Attached files
FORM
OF
NEW
ENGLAND BANCSHARES, INC.
AMENDED AND RESTATED 2008 SEVERANCE PLAN
AMENDED AND RESTATED 2008 SEVERANCE PLAN
(As
Amended and Restated Effective as of January 1, 2008)
ARTICLE
I
ESTABLISHMENT
OF THE PLAN
This New
England Bancshares, Inc. (“Company”) Amended and Restated 2008 Severance Plan
(the “Plan”) amends and restates the Enfield Federal Savings and Loan
Association Employee Severance Compensation Plan that was effective June 4,
2002. The Company has herein restated the Plan with the intention
that the Plan shall at all times satisfy Section 409A of the Code (as defined
herein) and the regulations thereunder and to make certain
changes. The provisions of the Plan shall be construed to effectuate
such intentions.
ARTICLE
II
PURPOSE
OF THE PLAN
The
purpose of this Plan is provide specified benefits to certain employees as
provided herein whose employment is terminated in connection with or within
twenty-four (24) months following a Change in Control (as defined
herein).
ARTICLE
III
DEFINITIONS
AND CONSTRUCTION
3.1 Definitions
Whenever used in the Plan, the
following terms shall have the meanings set forth below.
(a) “Annual
Compensation” shall mean all cash compensation paid or accrued by the Employer
with respect to the Participant’s service during the 12-consecutive month period
ending on the last business day of the month preceding the date the
Participant’s employment terminates.
(b) “Association”
shall mean Enfield Federal Savings and Loan Association or a successor to
Enfield Federal Savings and Loan Association.
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(c)
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“Change
in Control” shall mean any of the following
events:
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(i) Merger: The
Company or Association merges into or consolidates with another corporation, or
merges another corporation into the Company or Association, 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 or Association immediately before the merger or
consolidation.
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(ii) 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 or Association’s voting securities, but this clause (b) shall not
apply to beneficial ownership of Company or Association voting shares held in a
fiduciary capacity by an entity of which the Company or Association directly or
indirectly beneficially owns 50% or more of its outstanding voting
securities.
(iii) Change in Board
Composition: During any period of two consecutive years,
individuals who constitute the Company’s or Association’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 or Association’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
(iv) Sale of
Assets: The Company or Association sells to a third party all
or substantially all of its assets.
Notwithstanding anything in this Plan
to the contrary, in no event shall the merger of any Subsidiary or Affiliate of
the Company into another Subsidiary or Affiliate of the Company constitute a
“Change in Control” for purposes of this Plan.
(d) “Company”
shall mean New England Bancshares, Inc., a Maryland corporation or a successor
to New England Bancshares, Inc.
(e) “Disability”
shall mean the permanent and total inability by reason of mental or physical
infirmity, or both, of an employee to perform the work customarily assigned to
him. Additionally, a medical doctor selected or approved by the Board
of Directors must advise the Board that it is either not possible to determine
if or when such Disability will terminate or that it appears probable that such
Disability will be permanent during the remainder of said employees
lifetime.
(f) “Effective
Date” shall mean January 1, 2008.
(g) “Employer”
means the Association or the Company. Pursuant to Section 7.1 of the
Plan, a Subsidiary may adopt the Plan and become a participating
employer. As of the Effective Date, the Company and the Association
are the only entities that have adopted the Plan. In the event the
Association merges into a subsidiary of the Company, such subsidiary will
automatically become a participating employer.
(h) “ERISA”
means Employee Retirement Income Security Act of 1974, as amended.
(i) “Participant”
means an employee of an Employer who meets the eligibility requirements of
Article IV.
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(j) “Termination
for Cause” shall include termination because of a Participant’s personal
dishonesty, incompetence, willful misconduct, breach of fiduciary duty involving
personal profit, intentional failure to perform stated duties, willful violation
of any law, rule or regulation (other than traffic violations or similar
offenses) or violation of any final cease-and desist order, or material breach
of any provision of the plan. In determining incompetence, the acts
or omissions shall be measured against standards generally prevailing in the
savings institutions industry.
(k) “Leave
of Absence” and “LOA” mean (i) the taking of an authorized or approved leave of
absence under the provisions of the federal Family and Medical Leave Act
(“FMLA”), (ii) any state law providing qualitatively similar benefits as the
FMLA, or (iii) a leave of absence authorized under the policies of the
Association. “Leave of Absence” and “LOA” are defined in this
paragraph for the exclusive purposes of this Plan.
(l) “Year
of Service” means each consecutive 12 month period, beginning with an employee’s
date of hire and running without a termination of employment in which an
employee is credited with at least one hour of service in each of the 12
calendar months in such period. The taking of an LOA shall not
eliminate a period of time from being a Year of Service if such period of time
otherwise qualifies as such. Further if a particular 12 month period
of time would not otherwise qualify under the Plan as a Year of Service because
one hour of service is not credited during each month of such period due to the
taking of a LOA, then such period of time shall be deemed to be a Year of
Service for all other sections of this Plan.
3.2 Applicable
Law
The laws of the State of Connecticut
shall be the controlling law in all matters relating to the Plan to the extent
not preempted by Federal law.
3.3 Severability
If a provision of this Plan shall be
held illegal or invalid, the illegality or invalidity shall not affect the
remaining parts of the Plan and the Plan shall be construed and enforced as if
the illegal or invalid provision had not been included.
ARTICLE
IV
ELIGIBILITY
4.1 Participation
All employees of the Employer who have
completed at least one (1) Year of Service with the Employer at the time of any
termination pursuant to Section 5.2 of this Plan are eligible to participate in
the Plan. Notwithstanding the foregoing, persons who have entered
into and continue to be covered by an employment agreement or change in control
agreement with the Employer shall not be entitled to participate in this
Plan.
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4.2 Duration of
Participation
A Participant shall cease to be a
Participant in the Plan when the Participant ceases to be an employee of an
Employer, unless such Participant is entitled to benefits under the
Plan. A Participant entitled to benefits under the Plan shall remain
a Participant in this Plan until he has received full payment of his Plan
benefits.
ARTICLE
V
BENEFITS
5.1 Right to
Benefits
A Participant shall be entitled to
receive from his respective Employer a severance benefit in the amount provided
in Section 5.3 of the Plan if there has been a Change in Control and if, within
twenty-four (24) months thereafter, the Participant’s employment by an Employer
shall terminate for any reason specified in Section 5.2 of the Plan, whether the
termination of employment is voluntary or involuntary. A Participant
shall not be entitled to a benefit if termination occurs by reason of death,
voluntary retirement, voluntary termination other than for reasons specified in
Section 5.2 of the Plan, Disability, or as a result of Termination for
Cause.
5.2 Reasons for
Termination
Following a Change in Control, a
Participant shall be entitled to a benefit if employment by an Employer is
terminated, voluntarily or involuntarily, for any one or more of the following
reasons:
(a) The
Employer reduces the Participant’s base salary or rate of compensation as in
effect immediately prior to the Change in Control.
(b) The
Employer materially changes the Participant’s function, duties or
responsibilities which would cause the Participant’s position to be one of
lesser responsibility, importance or scope with the Employer than immediately
prior to the change in control.
(c) The
Employer requires the Participant to change the location of the Participant’s
job or office, so that such Participant will be based at a location more than 25
miles from the location of the Participant’s job or office immediately prior to
the Change in Control provided that such new location is not closer to the
Participant’s home.
(d) The
Employer materially reduces the benefits and perquisites available to the
Participant immediately prior to the Change in Control, provided, however, that
a material reduction in benefits and perquisites generally provided to all
employees of the Employer on a nondiscriminatory basis would not trigger a
payment pursuant to this Plan.
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(e) A
successor to the Employer fails or refuses to assume the Employer’s obligations
under this Plan, as required by Article VIII.
(f) The
Employer or any successor to the Employer breaches any other provisions of this
Plan.
(g) The
Employer terminates the employment of a Participant at or after a Change in
Control other than for Termination for Cause.
provided,
however, that prior to any termination of employment pursuant to Section 5.2(a),
(b), (c), (d), (e) or (f) of this Plan, the Employee 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 Employee. If
the Employer remedies the condition within such thirty (30) cure period, then
the Employee will not be entitled to the benefit hereunder.
5.3 Amount of
Benefit
(a)
Each Participant entitled to a benefit under this Plan shall receive from the
Employer, a lump sum cash payment equal to two weeks of his Annual Compensation
for each Year of Service, provided, however, that such amount shall not exceed
twelve weeks of the Participant’s Annual Compensation.
(b) Notwithstanding
the provisions of paragraph (a) above, if a benefit to a Participant who is a
“Disqualified Individual” shall be in an amount which includes an “Excess
Parachute Payment,” the benefit hereunder to that Participant shall be reduced
to the maximum amount which does not include an Excess Parachute
Payment. The terms “Disqualified Individual” and “Excess Parachute
Payment” shall have the same meanings as under Section 280G of the Internal
Revenue Code of 1986, as amended, or any successor provision
thereto.
(c) All
payments required to be made by the Employer hereunder to the Employee shall be
subject to the withholding of such amounts, if any, relating to tax and other
payroll deductions as the Employer may reasonably determine should be withheld
pursuant to any applicable law or regulation.
(d) Participants
shall not be required to mitigate damages on the amount of the benefit by
seeking other employment or otherwise, nor shall the amount of such benefit be
reduced by any compensation earned by a Participant as a result of employment
after termination of employment hereunder.
5.4 Time of Payment of
Benefit
(a) The
benefit to which a Participant is entitled shall be paid to the Participant by
the Employer or the successor to the Employer, in a lump sum cash payment within
ten business days following the date of the termination of the Participant’s
employment.
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If any
Participant should die after termination of the employment but before all
amounts have been paid, such unpaid amounts shall be paid to the Participant’s
named beneficiary, if living, otherwise to the personal representative on behalf
of or for the benefit of the Participant’s estate.
(b) Notwithstanding
anything in the Plan to the contrary, all payments hereunder are contingent upon
the Participant’s termination of employment qualifying as a “Separation from
Service,” as defined in Treasury Regulations Section
1.409A-1(h). Furthermore, to the extent a Participant is a “Specified
Employee,” as defined in Treasury Regulations Section 1.409A-1(i), solely to the
extent necessary to avoid penalties under Code Section 409A, payments shall be
delayed until the first day of the seventh month following such Participant’s
Separation from Service.
ARTICLE
VI
OTHER
RIGHTS AND BENEFITS NOT AFFECTED
6.1 Other
Benefits
Neither the provisions of this Plan nor
the benefits provided for hereunder shall reduce any amounts otherwise payable,
or in any way diminish the Participant’s rights as an Employee of an Employer,
whether existing now or hereafter, under any benefit, incentive, retirement,
stock option, stock bonus, stock ownership or any employment agreement or other
plan or arrangement.
6.2 Employment
Status
This Plan does not constitute a
contract of employment or impose on the Participant or the Participant’s
Employer any obligation to retain the Participant as an Employee, to change the
status of the Participant’s employment, or to change the Employer’s policies
regarding termination of employment.
ARTICLE
VII
PARTICIPATING
EMPLOYERS
7.1 Upon
approval by the Board of Directors of the Company, this Plan may be adopted by
any “Affiliate” or “Subsidiary” of the Company. Upon such adoption,
the Affiliate or Subsidiary shall become an Employer hereunder and the
provisions of the Plan shall be fully applicable to the Employees of that
Affiliate or Subsidiary. The term “Affiliate” means any entity that
directly or through one or more intermediaries, controls, is controlled by or is
under common control with, the Company. The term “Subsidiary” means
any corporation in which the Association, directly or indirectly, holds a
majority of the voting power of its outstanding shares of capital
stock.
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ARTICLE
VIII
SUCCESSOR
TO THE ASSOCIATION
8.1 The
Employer shall require any successor or assignee, whether direct or indirect, by
purchase, merger, consolidation or otherwise, to all or substantially all the
business or assets of the Employer, expressly and unconditionally to assume and
agree to perform the Employer’s obligations under this plan, in the same manner
and to the same extent that the Employer would be required to perform if no such
succession or assignment had taken place.
ARTICLE
IX
DURATION,
AMENDMENT AND TERMINATION
9.1 Duration
If a Change in Control has not
occurred, this Plan shall expire ten (10) years from the Effective Date, unless
sooner terminated as provided in Section 9.2 of the Plan, or unless extended for
an additional period or periods by resolution adopted by the Board of Directors
of the Employer.
Notwithstanding the foregoing, if a
Change in Control occurs this Plan shall continue in full force and effect, and
shall not terminate or expire until such date as all Participants who become
entitled to benefits hereunder shall have received such benefits in
full.
9.2 Amendment and
Termination
The Plan may be terminated or amended
in any respect by resolution adopted by a majority of the Board of Directors of
the Employer, unless a Change in Control has previously occurred. If
a Change in Control occurs, the Plan no longer shall be subject to amendment,
change, substitution, deletion, revocation or termination in any respect
whatsoever.
9.3 Form of
Amendment
The form of any proper amendment or
termination of the Plan shall be a written instrument signed by a duly
authorized officer or officers of the Employer, certifying that the amendment or
termination has been approved by the Board of Directors. A proper
amendment of the Plan automatically shall effect a corresponding amendment to
each Participant’s rights hereunder. A proper termination of the Plan
automatically shall effect a termination of all Participants’ rights and
benefits hereunder.
9.4 No
Attachment
(a) Except
as required by law, no right to receive payments under this Plan shall be
subject to anticipation, commutation, alienation, sale, assignment, encumbrance,
charge, pledge, or hypothecation, or to execution, attachment, levy, or similar
process or assignment by
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operation
of law, and any attempt, voluntary or involuntary, to affect such action shall
be null, void, and of no effect.
(b) This
Plan shall be binding upon, and inure to the benefit of, Employee and the
Employer and their respective successors and assigns.
ARTICLE
X
LEGAL
FEES AND EXPENSES
10.1 All
reasonable legal fees and other expenses paid or incurred by a party hereto
pursuant to any dispute or question of interpretation relating to this Plan
shall be paid or reimbursed by the prevailing party in any legal judgment,
arbitration or settlement. Such payment or reimbursement shall occur
no later than two and one-half (2 ½) months after the dispute is settled or
resolved in Employee’s favor.
ARTICLE
XI
REQUIRED
PROVISIONS
11.1 The
Employer may terminate an Employee’s employment at any time, but any termination
by the Employer, other than Termination for Cause, shall not prejudice the
Employee’s right to compensation or other benefits under this
Plan. Employee shall not have the right to receive compensation or
other benefits for any period after Termination for Cause as otherwise provided
hereunder.
11.2 If
the Employee is suspended and/or temporarily prohibited from participating in
the conduct of the Association’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 Association’s obligations under this Plan shall be suspended as
of the date of service, unless stayed by appropriate proceedings. If
the charges in the notice are dismissed, the Association may in its discretion
(i) pay the Employee 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.
11.3 If
the Employee is removed and/or permanently prohibited from participating in the
conduct of the Association’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 Association under this Plan shall terminate as of the
effective date of the order, but vested rights of the contracting parties shall
not be affected.
11.4 If
the Employer 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 Employer
under this Plan shall terminate as of the date of default, but this paragraph
shall not affect any vested rights of the contracting parties.
11.5 Notwithstanding
any other provision of this Plan to the contrary, any payments made to an
Employee pursuant to this Plan, or otherwise, are subject to and conditioned
upon
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their
compliance with Section 18(k) of the Federal Deposit Insurance Act (12 U.S.C.
§1828(k)) and the regulations promulgated thereunder, including 12 C.F.R Part
359.
ARTICLE
XII
ADMINISTRATIVE PROVISIONS
12.1 Plan
Administrator. The administrator of the Plan shall be under
the supervision of the Board of Directors of the Employer or a Committee
appointed by the Board of Directors of the Employer (the “Board”). It
shall be a principal duty of the Board to see that the Plan is carried out in
accordance with its terms, for the exclusive benefit of persons entitled to
participate in the Plan without discrimination among them. The Board
will have full power to administer the Plan in all of its details subject,
however, to the requirements of ERISA if the Plan is subject to such
requirements. For this purpose, the Board’s powers will include, but
will not be limited to, the following authority, in addition to all other powers
provided by this Plan: (a) to make and enforce such rules and
regulations as it deems necessary or proper for the efficient administration of
the Plan; (b) to interpret the Plan, its interpretation
thereof in good faith to be final and conclusive on all persons claiming
benefits under the Plan; (c) to decide all questions concerning the
Plan and the eligibility of any person to participate in the
Plan; (d) to compute the amount of benefits that will be payable to
any Participant or other person in accordance with the provisions of the Plan,
and to determine the person or persons to whom such benefits will be
paid; (e) to authorize the payment of benefits; (f) to
appoint such agents, counsel, accountants, consultants and actuaries as may be
required to assist in administering the Plan; and (g) to allocate and
delegate its responsibilities under the Plan and to designate other persons to
carry out any of its responsibilities under the Plan, any such allocation,
delegation or designation to be by written instrument and in accordance with
Section 405 of ERISA if applicable.
12.2 Named
fiduciary. The Board will be a “named fiduciary” for purposes
of Section 402(a)(1) of ERISA with authority to control and manage the operation
and administration of the Plan, and will be responsible for complying with all,
if any, of the reporting and disclosure requirements of Part 1 of Subtitle B of
Title I of ERISA.
12.3 Claims and review
procedures.
(a) Claims
procedure. If any person believes he is being denied any
rights or benefits under the Plan, such person may file a claim in writing with
the Board. If any such claim is wholly or partially denied, the Board
will notify such person of its decision in writing. Such notification
will be written in a manner calculated to be understood by such person and will
contain (i) specific reasons for the
denial, (ii) specific reference to pertinent Plan
provisions, (iii) a description of any additional material or
information necessary for such person to perfect such claim and an explanation
of why such material or information is necessary and (iv) information
as to the steps to be taken if the person wishes to submit a request for
review. Such notification will be given within 90 days after the
claim is received by the Board (or within 180 days, if special circumstances
require an extension of time for processing the claim, and if written notice of
such extension and circumstances is given to such person within the initial 90
day period). If such notification is not given within such period,
the claim will be considered denied as of the last day of such period and such
person may request a review of his claim.
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(b) Review
procedure. Within 60 days after the date on which a person
receives a written notice of a denied claim (or, if applicable, within 60 days
after the date on which such denial is considered to have occurred) such person
(or his duly authorized representative) may (i) file a written request with the
Board for a review of his denied claim and of pertinent documents
and (ii) submit written issues and comments to the
Board. The Board will notify such person of its decision in
writing. Such notification will be written in a manner calculated to
be understood by such person and will contain specific reasons for the decision
as well as specific references to pertinent Plan provisions. The
decision on review will be made within 60 days after the request for review is
received by the Board (or within 120 days, if special circumstances require an
extension of time for processing the requests such as an election by the Board
to hold a hearing, and if written notice of such extension and circumstances is
given to such person within the initial 60 day period). If the
decision on review is not made within such period, the claim will be considered
denied.
12.4 Nondiscriminatory exercise
of authority. Whenever, in the administration of the Plan, any
discretionary action by the Board is required, the Board shall exercise its
authority in a nondiscriminatory manner so that all persons similarly situated
will receive substantially the same treatment.
12.5 Indemnification of
Board. The Employer will indemnify and defend to the fullest
extent permitted by law any person serving on the Board or as a member of a
committee designated as Board (including any person who formerly served as a
Board member or as a member of such committee) against all liabilities, damages,
costs and expenses (including attorneys fees and amounts paid in settlement of
any claims approved by the Employer) occasioned by any act or omission to act in
connection with the Plan, if such act or omission is in good faith.
12.6 Benefits solely from general
assets. The benefits provided hereunder will be paid solely
from the general assets of the Employer. Nothing herein will be
construed to require the Employer or the Board to maintain any fund or segregate
any amount for the benefit of any Participant, and no Participant or other
person shall have any claim against, right to, or security or other interest in,
any fund, account or asset of the Employer from which any payment of benefits
under the Plan may be made.
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IN WITNESS WHEREOF, the
undersigned duly authorized officer of the Company and Association has executed
this Plan.
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NEW
ENGLAND BANCSHARES, INC.
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David
J. O’Connor
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President
and Chief Executive Officer
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ENFIELD
FEDERAL SAVINGS AND
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LOAN
ASSOCIATION
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David
J. O’Connor
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President
and Chief Executive Officer
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