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ROCKVILLE BANK Employment Agreement for Christopher Buchholz As Amended and Restated as of January 1, 2009

Employee Retention Agreement

ROCKVILLE BANK Employment Agreement for Christopher Buchholz As Amended and Restated as of January 1, 2009 | Document Parties: ROCKVILLE BANK | ROCKVILLE FINANCIAL, INC You are currently viewing:
This Employee Retention Agreement involves

ROCKVILLE BANK | ROCKVILLE FINANCIAL, INC

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Title: ROCKVILLE BANK Employment Agreement for Christopher Buchholz As Amended and Restated as of January 1, 2009
Governing Law: Connecticut     Date: 3/11/2009
Industry: Regional Banks     Sector: Financial

ROCKVILLE BANK Employment Agreement for Christopher Buchholz As Amended and Restated as of January 1, 2009, Parties: rockville bank , rockville financial  inc
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Exhibit 10.4

ROCKVILLE BANK

Employment Agreement for Christopher Buchholz

As Amended and Restated as of January 1, 2009

 


 

ROCKVILLE BANK

Employment Agreement for Christopher Buchholz

As Amended and Restated as of January 1, 2009

 

 

 

 

 

1. Employment

 

 

1

 

 

2. Term

 

 

2

 

 

3. Offices and Duties

 

 

2

 

 

(a) Generally

 

 

2

 

 

(b) Place of Employment

 

 

3

 

 

4. Salary and Annual Incentive Compensation

 

 

3

 

 

(a) Base Salary

 

 

3

 

 

(b) Annual Incentive Compensation

 

 

3

 

 

5. Long-Term Compensation, Including Stock Options, Benefits, Deferred Compensation, and Expense Reimbursement

 

 

3

 

 

(a) Executive Compensation Plans

 

 

3

 

 

(b) Employee and Executive Benefit Plans

 

 

4

 

 

(c) Acceleration of Awards Upon a Change in Control

 

 

5

 

 

(d) Deferral of Compensation

 

 

5

 

 

(e) Company Registration Obligations

 

 

6

 

 

(f) Reimbursement of Expenses

 

 

6

 

 

(g) Limitations Under Code Section 409A

 

 

6

 

 

6. Termination Due to Retirement, Death, or Disability

 

 

6

 

 

(a) Retirement

 

 

6

 

 

(b) Death

 

 

7

 

 

(c) Disability

 

 

8

 

 

(d) Other Terms of Payment Following Retirement, Death, or Disability

 

 

10

 

 

7. Termination of Employment For Reasons Other Than Retirement, Death or Disability

 

 

11

 

 

(a) Termination by the Bank for Cause

 

 

11

 

 

(b) Termination by Executive Other Than For Good Reason

 

 

11

 

 

 

 

 

 

 

i

 


 

 

 

 

 

 

(c) Termination by the Bank Without Cause Prior to or More than Two Years After a Change in Control

 

 

12

 

 

(d) Termination by Executive for Good Reason Prior to or More than Two Years After a Change in Control

 

 

14

 

 

(e) Termination by the Bank Without Cause Within Two Years After a Change in Control

 

 

16

 

 

(f) Termination by Executive for Good Reason Within Two Years After a Change in Control

 

 

18

 

 

(g) Other Terms Relating to Certain Terminations of Employment; Reimbursements; Section 409A Exemptions; Delayed
      Payments Under Section 409A

 

 

20

 

 

8. Definitions Relating to Termination Events

 

 

23

 

 

(a) “Cause

 

 

23

 

 

(b) “Change in Control

 

 

23

 

 

(c) “Compensation Accrued at Termination

 

 

25

 

 

(d) “Disability

 

 

25

 

 

(e) “Good Reason

 

 

25

 

 

(f) “Potential Change in Control

 

 

27

 

 

(g) “Specified Employee

 

 

27

 

 

9. Rabbi Trust Obligation Upon Potential Change in Control; Excise Tax-Related Provisions

 

 

27

 

 

(a) Rabbi Trust Funded Upon Potential Change in Control

 

 

27

 

 

(b) Gross-up If Excise Tax Would Apply

 

 

27

 

 

10. Non-Competition and Non-Disclosure; Executive Cooperation; Non-Disparagement; Certain Forfeitures

 

 

29

 

 

(a) Non-Competition

 

 

30

 

 

(b) Non-Disclosure; Ownership of Work

 

 

30

 

 

(c) Cooperation With Regard to Litigation

 

 

30

 

 

(d) Non-Disparagement

 

 

31

 

 

(e) Release of Employment Claims

 

 

31

 

 

(f) Forfeiture of Outstanding Options

 

 

31

 

 

(g) Forfeiture of Certain Bonuses and Profits

 

 

32

 

 

(h) Forfeiture Due to Regulatory Restrictions

 

 

32

 

 

(i) Survival

 

 

32

 

 

11. Governing Law; Disputes

 

 

32

 

 

(a) Governing Law

 

 

32

 

 

 

 

 

 

ii

 


 

 

 

 

 

 

(b) Reimbursement of Expenses in Enforcing Rights

 

 

33

 

 

(c) Dispute Resolution

 

 

33

 

 

(d) Interest on Unpaid Amounts

 

 

34

 

 

12. Miscellaneous

 

 

35

 

 

(a) Integration

 

 

35

 

 

(b) Successors; Transferability

 

 

35

 

 

(c) Beneficiaries

 

 

35

 

 

(d) Notices

 

 

35

 

 

(e) Reformation

 

 

36

 

 

(f) Headings

 

 

36

 

 

(g) No General Waivers

 

 

36

 

 

(h) No Obligation To Mitigate

 

 

36

 

 

(i) Offsets; Withholding

 

 

36

 

 

(j) Successors and Assigns

 

 

36

 

 

(k) Counterparts

 

 

36

 

 

13. Indemnification

 

 

37

 

 

 

 

 

 

Attachment A

 

 

 

 

 

iii

 


 

ROCKVILLE BANK

Employment Agreement for Christopher Buchholz

As Amended and Restated as of January 1, 2009

     THIS EMPLOYMENT AGREEMENT (the “Agreement”) by and among ROCKVILLE FINANCIAL, INC., a Connecticut corporation (the “Company”), ROCKVILLE BANK, a Connecticut savings bank and a wholly-owned subsidiary of the Company (the “Bank”), and Christopher Buchholz (“Executive”) which was first effective as of June 5, 2006 (the “Effective Date”) is hereby amended and restated in its entirety as of January 1, 2009.

W I T N E S S E T H

     WHEREAS, Executive is currently employed as Senior Vice President of the Bank; and

     WHEREAS, the Company and the Bank desire to ensure that the Company and the Bank are assured of the continued availability of Executive’s services as provided in this Agreement; and

     WHEREAS, Executive is willing to continue to serve the Company and the Bank on the terms and conditions hereinafter set forth; and

     WHEREAS, the Company, the Bank and Executive desire to amend and restate the Agreement in its entirety to comply with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the Treasury Regulations thereunder (the “Regulations”) and in certain other respects effective as of January 1, 2009.

     NOW, THEREFORE, in consideration of the foregoing, the mutual covenants contained herein, and other good and valuable consideration the receipt and adequacy of which the Company, the Bank and Executive each hereby acknowledge, the Company, the Bank and Executive hereby agree as follows:

1. Employment.

     The Bank hereby agrees to employ Executive as its Senior Vice President (with the principal executive duties set forth below in Section 3), and Executive hereby agrees to accept such employment and serve in such capacities, during the Term as defined in Section 2 (subject to Section 7(c) and 7(e)) and upon the terms and conditions set forth in this Agreement.

 


 

2. Term.

     The term of employment of Executive under this Agreement (the “Term”) shall be the period commencing on the Effective Date and ending on December 31, 2008 and any period of extension thereof in accordance with this Section 2, except that the Term will end at a date, prior to the end of such period or extension thereof, specified in Section 6 or 7 in the event of termination of Executive’s employment. The Term, if not previously ended, shall be extended automatically without further action by either party by one additional year (added to the end of the Term) first on December 31, 2006 (extending the Term to December 31, 2009) and on each succeeding December 31 thereafter (a “December 31 extension date”), unless either party shall have served written notice in accordance with Section 12(d) upon the other party on or before the June 30 preceding a December 31 extension date electing not to extend the Term further as of that December 31 extension date, in which case employment shall terminate on the third anniversary of that December 31 extension date and the Term shall end at that date, subject to earlier termination of employment and earlier termination of the Term in accordance with Section 6 or 7. The foregoing notwithstanding, in the event there occurs a Potential Change in Control during the period of 180 days prior to the December 31 on which the Term will terminate as a result of notice given by the Executive or the Company hereunder, the Term shall be extended automatically at that December 31 by an additional period such that the Term will extend until the 180th day following such Potential Change in Control.

3. Offices and Duties.

     The provisions of this Section 3 will apply during the Term, except as otherwise provided in Section 7(c) or 7(e):

     (a)  Generally . Executive shall serve as the Senior Vice President of the Bank. Executive shall have and perform such duties, responsibilities, and authorities as are prescribed by or under the Bylaws of the Bank and as are customarily associated with such position or, irrespective of the office, title or other designation, if any, a position with responsibilities and powers substantially identical to such position with the Bank. In addition, Executive shall have and perform such additional duties, responsibilities, and authorities as may be from time to time assigned by the President and Chief Executive Officer based on his assessment of the business needs of the Bank, and the Bank reserves the right to change or modify these assignments and any positions and titles associated therewith. Executive shall devote his full business time and attention, and his best efforts, abilities, experience, and talent, to the position of Senior Vice President and other assignments hereunder, and for the business of the Bank, without commitment to other business endeavors, except that Executive (i) may make personal investments which are not in conflict with his duties to the Bank and manage personal and family financial and legal affairs, (ii) may undertake public speaking engagements, and (iii) may serve as a director of (or similar position with) any other business or an educational, charitable, community, civic, religious, or similar type of organization with the approval of the President and Chief Executive Officer, so long as such activities (i.e., those listed in clauses (i) through (iii)) do not preclude or render unlawful Executive’s employment or service to the Bank or otherwise materially inhibit the performance of Executive’s duties under this Agreement or materially impair the business of the Bank or its affiliates.

2


 

     (b)  Place of Employment . Executive’s principal place of employment shall be at the administrative offices of the Bank.

4. Salary and Annual Incentive Compensation.

     As partial compensation for the services to be rendered hereunder by Executive, the Bank agrees to pay to Executive during the Term the compensation set forth in this Section 4.

     (a)  Base Salary . The Bank will pay to Executive during the Term a base salary, the annual rate of which shall be $148,000, payable in cash in substantially equal semi-monthly installments commencing at the beginning of the Term, and otherwise in accordance with the Bank’s usual payroll practices with respect to senior executives (except to the extent deferred under Section 5(d)). Executive’s annual base salary shall be reviewed by the Human Resources Committee (the “Committee”) of the Board of Directors of the Bank (the “Board”) at least once in each calendar year, and may be increased above, but may not be reduced below, the then-current rate of such base salary. For purposes of this Agreement, “Base Salary” means Executive’s then-current base salary.

     (b)  Annual Incentive Compensation . The Bank will pay to Executive during the Term annual incentive compensation which shall offer to Executive an opportunity to earn additional compensation based upon performance in amounts determined by the Committee in accordance with the applicable plan and consistent with past practices of the Bank, with the nature of the performance and the levels of performance triggering payments of such annual target incentive compensation for each year to be established and communicated to Executive during the first quarter of such year by the Committee. In addition, the Committee (or the Board) may determine, in its discretion, to increase Executive’s annual target incentive opportunity or provide an additional annual incentive opportunity, in excess of the annual target incentive opportunity, payable for performance in excess of or in addition to the performance required for payment of the annual target incentive amount. Any annual incentive compensation payable to Executive shall be paid in accordance with the applicable plan (except to the extent deferred under Section 5(d)).

5. Long-Term Compensation, Including Stock Options, Benefits, Deferred Compensation, and Expense Reimbursement.

     (a)  Executive Compensation Plans . Executive shall be entitled during the Term to participate, without discrimination or duplication, in executive compensation plans and programs intended for general participation by senior executives of the Bank, as presently in effect or as they may be modified or added to by the Bank from time to time, subject to the eligibility and other requirements of such plans and programs, including without limitation any stock option plans, plans under which restricted stock/restricted stock units, performance-based restricted stock/restricted stock units or performance-accelerated restricted stock/restricted stock units (collectively, “stock plans”) may be awarded, other annual and long-term cash and/or equity incentive plans, and deferred compensation plans. The Bank makes no commitment under this Section 5(a) to provide participation opportunities to Executive in all plans and programs or at levels equal to (or otherwise comparable to) the participation opportunity of any other executive.

3


 

     (b)  Employee and Executive Benefit Plans . Executive shall be entitled during the Term to participate, without discrimination or duplication, in employee and executive benefit plans and programs of the Bank, as presently in effect or as they may be modified or added to by the Bank from time to time, subject to the eligibility and other requirements of such plans and programs, including without limitation plans providing pensions, supplemental pensions, supplemental and other retirement benefits, medical insurance, life insurance, disability insurance, and accidental death or dismemberment insurance, as well as savings, profit-sharing, and stock ownership plans. The Bank makes no commitment under this Section 5(b) to provide participation opportunities to Executive in all benefit plans and programs or at levels equal to (or otherwise comparable to) the participation opportunity of any other executive.

     In furtherance of and not in limitation of the foregoing, during the Term:

 

(i)

 

Executive will participate as Senior Vice President in all executive and employee vacation and time-off programs;

 

 

(ii)

 

The Bank will provide Executive with coverage as Senior Vice President with respect to long-term disability insurance;

 

 

(iii)

 

Executive will be covered by Bank-paid group term life insurance;

 

 

(iv)

 

Executive will be entitled to benefits under the Supplemental Savings and Retirement Plan (the “SERP”) in accordance with the terms thereof, with the effective date of Executive’s participation therein to be the Effective Date; and

 

 

(v)

 

Following Executive’s completion of five years of “Credited Service” with the Bank (within the meaning provided in the SERP) or earlier termination of employment in accordance with Section 6(c) of this Agreement by reason of Executive’s Disability (as defined in Section 8(d)), Executive will be entitled to payment of a retirement benefit (the “Retirement Benefit”) equal to $40,000 per year (subject to reduction as provided hereinbelow) for a period of 20 years, commencing on the first day of the month coinciding with or immediately following the later of his attainment of age 60 or termination of service with the Bank, subject to the provisions of Section 7(g) (relating to the six-month delay in payment of certain benefits to Specified Employees as required by Section 409A of the Code). In the event that Executive’s service with the Bank shall be terminated prior to his attainment of age 60 for any reason other than death as provided in Section 6(b), Disability as provided in Section 6(c), termination by the Bank without Cause as provided in Sections 7(c) and (e), or termination by Executive for Good Reason as provided in Sections 7(d) and (f), such $40,000 annual Retirement Benefit shall be reduced at a rate of five percent per year for each 12-month period or portion thereof that Executive’s termination of service with the Bank precedes his attainment of age 65, with any pro rata reduction for periods of fewer than 12 months to be determined by disregarding any partial months. Such Retirement Benefit shall be payable to Executive in equal monthly installments on the first day of each month following the later of his attainment of age 60 or termination of service with the Bank, subject to the provisions of Section 7(g), for a total of 240 monthly payments. In the event of Executive’s

4


 

 

 

 

death prior to the commencement of payment of such Retirement Benefit, Executive’s beneficiary (the “Beneficiary”), designated on such form as the Bank may provide, shall be entitled to receive the Retirement Benefit that would otherwise have been provided to Executive pursuant to this Section 5(b)(v). In the event of the death of Executive after the commencement of payment of the Retirement Benefit, payment shall continue to be made to Executive’s Beneficiary in an amount equal to the annual benefit that Executive was receiving at the time of death until such annual Retirement Benefit shall have been paid to Executive and his Beneficiary for a total period of 20 years. Monthly installments shall cease to be paid after 240 months of installments have been paid to Executive, his Beneficiary or both. Anything in this Agreement to the contrary notwithstanding, if Executive’s employment is terminated for Cause as provided in Section 7(a) of this Agreement, the Retirement Benefit otherwise payable in accordance with this Section 5(b)(v) shall be forfeited. If Executive or his Beneficiary has received any monthly installments of the Retirement Benefit and it is subsequently determined that Executive was terminated for Cause as provided in Section 7(a), then the monthly installments previously paid shall be returned by Executive or his Beneficiary, as the case may be, to the Bank, and no further monthly installments shall be payable under this Agreement. In the event that Executive’s employment is terminated by the Bank without Cause within two years after a Change in Control as provided in Section 7(e) of this Agreement or is terminated by Executive for Good Reason within two years after a Change in Control as provided in Section 7(f) of this Agreement, payment of the Retirement Benefit provided under this Section 5(b)(v) shall begin on the first day of the month coinciding with or immediately following Executive’s termination, subject to Section 7(g), regardless of the number of years of Credited Service completed by Executive and regardless of whether Executive shall have attained age 60 and such Retirement Benefit shall not be reduced as otherwise provided hereinabove on account of payment prior to Executive’s attainment of age 60. The Retirement Benefit payable pursuant to this Section 5(b)(v) shall not be funded and shall not be subject in any manner to alienation, transfer or assignment by Executive. Executive shall have only the right of an unsecured general creditor of the Bank and the Company for the Retirement Benefit provided pursuant to this Section 5(b)(v).

     (c)  Acceleration of Awards Upon a Change in Control . In the event of a Change in Control (as defined in Section 8(b)), all outstanding stock options, restricted stock, and other equity-based awards then held by Executive shall become vested and exercisable. The time and form of payment of such equity-based awards shall be governed by the plans and programs and the agreements and other documents pursuant to which such equity-based awards were granted.

     (d)  Deferral of Compensation . If the Bank has in effect or adopts any deferral program or arrangement permitting executives to elect to defer any compensation, Executive will be eligible to participate in such program. Any plan or program of the Bank which provides benefits based on the level of salary, annual incentive, or other compensation of Executive shall, in determining Executive’s benefits, take into account the amount of salary, annual incentive, or other compensation prior to any reduction for voluntary contributions made by Executive under

5


 

any deferral or similar contributory plan or program of the Bank (excluding compensation that would not be taken into account even if not deferred), but shall not treat any payout or settlement under such a deferral or similar contributory plan or program to be additional salary, annual incentive, or other compensation for purposes of determining such benefits, unless otherwise expressly provided under such plan or program.

     (e)  Company Registration Obligations . The Company will use its best efforts to file with the Securities and Exchange Commission and thereafter maintain the effectiveness of one or more registration statements registering under the Securities Act of 1933, as amended (the “1933 Act”), the offer and sale of shares by the Company to Executive pursuant to stock options or other equity-based awards granted to Executive under Company plans or otherwise or, if shares are acquired by Executive in a transaction not involving an offer or sale to Executive but resulting in the acquired shares being “restricted securities” for purposes of the 1933 Act, registering the reoffer and resale of such shares by Executive.

     (f)  Reimbursement of Expenses . The Bank will promptly reimburse Executive for all reasonable business expenses and disbursements incurred by Executive in the performance of Executive’s duties during the Term in accordance with the Bank’s reimbursement policies as in effect from time to time and the provisions of Section 7(g) of this Agreement.

     (g)  Limitations Under Code Section 409A . Anything in this Section 5 to the contrary notwithstanding, with respect to any payment otherwise required hereunder, in the event of any delay in the payment date as a result of Section 7(g) of this Agreement (relating to the six-month delay in payment of certain benefits to Specified Employees as required by Section 409A of the Code), the Bank will adjust the payment to reflect the deferred payment date by multiplying the payment by the product of the six-month CMT Treasury Bill annualized yield rate as published by the U.S. Treasury for the date on which such payment would have been made but for the delay multiplied by a fraction, the numerator of which is the number of days by which such payment was delayed and the denominator of which is 365. The Bank will pay the adjusted payment at the beginning of the seventh month following Executive’s termination of employment. Notwithstanding the foregoing, if calculation of the amounts payable by such payment date is not administratively practicable due to events beyond the control of Executive (or Executive’s beneficiary or estate) and for reasons that are commercially reasonable, payment will be made as soon as administratively practicable in compliance with Section 409A of the Code and the Regulations. In the event of Executive’s death during such six-month period, payment will be made in the payroll period next following the payroll period in which Executive’s death occurs.

6. Termination Due to Retirement, Death, or Disability.

     (a)  Retirement . Executive may elect to terminate employment hereunder by retirement at or after age 60 (“Retirement”). At the time Executive’s employment terminates due to Retirement, the Term will terminate, all obligations of the Bank and Executive under Sections 1 through 5 of this Agreement will immediately cease except for obligations which expressly continue after termination of employment due to Retirement, and the Bank will pay Executive at the time specified in Section 6(d), and Executive will be entitled to receive, the following:

 

(i)

 

Executive’s Compensation Accrued at Termination (as defined in Section 8(c));

6


 

 

(ii)

 

In lieu of any annual incentive compensation under Section 4(b) for the year in which Executive’s employment terminated, a lump sum amount equal to the portion of annual incentive compensation that would have become payable in cash to Executive (i.e., excluding the portion payable in stock or in other non-cash awards) for that year if his employment had not terminated, based on performance actually achieved in that year (determined by the Committee following completion of the performance year and paid at the time specified in the applicable plan), multiplied by a fraction the numerator of which is the number of days Executive was employed in the year of termination and the denominator of which is the total number of days in the year of termination;

 

 

(iii)

 

The vesting and exercisability of stock options held by Executive at termination and all other terms of such options shall be governed by the plans and programs and the agreements and other documents pursuant to which such options were granted (subject to Section 10(f) hereof);

 

 

(iv)

 

All restricted stock and deferred stock awards, including outstanding stock plan awards, all other long-term incentive awards, and all deferral arrangements under Section 5(d), shall be governed by the plans and programs under which the awards were granted or governing the deferral, all rights under the SERP and any other benefit plan shall be governed by such plans and all rights to the Retirement Benefit provided under Section 5(b)(v) of this Agreement shall be governed by Section 5(b)(v); and

 

 

(v)

 

Upon Retirement, if Executive is not eligible for retiree coverage under the Bank’s health plan (the “Health Plan”) or Medicare and provided that Executive shall be in compliance with the conditions set forth in Section 10, the Bank shall pay to Executive a lump sum amount equal on an after-tax basis to the present value of the total cost of medical coverage under the Health Plan that would have been incurred by both Executive and the Bank on behalf of Executive (and his spouse and eligible dependents, if any, for whom coverage had been provided under the Health Plan immediately prior to Executive’s Retirement) from the date of Executive’s Retirement until Executive’s attainment of Social Security retirement age had Executive remained employed by the Bank during such period, calculated on the assumption that the cost of such coverage would remain unchanged from that in effect for the year of Executive’s Retirement. Such lump sum amount shall be calculated by an actuary selected by the Bank and paid in cash at the time specified in Section 6(d). Such amount shall not be subject to reduction or forfeiture by reason of any coverage for which Executive may thereafter become eligible by reason of subsequent employment or otherwise. For purposes of this Section, present value shall be calculated on the basis of the discount rate set forth in the Bank’s qualified retirement plan for the determination of lump sum payments.

     (b)  Death . In the event of Executive’s death which results in the termination of Executive’s employment, the Term will terminate, all obligations of the Bank and Executive under Sections 1 through 5 of this Agreement will immediately cease except for obligations

7


 

which expressly continue after death, and the Bank will pay Executive’s beneficiary or estate at the time specified in Section 6(d), and Executive’s beneficiary or estate will be entitled to receive, the following:

 

(i)

 

Executive’s Compensation Accrued at Termination;

 

 

(ii)

 

In lieu of any annual incentive compensation under Section 4(b) for the year in which Executive’s death occurred, a lump sum amount equal to the portion of annual incentive compensation that would have become payable in cash to Executive (i.e., excluding the portion payable in stock or in other non-cash awards) for that year if his employment had not terminated, based on performance actually achieved in that year (determined by the Committee following completion of the performance year and paid at the time specified in the applicable plan), multiplied by a fraction the numerator of which is the number of days Executive was employed in the year of his death and the denominator of which is the total number of days in the year of death;

 

 

(iii)

 

The vesting and exercisability of stock options held by Executive at death and all other terms of such options shall be governed by the plans and programs and the agreements and other documents pursuant to which such options were granted;

 

 

(iv)

 

All restricted stock and deferred stock awards, including outstanding stock plan awards, all other long-term incentive awards, and all deferral arrangements under Section 5(d), shall be governed by the plans and programs under which the awards were granted or governing the deferral, and all rights under the SERP and any other benefit plan shall be governed by such plans and all rights to the Retirement Benefit provided under Section 5(b)(v) of this Agreement shall be governed by Section 5(b)(v);

 

 

(v)

 

If Executive’s surviving spouse (and eligible dependents, if any) elects continued coverage under the Bank’s Health Plan in accordance with the applicable provisions of COBRA, the Bank shall pay to Executive’s surviving spouse on a monthly basis during such COBRA continuation period and in accordance with Section 7(g) of this Agreement an amount equal on an after-tax basis to the total cost of such coverage. No further benefits shall be paid under this Section after the expiration of the maximum COBRA continuation period available to Executive’s surviving spouse and eligible dependents, if any.

     (c)  Disability . The Bank may terminate the employment of Executive hereunder due to the Disability (as defined in Section 8(d)) of Executive. Upon termination of employment, the Term will terminate, all obligations of the Bank and Executive under Sections 1 through 5 of this Agreement will immediately cease except for obligations which expressly continue after termination of employment due to Disability, and the Bank will pay Executive at the time specified in Section 6(d), and Executive will be entitled to receive, the following:

 

(i)

 

Executive’s Compensation Accrued at Termination;

8


 

 

(ii)

 

In lieu of any annual incentive compensation under Section 4(b) for the year in which Executive’s employment terminated, a lump sum amount equal to the portion of annual incentive compensation that would have become payable in cash to Executive (i.e., excluding the portion payable in stock or in other non-cash awards) for that year if his employment had not terminated, based on performance actually achieved in that year (determined by the Committee following completion of the performance year and paid at the time specified in the applicable plan), multiplied by a fraction the numerator of which is the number of days Executive was employed in the year of termination and the denominator of which is the total number of days in the year of termination;

 

 

(iii)

 

Stock options held by Executive at termination shall be governed by the plans and programs and the agreements and other documents pursuant to which such options were granted;

 

 

(iv)

 

Any performance objectives upon which the earning of performance-based restricted stock and deferred stock awards, including outstanding stock plan awards, and other long-term incentive awards is conditioned shall be deemed to have been met at target level at the date of termination, and restricted stock and deferred stock awards, including outstanding stock plan awards, and other long-term incentive awards (to the extent then or previously earned, in the case of performance-based awards) shall become fully vested and non-forfeitable at the date of such termination, and, in other respects, such awards shall be governed by the plans and programs and the agreements and other documents pursuant to which such awards were granted;

 

 

(v)

 

Disability benefits shall be payable in accordance with the Bank’s plans, programs and policies, including the SERP, all deferral arrangements under Section 5(d) will be settled in accordance with the plans and programs governing the deferral and all rights to the Retirement Benefit provided under Section 5(b)(v) of this Agreement shall be governed by Section 5(b)(v);

 

 

(vi)

 

Upon termination of Executive’s employment due to Disability, if Executive is not eligible for retiree coverage under the Bank’s Health Plan or Medicare and provided that Executive shall be in compliance with the conditions set forth in Section 10, the Bank shall pay to Executive a lump sum amount equal on an after-tax basis to the present value of the total cost of medical coverage under the Health Plan that would have been incurred by both Executive and the Bank on behalf of Executive (and his spouse and eligible dependents, if any, for whom coverage had been provided under the Health Plan immediately prior to Executive’s termination of employment) from the date of Executive’s termination of employment until Executive’s attainment of Social Security retirement age had Executive remained employed by the Bank during such period, calculated on the assumption that the cost of such coverage would remain unchanged from that in effect for the year of Executive’s termination of employment. Such lump sum amount shall be calculated by an actuary selected by the Bank and paid in cash at the time specified in Section 6(d). Such amount shall not be subject to reduction

9


 

 

 

or forfeiture by reason of any coverage for which Executive may thereafter become eligible by reason of subsequent employment or otherwise. In addition, provided that Executive shall be in compliance with the conditions set forth in Section 10, the Bank shall pay to Executive at the time specified in Section 6(d) a lump sum amount equal on an after-tax basis to the present value of the sum of (A) the amount that Executive and the Bank would have paid, had he remained employed, for coverage under the Bank’s group long-term disability policy from the date of Executive’s termination of employment until Executive’s attainment of Social Security retirement age, calculated on the assumption that the cost of such coverage would remain unchanged from that in effect for the year in which Executive’s termination occurred; and (B) the amount that Executive and the Bank would have paid to continue Executive’s group life insurance coverage, had he remained employed, from the date of Executive’s termination of employment until Executive’s attainment of Social Security retirement age, calculated on the assumption that the cost of such coverage would remain unchanged from that in effect for the year in which Executive’s termination occurred. For purposes of this Section, present value shall be calculated on the basis of the discount rate set forth in the Bank’s qualified retirement plan for the determination of lump sum payments.

     (d)  Other Terms of Payment Following Retirement, Death, or Disability . Nothing in this Section 6 shall limit the benefits payable or provided in the event Executive’s employment terminates due to Retirement, death, or Disability under the terms of plans or programs of the Bank more favorable to Executive (or his beneficiaries) than the benefits payable or provided under this Section 6 (except in the case of annual incentives in lieu of which amounts are paid hereunder), including plans and programs adopted after the date of this Agreement. Amounts payable under this Section 6 following Executive’s termination of employment, other than those expressly payable following determination of performance for the year of termination for purposes of annual incentive compensation or otherwise expressly payable on a deferred basis, will be paid in the payroll period next following the payroll period in which termination of employment occurs; subject, however, to the provisions of Section 7(g) of this Agreement relating to the six-month delay in payment of certain benefits to Specified Employees as required by Section 409A of the Code. Any payment or reimbursement due within such six-month period shall be delayed to the end of such six-month period as required by Section 7(g). The Bank will adjust the payment or reimbursement to reflect the deferred payment date by multiplying the payment by the product of the six-month CMT Treasury Bill annualized yield rate as published by the U.S. Treasury for the date on which such payment or reimbursement would have been made but for the delay multiplied by a fraction, the numerator of which is the number of days by which such payment or reimbursement was delayed and the denominator of which is 365. In the event of a reimbursement that is required by other terms of this Agreement to be made on an after-tax basis which is subject to the six-month delay in payment as described in Section 7(g) of this Agreement, the reimbursement as adjusted in accordance with this Section 6(d) to reflect the deferred payment date shall be paid to Executive on an after-tax and fully grossed-up basis so that Executive is held economically harmless. The Bank will pay the adjusted payment or reimbursement at the beginning of the seventh month following Executive’s termination of employment. Notwithstanding the foregoing, if calculation of the amounts payable by such payment date is not administratively practicable due to events beyond the control of Executive

10


 

(or Executive’s beneficiary or estate) and for reasons that are commercially reasonable, payment will be made as soon as administratively practicable in compliance with Section 409A of the Code and the Regulations. In the event of Executive’s death during such six-month period, payment will be made in the payroll period next following the payroll period in which Executive’s death occurs.

7. Termination of Employment For Reasons Other Than Retirement, Death or Disability .

     (a)  Termination by the Bank for Cause . The Bank may terminate the employment of Executive hereunder for Cause (as defined in Section 8(a)) at any time. At the time Executive’s employment is terminated for Cause, the Term will terminate, all obligations of the Bank and Executive under Sections 1 through 5 of this Agreement will immediately cease except for obligations which expressly continue after termination of employment by the Bank for Cause, and the Bank will pay Executive at the time specified in Section 7(g), and Executive will be entitled to receive, the following:

 

(i)

 

Executive’s Compensation Accrued at Termination (as defined in Section 8(c));

 

 

(ii)

 

All stock options, restricted stock and deferred stock awards, including outstanding stock plan awards, and all other long-term incentive awards will be governed by the terms of the plans and programs under which the awards were granted; and

 

 

(iii)

 

All deferral arrangements under Section 5(d) will be settled in accordance with the plans and programs governing the deferral, and all rights, if any, under the SERP and any other benefit plan shall be governed by such plans.

     (b)  Termination by Executive Other Than For Good Reason . Executive may terminate his employment hereunder voluntarily for reasons other than Good Reason (as defined in Section 8(e)) at any time upon 90 days’ written notice to the Bank. An election by Executive not to extend the Term pursuant to Section 2 hereof shall be deemed to be a termination of employment by Executive for reasons other than Good Reason at the date of expiration of the Term, unless a Change in Control (as defined in Section 8(b)) occurs prior to, and there exists Good Reason at, such date of expiration; provided, however, that, if Executive has attained age 60 at such date of termination, such termination shall be deemed a Retirement of Executive, which shall instead be governed by Section 6(a) above. At the time Executive’s employment is terminated by Executive other than for Good Reason the Term will terminate, all obligations of the Bank and Executive under Sections 1 through 5 of this Agreement will immediately cease, and the Bank will pay Executive at the time specified in Section 7(g), and Executive will be entitled to receive, the following:

 

(i)

 

Executive’s Compensation Accrued at Termination;

 

 

(ii)

 

All stock options, restricted stock and deferred stock awards, including outstanding stock plan awards, and all other long-term incentive awards will be governed by the terms of the plans and programs under which the awards were granted;

11


 

 

(iii)

 

All deferral arrangements under Section 5(d) will be settled in accordance with the plans and programs governing the deferral, all rights under the SERP and any other benefit plan shall be governed by such plans and all rights to the Retirement Benefit provided under Section 5(b)(v) of this Agreement shall be governed by Section 5(b)(v).

     (c)  Termination by the Bank Without Cause Prior to or More than Two Years After a Change in Control . The Bank may terminate the employment of Executive hereunder without Cause, if at the date of termination no Change in Control has occurred or such date of termination is at least two years after the most recent Change in Control, upon at least 90 days’ written notice to Executive. The foregoing notwithstanding, the Bank may elect, by written notice to Executive, to terminate Executive’s positions specified in Sections 1 and 3 and all other obligations of Executive and the Bank under Section 3 at a date earlier than the expiration of such 90-day period, if so specified by the Bank in the written notice, provided that Executive shall be treated as an employee of the Bank (without any assigned duties) for all other purposes of this Agreement, including for purposes of Sections 4 and 5, from such specified date until the expiration of such 90-day period. An election by the Bank not to extend the Term pursuant to Section 2 hereof shall be deemed to be a termination of Executive’s employment by the Bank without Cause at the date of expiration of the Term and shall be subject to this Section 7(c) if at the date of such termination no Change in Control has occurred or such date of termination is at least two years after the most recent Change in Control; provided, however, that, if Executive has attained Social Security retirement age at such date of termination, such termination shall be deemed a Retirement of Executive. At the time Executive’s employment is terminated by the Bank (i.e., at the expiration of such notice period), the Term will terminate, all remaining obligations of the Bank and Executive under Sections 1 through 5 of this Agreement will immediately cease (except for obligations which continue after termination of employment as expressly provided herein), and the Bank will pay Executive at the time specified in Section 7(g), and Executive will be entitled to receive, the following:

 

(i)

 

Executive’s Compensation Accrued at Termination;

 

 

(ii)

 

Cash in an aggregate amount equal to three times the sum of (A) Executive’s Base Salary under Section 4(a) immediately prior to termination plus (B) an amount equal to the greater of (x) the portion of Executive’s annual target incentive compensation potentially payable in cash to Executive (i.e., excluding the portion payable in stock or in other non-cash awards) for the year of termination or (y) the portion of Executive’s annual incentive compensation that became payable in cash to Executive (i.e., excluding the portion payable in stock or in other non-cash awards) for the latest year preceding the year of termination based on performance actually achieved in that latest year. The amount determined to be payable under this Section 7(c)(ii) shall be payable a lump sum;

 

 

(iii)

 

In lieu of any annual incentive compensation under Section 4(b) for the year in which Executive’s employment terminated, a lump sum amount equal to the portion of Executive’s annual target incentive compensation potentially payable in cash to Executive (i.e., excluding the portion payable in stock or in other non-cash awards) for the year of termination, multiplied by a fraction the numerator of

12


 

 

 

 

which is the number of days Executive was employed in the year of termination and the denominator of which is the total number of days in the year of termination;

 

 

(iv)

 

Stock options held by Executive at termination, if not then vested and exercisable, will become fully vested and exercisable at the date of such termination, and, in other respects (including the period following termination during which such options may be exercised), such options shall be governed by the plans and programs and the agreements and other documents pursuant to which such options were granted;

 

 

(v)

 

Any performance objectives upon which the earning of performance-based restricted stock and deferred stock awards, including outstanding stock plan awards, and other long-term incentive awards is conditioned shall be deemed to have been met at target level at the date of termination, and restricted stock and deferred stock awards, including outstanding stock plan awards, and other long-term incentive awards (to the extent then or previously earned, in the case of performance-based awards) shall become fully vested and non-forfeitable at the date of such termination, and, in other respects, such awards shall be governed by the plans and programs and the agreements and other documents pursuant to which such awards were granted;

 

 

(vi)

 

All deferral arrangements under Section 5(d) will be settled in accordance with the plans and programs governing the deferral;

 

 

(vii)

 

All rights under the SERP shall be governed by such plan and all rights to the Retirement Benefit provided under Section 5(b)(v) of this Agreement shall be governed by Section 5(b)(v);

 

 
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