefit Plans and
Programs.
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During the Employment
Period, the Executive shall be treated as an employee of the
Company and shall be entitled to participate in and receive
benefits under any and all qualified or non-qualified retirement,
pension, savings, profit-sharing or stock bonus plans, any and all
group life, health (including hospitalization, medical and major
medical), dental, accident and long term disability insurance
plans, and any other employee benefit and compensation plans
(including, but not limited to, any incentive compensation plans or
programs, stock option and appreciation rights plans and restricted
stock plans) as may from time to time be maintained by, or cover
employees of, the Company in accordance with the terms and
conditions of such employee benefit plans and programs and
compensation plans and programs and consistent with the Company's
customary practices.
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Section 6.
Indemnification and Insurance.
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(a) During
the Employment Period and for a period of six (6) years thereafter,
the Company shall cause the Executive to be covered by and named as
an insured under any policy or contract of insurance obtained by it
to insure its directors and officers against personal liability for
acts or omissions in connection with service as an officer or
director of the Company or service in other capacities at the
request of the Company. The coverage provided to the Executive
pursuant to this section 6 shall be of the same scope and on the
same terms and conditions as the coverage (if any) provided to
other officers or directors of the Company.
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(b) To
the maximum extent permitted under applicable law, during the
Employment Period and for a period of six (6) years thereafter, the
Company shall indemnify the Executive against and hold him harmless
from any costs, damages, losses and exposures arising out of a bona
fide action, suit or proceeding in which he may be involved by
reason of his having been a director or officer of the Company to
the fullest extent and on the most favorable terms and conditions
that similar indemnification is offered to any director or officer
of the Company or any subsidiary or affiliate thereof.
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(c)
The Executive, the Company and the
Bank agree that the termination benefits described in this Section
6 are intended to be exempt from Section 409A of the Internal
Revenue Code ("Section 409A") pursuant to Treasury Regulation
Section 1.409A-1(b)(10) as certain indemnification and liability
insurance plans.
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Section 7.
Outside Activities.
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The Executive may serve as a
member of the boards of directors of such business, community and
charitable organizations as he may disclose to and as may be
approved by the Board (which approval shall not be unreasonably
withheld); provided, however , that such service shall not
materially interfere with the performance of his duties under this
Agreement. The Executive may also engage in personal business and
investment activities which do not materially interfere with the
performance of his duties hereunder; provided, however ,
that such activities are not prohibited under any code of conduct
or investment or securities trading policy established by the
Company and generally applicable to all similarly situated
executives. The Executive may also serve as an officer or director
of the Bank on such terms and conditions as the Company and the
Bank may mutually agree upon, and such service shall not be deemed
to materially interfere with the Executive's performance of his
duties hereunder or otherwise result in a material breach of this
Agreement. If the Executive is discharged or suspended, or is
subject to any regulatory prohibition or restriction with respect
to participation in the affairs of the Bank, he shall continue to
perform services for the Company in accordance with this Agreement
but shall not directly or indirectly provide services to or
participate in the affairs of the Bank in a manner inconsistent
with the terms of such discharge or suspension or any applicable
regulatory order.
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Section 8.
Working Facilities and
Expenses.
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The Executive's principal
place of employment shall be at the Company's executive offices at
the address first above written or at such other location as the
Company and
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the executive may mutually agree upon. The Company shall provide
the Executive at his principal place of employment with a private
office, secretarial services and other support services and
facilities suitable to his position with the Company and necessary
or appropriate in connection with the performance of his assigned
duties under this Agreement. The Company shall provide to the
Executive for his exclusive use an automobile owned or leased by
the Company and appropriate to his position, to be used in the
performance of his duties hereunder, including commuting to and
from his personal residence. The Company shall reimburse the
Executive for his ordinary and necessary business expenses,
including, without limitation, all expenses associated with his
business use of the aforementioned automobile, fees for memberships
in such clubs and organizations as the Executive and the Company
shall mutually agree are necessary and appropriate for business
purposes, and his travel and entertainment expenses incurred in
connection with the performance of his duties under this Agreement,
in each case upon presentation to the Company of an itemized
account of such expenses in such form as the Company may reasonably
require. Expense reimbursements shall occur at the time provided in
any relevant reimbursement policy or procedure of the Company and
in any event not later than the last day of the calendar year
immediately following the calendar year in which the reimbursable
expense is incurred.
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Section 9.
Termination of Employment with
Severance Benefits.
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(a) The
Executive shall be entitled to the severance benefits described in
section 9(b) in the event that:
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(i) his
employment with the Company terminates during the Employment Period
as a result of the Executive's voluntary resignation within ninety
(90) days following:
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(A) the
failure of the Board to appoint or re-appoint or elect or re-elect
the Executive to the position with the Company stated in section 3
of this Agreement;
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(B) if
the Executive is a member of the Board, the failure of the
shareholders of the Company to elect or re-elect the Executive to
the Board or the failure of the Board (or the nominating committee
thereof) to nominate the Executive for such election or
re-election;
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(C) the
expiration of a thirty (30)-day period following the date on which
the Executive gives written notice to the Company of its material
failure, whether by amendment of the Company's Certificate of
Incorporation, the Company's By-Laws, action of the Board or the
Company's shareholders or otherwise, to vest in the Executive the
functions, duties, or responsibilities prescribed in section 3 of
this Agreement, unless, during such thirty (30)-day period, the
Company cures such failure;
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(D) the
expiration of a thirty (30)-day period following the date on which
the Executive gives written notice to the Company of its material
breach of any term, condition or covenant contained in this
Agreement (including, without
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limitation any reduction of the Executive's rate of base salary
in effect from time to time and any change in the terms and
conditions of any compensation or benefit program in which the
Executive participates which, either individually or together with
other changes, has a material adverse effect on the aggregate value
of his total compensation package), unless, during such thirty
(30)-day period, the Company cures such failure;
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(E) a
change in the Executive's principal place of employment to a place
that is not the principal executive office of the Bank, or a
relocation of the Bank's principal executive office to a location
that is both more than twenty-five (25) miles away from the
Executive's principal residence and more than twenty-five (25)
miles away from the location of the Bank's principal executive
office on the date of this Agreement; or
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(F) any
material breach by the Company of any material term, condition or
covenant contained in this Agreement; provided, however,
that the Executive shall have given notice of such materials
adverse effect to the Company, and the Company has not fully cured
such failure within thirty (30) days after such notice is deemed
given; or
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(ii) the
Executive's employment with the Company is terminated by the
Company for any reason other than for "cause" as provided in
section 11(a).
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(b) Upon
the occurrence of any of the events described in section 9(a) of
this Agreement, the Company shall pay and provide to the Executive
(or, in the event of his death thereafter and prior to payment, to
his estate):
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(i) his
earned but unpaid salary (including, without limitation, all items
which constitute wages under applicable law and the payment of
which is not otherwise provided for in this section 9(b)) as of the
date of the termination of his employment with the Company and the
Bank, such payment to be made at the time and in the manner
prescribed by law applicable to the payment of wages but in no
event later than thirty (30) days after termination of employment
as defined in Treasury Regulation Section 1.409A-1(h)(1)(ii);
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(ii) the
benefits, if any, to which he is entitled as a former employee
under the employee benefit plans and programs and compensation
plans and programs maintained for the benefit of the Company's and
the Bank's officers and employees;
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(iii) continued
group life, health (including hospitalization, medical and major
medical), dental, accident and long-term disability insurance
benefits on substantially the same terms and conditions (including
any required premium-sharing arrangements, co-payments and
deductibles) in effect for them immediately prior to the
Executive's termination for the Remaining Unexpired Employment
Period for the Executive and his dependents. The coverage provided
under this section 9(b)(iii) may, at the election of the Company,
be secondary to the coverage provided pursuant to section 9(b)(ii)
and to any employer-paid coverage provided by a subsequent employer
or through Medicare, with
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the result that benefits under the other coverages will offset
the coverage required by this section 9(b)(iii). The Executive, the
Company and the Bank agree that the termination benefits described
in this Section 9(b)(iii) are intended to be exempt from Section
409A pursuant to Treasury Regulation Section 1.409A-1(b)(1) as
non-taxable benefits ;
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(iv) a
lump sum payment in an amount equal to the estimated present value
of the salary that the Executive would have earned if he had
continued working for the Company and the Bank during the Remaining
Unexpired Employment Period at the highest annual rate of salary
achieved during the period of three (3) years ending immediately
prior to the date of termination (the "Salary Severance Payment").
The Salary Severance Payment shall be computed using the following
formula:
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n
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(BS/PR)
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SSP= 3
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[
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[1 + (I / PR)]
n
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where "SSP" is the amount of the Salary Severance Payment
(before the deduction of applicable federal, state and local
withholding taxes); "BS" is the highest annual rate of salary
achieved by the Executive during the period of three (3) years
ending immediately prior to the date of termination; "PR" is the
number of payroll periods that occur during a year under the
Company's normal payroll practices; "I" equals the applicable
federal short term rate established under section 1274 of the
Internal Revenue Code of 1986 (the "Code") for the month in which
the Executive's termination of employment occurs (the "Short Term
AFR") and "n" equals the product of the Remaining Unexpired
Employment Period at the Executive's termination of employment
(expressed in years and fractions of years) multiplied by the
number of payroll periods that occur during a year under the
Company's and the Bank's normal payroll practices. The Salary
Severance Payment shall be made within five (5) business days after
the Executive's termination of employment and shall be in lieu of
any claim to a continuation of base salary which the Executive
might otherwise have and in lieu of cash severance benefits under
any severance benefits program which may be in effect for officers
or employees of the Bank or the Company;
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(v) a
lump sum payment in an amount equal to the estimated present value
of the annual bonuses that the Executive would have earned if he
had continued working for the Company and the Bank during the
Remaining Unexpired Employment Period at the highest annual rate of
salary achieved during the period of three (3) years ending
immediately prior to the date of termination (the "Bonus Severance
Payment"). The Bonus Severance Payment shall be computed using the
following formula:
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BSP = SSP x (ABP /
ASP)
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where "BSP" is the amount of the Bonus Severance Payment (before
the deduction of applicable federal, state and local withholding
taxes); "SSP" is the amount of the Salary Severance Payment (before
the deduction of applicable federal, state and local withholding
taxes); "BP" is the aggregate of the annual bonuses paid or
declared
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(whether or not paid) for the most recent period of three (3)
calendar years to end on or before the Executive's termination of
employment; and "SP" is the aggregate base salary actually paid to
the Executive during such period of three (3) calendar years
(excluding any year for which no bonus was declared or paid). The
Bonus Severance Payment shall be made within five (5) business days
after the Executive's termination of employment and shall be in
lieu of any claim to a continuation of participation in annual
bonus plans of the Bank or the Company which the Executive might
otherwise have;
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(vi) a
lump sum payment in an amount equal to the estimated present value
of the long-term incentive bonuses that the Executive would have
earned if he had continued working for the Company and the Bank
during the Remaining Unexpired Employment Period (the "Incentive
Severance Payment"). The Incentive Severance Payment shall be
computed using the following formula:
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ISP = (SSP / RUP) x
(ALTIP / ALTSP) x Y
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where "ISP" is the amount of the Incentive Severance Payment
(before the deduction of applicable federal, state and local
withholding taxes); "SSP" is the amount of the Salary Severance
Payment (before the deduction of applicable federal, state and
local withholding taxes); "ALTIP" is the aggregate of the most
recently paid or declared (whether or not paid) long-term incentive
compensation payments (but not more than three (3) such payments)
for performance periods that end on or before the Executive's
termination of employment; "ALTSP" is the aggregate base salary
actually paid to the Executive during the performance periods
covered by the payments included in "ALTIP" and excluding base
salary paid for any period for which no long-term incentive
compensation payment was declared or paid; "RUP" is the Remaining
Unexpired Employment Period, expressed in years and fractions of
years; and "Y" is the aggregate (expressed in years and fractions
of years) of the Remaining Unexpired Employment Period plus the
number of years and fraction of years that have elapsed since the
end of the last performance period for which a long-term incentive
payment has been declared and paid. In the event that the
Executive's employment terminates prior to the payment date under
any long-term incentive compensation plan, then for purposes of
computing the Incentive Severance Payment, the "ALTIP" shall be
deemed to be the average of the target and maximum award level
under such plan and the "ALTSP" shall be deemed to be the
Executive's annual base salary as in effect on the Executive's
termination of employment. The Incentive Severance Payment shall be
made within five (5) business days after the Executive's
termination of employment and shall be in lieu of any claim to a
continuation of participation in cash long-term incentive
compensation plans of the Bank or the Company which the Executive
might otherwise have;
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(vii) a
lump sum payment in an amount equal to the excess (if any) of: (A)
the present value of the aggregate benefits to which he would be
entitled under any and all tax-qualified and non-tax-qualified
defined benefit plans maintained by, or covering employees of, the
Company or the Bank (the "Pension Plans") if he had continued
working for the Company and the Bank during the Remaining Unexpired
Employment Period; over (B) the present value of the benefits to
which the Executive and his spouse and/or designated beneficiaries
are actually entitled under such plans (the "Pension
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Severance Payment"). The Pension Severance Payment shall be
computed according to the following formula:
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PSP = PPB - APB
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where "PSP" is the amount of the Pension Severance Payment
(before deductions for applicable federal, state and local
withholding taxes); "APB" is the aggregate lump sum present value
of the actual vested pension benefits payable under the Pension
Plans in the form of a straight life annuity beginning at the
earliest date permitted under the Pension Plans, computed on the
basis of the Executive's life expectancy at the earliest date on
which payments under the Pension Plans could begin, determined by
reference to Table VI of section 1.72-9 of the Income Tax
Regulations (the "Assumed Life Expectancy"), and on the basis of an
interest rate assumption equal to the average bond-equivalent yield
on United States Treasury Securities with a Constant Maturity of
thirty (30) Years for the month prior to the month in which the
Executive's termination of employment occurs (the "30-Year Treasury
Rate"); and "PPB" is the lump sum present value of the pension
benefits (whether or not vested) that would be payable under the
Pension Plans in the form of a straight life annuity beginning at
the earliest date permitted under the Pension Plans, computed on
the basis that the Executive's actual age at termination of
employment is his attained age as of his last birthday that would
occur during the Remaining Unexpired Employment Period, that his
service for benefit accrual purposes under the Pension Plans is
equal to the aggregate of his actual service plus the Remaining
Unexpired Employment Period, that his average compensation figure
used in determining his accrued benefit is equal to the highest
annual rate of salary achieved by the Executive during the period
of three (3) years ending immediately prior to the date of
termination, that the Executive's life expectancy at the earliest
date on which payments under the Pension Plans could begin is the
Assumed Life Expectancy and that the interest rate assumption used
is equal to the 30-Year Treasury Rate. The Pension Severance
Payment shall be made within five (5) business days after the
Executive's termination of employment and shall be in lieu of any
claim to any actual increase in his accrued benefit in the Pension
Plans in respect of the Remaining Unexpired Employment Period;
provided, however , that if the Pension Severance Payment
represents the benefits under a non-tax-qualified benefit plan, the
payment shall be paid in the same time and form as provided under
the related non-tax-qualified benefit plan;
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(viii) a
lump sum payment in an amount equal to the present value of the
additional employer contributions that would have been credited
directly to his account(s) under any and all tax-qualified and
non-tax-qualified defined contribution plans maintained by, or
covering employees of, the Bank and the Company (the "Non-ESOP DC
Plans"), plus the fair market value of the additional shares of
employer securities or other property that would have been
allocated to his account as a result of employer contributions or
dividends under any tax-qualified leveraged employee stock
ownership plan and any related non-tax-qualified supplemental plan
maintained by, or covering employees of, the Bank and the Company
(the "ESOP Plans") if he had continued in employment during the
Remaining Unexpired Employment Period (the "Defined Contribution
Severance Payment"). The Defined Contribution Severance Payment
shall be computed according to the following formula:
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DCSP = [SSP x (EC /
BS)] + [(STK + PROP) x Y]
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where: "DCSP" is the amount of the Defined Contribution
Severance Payment (before deductions for applicable federal, state
and local withholding taxes); "SSP" is the amount of the Salary
Severance Payment (before deductions for applicable federal, state
and local withholding taxes); "EC" is the amount of employer
contributions actually credited to the Executive's accounts under
the Non-ESOP Plans for the last plan year to end before his
termination of employment; "BS" is the Executive's compensation
taken into account in computing EC; "Y" is the aggregate (expressed
in years and fractions of years) of the Remaining Unexpired
Employment Period and the number of years and fractions of years
that have elapsed between the end of plan year for which EC was
computed and the date of the Executive's termination of employment;
"STK" is the fair market value (determined on the basis of the
mid-point of the highest and lowest reported sales price for a
share of stock of the same class during the thirty (30)-day period
ending on the day of the Executive's termination of employment (the
"Fair Market Value of a Share")) of the employer securities
actually allocated to the Executive's accounts under the ESOP Plans
in respect of employer contributions and dividends applied to loan
amortization payments for the last plan year to end before his
termination of employment; and "PROP" is the fair market value
(determined as of the day before the Executive's termination of
employment using the same valuation methodology used to value the
assets of the ESOP Plans) of the property other than employer
securities actually allocated to t
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