Attached files
file | filename |
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10-K - NEWALLIANCE BANCSHARES INC | e92512.htm |
EX-32 - NEWALLIANCE BANCSHARES INC | e92512_ex321.htm |
EX-23 - NEWALLIANCE BANCSHARES INC | e92512_ex231.htm |
EX-32 - NEWALLIANCE BANCSHARES INC | e92512_ex322.htm |
EX-31 - NEWALLIANCE BANCSHARES INC | e92512_ex312.htm |
EX-31 - NEWALLIANCE BANCSHARES INC | e92512_ex311.htm |
EX-10 - NEWALLIANCE BANCSHARES INC | e92512_ex1071.htm |
EX-10 - NEWALLIANCE BANCSHARES INC | e92512_ex1017.htm |
EX-10 - NEWALLIANCE BANCSHARES INC | e92512_ex1079.htm |
EX-10 - NEWALLIANCE BANCSHARES INC | e92512_ex1073.htm |
EX-10 - NEWALLIANCE BANCSHARES INC | e92512_ex1018.htm |
EX-10 - NEWALLIANCE BANCSHARES INC | e92512_ex10712.htm |
EX-10 - NEWALLIANCE BANCSHARES INC | e92512_ex10710.htm |
EX-10 - NEWALLIANCE BANCSHARES INC | e92512_ex1078.htm |
Exhibit 10.7.11
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this Agreement) is made and entered into as of December 15, 2009 by and between NewAlliance Bank, a Connecticut savings bank (the Bank), and Mark Gibson (the Executive).
W I T N E S S E T H:
WHEREAS, the Executive is currently employed as the Executive Vice President-Chief Marketing Officer of the Bank pursuant to an employment agreement between the Bank and the Executive originally entered into as of February 12, 2009 (the Employment Agreement);
WHEREAS, the Bank desires to amend and restate the Employment Agreement in order to (i) make changes to comply with Section 162(m) of the Internal Revenue Code of 1986, as amended (the Code), (ii) revise the definition of cause and (iii) make certain other changes;
WHEREAS, NewAlliance Bancshares, Inc., a business corporation organized under the laws of the State of Delaware and the holding company of the Bank (the Company), and the Bank desire to ensure that the Company and the Bank are assured of the continued availability of the Executives services as provided in this Agreement, with the Bank also referred to herein as the Employer; and
WHEREAS, the Executive is willing to serve the Company and the Bank on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual covenants and conditions hereinafter set forth, the Employer and the Executive hereby agree as follows:
SECTION 1. EFFECTIVE DATE; EMPLOYMENT.
This Agreement shall be effective on the date first written above (the Effective Date). The Bank agrees to employ the Executive, and the Executive hereby agrees to such employment, during the period and upon the terms and conditions set forth in this Agreement.
SECTION 2. EMPLOYMENT PERIOD.
(a) The terms and conditions of this Agreement shall be and remain in effect during the period beginning on February 19, 2009 and continuing until April 1, 2011 (the Initial Term), plus such extensions, if any, as are provided pursuant to Section 2(b) hereof (the Employment Period).
(b) Except as provided in Section 2(c), prior to April 1, 2010 and each annual anniversary thereafter, the Board of Directors of the Employer shall consider and review (after taking into account all relevant factors, including the Executives performance and any recommendation of the Chief Executive Officer) a one-year extension of the term of this
Agreement, and the term shall continue to extend each year (beginning with the first annual anniversary date) if the Board of Directors so approves such extension unless the Executive gives written notice to the Employer of the Executives election not to extend the term, with such notice to be given not less than ninety (90) days prior to any such anniversary date. If the Board of Directors elects not to extend the term, it shall give written notice of such decision to the Executive no later than December 31st of the year preceding any such anniversary date. If the Executive does not receive such notice, the Executive may, by written notice given at any time prior to February 1st of such anniversary date, request from the Chief Executive Officer written confirmation that the term has been extended and, if such confirmation is not received by the Executive within thirty (30) days after the request therefor is made, the Executive may treat the term as having not been extended. Upon termination of the Executives employment with the Employer for any reason whatsoever, any annual extensions provided pursuant to this Section 2(b), if not theretofore discontinued, shall automatically cease. In addition, no annual renewals shall extend beyond the Executives 65th birthday, and in no event shall the Employment Period extend beyond the Executives 65th birthday. All actions to be taken by the Board of Directors under this Section 2(b) may be taken by the Compensation Committee of the Board of Directors.
(c) Nothing in this Agreement shall be deemed to prohibit the Employer at any time from terminating the Executives employment during the Employment Period with or without notice for any reason, provided, however, that the relative rights and obligations of the Employer and the Executive in the event of any such termination, including any requirements with respect to prior notice of such termination, shall be determined under this Agreement.
SECTION 3. DUTIES.
Throughout the Employment Period, the Executive shall serve as Executive Vice President of the Bank. His initial designation shall be Chief Marketing Officer, having such power, authority and responsibility and performing such duties as are prescribed by or under the Bylaws of the Bank and as are customarily associated with such position as determined by the Banks Chief Executive Officer. The Executive shall initially report directly to the Chief Executive Officer of the Bank. The Banks Chief Executive Officer may, during the term of the Employment Agreement, alter the Executives job and/or reporting responsibilities as she deems appropriate to the effective management of the Bank, provided that the Executive shall at all times be on the senior executive team. The Executive shall devote his full business time, attention, skills and efforts (other than during weekends, holidays, vacation periods, and periods of illness or leaves of absence and other than as permitted or contemplated by Section 7) to the business and affairs of the Employer and shall use his best efforts to advance the interests of the Employer.
SECTION 4. CASH AND OTHER COMPENSATION.
(a) In consideration for the services to be rendered by the Executive hereunder, the Bank shall pay to him a salary of two hundred sixty thousand dollars ($260,000) annually (Base Salary) as of the date of this Agreement. The Executives Base Salary shall be payable in approximately equal installments in accordance with the Banks customary payroll practices for senior officers. Base Salary shall include any amounts of compensation deferred by the
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Executive under any tax-qualified retirement or welfare benefit plan or any other deferred compensation arrangement. The Compensation Committee of the Board of Directors of the Bank (the Bank Board) shall review the Executives annual rate of salary at such times during the Employment Period as it deems appropriate, but not less frequently than once every twelve months, provided that the initial review may be deferred until the Executives regular review for the period beginning April 1, 2010, and may, in its discretion, approve an increase therein. Such review of the Executives Base Salary shall take into account not only the Executives performance as well as the Employers performance since the date of the last review conducted pursuant to this Section 4(a) but also shall take into consideration the salaries of similar situated officers at comparably situated financial institutions as determined by the Compensation Committee thereof as well as any recommendation of the Chief Executive Officer. In addition to salary, the Executive may receive other cash compensation from the Employer for services hereunder at such times, in such amounts and on such terms and conditions as the Bank Board may determine from time to time. Any increase in the Executives annual salary shall become the Base Salary of the Executive for purposes hereof. The Executives Base Salary as in effect from time to time cannot be decreased by the Employer without the Executives express prior written consent.
(b) The Executive shall be entitled to participate in an equitable manner with all other executive officers of the Employer in discretionary bonuses to executive officers as authorized by the Bank Board. No other compensation provided for in this Agreement shall be deemed a substitute for the Executives right to participate in such bonuses when and as declared by the Bank Board. In connection with the foregoing, under the terms of the Banks Executive Incentive Plan (the EIP), annual cash bonuses can be awarded to the Executive; the initial percentage accorded to the Executive shall be 45% of the Executives Base Salary at the Target level. The Compensation Committee of the Bank Board shall make an annual determination of the exact percentage of Base Salary to be used with respect to the possible bonus, if any, to be paid to the Executive for the relevant plan year and shall notify the Executive by the end of March of the EIPs plan year to which such percentage shall be applicable.
SECTION 5. EMPLOYEE BENEFIT PLANS AND PROGRAMS.
(a) During the Employment Period, the Executive shall be treated as an employee of the Bank and shall be entitled to participate in and receive benefits under any and all qualified or non-qualified active retirement programs covering employees of the Bank (including but not limited to the Companys Employee Stock Ownership Plan (the ESOP), the Banks 401(k) Plan, the ESOP and 401(k) SERPs and any other similar plans that may be adopted in the future), any and all group life, health (including hospitalization, medical and major medical), dental, accident and long-term disability insurance plans, and any other employee benefit and compensation plans (including, but not limited to, the EIP and any incentive compensation plans or program or any stock benefit plans that apply to the executive group) as may from time to time be maintained by, or cover employees of, the Bank, in accordance with the terms and conditions of such employee benefit plans and programs and compensation plans and programs and consistent with the Banks customary practices. The Executive shall be ineligible for the Banks defined benefit Pension Plan, to which no new participants are currently permitted.
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Nothing paid to the Executive under any such plan or program will be deemed to be in lieu of other compensation to which the Executive is entitled under this Agreement.
(b) During the Employment Period, the Bank shall provide the Executive with an expense allowance (Expense Allowance) payable monthly equal to approximately $500 per month to pay for the costs of an automobile. Such Expense Allowance shall take into account the federal and state income tax effect on the Executive of receipt of such allowance. In the event that with respect to a given calendar year occurring during the term of this Agreement, the Executive believes that he drove during such year Business Miles (as hereinafter defined) in excess of the Covered Business Miles (as hereinafter defined) in connection with the business of the Bank and wishes to seek reimbursement as provided herein for such excess, then within 40 days after the end of such calendar year, the Executive shall provide information to the Bank (as well as any additional information as the Bank may reasonably request in order to review the Executives claim) with respect to the number of miles driven in the such calendar year in connection with the business of the Bank (Business Miles). In the event the number of Business Miles driven during such calendar year is determined by the Bank to be more than 3,600 (Covered Business Miles), the Bank will provide the Executive an additional reimbursement for the Business Miles in excess of the Covered Business Miles at a rate equal to the standard mileage rate as published by the Internal Revenue Service for the period in which the excess Business Miles were incurred (Reimbursement Rate), with such reimbursement to be provided no later than March 15 of the year immediately following the year in which the excess Business Miles were incurred. The Expense Allowance and the Covered Business Miles may be reviewed by the Compensation Committee of the Bank Board and, if increased, shall be reflected in an addendum hereto. Notwithstanding the foregoing, nothing herein shall be deemed to impose upon the Bank or obviate the Executives obligation, legal or otherwise, to maintain liability insurance with respect to the Executives personal use of an automobile.
(c) The Bank shall provide and pay for a parking space for Executive in the Banks main office parking garage or, if such space shall become unavailable due to tenant commitments or otherwise, in an alternative convenient closed parking garage.
(d) The Executive shall be entitled to paid holidays and paid vacations consistent with the Banks policy for executive officers.
(e) The Bank shall provide during the term of this Agreement, subject to the limitations set forth herein, for the Executive to receive, at the Employers expense, the services of a tax professional and a personal financial planning professional (which may be the same person or entity for both services) (the Tax Service Professional) selected by the Employer and reasonably satisfactory to the Executive. Subject to the limitations set forth herein, if the Employer does not specify a Tax Services Professional reasonably acceptable to the Executive, the Executive will be entitled to use the services of a Tax Services Professional of his choosing and seek reimbursement by the Employer for the reasonable cost of such Tax Service Professional actually incurred by the Executive. The services to be provided shall include (i) the preparation of all required federal, state and local personal income tax returns, (ii) advice with respect to federal, state and local income tax treatment of cash and other forms of compensation paid to the Executive by the Employer and (iii) investment and retirement counseling and estate
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planning. Notwithstanding the foregoing, the annual cost to the Employer of providing the services to the Executive of such Tax Service Professional, whether such Tax Service Professional is selected by the Employer or the Executive, shall not exceed $2,000 (the Annual Cost), prior to any adjustment for income tax effects of reimbursement for such expense. Reimbursement of the Executive for the Annual Cost shall take into account the federal and state income tax effect on the Executive of receipt of such Annual Cost, and such reimbursement shall be paid promptly by the Employer and in any event no later than March 15 of the year immediately following the year in which the Annual Cost was incurred. The Annual Cost shall be reviewed annually by the Compensation Committee of the Bank Board and, if increased, shall be reflected in an addendum hereto.
(f) The Executive shall move his principal residence to the New Haven area as soon as practicable. In connection therewith, the Bank shall (i) provide the Executive with an allowance intended to compensate Executive for reasonable transportation, temporary housing, meals and related costs incurred for a period up to ninety (90) days after February 12, 2009 (which period may be extended beyond ninety (90) days for one additional 90 day period with the prior written consent of the Chief Executive Officer) (the Temporary Residence Period). The total amount of the allowance for the first 90 day period shall be $22,500 and, for the second 90 day period, if any, shall be $22,500 pro-rated to the date Executive closes on his New Haven area residence. The allowance shall be paid as follows: $7,500 on the first pay period date following February 12, 2009 and $7,500 on the first pay period date in each of the subsequent two (or more, if extended) months; (ii) reimburse the Executive for all reasonable moving, packing and unpacking costs associated with moving the Executives household goods from Alabama to a permanent or temporary residence in the New Haven area, subject to a budget approved by the Chief Financial Officer of the Bank (the Executive will be reimbursed only for one move); (iii) provided the Executive purchases a primary residence in the New Haven area within one year following February 12, 2009, reimburse the Executive for all reasonable closing costs and fees in connection with the Executives purchase of a primary residence in the New Haven area (including costs related to mortgage financing, legal, and title, but excluding any brokers commission), subject to a budget approved by the Chief Financial Officer of the Bank; and (iv) provided the Executive purchases a primary residence in the New Haven area within one year following February 12, 2009, the Bank shall purchase, or cause to be purchased, effective immediately before his purchase of a residence in the New Haven area, the Executives current principal residence in Birmingham, Alabama if such residence is unsold at that time. The Banks purchase price shall be determined conclusively as the average price of three appraisals of the residence that shall be obtained by and paid for by the Bank contemporaneous with that purchase. The Executive shall be required to satisfy all mortgages, liens and monetary encumbrances on his residence at or before purchase by the Bank as would be customary for sales to an independent buyer.
SECTION 6. INDEMNIFICATION AND INSURANCE.
(a) During the Employment Period and for a period of six years thereafter, the Employer shall cause the Executive to be covered by and named as an insured under any policy or contract of insurance obtained by it to insure its directors and officers against personal liability for acts or omissions in connection with service as an officer or director of the Employer or
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service in other capacities at the request of the Employer. The coverage provided to the Executive pursuant to this Section 6 shall be of the same scope and on the same terms and conditions as the coverage (if any) provided to other officers or directors of the Employer or any successors.
(b) To the maximum extent permitted under applicable law, the Employer shall indemnify the Executive against and hold the Executive harmless from any costs, liabilities, losses and exposures that may be incurred by the Executive in his capacity as a director or officer of the Employer or any subsidiary or affiliate.
SECTION 7. OUTSIDE ACTIVITIES.
The Executive may (a) serve as a member of the boards of directors of such business, community and charitable organizations as the Executive may disclose to and as may be approved by the Employer (which approval shall not be unreasonably withheld), and (b) perform duties as a trustee or personal representative or in any other fiduciary capacity, provided that in each case such service shall not materially interfere with the performance of the Executives duties under this Agreement or present any conflict of interest. The Executive may also engage in personal business and investment activities which do not materially interfere with the performance of the Executives duties hereunder, provided that such activities are not prohibited under any code of conduct or investment or securities trading policy established by the Employer and generally applicable to all similarly situated executives. If the Executive is discharged or suspended, or is subject to any regulatory prohibition or restriction with respect to participation in the affairs of the Bank, the Executive shall not directly or indirectly provide services to or participate in the affairs of the Bank in a manner inconsistent with the terms of such discharge or suspension or any applicable regulatory order.
SECTION 8. WORKING FACILITIES AND EXPENSES.
It is understood by the parties that the Executives principal place of employment shall be at the Banks principal executive office located in New Haven, Connecticut, or at such other CEO approved location within 50 miles of the address of such principal executive office, or at such other location as the Employer and the Executive may mutually agree upon. The Employer shall provide the Executive at his principal place of employment with a private office, secretarial services and other support services and facilities suitable to his position with the Employer and necessary or appropriate in connection with the performance of his assigned duties under this Agreement. The Employer shall reimburse the Executive for his ordinary and necessary business expenses attributable to the Employers business, including, without limitation, the Executives travel and entertainment expenses incurred in connection with the performance of his duties for the Employer under this Agreement, in each case upon presentation to the Employer of an itemized account of such expenses in such form as the Employer may reasonably require, and such reimbursement shall be paid promptly by the Employer and in any event no later than March 15 of the year immediately following the year in which the expenses were incurred.
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SECTION 9. TERMINATION OF EMPLOYMENT WITH BENEFITS.
(a) Subject to Sections 9(b) and 9(c), the Executive shall be entitled to the benefits described in Section 9(b) in the event that:
(i) his employment with the Bank terminates during the Employment Period as a result of the Executives termination for Good Reason (as defined in Section 9(a)(i)(A) and (B) of this Agreement), which shall mean a termination based on the following:
(A) any material breach of this Agreement by the Employer, including without limitation any of the following: (1) a material diminution in the Executives base compensation, or (2) a material diminution in the Executives authority or responsibilities as prescribed in Section 3, or
(B) any material change in the geographic location at which the Executive must perform his services under this Agreement (defined as a move or series of moves of at least 50 miles from 195 Church Street, New Haven, Connecticut);
provided, however, that prior to any termination of employment for Good Reason, the Executive must first provide written notice to the Employer within ninety (90) days of the initial existence of the condition, describing the existence of such condition, and the Employer shall thereafter have the right to remedy the condition within thirty (30) days of the date the Employer received the written notice from the Executive. If the Employer remedies the condition within such thirty (30) day cure period, then no Good Reason shall be deemed to exist with respect to such condition. If the Employer does not remedy the condition within such thirty (30) day cure period, then the Executive may deliver a notice of termination for Good Reason at any time within sixty (60) days following the expiration of such cure period; or
(ii) the Executives employment with the Employer is terminated by the Bank during the Employment Period for any reason other than for cause, death or Disability, as provided in Section 10(a).
(b) Subject to Section 9(c), and provided that no Change in Control (as defined in Section 11(a) hereof) has occurred, the Employer shall pay and provide to the Executive (or, in the event of his subsequent death, to his estate) the following severance benefits for the period beginning on the date that his employment terminates and ending on either (i) the last day of the Employment Period or (ii) 24 months subsequent to the date of termination, whichever period is greater (the Severance Benefits Period):
(i) his earned but unpaid Base Salary (including, without limitation, all items which constitute wages under applicable law and the payment of which is not otherwise provided for in this Section 9(b)) as of the date of the termination of his employment, with such payment to be made at the time and in the manner prescribed by law applicable to the payment of wages but in no event later than 30 days after termination of employment;
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(ii) the benefits, if any, to which he is entitled under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Banks officers and employees (such benefits not to include the expense allowance provided by Section 5(b)) through the date of the termination of his employment;
(iii) continued group life, health, dental and accident insurance benefits, in addition to that provided pursuant to Section 9(b)(ii), and after taking into account the coverage provided by any subsequent employer, if and to the extent necessary to provide for the Executive, for the Severance Benefits Period, coverage equivalent to the coverage to which he would have been entitled under such plans if he had continued to be employed during such period; provided that any insurance premiums payable by the Employer or any successors pursuant to this Section 9(b)(iii) shall be payable at such times and in such amounts as if the Executive was still an employee of the Employer, subject to any increases in such amounts imposed by the insurance company or COBRA, and the amount of insurance premiums required to be paid by the Employer in any taxable year shall not affect the amount of insurance premiums required to be paid by the Employer in any other taxable year;
(iv) a lump sum cash amount equal to the projected cost to the Employer of providing group long-term disability insurance benefits to the Executive for the Severance Benefits Period, with the projected cost to the Employer to be based on the costs incurred as of the date of termination as determined on an annualized basis;
(v) a lump sum cash amount, payable within 30 days following termination of employment, equal to the present value of (A) the Executives Annual Compensation (as hereinafter defined) multiplied by (B) a fraction which is either (1) the number of days left in the Employment Period if the Executive had not been terminated or (2) 730, whichever is greater, divided by 365, using a discount rate equal to the short-term applicable federal rate (determined under Section 1274(d) of the Code) as published by the Internal Revenue Service (the IRS) for the month in which the termination of employment occurs, compounded monthly;
(vi) a lump sum cash amount equal to the pro rata portion of any annual performance bonus awarded to the Executive under the Banks EIP (or such other short-term incentive compensation plan(s) that the Employer may adopt subsequent to the date hereof as a replacement therefor) and earned with respect to the calendar year in which the termination of employment occurs, provided that (a) the amount of the bonus earned shall be determined based on the extent to which the performance objectives with respect to the bonus were met during the calendar year in which such termination of employment occurs; (b) the amount of the bonus earned shall be pro rated by multiplying the amount of the earned bonus by a fraction, the numerator of which is the number of days elapsed in the calendar year as of the date of termination of the Executives employment and the denominator of which is 365; and (c) such earned pro rated target bonus shall be paid no later than March 15th of the year following the year in which the termination of employment occurs; and
(vii) a lump sum cash amount, payable within 30 days following termination of employment, equal to the present value, determined by using a discount rate equal to the short-term applicable federal rate (determined under Section 1274(d) of the Code) as published by the
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IRS for the month in which the termination of employment occurs, to which he would have been entitled under any and all qualified defined contribution plans and non-qualified plans related thereto maintained by, or covering employees of, the Bank as if he were 100% vested thereunder and had continued to be employed during the Severance Benefits Period at the highest annual rate of Base Salary achieved during the Employment Period and making the maximum amount of employee contributions, if any, required or permitted under such plan or plans, provided that no payments shall be made pursuant to this subsection (vii) with respect to the Companys ESOP if the ESOP is terminated effective as of a date within one year of the date of the termination of the Executives employment, with the Executive to reimburse the Employer for any such payments previously made within 30 days of the Executives receipt of a request for reimbursement from the Employer.
The Executives Annual Compensation for purposes of this Agreement shall be deemed to mean the sum of (i) the Executives Base Salary in effect as of the date of termination of his employment and (ii) the highest amount of annual cash incentive compensation earned by the Executive from the Employer or any subsidiary or affiliate thereof during any of the three calendar years immediately preceding the calendar year in which the date of termination occurs.
The Employer and the Executive further agree that the Employer may condition the payments and benefits (if any) due under Sections 9(b) (iii), (iv), (v), (vi) and (vii) on the receipt of the Executives resignation from any and all positions which he holds as an officer, director or committee member with respect to the Employer or any of its subsidiaries or affiliates and to the execution of a general release by the Executive.
(c) The Executive shall not be required to mitigate the amount of any benefits provided pursuant to the provisions of Section 9(b) by seeking other employment or otherwise. However, if the Executive becomes or is employed by another employer subsequent to the first year following termination, any compensation received by the Executive subsequent to the first year following termination through the end of the Severance Benefits Period shall be offset dollar for dollar against the Employers obligations set forth in Section 9(b) except with respect to Section 9(b)(iii), with the Executive to reimburse the Employer the amount of the offset with respect to amounts previously paid by the Employer within 30 days of the Executives receipt of a request for reimbursement from the Employer. In addition, if the Executive becomes employed by another entity subsequent to termination hereunder, and under the terms of such employment is entitled to benefits substantially similar to those provided in Section 9(b) (iii), the Employer will not be required to continue provision of the benefits set forth in said Section 9(b) (iii) for the remainder of the Severance Benefits Period.
SECTION 10. TERMINATION WITHOUT ADDITIONAL EMPLOYER LIABILITY.
(a) In the event that the Executives employment with the Employer shall terminate during the Employment Period on account of:
(i) the discharge of the Executive for cause, which, for purposes of this Agreement, shall mean a discharge because the Bank Board determines that the Executive has: (A) willfully failed to perform his assigned duties under this Agreement, other than any failure
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resulting from the Executives incapacity due to physical or mental injury or illness; (B) committed an act involving moral turpitude in the course of his employment with the Employer and its subsidiaries or affiliates; (C) committed a willfully dishonest act intended to result in substantial personal enrichment of himself or others at the expense of either the Company or the Bank; (D) engaged in willful misconduct or fraud; (E) breached his fiduciary duties for personal profit; (F) willfully violated, in any material respect, any law, rule or regulation (other than traffic violations or similar offenses), written agreement or final cease-and-desist order with respect to his performance of services for the Bank, as determined by the Bank Board; (G) materially breached the terms of this Agreement and failed to cure such material breach during a 15-day period following the date on which the Bank Board gives written notice to the Executive of the material breach; (H) been convicted of a felony; or (I) become the subject of any proceeding initiated by a federal or state banking agency to remove him from office;
(ii) the Executives voluntary resignation from employment (including voluntary retirement) with the Bank for reasons other than Good Reason as specified in Section 9(a)(i); or
(iii) the death of the Executive while employed by the Bank, or the termination of the Executives employment because of Disability as defined in Section 10(c) below;
then in any of the foregoing events, the Employer shall have no further obligations under this Agreement, other than (A) the payment to the Executive of his earned but unpaid compensation as of the date of the termination of his employment, (B) the payment to the Executive of the benefits to which he is entitled under all applicable employee benefit plans and programs and compensation plans and programs as of the date of termination of his employment, and (C) the provision of such other benefits, if any, to which he is entitled as a former employee under the Banks and/or the Companys employee benefit plans and programs and compensation plans and programs.
(b) For purposes of this Section 10, no act or failure to act, on the part of the Executive, shall be considered willful unless it is done, or omitted to be done, by the Executive in bad faith or without reasonable belief that the Executives action or omission was in the best interests of the Employer. Any act, or failure to act, based upon authority given pursuant to a resolution duly adopted by the Bank Board or based upon the written advice of counsel for the Employer shall be conclusively presumed to be done, or omitted to be done, by the Executive in good faith and in the best interests of the Employer.
(c) Disability shall be deemed to have occurred if the Executive: (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, or (ii) is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving income replacement benefits for a period of not less than three months under an accident and health plan covering employees of the Bank.
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(d)
During any period in which the Executive is absent due to physical or mental impairment,
the Employer may, without breaching this Agreement, appoint another person or persons
to act as interim Executive Vice President pending the Executives return to
his duties on a full-time basis hereunder or his termination as a result of such
Disability. Prior to the Executives employment being terminated due to Disability
under Section 10(e) hereof, the Executive shall continue to receive his full Base
Salary, bonuses and other benefits to which he is entitled under this Agreement,
including continued participation in all employee benefit plans and programs. (e)
The Employer may provide notice to the Executive in writing that it intends to terminate
the Executives employment under this Agreement, with the termination date
to be on or after the date that the Executive is deemed to have a Disability. At
the time his employment hereunder is terminated due to Disability, (i) the Executive
shall not be entitled to any payments or benefits pursuant to Sections 4 and 5 hereof
for periods subsequent to such date of termination, and (ii) the Executive shall
become entitled to receive the Disability payments that may be available under any
applicable long-term disability plan or other benefit plan. SECTION 11. PAYMENTS UPON A CHANGE
IN CONTROL. (a)
The term Change in Control shall mean a change in the ownership of the
Company or the Bank, a change in the effective control of the Company or the Bank
or a change in the ownership of a substantial portion of the assets of the Company
or the Bank, in each case as provided under Section 409A of the Code and the regulations
thereunder. In no event, however, shall a Change in Control be deemed to have occurred
as a result of any acquisition of securities or assets of the Company, the Bank,
or a subsidiary of either of them, by the Company, the Bank, or any subsidiary of
either of them, or by any employee benefit plan maintained by any of them. (b)
If the Executives employment by the Employer shall be terminated subsequent
to a Change in Control and during the term of this Agreement by (i) the Employer
for other than Cause, Disability, retirement or the Executives death or (ii)
the Executive for Good Reason as defined in Section 9(a)(i) hereof, then the Employer
shall pay to the Executive a severance benefit in a lump sum payment, within five
(5) days after the effective time of such termination of employment, equal to the
sum of (i) three times his Base Salary as of the date of termination of his employment,
(ii) three times the highest level of cash incentive compensation earned by the
Executive from the Employer or any subsidiary thereof in any one of the three calendar
years immediately preceding the year in which the termination occurs, (iii) the
amounts specified in Sections 9(b)(i), (ii), (iv) and (vii) (notwithstanding any
contrary language contained therein with respect to payment being over a longer
time period) except in calculating the amount of such benefits, to the extent applicable,
the Severance Benefits Period will be for a period of three years commencing on
the date of the termination of the Executives employment, and (iv) unless
the EIP or any successor plan provides otherwise with respect to the payment of
bonuses upon a Change in Control, the amount specified in Section 9(b)(vi) hereof
at the time specified in such section. In addition, the Employer shall provide the
Executive with the benefits provided for in Section 9(b)(iii) for the Severance
Benefits Period, as adjusted above to be for a period of three years subsequent
to termination of employment, subject to compliance with the last proviso 11 clause
contained in such subsection. In the event that the Employer is unable to provide
the benefits set forth in said Section 9(b)(iii) due to the change in the Executives status to that of a non-employee, the Employer shall include in the lump
sum payment due pursuant to the terms of this Section 11(b) the value of the benefits
required to be provided by said Section 9(b)(iii) for the Severance Benefits Period
as amended by this Section 11(b). The severance and other benefits payable pursuant
to this Section 11(b) shall not be subject to reduction pursuant to the provisions
of Section 9(c). SECTION 12. LIMITATION ON CHANGE
IN CONTROL PAYMENT. In
the event that: (i)
the aggregate payments or benefits to be made or afforded to the Executive pursuant
to this Agreement, together with other payments and benefits which the Executive
has a right to receive from the Employer, which are deemed to be parachute payments
as defined in Section 280G of the Code, or any successor thereof (the Termination
Benefits), would be deemed to include an excess parachute payment
under Section 280G of the Code; and (ii)
if such Termination Benefits were reduced to an amount (the Non-Triggering
Amount), the value of which is one dollar ($1.00) less than an amount equal
to three (3) times the Executives base amount, as determined in
accordance with said Section 280G and the Non-Triggering Amount less the product
of the marginal rate of any applicable state, local and federal income tax and the
Non-Triggering Amount would be greater than the aggregate value of the Termination
Benefits (without such reduction) minus (i) the amount of tax required to be paid
by the Executive thereon by Section 4999 of the Code and further minus (ii) the
product of the Termination Benefits and the marginal rate of any applicable state,
local and federal income tax, then the Termination Benefits shall be reduced
to the Non-Triggering Amount. If the Termination Benefits are required to be reduced,
the cash severance shall be reduced first, followed by a reduction in the fringe
benefits to be provided in kind. SECTION 13. SOURCE OF PAYMENTS.
All
payments provided in this Agreement shall be timely paid in cash or check from the
general funds of the Bank. SECTION 14. COVENANT NOT TO COMPETE.
In
the event the Executives employment with the Employer is terminated for any
reason prior to the expiration of the Employment Period (except as set forth below),
the Executive hereby covenants and agrees that for a period of two years following
the date of his termination of employment with the Employer (or, if less, for the
Severance Benefits Period), he shall not, without the written consent of the Employer,
become an officer, employee, consultant, director or trustee of any savings bank,
savings and loan association, savings and loan holding company, 12 bank or bank holding
company, or any direct or indirect subsidiary or affiliate of any such entity, that
entails working within any county in which the Company or the Bank maintains an
office as of the date of termination of the Executives employment. In addition,
in the event of a breach by the Executive of any of the provisions of this Section
14, the Employer may avail itself of such remedies that may be available to it as
a result of such breach by the Executive, with such remedies to be cumulative and
not mutually exclusive. This section shall not be applicable if the Executive is
terminated upon or within one year subsequent to a Change in Control, provided that
such termination is for reasons other than Cause as defined in Section 10(a)(i)
hereof. SECTION 15. CONFIDENTIALITY. Unless
he obtains the prior written consent of the Employer, the Executive shall at all
times keep confidential and shall refrain from using for the benefit of himself,
or any person or entity other than the Employer or its subsidiaries or affiliates,
any material document or information obtained from the Employer or its subsidiaries
or affiliates, in the course of his employment with any of them concerning their
properties, operations or business (unless such document or information is readily
ascertainable from public or published information or trade sources or has otherwise
been made available to the public through no fault of his own) until the same ceases
to be material (or becomes so ascertainable or available); provided, however, that
nothing in this Section 15 shall prevent the Executive, with or without the Employers consent, from participating in or disclosing documents or information in
connection with any judicial or administrative investigation, inquiry or proceeding
or the Companys public reporting requirements to the extent that such participation
or disclosure is required under applicable law. SECTION 16. SOLICITATION. The
Executive hereby covenants and agrees that, for a period of two years following
his termination of employment with the Employer for any reason, he shall not, without
the written consent of the Employer, either directly or indirectly: (a)
solicit, offer employment to, or take any other action intended, or that a reasonable
person acting in like circumstances would expect, to have the effect of causing
any officer or employee of the Employer or any of its subsidiaries or affiliates
to terminate his employment and accept employment or become affiliated with, or
provide services for compensation in any capacity whatsoever to, any savings bank,
savings and loan association, bank, bank holding company, savings and loan holding
company, or other institution engaged in the business of accepting deposits, making
loans or doing business within the counties specified in Section 14; (b)
provide any information, advice or recommendation with respect to any such officer
or employee to any savings bank, savings and loan association, bank, bank holding
company, savings and loan holding company, or other institution engaged in the business
of accepting deposits, making loans or doing business within the counties specified
in Section 14, that is intended, or that a reasonable person acting in like circumstances
would expect, to have the effect of causing any officer or employee of the Employer
or any of its subsidiaries or affiliates to terminate his employment and accept
employment or become affiliated with, or 13 provide services for compensation in any
capacity whatsoever to, any savings bank, savings and loan association, bank, bank
holding company, savings and loan holding company, or other institution engaged
in the business of accepting deposits, making loans or doing business within the
counties specified in Section 14; or (c)
solicit, provide any information, advice or recommendation or take any other action
intended, or that a reasonable person acting in like circumstances would expect,
to have the effect of causing any customer of the Company or the Bank to terminate
an existing business or commercial relationship with the Company or the Bank. SECTION 17. NO EFFECT ON EMPLOYEE
BENEFIT PLANS OR PROGRAMS. The
termination of the Executives employment during the Employment Period or thereafter,
whether by the Employer or by the Executive, shall have no effect on the vested
rights of the Executive under the Banks qualified or non-qualified retirement,
savings, ESOP or stock bonus plans, group life, health (including hospitalization,
medical and major medical), dental, accident and long term disability insurance
plans, or other employee benefit plans or programs, or compensation plans or programs
in which the Executive was a participant. SECTION 18. SUCCESSORS AND ASSIGNS.
(a)
This Agreement is personal to each of the parties hereto, and no party may assign
or delegate any of its rights or obligations hereunder without first obtaining the
written consent of the other parties; provided, however, that the Employer will
require any successor or assign (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or assets
of the Employer, by an assumption agreement in form and substance satisfactory to
the Executive, to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Employer would be required to perform it
if no such succession or assignment had taken place. Failure of the Employer to
obtain such an assumption agreement prior to the effectiveness of any such succession
or assignment shall be a breach of this Agreement and shall entitle the Executive
to compensation from the Employer in the same amount and on the same terms as the
compensation pursuant to Sections 9 or 11 hereof. For purposes of implementing the
provisions of this Section 18(a), the date which any such succession without an
assumption agreement becomes effective shall be deemed the date of termination of
the Executives employment. (b)
This Agreement and all rights of the Executive hereunder shall inure to the benefit
of and be enforceable by the Executives personal and legal representatives,
executors, administrators, successors, heirs, distributees, devises and legatees. SECTION 19. NOTICES. Any
communication required or permitted to be given under this Agreement, including
any notice, direction, designation, consent, instruction, objection or waiver, shall
be in writing and shall be deemed to have been given at such time as it is delivered
personally, or five days after mailing if mailed, postage prepaid, by registered
or certified mail, return receipt requested, 14 addressed to such party at the address
listed below or at such other address as one such party may by written notice specify
to the other party: If to the Executive: Mark
Gibson If to the Employer: NewAlliance
Bank with a copy, in the case of a notice to
the Employer, to: William
W. Bouton, Esq. SECTION 20. INDEMNIFICATION FOR
ATTORNEYS FEES. (a)
The Employer shall indemnify, hold harmless and defend the Executive against reasonable
costs, including legal fees and expenses, incurred by him in connection with or
arising out of any action, suit or proceeding in which he may be involved, as a
result of his efforts, in good faith, to defend or enforce the terms of this Agreement.
For purposes of this Agreement, any settlement agreement which provides for payment
of any amounts in settlement of the Employers obligations hereunder shall
be conclusive evidence of the Executives entitlement to indemnification hereunder,
and any such indemnification payments shall be in addition to amounts payable pursuant
to such settlement agreement, unless such settlement agreement expressly provides
otherwise. (b)
The Employers obligation to make the payments provided for in this Agreement
and otherwise to perform its obligations hereunder shall not be affected by any
set-off, counterclaim, recoupment, defense or other claim, right or action which
the Employer may have against the Executive or others. Unless it is determined that
a claim made by the Executive was either frivolous or made in bad faith, the Employer
agrees to pay as incurred (and in any event no later than March 15 of the year immediately
following the year in which incurred), to the full extent permitted by law, all
legal fees and expenses which the Executive may reasonably incur as a result of
or in connection with his consultation with legal counsel or arising out of any
action, suit, proceeding or contest (regardless of the outcome thereof) by the Employer,
the Executive or 15 others regarding the validity or enforceability of, or liability
under, any provision of this Agreement or any guarantee of performance thereof (including
as a result of any contest by the Executive about the amount of any payment pursuant
to this Agreement), plus in each case interest on any delayed payment at the applicable
federal rate provided for in Section 7872(f)(2)(A) of the Code. This Section 20(b)
shall apply whether such consultation, action, suit, proceeding or contest arises
before, on, after or as a result of a Change in Control. SECTION 21. SEVERABILITY. A determination
that any provision of this Agreement is invalid or unenforceable shall not affect
the validity or enforceability of any other provision hereof. SECTION 22. WAIVER. Failure
to insist upon strict compliance with any of the terms, covenants or conditions
hereof shall not be deemed a waiver of such term, covenant or condition. A waiver
of any provision of this Agreement must be made in writing, designated as a waiver,
and signed by the party against whom its enforcement is sought. Any waiver or relinquishment
of any right or power hereunder at any one or more times shall not be deemed a waiver
or relinquishment of such right or power at any other time or times. SECTION 23. COUNTERPARTS. This
Agreement may be executed in two or more counterparts, each of which shall be deemed
an original, and all of which shall constitute one and the same Agreement. SECTION 24. GOVERNING LAW. This
Agreement shall be governed by and construed and enforced in accordance with the
laws of the State of Connecticut applicable to contracts entered into and to be
performed entirely within the State of Connecticut, except to the extent that federal
law controls. SECTION 25. HEADINGS AND CONSTRUCTION.
The
headings of sections in this Agreement are for convenience of reference only and
are not intended to qualify the meaning of any section. Any reference to a section
number shall refer to a section of this Agreement, unless otherwise stated. SECTION 26. ENTIRE AGREEMENT;
MODIFICATIONS. This
instrument contains the entire agreement of the parties relating to the subject
matter hereof, and supersedes in its entirety any and all prior agreements, understandings
or representations relating to the subject matter hereof, including that certain
employment agreement dated as of February 19, 2009 between the Employer and the
Executive. No modifications of this Agreement shall be valid unless made in writing
and signed by the parties hereto; provided, however, that if the Employer determines,
after a review of all applicable IRS 16 guidance regarding Section 409A of the Code,
that this Agreement should be further amended to avoid triggering the tax and interest
penalties imposed by Section 409A of the Code, then the Employer may amend this
Agreement to the extent necessary to avoid triggering the tax and interest penalties
imposed by Section 409A of the Code. SECTION 27. REQUIRED REGULATORY
PROVISIONS. Notwithstanding
anything herein contained to the contrary, any payments to the Executive by the
Employer, whether pursuant to this Agreement or otherwise, are subject to and conditioned
upon their compliance with Section 18(k) of the Federal Deposit Insurance Act, 12
U.S.C. Section 1828(k), and the regulations promulgated thereunder in 12 C.F.R.
Part 359. SECTION 28. DISPUTE RESOLUTION.
(a)
In the event of any dispute, claim, question or disagreement arising out of or relating
to this Agreement or the breach hereof, the parties hereto shall use their best
efforts to settle such dispute, claim, question or disagreement. To this effect,
they shall consult and negotiate with each other, in good faith, and, recognizing
their mutual interests, attempt to reach a just and equitable solution satisfactory
to both parties. (b)
If they do not reach such a solution within a period of thirty (30) days, then the
parties agree first to endeavor in good faith to amicably settle their dispute by
mediation under the Commercial Mediation Rules of the American Arbitration Association
(the AAA), before resorting to arbitration. (c)
Thereafter, any unresolved controversy or claim arising out of or relating to this
Agreement or the breach thereof, upon notice by any party to the other, shall be
submitted to and finally settled by arbitration in accordance with the Commercial
Arbitration Rules (the Rules) of the AAA in effect at the time demand
for arbitration is made by any such party. The parties shall mutually agree upon
a single arbitrator within thirty (30) days of such demand. In the event that the
parties are unable to so agree within such thirty (30) day period, then within the
following thirty (30) day period, one arbitrator shall be named by each party. A
third arbitrator shall be named by the two arbitrators so chosen within ten (10)
days after the appointment of the first two arbitrators. In the event that the third
arbitrator is not agreed upon, he shall be named by the AAA. Arbitration shall occur
in New Haven, Connecticut or such other location as may be mutually agreed to by
the parties. (d)
The award made by all or a majority of the panel of arbitrators shall be final and
binding, and judgment may be entered based upon such award in any court of law having
competent jurisdiction. The award is subject to confirmation, modification, correction
or vacation only as explicitly provided in Title 9 of the United States Code. The
prevailing party shall be entitled to receive any award of pre- and post-award interest
as well as attorneys fees incurred in connection with the arbitration and
any judicial proceedings related thereto. The parties acknowledge that this Agreement
evidences a transaction involving interstate commerce. The United States Arbitration
Act and the Rules shall govern the interpretation, enforcement, and proceedings
pursuant to this Section. Any provisional remedy which would be available from a 17 court of law shall be available from the arbitrators to the parties to this Agreement
pending arbitration. Either party may make an application to the arbitrators seeking
injunctive relief to maintain the status quo, or may seek from a court of competent
jurisdiction any interim or provisional relief that may be necessary to protect
the rights and property of that party, until such times as the arbitration award
is rendered or the controversy otherwise resolved. IN
WITNESS WHEREOF, the Bank has caused this Agreement to be executed by its duly authorized
officers and the Executive has hereunto set his hand, all as of the date of the
restatement of this Agreement. THIS
AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE
PARTIES. 18
At the address last appearing
on the personnel records of
the Employer
195 Church Street
New Haven, CT 06510
(or the address of the Banks principal executive office, if different)
Attention: Chief Executive Officer
Hinckley, Allen & Snyder LLP
20 Church Street
Hartford,
CT 06103
Mark Gibson, Executive
ATTEST:
NEWALLIANCE BANK
By:
By:
Judith E.
Falango
Peyton R.
Patterson, Chairman and
First Vice
President and Secretary
Chief Executive
Officer
[Seal]