Attached files
NEW
ENGLAND BANK
AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment
Agreement (the “Agreement”) by and between New England Bank, a Connecticut chartered
bank (the “Bank”) and David J. O’Connor (the “Executive”) is made effective as
of July 13, 2009. References to the “Company” herein shall mean New England
Bancshares, Inc. (the “Company”), a Maryland corporation and the holding company
of the Bank.
W
I T N E S S E T H
WHEREAS, the Bank, as
successor to Enfield Federal Savings and Loan Association (“Enfield Federal”),
and the Executive are currently parties to an amended and restated employment
agreement originally entered into as of December 28, 2005 and further amended on
November 12, 2008 (the “Employment Agreement”);
WHEREAS, Enfield Federal has
merged into Valley Bank, a subsidiary of the Company, and pursuant to the merger
Valley Bank changed its name to New England Bank; and
WHEREAS, the Bank and the
Executive desire to amend and restate the Employment Agreement in order to
reflect the new name of the Bank.
NOW, THEREFORE, in
consideration of the promises and mutual covenants herein contained, the parties
hereby agree as follows:
1. Employment. Executive is
employed as the President and Chief Executive Officer of the
Bank. Executive shall perform all duties and shall have all powers
which are commonly incident to the offices of President and Chief Executive
Officer of the Bank or which, consistent with those offices, are delegated to
him by the Board of Directors of the Bank. During the term of this
Agreement, Executive also agrees to serve, if elected, as an officer and/or
director of any subsidiary of the Bank and in such capacity carry out such
duties and responsibilities reasonably appropriate to that office.
2. Location
and Facilities. The Executive
will be furnished with the working facilities and staff customary for executive
officers with the title and duties set forth in Section 1 and as are necessary
for him to perform his duties. The location of such facilities and
staff shall be at the principal administrative offices of the Bank, or at such
other site or sites customary for such offices.
3. Term.
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a.
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The
term of this Agreement shall be (i) the initial term, consisting of the
period commencing on the date of this Agreement (the “Effective Date”) and
ending on the third anniversary of the Effective Date, plus (ii) any and
all extensions of the initial term made pursuant to this Section 3,
provided, however, that all
changes
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intended
to comply with Code Section 409A shall be effective retroactively to December
28, 2005; and provided further, that no retroactive changes shall affect the
compensation or benefits previously provided to the Executive.
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b.
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Commencing
on April 1, 2010 and continuing on each anniversary thereafter, the
disinterested members of the boards of directors of the Bank may extend
the Agreement an additional year such that the remaining term of the
Agreement shall be thirty-six (36) months, unless Executive elects not to
extend the term of this Agreement by giving written notice in accordance
with Section 19 of this Agreement. The Board of Directors of
the Bank (the “Board”) will review the Agreement and Executive’s
performance annually for purposes of determining whether to extend the
Agreement and the rationale and results thereof shall be included in the
minutes of the Board’s meeting. The Executive shall receive
notice as soon as possible after such review as to whether the Agreement
is to be extended.
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4. Base
Compensation.
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a.
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The
Bank agrees to pay the Executive during the term of this Agreement a base
salary at the rate of $310,500 per year, payable
in accordance with customary payroll
practices.
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b.
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The
Board shall review annually the rate of the Executive’s base salary based
upon factors they deem relevant, and may maintain or increase his salary,
provided that no such action shall reduce the rate of salary below the
rate in effect on the Effective
Date.
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c.
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In
the absence of action by the Board, the Executive shall continue to
receive salary at the annual rate specified on the Effective Date or, if
another rate has been established under the provisions of this Section 4,
the rate last properly established by action of the Board under the
provisions of this Section 4.
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5. Bonuses. The Executive
shall be entitled to participate in discretionary bonuses or other incentive
compensation programs that the Bank may award from time to time to senior
management employees pursuant to bonus plans or otherwise. Any
bonuses or other payments made pursuant to this Section 5 shall be paid promptly
by the Bank and in any event no later than March 15 of the year immediately
following the end of the calendar year for which such amounts were
payable.
6. Benefit
Plans. The Executive
shall be entitled to participate in such life insurance, medical, dental,
pension, profit sharing, retirement and stock-based compensation plans and other
programs and arrangements as may be approved from time to time by the Company
and the Bank for the benefit of their employees.
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7. Vacation and
Leave.
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a.
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The
Executive shall be entitled to vacation and other leave in accordance with
policy for senior executives, or otherwise as approved by the
Board.
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b.
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In
addition to paid vacation and other leave, the Executive shall be
entitled, without loss of pay, to absent himself voluntarily from the
performance of his employment for such additional periods of time and for
such valid and legitimate reasons as the Board may in its discretion
determine. Further, the Board may grant to the Executive a
leave or leaves of absence, with or without pay, at such time or times and
upon such terms and conditions as the Board in its discretion may
determine.
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8. Expense
Payments and Reimbursements. The Executive
shall be reimbursed for all reasonable out-of-pocket business expenses that he
shall incur in connection with his services under this Agreement upon
substantiation of such expenses in accordance with applicable policies of the
Bank. Such reimbursements shall be paid promptly by the Bank and in
any event not later than March 15 of the year immediately following the end of
the calendar year in which the Executive incurred such expense.
9. Automobile
Allowance. During the term
of this Agreement, the Executive shall be entitled to an automobile allowance on
terms no less favorable that those in effect immediately prior to the execution
of this Agreement. Executive shall comply with reasonable reporting
and expense limitations on the use of such automobile as may be established by
the Bank from time to time, and the Bank shall annually include on Executive’s
Form W-2 any amount of income attributable to Executive’s personal use of such
automobile. Payments, if any, made under this Section 9 shall be paid
promptly by the Bank and in any event not later than March 15 of the year
immediately following the end of the calendar year in which the expense was
incurred.
10. Loyalty and
Confidentiality.
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a.
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During
the term of this Agreement Executive: (i) shall devote all his
time, attention, skill, and efforts to the faithful performance of his
duties hereunder; provided, however, that from time to time, Executive may
serve on the boards of directors of, and hold any other offices or
positions in, companies or organizations which will not present any
conflict of interest with the Bank or any of their subsidiaries or
affiliates, unfavorably affect the performance of Executive’s duties
pursuant to this Agreement, or violate any applicable statute or
regulation and (ii) shall not engage in any business or activity
contrary to the business affairs or interests of the
Bank.
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b.
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Nothing
contained in this Agreement shall prevent or limit Executive’s right to
invest in the capital stock or other securities of any business dissimilar
from that of the Bank, or, solely as a passive, minority investor, in any
business.
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c.
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Executive
agrees to maintain the confidentiality of any and all information
concerning the operation or financial status of the Company and the Bank;
the names or addresses of any of its borrowers, depositors and other
customers; any information concerning or obtained from such customers; and
any other information concerning the Company and the Bank to which he may
be exposed during the course of his employment. The Executive
further agrees that, unless required by law or specifically permitted by
the Board in writing, he will not disclose to any person or entity, either
during or subsequent to his employment, any of the above-mentioned
information which is not generally known to the public, nor shall he
employ such information in any way other than for the benefit of the
Company and the Bank.
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11. Termination
and Termination Pay. Subject to
Section 12 of this Agreement, Executive’s employment under this Agreement may be
terminated in the following circumstances:
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a.
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Death. Executive’s
employment under this Agreement shall terminate upon his death during the
term of this Agreement, in which event Executive’s estate shall be
entitled to receive the compensation due to the Executive through the last
day of the calendar month in which his death
occurred.
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b.
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Retirement. This
Agreement shall be terminated upon Executive’s retirement under the
retirement benefit plan or plans in which he participates pursuant to
Section 6 of this Agreement or
otherwise.
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c.
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Disability.
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i.
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The
Board or Executive may terminate Executive’s employment after having
determined Executive has a Disability. For these purposes, the
Executive shall be deemed to have a “Disability” in any case in which it
is determined that the Executive (a) 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
last for a continuous period of not less than 12 months; (b) by reason of
any medically determinable physical or mental impairment which can be
expected to result in death, or last for a continuous period of not less
than 12 months, is receiving income replacement benefits for a period of
not less than three months under an accident and health plan covering
employees of the Bank; or (c) is totally disabled by the Social Security
Administration.
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ii.
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In
the event of such Disability, Executive’s obligation to perform services
under this Agreement will terminate. The Bank will pay
Executive, as Disability pay, an amount equal to 100% of Executive’s
bi-weekly rate of base salary in effect as of the date of his termination
of employment due to Disability. Disability payments will be
made on a monthly basis and will commence on the first day of the month
following the effective date of Executive’s termination of employment for
Disability and end on the earlier of: (A) the date he returns to full-time
employment at the Bank in the same capacity as he was employed prior to
his termination for Disability; (B) his death; or (C) upon attainment of
age 65. Such payments shall be reduced by the amount of any
short- or long-term disability benefits payable to the Executive under any
other disability programs sponsored by the Bank. In addition,
during any period of Executive’s Disability, Executive and his dependents
shall, to the greatest extent possible, continue to be covered under all
benefit plans (including, without limitation, non-taxable medical, dental
and life insurance plans) of the Bank, in which Executive participated
prior to his Disability on the same terms as if Executive were actively
employed by the Bank.
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d.
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Termination for
Cause.
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i.
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The
Board may, by written notice to the Executive in the form and manner
specified in this paragraph, terminate his employment at any time, for
“Cause”. The Executive shall have no right to receive
compensation or other benefits for any period after termination for
Cause. Termination for “Cause” shall mean termination because
of, in the good faith determination of the Board,
Executive’s:
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(1)
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Personal
dishonesty;
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(2)
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Incompetence;
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(3)
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Willful
misconduct;
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(4)
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Breach
of fiduciary duty involving personal
profit;
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(5)
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Intentional
failure to perform stated duties;
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(6)
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Willful
violation of any law, rule or regulation (other than traffic violations or
similar offenses) that reflects adversely on the reputation of the Company
and the Bank, any felony conviction, any violation of law involving moral
turpitude or any violation of a final cease-and-desist order;
or
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(7) Material
breach by Executive of any provision of this Agreement.
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ii.
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Notwithstanding
the foregoing, Executive shall not be deemed to have been terminated for
Cause by the Bank unless there shall have been delivered to Executive a
copy of a resolution duly adopted at a meeting of such Board where in the
good faith opinion of the Board, Executive was guilty of the conduct
described above and specifying the particulars
thereof.
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e.
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Voluntary Termination
by Executive. In addition to his other rights to
terminate under this Agreement, Executive may voluntarily terminate
employment during the term of this Agreement upon at least sixty (60) days
prior written notice to the Boards, in which case Executive shall receive
only his compensation, vested rights and employee benefits up to the date
of his termination.
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f.
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Without Cause or With
Good Reason.
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i.
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In
addition to termination pursuant to Sections 11(a) through 11(e) the
Boards, may, by written notice to Executive, immediately terminate his
employment at any time for a reason other than Cause (a termination
“Without Cause”) and Executive may, by written notice to the Board,
immediately terminate this Agreement at any time for “Good Reason” as
defined below.
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ii.
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Subject
to Section 12 of this Agreement, in the event of termination under this
Section 11(f), Executive shall be entitled to receive an amount equal to
(i) his base salary for the remaining term of the Agreement, and (ii) the
value of the benefits he would have received during the remaining term of
the Agreement under any retirement programs (whether tax-qualified or
non-qualified) in which Executive participated prior to his termination
(with the amount of the benefits determined by reference to the benefits
received by the Executive or accrued on his behalf under such programs
during the twelve (12) months preceding his termination), payable as a
single cash lump sum distribution within ten (10) calendar days following
such termination. In addition, the Executive shall continue to
participate in any benefit plans of the Bank that provide life insurance
and non-taxable medical and dental insurance, or similar coverage upon
terms no less favorable than the most favorable terms provided to senior
executives of the Bank during such period. In the event that
the Bank is unable to provide such coverage by reason of Executive no
longer being an employee, the Bank shall pay the Executive the value of
such benefits in a single cash lump sum distribution within ten (10)
calendar days following his
termination.
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iii.
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“Good
Reason” shall exist if, without Executive’s express written consent, the
Bank materially breach any of their respective obligations under this
Agreement. Without limitation, such a material breach shall be
deemed to occur upon any of the
following:
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(1)
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A
material reduction in Executive’s responsibilities or authority in
connection with his employment with the
Bank;
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(2)
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Assignment
to Executive of duties of a non-executive nature or duties for which he is
not reasonably equipped by his skills and
experience;
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(3)
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Failure
of the Executive to be nominated or re-nominated to the
Board
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(4)
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A
material reduction in Executive’s salary or benefits contrary to the terms
of this Agreement, or, following a Change in Control as defined in Section
12 of this Agreement, any reduction in salary or material reduction in
benefits below the amounts to which he was entitled prior to the Change in
Control;
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(5)
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Termination
of incentive and benefit plans, programs or arrangements, or reduction of
Executive’s participation to such an extent as to materially reduce their
aggregate value below their aggregate value as of the Effective
Date;
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(6)
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A
requirement that Executive relocate his principal business office or his
principal place of residence outside of the area consisting of a
twenty-five (25) mile radius from the current main office and any branch
of the Bank, or the assignment to Executive of duties that would
reasonably require such a relocation;
or
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(7)
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Liquidation
or dissolution of the Company or the Bank, other than liquidations or
dissolutions that are caused by reorganizations that do not negatively
affect the status of the Executive,
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provided,
however, that prior to any termination of employment for Good Reason (a
termination “With Good Reason”), the Executive must first provide written notice
to the Bank within ninety (90) days following the initial existence of the
condition, describing the existence of such condition, and the Bank shall
thereafter have the right to remedy the condition within thirty (30) days of the
date the Bank received the written notice from the Executive. If the
Bank remedies the condition within such
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thirty
(30) day cure period, then no Good Reason shall be deemed to exist with respect
to such condition. If the Bank 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.
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iv.
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Notwithstanding
the foregoing, a reduction or elimination of the Executive’s benefits
under one or more benefit plans maintained by the Company or the Bank as
part of a good faith, overall reduction or elimination of such plans or
plans or benefits thereunder applicably to all participants in a manner
that does not discriminate against Executive (except as such
discrimination may be necessary to comply with law) shall not constitute
an event of Good Reason or a material breach of this Agreement, provided
that benefits of the type or to the general extent as those offered under
such plans prior to such reduction or elimination are not available to
other officers of the Bank or any company that controls the Bank under a
plan or plans in or under which Executive is not entitled to
participate.
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v.
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For
purposes of this Agreement, any termination of Executive’s employment
shall be construed to require a “Separation from Service” in accordance
with Code Section 409A and the regulations promulgated thereunder, such
that the Bank and Executive reasonably anticipate that the level of bona
fide services Executive would perform after termination would permanently
decrease to a level that is less than 50% of the average level of bona
fide services performed (whether as an employee or an independent
contractor) over the immediately preceding thirty-six (36) month
period.
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g.
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Continuing Covenant
Not to Compete or Interfere with
Relationships. Regardless of anything herein to the
contrary, following a termination by the Bank or Executive pursuant to
Section 11(f):
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i.
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Executive’s
obligations under Section 10(c) of this Agreement will continue in effect;
and
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ii.
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During
the period ending on the first anniversary of such termination, the
Executive shall not serve as an officer, director or employee of any bank
holding company, bank, savings bank, savings and loan holding company, or
mortgage company (any of which, a “Financial Institution”) which Financial
Institution offers products or services competing with those offered by
the Bank from any office within fifty (50) miles from the main office or
any branch of the Bank and shall not interfere with the relationship of
the Company and the Bank and any of its employees, agents, or
representatives.
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12. Termination in Connection
with a Change in Control.
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a.
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For
purposes of this Agreement, a Change in Control means any of the following
events:
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(i)
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Merger: The
Company merges into or consolidates with another corporation, or merges
another corporation into the Company, and as a result less than a majority
of the combined voting power of the resulting corporation immediately
after the merger or consolidation is held by persons who were stockholders
of the Company immediately before the merger or
consolidation.
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(ii)
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Acquisition of
Significant Share Ownership: There is filed or required
to be filed a report on Schedule 13D or another form or schedule (other
than Schedule 13G) required under Sections 13(d) or 14(d) of the
Securities Exchange Act of 1934, if the schedule discloses that the filing
person or persons acting in concert has or have become the beneficial
owner of 25% or more of a class of the Company’s voting securities, but
this clause (b) shall not apply to beneficial ownership of Company voting
shares held in a fiduciary capacity by an entity of which the Company
directly or indirectly beneficially owns 50% or more of its outstanding
voting securities.
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(iii)
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Change in Board
Composition: During any period of two consecutive years,
individuals who constitute the Company’s Board of Directors at the
beginning of the two-year period cease for any reason to constitute at
least a majority of the Company’s Board of Directors; provided, however,
that for purposes of this clause (iii), each director who is first elected
by the board (or first nominated by the board for election by the
stockholders) by a vote of at least two-thirds (2/3) of the directors who
were directors at the beginning of the two-year period shall be deemed to
have also been a director at the beginning of such period;
or
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(iv)
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Sale of
Assets: The Company sells to a third party all or
substantially all of its assets.
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Notwithstanding
anything in this Agreement to the contrary, in no event shall reorganization of
the Bank from the mutual holding company form or organization to the full stock
holding company form of organization (including the elimination of the mutual
holding company) constitute a “Change in Control” for purposes of this
Agreement.
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b.
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Termination. If
within the period ending two (2) years after a Change in Control, (i) the
Company and the Bank shall terminate the Executive’s employment Without
Cause, or (ii) Executive voluntarily terminates his employment With Good
Reason, the Company and the Bank shall, within ten calendar days following
the termination of Executive’s employment, make a single lump-sum cash
payment to him equal to three (3) times the Executive’s average Annual
Compensation (as defined in this Section 12(b)) over the five (5) most
recently completed calendar years ending with the year immediately
preceding the effective date of the Change in Control. In
determining Executive’s average Annual Compensation, Annual Compensation
shall include base salary and any other taxable income, including but not
limited to amounts related to the granting, vesting or exercise of
restricted stock or stock option awards, commissions, bonuses (whether
paid or accrued for the applicable period), as well as, retirement
benefits, director or committee fees and fringe benefits paid or to be
paid to Executive or paid for Executive’s benefit during any such year,
profit sharing, employee stock ownership plan and other retirement
contributions or benefits, including to any tax-qualified plan or
arrangement (whether or not taxable) made or accrued on behalf of
Executive of such year. The cash payment made under this
Section 12(b) shall be made in lieu of any payment also required under
Section 11(f) of this Agreement because of a termination in such
period. Executive’s rights under Section 11(f) are not
otherwise affected by this Section 12. Also, in such event, the
Executive shall, for a thirty-six (36) month period following his
termination of employment, receive the value of the benefits he would have
received over such period under any retirement programs
(whether tax-qualified or nonqualified) in which the Executive
participated prior to his termination (with the amount of the benefits
determined by reference to the benefits received by the Executive or
accrued on his behalf under such programs during the twelve (12) months
preceding the Change in Control), payable as a single cash lump sum
distribution within ten (10) calendar days following such
termination. In addition, the Executive shall continue to
participate in any benefit plans of the Company and the Bank that provide
life insurance and non-taxable medical and dental insurance, or similar
coverage upon terms no less favorable than the most favorable terms
provided to senior executives of the Bank during such
period. In the event that the Company and the Bank are unable
to provide such coverage by reason of the Executive no longer being an
employee, the Bank shall pay the Executive the value of such benefits in a
single lump sum within ten (10) calendar days following his
termination.
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c.
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The
provisions of Section 12 and Sections 14 through 25, including the defined
terms used is such sections, shall continue in effect until the later of
the expiration of this Agreement or two (2) years following a Change in
Control.
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13.
Indemnification
and Liability Insurance. Subject to, and
limited by Section 26(f) of this Agreement, the Bank shall provide the
following:
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a.
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Indemnification. The
Company and the Bank agree to indemnify the Executive (and his heirs,
executors, and administrators), and to advance expenses related thereto,
to the fullest extent permitted under applicable law and regulations
against any and all expenses and liabilities reasonably incurred by him in
connection with or arising out of any action, suit, or proceeding in which
he may be involved by reason of his having been a director or Executive of
the Company, the Bank or any of their subsidiaries (whether or not he
continues to be a director or Executive at the time of incurring any such
expenses or liabilities) such expenses and liabilities to include, but not
be limited to, judgments, court costs, and attorney’s fees and the cost of
reasonable settlements, such settlements to be approved by the Board, if
such action is brought against the Executive in his capacity as an
Executive or director of the Company and the Bank or any of their
subsidiaries. Indemnification for expense shall not extend to
matters for which the Executive has been terminated for
Cause. Nothing contained herein shall be deemed to provide
indemnification prohibited by applicable law or
regulation. Notwithstanding anything herein to the contrary,
the obligations of this Section 13 shall survive the term of this
Agreement by a period of six (6)
years.
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b.
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Insurance. During
the period in which indemnification of the Executive is required under
this Section, the Company and the Bank shall provide the Executive (and
his heirs, executors, and administrators) with coverage under a directors’
and Executives’ liability policy at the expense of the Company and the
Bank, at least equivalent to such coverage provided to directors and
senior Executives of the Company and the
Bank.
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14. Reimbursement
of Executive’s Expenses to Enforce this Agreement. The Bank shall
reimburse the Executive for all reasonable out-of-pocket expenses, including,
without limitation, reasonable attorney’s fees, incurred by the Executive in
connection with successful enforcement by the Executive of the obligations of
the Bank to the Executive under this Agreement. The Bank shall make
such payments promptly and, in any event, not later than March 15 of the year
immediately following the year in which such expense was incurred by
Executive. Successful enforcement shall mean the grant of an award of
money or the requirement that the Bank take some action specified by this
Agreement: (i) as a result of court order; or (ii) otherwise by
the Bank following an initial failure of the Bank to pay such money or take such
action promptly after written demand therefor from the Executive stating the
reason that such money or action was due under this Agreement at or prior to the
time of such demand.
15. Limitation
of Benefits under Certain Circumstances. If the payments
and benefits pursuant to Section 12 of this Agreement, either alone or together
with other payments and benefits which the Executive has the right to receive
from the Bank, would constitute a
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“parachute
payment” under Section 280G of the Code, the payments and benefits pursuant to
Section 12 shall be reduced by the amount, if any, which is the minimum
necessary to result in no portion of the payments and benefits under Section 12
being non-deductible to the Bank pursuant to Section 280G of the Code and
subject to the excise tax imposed under Section 4999 of the Code. The
determination of any reduction in the payments and benefits to be made pursuant
to Section 12 shall be based upon the opinion of the Bank’s independent tax
counsel and paid for by the Bank. In the event that the Bank and/or
the Executive do not agree with the opinion of such counsel, (i) the Bank shall
pay to the Executive the maximum amount of payments and benefits pursuant to
Section 12, as selected by the Executive, which such opinion indicates there is
a high probability of such payments and benefits being deductible to the Bank
and not subject to the imposition of the excise tax imposed under Section 4999
of the Code and (ii) the Bank may request, and the Executive shall have the
right to demand that they request, a ruling from the IRS as to whether the
disputed payments and benefits pursuant to Section 12 have such
consequences. Any such request for a ruling from the IRS shall be
promptly prepared and filed by the Bank, but in no event later than thirty (30)
days from the date of the opinion of counsel referred to above, and shall be
subject to the Executive’s approval prior to filing, which shall not be
unreasonably withheld. The Bank and the Executive agree to be bound
by any ruling received from the IRS and to make appropriate payments to each
other to reflect any such rulings, together with interest at the applicable
federal rate provided for in Section 7872(f)(2) of the Code.
16. Injunctive
Relief. If there is a
breach or threatened breach of Section 11(g) of this Agreement or the
prohibitions upon disclosure contained in Section 10(c) of this Agreement, the
parties agree that there is no adequate remedy at law for such breach, and that
the Bank shall be entitled to injunctive relief restraining the Executive from
such breach or threatened breach, but such relief shall not be the exclusive
remedy hereunder for such breach. The parties hereto likewise agree
that the Executive, without limitation, shall be entitled to injunctive relief
to enforce the obligations of the Bank under this Agreement.
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17.
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Successors and
Assigns.
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a.
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This
Agreement shall inure to the benefit of and be binding upon any corporate
or other successor of the Bank which shall acquire, directly or
indirectly, by merger, consolidation, purchase or otherwise, all or
substantially all of the assets or stock of the Company and the
Bank.
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b.
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Since
the Bank is contracting for the unique and personal skills of Executive,
Executive shall be precluded from assigning or delegating his rights or
duties hereunder without first obtaining the written consent of the
Bank.
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18. No
Mitigation. Executive shall
not be required to mitigate the amount of any payment provided for in this
Agreement by seeking other employment or otherwise and no such
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payment
shall be offset or reduced by the amount of any compensation or benefits
provided to Executive in any subsequent employment.
19. Notices. All notices,
requests, demands and other communications in connection with this Agreement
shall be made in writing and shall be deemed to have been given when delivered
by hand or 48 hours after mailing at any general or branch United States Post
Office, by registered or certified mail, postage prepaid, addressed to the Bank
at their principal business offices and to Executive at his home address as
maintained in the records of the Bank.
20. No Plan
Created by this Agreement. Executive and the
Bank expressly declare and agree that this Agreement was negotiated among them
and that no provision or provisions of this Agreement are intended to, or shall
be deemed to, create any plan for purposes of the Employee Retirement Income
Security Act or any other law or regulation, and each party expressly waives any
right to assert the contrary. Any assertion in any judicial or
administrative filing, hearing, or process that such a plan was so created by
this Agreement shall be deemed a material breach of this Agreement by the party
making such an assertion.
21. Amendments. No amendments or
additions to this Agreement shall be binding unless made in writing and signed
by all of the parties, except as herein otherwise specifically
provided.
22. Applicable
Law. Except to the
extent preempted by Federal law, the laws of the State of Connecticut shall
govern this Agreement in all respects, whether as to its validity, construction,
capacity, performance or otherwise.
23. Severability. The provisions of
this Agreement shall be deemed severable and the invalidity or unenforceability
of any provision shall not affect the validity or enforceability of the other
provisions hereof.
24. Headings. Headings
contained herein are for convenience of reference only.
25. Entire
Agreement. This Agreement,
together with any understanding or modifications thereof as agreed to in writing
by the parties, shall constitute the entire agreement among the parties hereto
with respect to the subject matter hereof, other than written agreements with
respect to specific plans, programs or arrangements described in Sections 5 and
6. Upon execution of this Agreement, the employment agreement entered
into between the parties on June 4, 2002, will become null and
void.
26. Required
Provisions. In the event any
of the foregoing provisions of this Section 26 are in conflict with the terms of
this Agreement, this Section 26 shall prevail.
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a.
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The
Bank’s board of directors may terminate Executive’s employment at any
time, but any termination by the Bank, other than Termination for Cause,
shall not prejudice Executive’s right to compensation or other benefits
under this
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13
Agreement. Executive
shall not have the right to receive compensation or other benefits for any
period after Termination for Cause as defined in Section 11(d)
hereinabove.
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b.
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If
Executive is suspended from office and/or temporarily prohibited from
participating in the conduct of the Bank’s affairs by a notice served
under Section 8(e)(3) or 8(g)(1) of the Federal Deposit Insurance Act, 12
U.S.C. §1818(e)(3) or (g)(1); the Bank’s obligations under this contract
shall be suspended as of the date of service, unless stayed by appropriate
proceedings. If the charges in the notice are dismissed, the
Bank may in its discretion: (i) pay Executive all or part of
the compensation withheld while their contract obligations were suspended;
and (ii) reinstate (in whole or in part) any of the obligations which were
suspended.
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c.
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If
Executive is removed and/or permanently prohibited from participating in
the conduct of the Bank’s affairs by an order issued under Section 8(e)(4)
or 8(g)(1) of the Federal Deposit Insurance Act, 12 U.S.C. §1818(e)(4) or
(g)(1), all obligations of the Bank under this contract shall terminate as
of the effective date of the order, but vested rights of the contracting
parties shall not be affected.
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d.
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If
the Bank is in default as defined in Section 3(x)(1) of the Federal
Deposit Insurance Act, 12 U.S.C. §1813(x)(1) all obligations of the Bank
under this contract shall terminate as of the date of default, but this
paragraph shall not affect any vested rights of the contracting
parties.
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e.
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All
obligations under this contract shall be terminated, except to the extent
determined that continuation of the contract is necessary for the
continued operation of the Bank: (i) by the Director of the OTS
(or his designee), at the time the FDIC enters into an agreement to
provide assistance to or on behalf of the Bank under the authority
contained in Section 13(c) of the Federal Deposit Insurance Act, 12 U.S.C.
§1823(c); or (ii) by the Director of the OTS (or his designee) at the time
the Director (or his designee) approves a supervisory merger to resolve
problems related to the operations of the Bank or when the Bank is
determined by the Director to be in an unsafe or unsound
condition. Any rights of the parties that have already vested,
however, shall not be affected by such
action.
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f.
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Any
payments made to employees pursuant to this Agreement, or otherwise, are
subject to and conditioned upon their compliance with 12 U.S.C. §1828(k)
and FDIC regulation 12 C.F.R. Part 359, Golden Parachute and
Indemnification Payments.
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g.
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Notwithstanding
anything in this Agreement to the contrary, in the event the Executive is
a Specified Employee (as defined herein), then, solely, to the extent
required to avoid penalties under Code Section 409A, the Executive’s
payments shall be delayed until the first day of the seventh month
following the Executive’s
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14
Separation
from Service. A “Specified Employee” shall be interpreted to comply
with Code Section 409A and shall mean a key employee within the meaning of Code
Section 416(i) (without regard to paragraph 5 thereof).
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement on the date first set forth
above.
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Attest:
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NEW
ENGLAND BANK
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/s/ Nancy L. Grady
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By:
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/s/Thomas O. Barnes
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Chairman
of the Board of Directors
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Witness:
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EXECUTIVE
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/s/ Nancy L. Grady
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/s/ David J. O’Connor
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David
J. O’Connor
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|||
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President
and Chief Executive Officer
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