Employment Agreement for Christopher
Buchholz
As Amended and Restated as of
January 1, 2009
Employment Agreement for Christopher
Buchholz
As Amended and Restated as of
January 1, 2009
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4. Salary and Annual Incentive
Compensation
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(b) Annual Incentive
Compensation
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5. Long-Term Compensation, Including Stock
Options, Benefits, Deferred Compensation, and Expense
Reimbursement
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(a) Executive Compensation Plans
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(b) Employee and Executive Benefit
Plans
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(c) Acceleration of Awards Upon a Change in
Control
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(d) Deferral of Compensation
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(e) Company Registration
Obligations
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(f) Reimbursement of Expenses
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(g) Limitations Under Code
Section 409A
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6. Termination Due to Retirement, Death, or
Disability
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(d) Other Terms of Payment Following
Retirement, Death, or Disability
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7. Termination of Employment For Reasons Other
Than Retirement, Death or Disability
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(a) Termination by the Bank for
Cause
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(b) Termination by Executive Other Than For
Good Reason
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(c) Termination by the Bank Without Cause
Prior to or More than Two Years After a Change in
Control
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(d) Termination by Executive for Good
Reason Prior to or More than Two Years After a Change in
Control
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(e) Termination by the Bank Without Cause
Within Two Years After a Change in Control
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(f) Termination by Executive for Good
Reason Within Two Years After a Change in Control
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(g) Other
Terms Relating to Certain Terminations of Employment;
Reimbursements; Section 409A Exemptions; Delayed
Payments Under
Section 409A
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8. Definitions Relating to Termination
Events
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(c) “Compensation Accrued at
Termination
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(f) “Potential Change in
Control
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9. Rabbi Trust Obligation Upon Potential Change
in Control; Excise Tax-Related Provisions
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(a) Rabbi Trust Funded Upon Potential
Change in Control
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(b) Gross-up If Excise Tax Would
Apply
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10. Non-Competition and Non-Disclosure;
Executive Cooperation; Non-Disparagement; Certain
Forfeitures
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(b) Non-Disclosure; Ownership of
Work
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(c) Cooperation With Regard to
Litigation
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(e) Release of Employment Claims
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(f) Forfeiture of Outstanding
Options
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(g) Forfeiture of Certain Bonuses and
Profits
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(h) Forfeiture Due to Regulatory
Restrictions
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11. Governing Law; Disputes
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(b) Reimbursement of Expenses in Enforcing
Rights
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(d) Interest on Unpaid Amounts
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(b) Successors; Transferability
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(h) No Obligation To Mitigate
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(j) Successors and Assigns
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Attachment
A
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iii
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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.
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:
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.
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.
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.
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(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:
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(i)
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Executive will participate as Senior
Vice President in all executive and employee vacation and time-off
programs;
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(ii)
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The
Bank will provide Executive with coverage as Senior Vice President
with respect to long-term disability insurance;
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(iii)
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Executive will be covered by
Bank-paid group term life insurance;
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(iv)
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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
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(v)
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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
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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).
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(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:
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(i)
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Executive’s Compensation
Accrued at Termination (as defined in
Section 8(c));
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(ii)
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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;
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(iii)
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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);
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(iv)
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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
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(v)
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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.
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(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:
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(i)
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Executive’s Compensation
Accrued at Termination;
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(ii)
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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;
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(iii)
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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;
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(iv)
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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);
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(v)
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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.
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(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:
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(i)
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Executive’s Compensation
Accrued at Termination;
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(ii)
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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;
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(iii)
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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;
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(iv)
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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;
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(v)
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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);
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(vi)
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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
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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.
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(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:
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(i)
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Executive’s Compensation
Accrued at Termination (as defined in
Section 8(c));
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(ii)
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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
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(iii)
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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.
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(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:
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(i)
|
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Executive’s Compensation
Accrued at Termination;
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(ii)
|
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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;
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11
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(iii)
|
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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).
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(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:
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(i)
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Executive’s Compensation
Accrued at Termination;
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(ii)
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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;
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(iii)
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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
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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;
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(iv)
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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;
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(v)
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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;
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(vi)
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All
deferral arrangements under Section 5(d) will be settled in
accordance with the plans and programs governing the
deferral;
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(vii)
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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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