Termination of Employment with Severance Benefits. (a) In the event that the Officer’s employment with the Bank shall terminate during the Assurance Period, or prior to the commencement of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account of: (i) The Officer’s voluntary resignation from employment with the Bank within ninety (90) days following: (A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer to serve in the same position in which the Officer was serving, on the day before the Assurance Period commenced or a more senior office; (B) the failure of the stockholders of the Holding Company to elect or re-elect the Officer as a member of the Board, if he was a member of the Board on the day before the Assurance Period commenced; (C) the expiration of a thirty (30) day period following the date on which the Officer gives written notice to the Bank of its material failure, whether by amendment of the Bank’s Organization Certificate or By-laws, action of the Board or the Holding Company’s stockholders or otherwise, to vest in the Officer the functions, duties, or responsibilities vested in the Officer on the day before the Assurance Period commenced (or the functions, duties and responsibilities of a more senior office to which the Officer may be appointed), unless during such thirty (30) day period, the Bank fully cures such failure; (D) the failure of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days following written notice from the Officer of such material breach; (E) a reduction in the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced; (F) a change in the Officer’s principal place of employment that would result in a one-way commuting time in excess of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; or (ii) the discharge of the Officer by the Bank for any reason other than for “cause” as provided in section 9(a); then, subject to section 21, the Bank shall provide the benefits and pay to the Officer the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced. (b) Upon the termination of the Officer’s employment with the Bank under circumstances described in section 8(a) of this Agreement, the Bank shall pay and provide to the Officer (or, in the event of the Officer’s death, to the Officer’s estate) on his termination of employment, subject to section 24 : (i) the Officer’s earned but unpaid compensation (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(b)) as of the date of the termination of the Officer’s employment with the Bank, 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 thirty (30) days after termination of employment; (ii) the benefits, if any, to which the Officer is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s officers and employees; (iii) continued group life, health (including hospitalization, medical and major medical), accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) and after taking into account the coverage provided by any subsequent employer, if and to the extent necessary to provide for the Officer, for the remaining unexpired Assurance Period, coverage equivalent to the coverage to which the Officer would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank; (iv) a lump sum payment, in an amount equal to the present value of the salary that the Officer would have earned if the Officer had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of salary achieved during the Officer’s period of actual employment with the Bank, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination; (v) a lump sum payment in an amount equal to the excess, if any, of: (A) the present value of the aggregate benefits to which the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii); (B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan; (vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan; (vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of: (A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by (B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.
Appears in 6 contracts
Samples: Employee Retention Agreement (Dime Community Bancshares Inc), Employee Retention Agreement (Dime Community Bancshares Inc), Employee Retention Agreement (Dime Community Bancshares Inc)
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his or her employment with the Bank shall terminate Association terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officerthe Executive’s voluntary resignation from employment with the Bank Association within ninety six (906) days months following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve in the same position in office or title to which the Officer was serving, on the day before the Assurance Period commenced he or she had been elected or appointed (or a more senior officeoffice or title);
(B) if the Executive is or becomes a member of the Board, the failure of the stockholders of the Holding Company Association to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank Association of its material failure, whether by amendment of the BankAssociation’s Organization Certificate of Incorporation or By-laws, action of the Board or the Holding CompanyAssociation’s stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in Section 3 of this Agreement as of the Officer on the day before the Assurance Period commenced (or the functionsdate hereof, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Bank fully Association cures such failurefailure in a manner determined by the Executive, in his or her discretion, to be satisfactory;
(D) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which the Executive gives written notice to the Association of its material breach of any term, condition or covenant contained in this Agreement (including, without limitation, any reduction of the Executive’s rate of base salary in effect from time to time and any change in the Officer terms and conditions of any compensation or benefit program in which the Executive participates which, either individually or together with other changes, has a material adverse effect on the aggregate value of his or her total compensation package, other than an across-the-board change that is generally applicable to all similarly situated employees), unless, during such material breach;thirty (30) day period, the Association cures such failure in a manner determined by the Executive, in his or her discretion, to be satisfactory; or
(E) a reduction in the compensation provided to relocation of the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the OfficerExecutive’s principal place of employment employment, without his or her written consent, to a location that would result in a increases his or her one-way commuting time in excess of the greater of distance by more than fifty (I50) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; ormiles;
(ii) the discharge termination of the Officer by Executive’s employment with the Bank Association for any other reason other than for “cause” as provided not described in section 9(aSection 10(a); then, subject to section 21. In such event, the Bank Association shall provide the benefits and pay to the Officer Executive the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained described in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commencedSection 9(b).
(b) Upon the termination of the OfficerExecutive’s employment with the Bank Association under circumstances described in section 8(aSection 9(a) of this Agreement, the Bank Association shall pay and provide to the Officer Executive (or, in the event of the OfficerExecutive’s death, to death following the OfficerExecutive’s estate) on his termination of employment, subject to section 24 :his or her estate):
(i) the Officer’s following payments and benefits (together, the “Standard Termination Entitlements”):
(A) his or her earned but unpaid compensation (including, without limitation, all items which constitute wages under section Section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(bSection 9(b)) as of the date of the termination of the Officer’s his or her employment with the BankAssociation, such payment to be made at the time and in the manner prescribed by law applicable to the payment of wages but in no any event not later than thirty (30) days after termination of employment;; and
(iiB) the benefits, if any, to which the Officer he or she is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the BankAssociation’s officers and employees, including the annual bonus (if any) to which he or she is entitled under any cash-based annual bonus or performance compensation plan in effect for the year in which his or her termination occurs, to be paid at the same time and on the terms and conditions (including but not limited to achievement of performance goals) applicable under the relevant plan; and
(ii) the following additional payments and benefits (the “Additional Termination Entitlements”):
(1) if Executive’s employment terminates before or in the absence of a Change of Control, payment of (or reimbursement to the Executive for) the same portion of premium due for group health plan continuation coverage required to be provided under applicable federal, state or local law that the Association pays for similarly situated active employees for the lesser of the Remaining Unexpired Employment Period or the period for which such continuation coverage is required by law;
(iii2) if Executive’s employment terminates upon or after a Change of Control, continued group life, health (including hospitalization, medical and major medical), dental, accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) Section 9(b)(i)(B), and after taking into account the coverage provided by any subsequent employer, if and to the extent necessary to provide for the OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage (including any co-payments and deductibles) equivalent to, and subject to substantially the same the premium sharing arrangements as, the coverage to which the Officer he or she would have been entitled under such plans (as in effect on the date of his or her termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) ), if the Officer he or she had continued working for the Bank Association during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank;
(iv) a lump sum payment, in an amount equal to the present value of the salary that the Officer would have earned if the Officer had continued working for the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary or compensation, as applicable, achieved during that portion of the OfficerEmployment Period which is prior to the Executive’s period termination of actual employment with the Bank, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such terminationAssociation;
(vB) continued payment of the Executive’s base salary, at the annual rate in effective immediately prior to termination of employment, for the Remaining Unexpired Employment Period, in ratable installments during such period, no less frequently than monthly;
(C) a lump sum payment in an amount equal to the excessannual cash incentive payment, if anycomputed at the target level of performance, of:
which the Executive is eligible to receive for the year in which termination occurs multiplied by a fraction, the numerator of which is the Remaining Unexpired Employment Period (Aexpressed in whole months and rounded to the nearest whole month) and the present value denominator of which is twelve (12), such payment to be in addition to and not in lieu of the aggregate benefits annual incentive payment to which the Officer would be entitled Executive earns under the terms of the annual cash incentive plan for the year in which termination occurs;
(D) at the election of the Association made within thirty (30) days following the Executive’s termination of employment with the Association, upon the surrender of all options or appreciation rights issued to the Executive under any stock option and all qualified and non-qualified defined benefit pension plans appreciation rights plan or program maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance PeriodAssociation, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to (the present value of the additional employer contributions “Option Surrender Payment”) calculated as follows: OSP = (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employmentFMV - EP) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product ofx N where:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.
Appears in 5 contracts
Samples: Employment Agreement (Astoria Financial Corp), Employment Agreement (Astoria Financial Corp), Employment Agreement (Astoria Financial Corp)
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his or her employment with the Bank shall terminate Company terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officerthe Executive’s voluntary resignation from employment with the Bank Company within ninety six (906) days months following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve in the same position in office or title to which the Officer was serving, on the day before the Assurance Period commenced he or she had been elected or appointed (or a more senior officeoffice or title);
(B) if the Executive is or becomes a member of the Board, the failure of the stockholders of the Holding Company to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank Company of its material failure, whether by amendment of the BankCompany’s Organization Certificate of Incorporation or By-laws, action of the Board or the Holding Company’s stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in Section 3 of this Agreement as of the Officer on the day before the Assurance Period commenced (or the functionsdate hereof, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Bank fully Company cures such failurefailure in a manner determined by the Executive, in his or her discretion, to be satisfactory;
(D) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which the Executive gives written notice to the Company of its material breach of any term, condition or covenant contained in this Agreement (including, without limitation, any reduction of the Executive’s rate of base salary in effect from time to time and any change in the Officer terms and conditions of any compensation or benefit program in which the Executive participates which, either individually or together with other changes, has a material adverse effect on the aggregate value of his or her total compensation package, other than an across-the-board change that is generally applicable to all similarly situated employees), unless, during such material breach;thirty (30) day period, the Company cures such failure in a manner determined by the Executive, in his or her discretion, to be satisfactory; or
(E) a reduction in the compensation provided to relocation of the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the OfficerExecutive’s principal place of employment employment, without his or her written consent, to a location that would result in a increases his or her one-way commuting time in excess of the greater of distance by more than fifty (I50) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; ormiles;
(ii) the discharge termination of the Officer by Executive’s employment with the Bank Company for any other reason other than for “cause” as provided not described in section 9(aSection 10(a); then, subject to section 21. In such event, the Bank Company shall provide the benefits and pay to the Officer Executive the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained described in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commencedSection 9(b).
(b) Upon the termination of the OfficerExecutive’s employment with the Bank Company under circumstances described in section 8(aSection 9(a) of this Agreement, the Bank Company shall pay and provide to the Officer Executive (or, in the event of the OfficerExecutive’s death, to death following the OfficerExecutive’s estate) on his termination of employment, subject to section 24 :his or her estate):
(i) the Officer’s following payments and benefits (together, the “Standard Termination Entitlements”):
(A) his or her earned but unpaid compensation (including, without limitation, all items which constitute wages under section Section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(bSection 9(b)) as of the date of the termination of the Officer’s his or her employment with the BankCompany, such payment to be made at the time and in the manner prescribed by law applicable to the payment of wages but in no any event not later than thirty (30) days after termination of employment;; and
(iiB) the benefits, if any, to which the Officer he or she is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the BankCompany’s officers and employees, including the annual bonus (if any) to which he or she is entitled under any cash-based annual bonus or performance compensation plan in effect for the year in which his or her termination occurs, to be paid at the same time and on the terms and conditions (including but not limited to achievement of performance goals) applicable under the relevant plan; and
(ii) the following additional payments and benefits (the “Additional Termination Entitlements”):
(1) if Executive’s employment terminates before or in the absence of a Change of Control, payment of (or reimbursement to the Executive for) the same portion of premium due for group health plan continuation coverage required to be provided under applicable federal, state or local law that the Company pays for similarly situated active employees for the lesser of the Remaining Unexpired Employment Period or the period for which such continuation coverage is required by law;
(iii2) if Executive’s employment terminates upon or after a Change of Control, continued group life, health (including hospitalization, medical and major medical), dental, accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) Section 9(b)(i)(B), and after taking into account the coverage provided by any subsequent employer, if and to the extent necessary to provide for the OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage (including any co-payments and deductibles) equivalent to, and subject to substantially the same the premium sharing arrangements as, the coverage to which the Officer he or she would have been entitled under such plans (as in effect on the date of his or her termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) ), if the Officer he or she had continued working for the Bank Company during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank;
(iv) a lump sum payment, in an amount equal to the present value of the salary that the Officer would have earned if the Officer had continued working for the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary or compensation, as applicable, achieved during that portion of the OfficerEmployment Period which is prior to the Executive’s period termination of actual employment with the Bank, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such terminationCompany;
(vB) continued payment of the Executive’s base salary, at the annual rate in effective immediately prior to termination of employment, for the Remaining Unexpired Employment Period, in ratable installments during such period, no less frequently than monthly;
(C) a lump sum payment in an amount equal to the excessannual cash incentive payment, if anycomputed at the target level of performance, of:
which the Executive is eligible to receive for the year in which termination occurs multiplied by a fraction, the numerator of which is the Remaining Unexpired Employment Period (Aexpressed in whole months and rounded to the nearest whole month) and the present value denominator of which is twelve (12), such payment to be in addition to and not in lieu of the aggregate benefits annual incentive payment to which the Officer would be entitled Executive earns under the terms of the annual cash incentive plan for the year in which termination occurs;
(D) at the election of the Company made within thirty (30) days following the Executive’s termination of employment with the Company, upon the surrender of all options or appreciation rights issued to the Executive under any stock option and all qualified and non-qualified defined benefit pension plans appreciation rights plan or program maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance PeriodCompany, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to (the present value of the additional employer contributions “Option Surrender Payment”) calculated as follows: OSP = (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employmentFMV - EP) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product ofx N where:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.
Appears in 5 contracts
Samples: Employment Agreement (Astoria Financial Corp), Employment Agreement (Astoria Financial Corp), Employment Agreement (Astoria Financial Corp)
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described in section 9(b) in the event that the Officer’s employment with the Bank shall terminate during the Assurance Period, or prior to the commencement of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account ofthat:
(i) The Officer’s voluntary resignation from his employment with the Bank terminates during the Employment Period as a result of the Executive’s voluntary resignation within ninety (90) 90 days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve the position with the Bank stated in the same position in which the Officer was serving, on the day before the Assurance Period commenced or a more senior officesection 3 of this Agreement;
(B) if the Executive is a member of the Board, the failure of the stockholders shareholders of the Holding Company Bank to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) -day period following the date on which the Officer Executive gives written notice to the Bank of its material failure, whether by amendment of the Bank’s Restated Organization Certificate or Certificate, the Bank’s By-lawsLaws, action of the Board or the Holding CompanyBank’s stockholders shareholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in the Officer on the day before the Assurance Period commenced (or the functionssection 3 of this Agreement, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) -day period, the Bank fully cures such failure;
(D) the failure expiration of a 30-day period following the date on which the Executive gives written notice to the Bank to cure a of its material breach of any term, condition or covenant contained in this Agreement by (including, without limitation any reduction of the BankExecutive’s rate of base salary in effect from time to time and any change in the terms and conditions of any compensation or benefit program in which the Executive participates which, within thirty (either individually or together with other changes, has a material adverse effect on the aggregate value of his total compensation package), unless, during such 30) days following written notice from -day period, the Officer of Bank cures such material breachfailure;
(E) a reduction in the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the OfficerExecutive’s principal place of employment to a place that would result in a one-way commuting time in excess is not the principal executive office of the greater Bank, or a relocation of the Bank’s principal executive office to a location that is both more than twenty-five miles away from the Executive’s principal residence and more than twenty-five miles away from the location of the Bank’s principal executive office on the date of this Agreement; or
(IF) 30 minutes any material breach by the Bank of any material term, condition or (II) covenant contained in this Agreement; provided, however, that the Officer’s commuting time immediately prior Executive shall have given notice of such materials adverse effect to the Bank, and the Bank has not fully cured such changefailure within thirty days after such notice is deemed given; or
(ii) the discharge of Executive’s employment with the Officer Bank is terminated by the Bank for any reason other than for “cause” as provided in section 9(a11(a); then, subject to section 21, the Bank shall provide the benefits and pay to the Officer the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced.
(b) Upon the termination occurrence of any of the Officer’s employment with the Bank under circumstances events described in section 8(a9(a) of this Agreement, the Bank shall pay and provide to the Officer Executive (or, in the event of the Officer’s deathhis death thereafter and prior to payment, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s his earned but unpaid compensation salary (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law applicable law and the payment of which is not otherwise provided for under in this section 8(b9(b)) as of the date of the termination of the Officer’s his employment with the Company and the Bank, 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 thirty (30) 30 days after termination of employment;
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Company’s and the Bank’s officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long long-term disability insurance benefitsbenefits on substantially the same terms and conditions (including any required premium-sharing arrangements, co-payments and deductibles) in addition effect for them immediately prior to that the Executive’s termination for the Remaining Unexpired Employment Period for the Executive and his dependents. The coverage provided under this section 9(b)(iii) may, at the election of the Company, be secondary to the coverage provided pursuant to section 8(b)(ii9(b)(ii) and after taking into account the to any employer-paid coverage provided by any a subsequent employeremployer or through Medicare, if and to with the extent necessary to provide for result that benefits under the Officer, for the remaining unexpired Assurance Period, coverage equivalent to other coverages will offset the coverage to which the Officer would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bankrequired by this section 9(b)(iii);
(iv) a lump sum payment, payment in an amount equal to the present estimated present value of the salary that the Officer Executive would have earned if the Officer he had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the Officer’s period of actual employment with the Bank, where such present value is to be determined using a discount rate equal three (3) years ending immediately prior to the date of termination (the “Salary Severance Payment”). The Salary Severance Payment shall be computed using the following formula: SSP=S n1 [ (BS/PR) ] [1 + (I/PR)]n where “SSP” is the amount of the Salary Severance Payment (before the deduction of applicable short-federal, state and local withholding taxes); “BS” is the highest annual rate of salary achieved by the Executive during the period of three (3) years ending immediately prior to the date of termination; “PR” is the number of payroll periods that occur during a year under the Company’s normal payroll practices; “I” equals the applicable federal short term federal rate prescribed established under section 1274(d) 1274 of the Internal Revenue Code of 1986 (the “Code”) for the month in which the Executive’s termination of employment occurs (the “Applicable Short-Short Term RateAFR”), compounded using ) and “n” equals the compounding product of the Remaining Unexpired Employment Period at the Executive’s termination of employment (expressed in years and fractions of years) multiplied by the number of payroll periods corresponding to that occur during a year under the Company’s and the Bank’s regular normal payroll periods for its officers, such lump sum to practices. The Salary Severance Payment shall be paid made within five (5) business days after the Executive’s termination of employment and shall be in lieu of all other payments any claim to a continuation of base salary provided which the Executive might otherwise have and in lieu of cash severance benefits under any severance benefits program which may be in effect for under this Agreement in respect officers or employees of the period following any such terminationBank or the Company;
(v) a lump sum payment in an amount equal to the excess, if any, of:
(A) the estimated present value of the aggregate benefits to which annual bonuses that the Officer Executive would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank have earned if the Officer were 100% vested thereunder and he had continued working for the Company and the Bank during the remaining unexpired Assurance Period, such benefits Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the period of three (3) years ending immediately prior to be determined as of the date of termination (the “Bonus Severance Payment”). The Bonus Severance Payment shall be computed using the following formula: where “BSP” is the amount of employment by adding the Bonus Severance Payment (before the deduction of applicable federal, state and local withholding taxes); “SSP” is the amount of the Salary Severance Payment (before the deduction of applicable federal, state and local withholding taxes); “BP” is the aggregate of the annual bonuses paid or declared (whether or not paid) for the most recent period of three (3) calendar years to end on or before the Executive’s termination of employment; and “SP” is the aggregate base salary actually paid to the service actually recognized under Executive during such plans an additional period equal to of three (3) calendar years (excluding any year for which no bonus was declared or paid). The Bonus Severance Payment shall be made within five (5) business days after the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which Executive’s termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value shall be in lieu of any claim to a continuation of participation in annual bonus plans of the benefits to Bank or the Company which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming Executive might otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified planhave;
(vi) a lump sum payment in an amount equal to the estimated present value of the additional employer contributions long-term incentive bonuses that the Executive would have earned if he had continued working for the Company and the Bank during the Remaining Unexpired Employment Period (the “Incentive Severance Payment”). The Incentive Severance Payment shall be computed using the following formula: where “ISP” is the amount of the Incentive Severance Payment (before the deduction of applicable federal, state and local withholding taxes); “SSP” is the amount of the Salary Severance Payment (before the deduction of applicable federal, state and local withholding taxes); “ALTIP” is the aggregate of the most recently paid or if greater in declared (whether or not paid) long-term incentive compensation payments (but not more than three (3) such payments) for performance periods that end on or before the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at Executive’s termination of employment; “ALTSP” is the aggregate base salary actually paid to the Executive during the performance periods covered by the payments included in “ALTIP” and excluding base salary paid for any period for which no long-term incentive compensation payment was declared or paid; “RUP” is the Remaining Unexpired Employment Period, expressed in years and fractions of years; and “Y” is the aggregate (expressed in years and fractions of years) of the Remaining Unexpired Employment Period plus the number of years and fraction of years that have elapsed since the end of the last performance period for which a long-term incentive payment has been declared and paid. In the event that the Executive’s employment terminates prior to the payment date under any long-term incentive compensation plan, then for purposes of computing the Incentive Severance Payment, the “ALTIP” shall be deemed to be the average of the target and maximum award level under such plan and the “ALTSP” shall be deemed to be the Executive’s annual base salary as in effect on the Executive’s termination of employment. The Incentive Severance Payment shall be made within five (5) business days after the Executive’s termination of employment and shall be in lieu of any claim to a continuation of participation in cash long-term incentive compensation plans of the Bank or the Company which the Executive might otherwise have;
(vii) a lump sum payment in an amount equal to the excess (if any) of: (A) the present value of the aggregate benefits to which he would have been be entitled under any and all tax-qualified and non-tax-qualified defined contribution benefit plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for Company or the Bank during (the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi“Pension Plans”) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Company and the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Remaining Unexpired Employment Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
over (B) the salary that would have been paid present value of the benefits to which the Executive and his spouse and/or designated beneficiaries are actually entitled under such plans (the “Pension Severance Payment”). The Pension Severance Payment shall be computed according to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.formula:
Appears in 4 contracts
Samples: Employment Agreement (Westfield Financial Inc), Employment Agreement (Westfield Financial Inc), Employment Agreement (Westfield Financial Inc)
Termination of Employment with Severance Benefits. (a) In Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his employment with the Bank shall terminate Association terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officer’s Executive's voluntary resignation from employment with the Bank Association within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve the office described in the same position in which the Officer was serving, on the day before the Assurance Period commenced section 3 of this Agreement (or a more senior office) of the Association;
(B) if the Executive is a member of the Board as of the date of this Agreement, the failure of the stockholders of the Holding Company Association to elect or re-elect Executive to the Officer as a member of Board or the Board, if he was a member failure of the Board on (or the day before the Assurance Period commencednominating committee thereof) to nominate Executive for such election or re-election;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank Association of its material failure, whether by amendment of the Bank’s Association's Organization Certificate or By-lawsLaws, action of the Board or the Holding Company’s Association's stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in the Officer on the day before the Assurance Period commenced (or the functionssection 3 of this Agreement, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Bank Association fully cures such failure;
(D) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which the Executive gives written notice from the Officer of such material breach;
(E) a reduction in the compensation provided to the OfficerAssociation of its material breach of any term, condition or a material covenant contained in this Agreement (including, without limitation any reduction of Executive's rate of base salary in the benefits provided effect from time to the Officer under the Bank’s program of employee benefits, compared with the compensation time and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a any change in the Officer’s principal place terms and conditions of employment that would result any compensation or benefit program in which the Executive participates which, alone or together with other changes, has a one-way commuting time in excess material adverse effect on the aggregate value of his total compensation package), unless, during such thirty (30) day period, the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to Association fully cures such changefailure; or
(ii) the discharge termination of Executive's employment with the Officer by the Bank Association for any other reason other than for “cause” as provided not described in section 9(a10(a); then, subject to section 2125, the Bank Association shall provide the benefits and pay to the Officer Executive the amounts provided for under described in section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced9(b).
(b) Upon the termination of the Officer’s Executive's employment with the Bank Association under circumstances described in section 8(a9(a) of this Agreement, the Bank Association shall pay and provide to the Officer Executive (or, in the event of the Officer’s his death, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s his earned but unpaid compensation (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law applicable law and the payment of which is not otherwise provided for under this section 8(b9(b)) as of the date of the termination of the Officer’s his employment with the BankAssociation, 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 thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs pro grams maintained for the benefit of the Bank’s Association's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage equivalent to the coverage to which the Officer he would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer he had continued working for the Bank Association during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation achieved during that portion of the Officer’s period Employment Period which is prior to Executive's termination of actual employment with the BankAssociation;
(iv) within thirty (30) days following his termination of employment with the Association, a lump sum payment, in an amount equal to the present present value of the salary that the Officer Executive would have earned if the Officer he had continued working for the Bank Association during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during that portion of the Officer’s period Employment Period which is prior to Executive's termination of actual employment with the BankAssociation, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“"Code”) (“Applicable Short-Term Rate”"), compounded using the compounding periods period corresponding to the Bank’s Association's regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) within thirty (30) days following his termination of employment with the Association, a lump sum payment in an amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits to which the Officer he would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank Association) if the Officer he were one-hundred percent (100% %) vested thereunder and had continued working for the Bank Association during the remaining unexpired Assurance Remaining Unexpired Employment Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Remaining Unexpired Employment Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I9(b)(i), (iv) and (vii);; over
(B) the present value of the benefits to which the Officer he is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed prescr ibed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable longannualized rate of interest prescribed by the Pension Benefits Guaranty Corporation for the valuation of immediate annuities payable under terminating single-term federal rate prescribed under section 1274(d) of the Code employer defined benefit plans for the month in which his Executive's termination of employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified planoccurs ("Applicable PBGC Rate");
(vi) within thirty (30) days following his termination of employment with the Association, a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the BankAssociation, if he were one-hundred percent (100% %) vested thereunder and had continued working for the Bank Association during the remaining unexpired Assurance Remaining Unexpired Em ployment Period at the highest annual rate of compensation achieved during that portion of the Officer’s period Employment Period which is prior to Executive's termination of actual employment with the BankAssociation, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the a discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term PBGC Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;and
(vii) the payments that would have been made to the Officer Executive under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, Association if he had continued working for the Bank Association during the remaining unexpired Assurance Remaining Unexpired Employment Period and had earned the maximum a bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be Remaining Unexpired Employment Period in an amount equal to the product of:
(A) the maximum percentage rate at which an highest annual bonus or incentive award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been actually paid to the Officer during each such him in any calendar year at the highest annual rate of salary achieved ending during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. three-year period ending on the date of his termination of employment. The Bank Association and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b9(b) constitute a reasonable estimate damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s Executive's efforts, if any, to mitigate damages. The Bank Association and the Officer Executive further agree that the Bank Association may condition the payments and benefits (if any) due under sections 8(b)(iii9(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s Executive's resignation from any and all positions which he holds as an officer, director or committee member with respect to the BankAssociation, the Holding Company or any subsidiary or affiliate of either of them.
Appears in 3 contracts
Samples: Employment Agreement (Home Bancorp of Elgin Inc), Employment Agreement (Home Bancorp of Elgin Inc), Employment Agreement (Home Bancorp of Elgin Inc)
Termination of Employment with Severance Benefits. (a) In The Executive's shall be entitled to the severance benefits described in section 9(b) in the event that the Officer’s employment with the Bank shall terminate during the Assurance Period, or prior to the commencement of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account ofthat:
(i) The Officer’s voluntary resignation from his employment with the Company or the Bank terminates during the Employment Period as a result of the Executive's voluntary resignation within ninety (90) 90 days following:
(A) the failure of the Bank’s Board or the Board of Directors of the Bank ("Bank Board") as the case may be, to appoint or re-appoint or elect or re-elect the Officer Executive to serve the position with the Company or the Bank stated in the same position in which the Officer was serving, on the day before the Assurance Period commenced section 3 of this Agreement (or a more senior office);
(B) if the Executive is a member of the Board or the Bank Board as the case may be, the failure of the stockholders shareholders of the Holding Company or the Bank to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the Bank Board or the failure of the Board on or the day before Bank Board (or the Assurance Period commencednominating committee thereof) to nominate the Executive for such election or re-election;
(C) the expiration of a thirty (30) -day period following the date on which the Officer Executive gives written notice to the Bank Company of its or the Bank's material failure, whether by amendment of the Company's Certificate of Incorporation, the Bank’s 's Restated Organization Certificate or Certificate, the Company's By-lawsLaws or the Bank's By-Laws, action of the Board or the Holding Bank Board or the Company’s stockholders 's shareholders or the Bank's shareholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in the Officer on the day before the Assurance Period commenced (or the functionssection 3 of this Agreement, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) -day period, the Company or the Bank fully cures such failure;; or
(D) the failure expiration of a 30-day period following the Bank date on which the Executive gives written notice to cure a the Company of its or the Bank's material breach of any term, condition or covenant contained in this Agreement by (including, without limitation any reduction of the Bank, within thirty (30) days following written notice Executive's rate of base salary in effect from the Officer of such material breach;
(E) a reduction time to time and any change in the terms and conditions of any compensation provided to or benefit program in which the OfficerExecutive participates which, either individually or together with other changes, has a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer adverse effect on the aggregate value of his total compensation package), unless, during such 30-day before period, the Assurance Period commencedCompany or the Bank cures such failure;
(F) a change in the Officer’s Executive's principal place of employment that would result in for a one-way commuting time distance in excess of 50 miles from the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such changeBank's principal office in Warwick, New York; or
(ii) the discharge of Executive's employment with the Officer Company or the Bank is terminated by the Company or the Bank for any reason other than for “"cause” " as provided in section 9(a10(a); then, subject to or
(iii) a Change of Control as defined in section 21, the Bank shall provide the benefits and pay to the Officer the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced11 has occurred.
(b) Upon the termination occurrence of any of the Officer’s employment with the Bank under circumstances events described in section 8(a9(a) of this Agreement, the Bank Company shall pay and provide to the Officer Executive (or, in the event of the Officer’s his death, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s his earned but unpaid compensation salary (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law applicable law and the payment of which is not otherwise provided for under in this section 8(b9(b)) as of the date of the termination of the Officer’s his employment with the Company and the Bank, 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 thirty (30) 30 days after termination of employment;
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs pro grams maintained for the benefit of the Company's and the Bank’s 's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage equivalent to the coverage to which the Officer he would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) ), if the Officer he had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation salary achieved during the Officer’s period of actual employment with the BankEmployment Period;
(iv) within 30 days following the Executive's termination of employment with the Company or the Bank, a lump sum payment, in an amount equal to the present present value of the salary (excluding any additional payments made to the Executive in lieu of the use of an automobile) that the Officer Executive would have earned if the Officer he had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the Officer’s period of actual employment with the BankEmployment Period, where such present value is to be determined using a discount dis count rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 1986, as amended (“"Code”) (“Applicable Short-Term Rate”"), compounded using the compounding periods corresponding to the Bank’s Company's regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) within 30 days following the Executive's termination of employment with the Company or the Bank, a lump sum payment in an amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits to which the Officer he would be entitled under The Warwick Savings Bank Defined Benefit Pension Plan (together with the defined benefit portion of the Benefit Restoration Plan of The Warwick Savings Bank and any other supplemental defined benefit plan) and any and all other qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank Company or the Bank, if the Officer he were 100% vested thereunder and had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the Employment Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);; over
(B) the present value of the benefits to which the Officer he is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed prescr ibed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, monthly equal to the applicable longannualized rate of interest prescribed by the Pension Benefit Guaranty Corporation for the valuation of immediate annuities payable under terminating single-term federal rate prescribed under section 1274(d) of the Code employer defined benefit plans for the month in which his the Executive's termination of employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified planoccurs ("Applicable PBGC Rate");
(vi) within 30 days following the Executive's termination of employment with the Company or the Bank, a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under The Warwick Savings Bank 401(k) Savings Plan, the Employee Stock Ownership Plan of Warwick Community Bancorp, Inc. (together with the defined contribution portion of the Benefit Restoration Plan of The Warwick Savings Bank or any other supplemental defined contribution plan) and any and all other qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Company or the Bank, as if he were 100% vested thereunder and had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation salary achieved during the Officer’s period of actual employment with the Bank, Employment Period and making the maximum amount of employee em ployee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the a discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term PBGC Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer Executive under any cash or stock bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, Company or the Bank if he had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Remaining Unexpired Employment Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer Executive under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer Executive during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Employment Period, ; such payments to be made (without discounting for early payment) within 30 days following the Executive's termination of employment;
(viii) at the election of the Company made within 30 days following the occurrence of the event described in section 9(a), upon the surrender of options or appreciation rights issued to the Executive under any stock option and appreciation rights plan or program maintained by, or covering employees of, the Company or the Bank, a lump sum payment .. in an amount equal to the product of:
(A) the excess of (I) the fair market value of a share of stock of the same class as the stock subject to the option or appreciation right, determined as of the date of termination of employment, over (II) the exercise price per share for such option or appreciation right, as specified in or under the relevant plan or program; multiplied by
(B) the number of shares with respect to which options or appreciation rights are being surrendered. For purposes of this section 9(b)(viii), the Executive shall be deemed fully vested in all options and appreciation rights under any stock option or appreciation rights plan or program maintained by, or covering employees of, the Company or the Bank, even if he is not vested under such plan or program; and
(ix) at the election of the Company made within 30 days following the occurrence of the event described in section 9(a), upon the surrender of any shares awarded to the Executive under any restricted stock plan maintained by, or covering employees of, the Company or the Bank, a lump sum payment in an amount equal to the product of:
(A) the fair market value of a share of stock of the same class of stock granted under such plan, determined as of the date of the Executive's termination of employment; multiplied by
(B) the number of shares which are being surrendered. For purposes of this section 9(b)(ix), the Executive shall be deemed fully vested in all shares awarded under any restricted stock plan maintained by, or covering employees of, the Company or the Bank, even if he is not vested under such plan. The Bank Company and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b9(b) constitute a reasonable estimate damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s Executive's efforts, if any, to mitigate damages. The Bank Company and the Officer Executive further agree that the Bank Company may condition the payments and benefits (if any) due under sections 8(b)(iii9(b)(iii), (iv), (v), (vi) and (viivi) on the receipt of the Officer’s Executive's resignation from any and all positions which he holds as an officer, director or committee member with respect to the BankCompany, the Company Bank or any subsidiary or affiliate of either of them.
Appears in 3 contracts
Samples: Employment Agreement (Warwick Community Bancorp Inc), Employment Agreement (Warwick Community Bancorp Inc), Employment Agreement (Warwick Community Bancorp Inc)
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described in section 9(b) in the event that the Officer’s employment with the Bank shall terminate during the Assurance Period, or prior to the commencement of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account ofthat:
(i) The Officer’s voluntary resignation from his employment with the Bank terminates during the Employment Period as a result of the Executive's voluntary resignation within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve the position with the Bank stated in the same position in which the Officer was serving, on the day before the Assurance Period commenced or a more senior officesection 3 of this Agreement;
(B) if the Executive is a member of the Board, the failure of the stockholders shareholders of the Holding Company Bank to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) day 30)-day period following the date on which the Officer Executive gives written notice to the Bank of its material failure, whether by amendment of the Bank’s 's Restated Organization Certificate or Certificate, the Bank's By-lawsLaws, action of the Board or the Holding Company’s stockholders Bank's shareholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in the Officer on the day before the Assurance Period commenced (or the functionssection 3 of this Agreement, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day 30)-day period, the Bank fully cures such failure;
(D) the failure expiration of a thirty (30)-day period following the date on which the Executive gives written notice to the Bank to cure a of its material breach of any term, condition or covenant contained in this Agreement by (including, without limitation any reduction of the Executive's rate of base salary in effect from time to time and any change in the terms and conditions of any compensation or benefit program in which the Executive participates which, either individually or together with other changes, has a material adverse effect on the aggregate value of his total compensation package), unless, during such thirty (30)-day period, the Bank cures such failure;
(E) a change in the Executive's principal place of employment to a place that is not the principal executive office of the Bank, or a relocation of the <PAGE> Bank's principal executive office to a location that is both more than twenty-five (25) miles away from the Executive's principal residence and more than twenty-five (25) miles away from the location of the Bank's principal executive office on the date of this Agreement; or
(F) any material breach by the Bank of any material term, condition or covenant contained in this Agreement; provided, however, that the Executive shall have given notice of such materials adverse effect to the Bank, and the Bank has not fully cured such failure within thirty (30) days following written after such notice from the Officer of such material breach;
(E) a reduction in the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s principal place of employment that would result in a one-way commuting time in excess of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such changeis deemed given; or
(ii) the discharge of Executive's employment with the Officer Bank is terminated by the Bank for any reason other than for “"cause” " as provided in section 9(a11(a); then, subject to section 21, the Bank shall provide the benefits and pay to the Officer the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced.
(b) Upon the termination occurrence of any of the Officer’s employment with the Bank under circumstances events described in section 8(a9(a) of this Agreement, the Bank shall pay and provide to the Officer Executive (or, in the event of the Officer’s deathhis death thereafter and prior to payment, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s his earned but unpaid compensation salary (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law applicable law and the payment of which is not otherwise provided for under in this section 8(b9(b)) as of the date of the termination of the Officer’s his employment with the Company and the Bank, 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 thirty (30) days after termination of employmentemployment as defined in Treasury Regulation Section 1.409A-1(h)(1)(ii);
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Company's and the Bank’s 's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long long-term disability insurance benefitsbenefits on substantially the same terms and conditions (including any required premium-sharing arrangements, co-payments and deductibles) in addition effect for them immediately prior to that the Executive's termination for the Remaining Unexpired Employment Period for the Executive and his dependents. The coverage provided under this section 9(b)(iii) may, at the election of the Company, be secondary to the coverage provided pursuant to section 8(b)(ii9(b)(ii) and after taking into account the to any employer-paid coverage provided by any a subsequent employeremployer or through Medicare, if and to with the extent necessary to provide for result that benefits under the Officer, for the remaining unexpired Assurance Period, coverage equivalent to other coverages will offset the coverage to which required by this section 9(b)(iii). The Executive, the Officer would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer had continued working for Company and the Bank during agree that the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Banktermination benefits described in this Section 9(b)(iii) are intended to be exempt from Section 409A pursuant to Treasury Regulation Section 1.409A-1(b)(1) as non-taxable benefits;
(iv) a lump sum payment, payment in an amount equal to the present estimated present value of the salary that the Officer Executive would have earned if the Officer he had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the Officer’s period of actual employment with the Bank, where such present value is to be determined using a discount rate equal three (3) years ending <PAGE> immediately prior to the date of termination (the "Salary Severance Payment"). The Salary Severance Payment shall be computed using the following formula: SSP=3 1 [ [1 + (I / PR)]n ] where "SSP" is the amount of the Salary Severance Payment (before the deduction of applicable short-federal, state and local withholding taxes); "BS" is the highest annual rate of salary achieved by the Executive during the period of three (3) years ending immediately prior to the date of termination; "PR" is the number of payroll periods that occur during a year under the Company's normal payroll practices; "I" equals the applicable federal short term federal rate prescribed established under section 1274(d) 1274 of the Internal Revenue Code of 1986 (“the "Code”") for the month in which the Executive's termination of employment occurs (“Applicable Short-the "Short Term Rate”), compounded using AFR") and "n" equals the compounding product of the Remaining Unexpired Employment Period at the Executive's termination of employment (expressed in years and fractions of years) multiplied by the number of payroll periods corresponding to that occur during a year under the Company's and the Bank’s regular 's normal payroll periods for its officers, such lump sum to practices. The Salary Severance Payment shall be paid made within five (5) business days after the Executive's termination of employment and shall be in lieu of all other payments any claim to a continuation of base salary provided which the Executive might otherwise have and in lieu of cash severance benefits under any severance benefits program which may be in effect for under this Agreement in respect officers or employees of the period following any such terminationBank or the Company;
(v) a lump sum payment in an amount equal to the excess, if any, of:
(A) the estimated present value of the aggregate benefits to which annual bonuses that the Officer Executive would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank have earned if the Officer were 100% vested thereunder and he had continued working for the Company and the Bank during the remaining unexpired Assurance Period, such benefits Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the period of three (3) years ending immediately prior to be determined as of the date of termination (the "Bonus Severance Payment"). The Bonus Severance Payment shall be computed using the following formula: where "BSP" is the amount of employment by adding the Bonus Severance Payment (before the deduction of applicable federal, state and local withholding taxes); "SSP" is the amount of the Salary Severance Payment (before the deduction of applicable federal, state and local withholding taxes); "BP" is the aggregate of the annual bonuses paid or declared (whether or not paid) for the most recent period of three (3) calendar years to end on or before the Executive's termination of employment; and "SP" is the aggregate base salary actually paid to the service actually recognized under Executive during such plans an additional period equal to of three (3) calendar years (excluding any year for which no bonus was declared or paid). The Bonus Severance Payment shall be made within five (5) business days after the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which Executive's termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value shall be in lieu of any claim to a continuation of participation in annual bonus plans of the benefits to Bank or the Company which the Officer is actually entitled under such defined benefit pension plans as of the date of his terminationExecutive might otherwise have; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;<PAGE>
(vi) a lump sum payment in an amount equal to the estimated present value of the additional employer contributions long-term incentive bonuses that the Executive would have earned if he had continued working for the Company and the Bank during the Remaining Unexpired Employment Period (the "Incentive Severance Payment"). The Incentive Severance Payment shall be computed using the following formula: where "ISP" is the amount of the Incentive Severance Payment (before the deduction of applicable federal, state and local withholding taxes); "SSP" is the amount of the Salary Severance Payment (before the deduction of applicable federal, state and local withholding taxes); "ALTIP" is the aggregate of the most recently paid or if greater in declared (whether or not paid) long-term incentive compensation payments (but not more than three (3) such payments) for performance periods that end on or before the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at Executive's termination of employment; "ALTSP" is the aggregate base salary actually paid to the Executive during the performance periods covered by the payments included in "ALTIP" and excluding base salary paid for any period for which no long-term incentive compensation payment was declared or paid; "RUP" is the Remaining Unexpired Employment Period, expressed in years and fractions of years; and "Y" is the aggregate (expressed in years and fractions of years) of the Remaining Unexpired Employment Period plus the number of years and fraction of years that have elapsed since the end of the last performance period for which a long-term incentive payment has been declared and paid. In the event that the Executive's employment terminates prior to the payment date under any long-term incentive compensation plan, then for purposes of computing the Incentive Severance Payment, the "ALTIP" shall be deemed to be the average of the target and maximum award level under such plan and the "ALTSP" shall be deemed to be the Executive's annual base salary as in effect on the Executive's termination of employment. The Incentive Severance Payment shall be made within five (5) business days after the Executive's termination of employment and shall be in lieu of any claim to a continuation of participation in cash long-term incentive compensation plans of the Bank or the Company which the Executive might otherwise have;
(vii) a lump sum payment in an amount equal to the excess (if any) of: (A) the present value of the aggregate benefits to which he would have been be entitled under any and all tax-qualified and non-tax-qualified defined contribution benefit plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for Company or the Bank during (the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi"Pension Plans") as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Company and the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Remaining Unexpired Employment Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
over (B) the salary that would have been paid present value of the benefits to which the Executive and his spouse and/or designated beneficiaries are actually entitled under such plans (the "Pension Severance Payment"). The Pension Severance Payment shall be computed according to the Officer during each such calendar year at following formula: where "PSP" is the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as amount of the date first above written Pension Severance Payment (before deductions for applicable federal, state and that local withholding taxes); "APB" is the payments and aggregate lump sum present value of the actual vested pension benefits contemplated by this section 8(b) constitute a reasonable estimate payable under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine Pension Plans in the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.<PAGE>
Appears in 3 contracts
Samples: Employment Agreement (Westfield Financial Inc), Employment Agreement (Westfield Financial Inc), Employment Agreement (Westfield Financial Inc)
Termination of Employment with Severance Benefits. (a) In the event that the Officer’s 's employment with the Bank shall terminate during the Assurance Period, or prior to the commencement of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account of:
(i) The Officer’s 's voluntary resignation from employment with the Bank within ninety (90) days following:
(A) the failure of the Bank’s 's Board to appoint or re-appoint or elect or re-elect the Officer to serve in the same position in which the Officer was serving, on the day before the Assurance Period commenced or a more senior office;
(B) the failure of the stockholders of the Holding Company to elect or re-elect the Officer as a member of the Board, if he or she was a member of the Board on the day before the Assurance Period commenced;
(C) the expiration of a thirty (30) day period following the date on which the Officer gives written notice to the Bank of its material failure, whether by amendment of the Bank’s Organization Certificate 's Charter or By-laws, action of the Board or the Holding Company’s 's stockholders or otherwise, to vest in the Officer the functions, duties, or responsibilities vested in the Officer on the day before the Assurance Period commenced (or the functions, duties and responsibilities of a more senior office to which the Officer may be appointed), unless during such thirty (30) day period, the Bank fully cures such failure;
(D) the failure of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days following written notice from the Officer of such material breach;
(E) a reduction in the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s 's program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s 's principal place of employment that would result in a one-way commuting time in excess of the greater of (I) 30 minutes or (II) the Officer’s 's commuting time immediately prior to such change; or
(ii) the discharge of the Officer by the Bank for any reason other than for “"cause” " as provided in section 9(a); thenThen, subject to section 21, the Bank shall provide the benefits and pay to the Officer the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s 's termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his or her actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s 's Assurance Period would have commenced.
(b) Upon the termination of the Officer’s employment with the Bank under circumstances described in section 8(a) of this Agreement, the Bank shall pay and provide to the Officer (or, in the event of the Officer’s death, to the Officer’s estate) on his termination of employment, subject to section 24 :
(i) the Officer’s earned but unpaid compensation (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(b)) as of the date of the termination of the Officer’s employment with the Bank, 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 thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) and after taking into account the coverage provided by any subsequent employer, if and to the extent necessary to provide for the Officer, for the remaining unexpired Assurance Period, coverage equivalent to the coverage to which the Officer would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank;
(iv) a lump sum payment, in an amount equal to the present value of the salary that the Officer would have earned if the Officer had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of salary achieved during the Officer’s period of actual employment with the Bank, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) a lump sum payment in an amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits to which the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.
Appears in 3 contracts
Samples: Employee Retention Agreement (GSB Financial Corp), Employee Retention Agreement (GSB Financial Corp), Employee Retention Agreement (GSB Financial Corp)
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described in section 9(b) in the event that the Officer’s employment with the Bank shall terminate during the Assurance Period, or prior to the commencement of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account ofthat:
(i) The Officer’s voluntary resignation from his employment with the Bank Company terminates during the Employment Period as a result of the Executive's voluntary resignation within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve the position with the Company stated in the same position in which the Officer was serving, on the day before the Assurance Period commenced or a more senior officesection 3 of this Agreement;
(B) if the Executive is a member of the Board, the failure of the stockholders shareholders of the Holding Company to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) day 30)-day period following the date on which the Officer Executive gives written notice to the Bank Company of its material failure, whether by amendment of the Bank’s Organization Company's Certificate or of Incorporation, the Company's By-lawsLaws, action of the Board or the Holding Company’s stockholders 's shareholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in the Officer on the day before the Assurance Period commenced (or the functionssection 3 of this Agreement, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day 30)-day period, the Bank fully Company cures such failure;
(D) the failure expiration of a thirty (30)-day period following the Bank date on which the Executive gives written notice to cure a the Company of its material breach of any term, condition or covenant contained in this Agreement by (including, without limitation any reduction of the BankExecutive's rate of base salary in effect from time to time and any change in the terms and conditions of any compensation or benefit program in which the Executive participates which, within either individually or together with other changes, has a material adverse effect on the aggregate value <PAGE> of his total compensation package), unless, during such thirty (30) days following written notice from 30)-day period, the Officer of Company cures such material breachfailure;
(E) a reduction change in the compensation provided Executive's principal place of employment to a place that is not the Officerprincipal executive office of the Bank, or a material reduction in the benefits provided to the Officer under relocation of the Bank’s program 's principal executive office to a location that is both more than twenty-five (25) miles away from the Executive's principal residence and more than twenty-five (25) miles away from the location of employee benefits, compared with the compensation and benefits that were provided to the Officer Bank's principal executive office on the day before the Assurance Period commenced;date of this Agreement; or
(F) a change in the Officer’s principal place of employment that would result in a one-way commuting time in excess of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; or
(ii) the discharge of the Officer any material breach by the Bank for Company of any reason other than for “cause” as provided material term, condition or covenant contained in section 9(a); then, subject to section 21, the Bank shall provide the benefits and pay to the Officer the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result the Executive shall have given notice of the Officer’s termination of employment prior such materials adverse effect to the commencement of Company, and the Assurance Period, Company has not fully cured such failure within thirty (30) days after such notice is deemed given; or
(ii) the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated Executive's employment with the Bank until Company is terminated by the date on which the Officer’s Assurance Period would have commencedCompany for any reason other than for "cause" as provided in section 11(a).
(b) Upon the termination occurrence of any of the Officer’s employment with the Bank under circumstances events described in section 8(a9(a) of this Agreement, the Bank Company shall pay and provide to the Officer Executive (or, in the event of the Officer’s deathhis death thereafter and prior to payment, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s his earned but unpaid compensation salary (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law applicable law and the payment of which is not otherwise provided for under in this section 8(b9(b)) as of the date of the termination of the Officer’s his employment with the Company and the Bank, 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 thirty (30) days after termination of employmentemployment as defined in Treasury Regulation Section 1.409A-1(h)(1)(ii);
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Company's and the Bank’s 's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long long-term disability insurance benefitsbenefits on substantially the same terms and conditions (including any required premium-sharing arrangements, co-payments and deductibles) in addition effect for them immediately prior to that the Executive's termination for the Remaining Unexpired Employment Period for the Executive and his dependents. The coverage provided under this section 9(b)(iii) may, at the election of the Company, be secondary to the coverage provided pursuant to section 8(b)(ii9(b)(ii) and after taking into account the to any employer-paid coverage provided by any a subsequent employeremployer or through Medicare, if and to with the extent necessary to provide for result that benefits under the Officer, for the remaining unexpired Assurance Period, coverage equivalent to other coverages will offset the coverage to which required by this section 9(b)(iii). The Executive, the Officer would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer had continued working for Company and the Bank during agree that the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank;termination benefits described in this Section 9(b)(iii) are intended to be exempt from Section 409A pursuant to Treasury Regulation Section 1.409A-1(b)(1) as non-taxable benefits; <PAGE>
(iv) a lump sum payment, payment in an amount equal to the present estimated present value of the salary that the Officer Executive would have earned if the Officer he had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the Officer’s period of actual employment with the Bank, where such present value is to be determined using a discount rate equal three (3) years ending immediately prior to the date of termination (the "Salary Severance Payment"). The Salary Severance Payment shall be computed using the following formula: SSP=3 1 [ [1 + (I / PR)]n ] where "SSP" is the amount of the Salary Severance Payment (before the deduction of applicable short-federal, state and local withholding taxes); "BS" is the highest annual rate of salary achieved by the Executive during the period of three (3) years ending immediately prior to the date of termination; "PR" is the number of payroll periods that occur during a year under the Company's normal payroll practices; "I" equals the applicable federal short term federal rate prescribed established under section 1274(d) 1274 of the Internal Revenue Code of 1986 (“the "Code”") for the month in which the Executive's termination of employment occurs (“Applicable Short-the "Short Term Rate”), compounded using AFR") and "n" equals the compounding product of the Remaining Unexpired Employment Period at the Executive's termination of employment (expressed in years and fractions of years) multiplied by the number of payroll periods corresponding to that occur during a year under the Company's and the Bank’s regular 's normal payroll periods for its officers, such lump sum to practices. The Salary Severance Payment shall be paid made within five (5) business days after the Executive's termination of employment and shall be in lieu of all other payments any claim to a continuation of base salary provided which the Executive might otherwise have and in lieu of cash severance benefits under any severance benefits program which may be in effect for under this Agreement in respect officers or employees of the period following any such terminationBank or the Company;
(v) a lump sum payment in an amount equal to the excess, if any, of:
(A) the estimated present value of the aggregate benefits to which annual bonuses that the Officer Executive would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank have earned if the Officer were 100% vested thereunder and he had continued working for the Company and the Bank during the remaining unexpired Assurance Period, such benefits Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the period of three (3) years ending immediately prior to be determined as of the date of termination (the "Bonus Severance Payment"). The Bonus Severance Payment shall be computed using the following formula: where "BSP" is the amount of employment by adding the Bonus Severance Payment (before the deduction of applicable federal, state and local withholding taxes); "SSP" is the amount of the Salary Severance Payment (before the deduction of applicable federal, state and local withholding taxes); "BP" is the aggregate of the annual bonuses paid or declared (whether or not paid) for the most recent period of three (3) calendar years to end on or before the Executive's termination of employment; and "SP" is the aggregate base salary actually paid to the service actually recognized under Executive during such plans an additional period equal to of three (3) calendar years (excluding any year for which no bonus was declared or paid). The Bonus Severance Payment shall be made within five (5) business days after the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which Executive's termination of employment occurs all amounts payable under sections 8(b)(I), (iv) <PAGE> and (vii);
(B) the present value shall be in lieu of any claim to a continuation of participation in annual bonus plans of the benefits to Bank or the Company which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming Executive might otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified planhave;
(vi) a lump sum payment in an amount equal to the estimated present value of the additional employer contributions long-term incentive bonuses that the Executive would have earned if he had continued working for the Company and the Bank during the Remaining Unexpired Employment Period (the "Incentive Severance Payment"). The Incentive Severance Payment shall be computed using the following formula: where "ISP" is the amount of the Incentive Severance Payment (before the deduction of applicable federal, state and local withholding taxes); "SSP" is the amount of the Salary Severance Payment (before the deduction of applicable federal, state and local withholding taxes); "ALTIP" is the aggregate of the most recently paid or if greater in declared (whether or not paid) long-term incentive compensation payments (but not more than three (3) such payments) for performance periods that end on or before the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at Executive's termination of employment; "ALTSP" is the aggregate base salary actually paid to the Executive during the performance periods covered by the payments included in "ALTIP" and excluding base salary paid for any period for which no long-term incentive compensation payment was declared or paid; "RUP" is the Remaining Unexpired Employment Period, expressed in years and fractions of years; and "Y" is the aggregate (expressed in years and fractions of years) of the Remaining Unexpired Employment Period plus the number of years and fraction of years that have elapsed since the end of the last performance period for which a long-term incentive payment has been declared and paid. In the event that the Executive's employment terminates prior to the payment date under any long-term incentive compensation plan, then for purposes of computing the Incentive Severance Payment, the "ALTIP" shall be deemed to be the average of the target and maximum award level under such plan and the "ALTSP" shall be deemed to be the Executive's annual base salary as in effect on the Executive's termination of employment. The Incentive Severance Payment shall be made within five (5) business days after the Executive's termination of employment and shall be in lieu of any claim to a continuation of participation in cash long-term incentive compensation plans of the Bank or the Company which the Executive might otherwise have;
(vii) a lump sum payment in an amount equal to the excess (if any) of: (A) the present value of the aggregate benefits to which he would have been be entitled under any and all tax-qualified and non-tax-qualified defined contribution benefit plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for Company or the Bank during (the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi"Pension Plans") as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Company and the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Remaining Unexpired Employment Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
over (B) the salary that would have been paid present value of the benefits to which the Executive and his spouse and/or designated beneficiaries are actually entitled under such plans (the "Pension Severance Payment"). The Pension Severance Payment shall be computed according to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.formula: <PAGE>
Appears in 2 contracts
Samples: Employment Agreement (Westfield Financial Inc), Employment Agreement (Westfield Financial Inc)
Termination of Employment with Severance Benefits. (a) In Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his employment with the Bank shall terminate Holding Company terminates during the Assurance Period, or prior to the commencement of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 term of this Agreement on account ofunder any of the following circumstances:
(i) The Officer’s Executive's voluntary resignation from employment with the Bank Holding Company within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect Executive to the Officer to serve office described in the same position in which the Officer was serving, on the day before the Assurance Period commenced section 1 of this Agreement (or a more senior officeoffice of the Holding Company);
(B) if Executive is a member of the Board as of the date of this Agreement, the failure of the stockholders of the Holding Company to elect or re-elect Executive or the Officer as a member of the Board, if he was a member failure of the Board on (or the day before the Assurance Period commencednominating committee thereof) to nominate Executive for such election or re-election;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank Holding Company of its material failure, whether by amendment of the Bank’s Holding Company's Organization Certificate or By-laws, action of the Board or the Holding Company’s 's stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in the Officer on the day before the Assurance Period commenced (or the functionssection 1 of this Agreement, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Bank Holding Company fully cures such failure;; or
(D) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which Executive gives written notice from the Officer of such material breach;
(E) a reduction in the compensation provided to the OfficerHolding Company of its material breach of any term, condition or a material covenant contained in this Agreement (including, without limitation any reduction of Executive's rate of Base Salary in the benefits provided effect from time to the Officer under the Bank’s program of employee benefits, compared with the compensation time and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a any change in the Officer’s principal place terms and conditions of employment that would result any compensation or benefit program in which Executive participates which, alone or together with other changes, has a one-way commuting time in excess material adverse effect on the aggregate value of his total compensation package), unless, during such thirty (30) day period, the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to Holding Company fully cures such changefailure; or
(ii) the discharge termination of Executive's employment with the Officer by the Bank Holding Company for any other reason other than for “cause” as provided not described in section 9(a)7; then, subject to section 21sections 14 and 15, the Bank Holding Company shall provide the benefits and pay to the Officer Executive the amounts provided for under described in section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced4(b).
(b) Upon the termination of the Officer’s Executive's employment with the Bank Holding Company under circumstances described in section 8(a4(a) of this Agreement, the Bank Holding Company shall pay and provide to the Officer Executive (or, in the event of the Officer’s his death, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s his earned but unpaid compensation (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law applicable law and the payment of which is not otherwise provided for under this section 8(bSection 4(b)) as of the date of the termination of the Officer’s his employment with the BankHolding Company, 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 thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s Holding Company's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long long-term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 4(b)(ii), and after taking into account the coverage provided by any subsequent employer, if and to the extent necessary to provide for the OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage equivalent to the coverage to which the Officer he would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer he had continued working work ing for the Bank Holding Company during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation achieved during that portion of the Officer’s period term of actual this Agreement which is prior to Executive's termination of employment with the BankHolding Company, it being understood that Executive's "qualifying event" for purposes of continuation coverage under the Consolidated Budget Reconciliation Act ("COBRA") shall occur at the expiration of this period;
(iv) within five (5) days following his termination of employment with the Holding Company, a lump sum payment, in an amount equal to the present value of the salary that the Officer Executive would have earned if the Officer he had continued working for the Bank Holding Company during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during that portion of the Officer’s period term of actual this Agreement which is prior to Executive's termination of employment with the Bank, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such Holding Company. Such lump sum is to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) within thirty (30) days following his termination of employment with the Holding Company, a lump sum payment in an amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits to which the Officer he would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank Holding Company, if the Officer he were 100% vested thereunder and had continued working for the Bank Holding Company during the remaining unexpired Assurance Remaining Unexpired Employment Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Remaining Unexpired Employment Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I4(b)(i), (iv) and (viivi);; over
(B) the present value of the benefits to which the Officer he is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code (as hereinafter defined) and a discount rate, compounded monthly, monthly equal to the applicable long-term federal annualized rate of interest prescribed by the Pension Benefit Guaranty Corporation for the valuation of immediate annuities payable under section 1274(d) of the Code terminating single- employer defined benefit plans for the month in which his the Executive's termination of employment terminatesoccurs ("Applicable PBGC Rate"); provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;and
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions within five (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at 5) days following his termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the BankHolding Company, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer Executive under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, Holding Company if he had continued working for the Bank Holding Company during the remaining unexpired Assurance Remaining Unexpired Employment Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be Remaining Unexpired Employment Period a bonus in an amount equal to the product of:
(A) the maximum percentage rate at which an highest annual bonus or incentive award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been actually paid to the Officer during each such him in any calendar year at the highest annual rate of salary achieved ending during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. three-year period ending on the date of termination of employment. The Bank Holding Company and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b4(b) constitute a reasonable estimate damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s Executive's efforts, if any, to mitigate damages. The Bank Holding Company and the Officer Executive further agree that the Bank Holding Company may condition the payments and benefits (if any) due under sections 8(b)(iii4(b)(iii), (iv), (v), and (vi) and (vii) on the receipt of the Officer’s Executive's resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Association or Holding Company or any subsidiary or affiliate of either of them.
Appears in 2 contracts
Samples: Employment Agreement (First Palm Beach Bancorp Inc), Employment Agreement (First Palm Beach Bancorp Inc)
Termination of Employment with Severance Benefits. (a) In Xx. Xxxxxxxx shall be entitled to the severance benefits described herein in the event that the Officer’s his employment with the Company or the Bank shall terminate terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officer’s Xx. Xxxxxxxx'x voluntary resignation from employment with the Company and the Bank within ninety (90) days following:
(A) the failure of the Bank’s Board Boards to appoint or re-appoint or elect or re-elect Xx. Xxxxxxxx to the office of Senior Executive Vice President, Chief Financial Officer to serve in the same position in which the Officer was serving, on the day before the Assurance Period commenced and Assistant Secretary (or a more senior office) of the Company and the Bank;
(B) the failure expiration of a thirty (30) day period following the date on which Xx. Xxxxxxxx gives written notice to the Company and/or the Bank of its material failure, whether by amendment of the stockholders Company's or the Bank's Organization Certificate or By-laws, action of the Holding Boards or the Company's or the Bank's stockholders or otherwise, to vest in Xx. Xxxxxxxx the functions, duties, or responsibilities prescribed in Section 3 of this Agreement, unless, during such thirty (30) day period, the Company and/or the Bank cures such failure in a manner determined by Xx. Xxxxxxxx and the Boards to elect or re-elect the Officer as a member of the Board, if he was a member of the Board on the day before the Assurance Period commenced;be satisfactory; or
(C) the expiration of a thirty (30) day period following the date on which the Officer Xx. Xxxxxxxx gives written notice to the Company and/or the Bank of its material failurebreach of any term, whether by amendment condition or covenant contained in this Agreement (including, without limitation any reduction of the Bank’s Organization Certificate or By-laws, action Xx. Xxxxxxxx'x rate of the Board or the Holding Company’s stockholders or otherwise, base salary in effect from time to vest time and any change in the Officer the functionsterms and conditions of any compensation or benefit program in which Xx. Xxxxxxxx participates which, dutieseither individually or together with other changes, or responsibilities vested in the Officer has a material adverse effect on the day before the Assurance Period commenced (or the functions, duties and responsibilities aggregate value of a more senior office to which the Officer may be appointedhis total compensation package), unless unless, during such thirty (30) day period, the Company and/or the Bank fully cures such failure;
(D) the failure of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days following written notice from the Officer of such material breach;
(E) a reduction in the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s principal place of employment that would result in a one-way commuting time in excess of manner determined by Xx. Xxxxxxxx and the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior Boards to such changebe satisfactory; or
(ii) Xx. Xxxxxxxx'x death; or
(iii) subject to the discharge provisions of Section 12, the Officer by termination of Xx. Xxxxxxxx'x employment with the Company or the Bank for any other reason other than for “cause” as provided not described in section 9(aSection 11(a); then, subject to section 21, the Bank shall provide the benefits and pay to the Officer the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced.
(b) Upon the termination of the Officer’s Xx. Xxxxxxxx'x employment with the Company and/or the Bank under circumstances described in section 8(aSection 11(a) of this Agreement, the Company or the Bank shall pay and provide to the Officer Xx. Xxxxxxxx (or, in the event of the Officer’s his death, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s his earned but unpaid compensation (including, without limitation, all items which constitute wages under section Section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(bSection 11(b)) as of the date of the termination of the Officer’s his employment with the Company and the Bank, 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 thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Company's and the Bank’s 's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medicalmedical and the insurance provided under Section 5), dental, accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) Section 11(b)(ii), and after taking into account the coverage provided by any subsequent employer, if and to the extent necessary to provide for the OfficerXx. Xxxxxxxx, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage equivalent to the coverage to which the Officer he would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) ), if the Officer he had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation achieved during that portion of the Officer’s period Employment Period which is prior to Xx. Xxxxxxxx'x termination of actual employment with the Company or the Bank;
(iv) within thirty (30) days following his termination of employment with the Company and/or the Bank, a lump sum payment, in an amount equal to the present present value of the salary that the Officer Xx. Xxxxxxxx would have earned if the Officer he had continued working for the Company and the Bank during the remaining unexpired Assurance Period for one year at the highest annual rate of salary achieved during that portion of the Officer’s period Employment Period which is prior to Xx. Xxxxxxxx'x termination of actual employment with the Company and the Bank, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section Section 1274(d) of the Internal Revenue Code of 1986 (“"Code”) (“Applicable Short-Term Rate”"), compounded using the compounding periods period corresponding to the Company's and the Bank’s 's regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination. At the option of Xx. Xxxxxxxx, such payments may be made in equal monthly installments over a period of not less than three years, nor more than five years, in which case such payments will not be discounted;
(v) a lump sum payment in an amount equal to the excess, if any, of:
within thirty (A30) the present value of the aggregate benefits to which the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of days following his termination of employment by adding to with the service actually recognized under such plans an additional period equal to Company and/or the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I)Bank, (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Company and the Bank, if he were 100% vested thereunder and had continued working for the Bank Company and the Bank, during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation achieved during that portion of the Officer’s period Employment Period which is prior to Xx. Xxxxxxxx'x termination of actual employment with the Company or the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the a discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term applicable PBGC Rate; provided. At the option of Xx. Xxxxxxxx, howeversuch payments may be made in equal monthly installments over a period of not less than three, that if nor more than five years, in which case such payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to will not be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plandiscounted;
(viivi) the payments payment that would have been made to the Officer Xx. Xxxxxxxx under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Company or the Bank, if he had continued working for the Company or the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Remaining Unexpired Employment Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer Xx. Xxxxxxxx under such incentive compensation plan, multiplied by
(B) net income of the Company for the most recent fiscal year which is prior to Xx. Xxxxxxxx'x termination of employment with the Company; such payments to be made in a lump sum payment in an amount equal to the present value of such payments as if made in accordance with Company's and/or Bank's Executive Bonus Plan, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under Section 1274(d) of the Code, within thirty (30) days following Xx. Xxxxxxxx'x termination of employment. At the option of Xx. Xxxxxxxx, such payments may be made in equal monthly installments over a period of not less than three, nor more than five years, in which case such payments will not be discounted;
(vii) at the election of the Company and the Bank made within thirty (30) days following his termination of employment with the Company and the Bank, upon the surrender of stock options or stock appreciation rights issued to Xx. Xxxxxxxx under any stock option and appreciation rights plan or program maintained by, or covering employees of, the Company and the Bank, a lump sum payment in an amount equal to the product of:
(A) the excess of (i) the fair market value of a share of stock of the same class as the stock subject to the option or appreciation right, determined as of the date of termination of employment, over (ii) the exercise price per share for such option or appreciation right, as specified in or under the relevant plan or program; multiplied by
(B) the salary that would number of shares with respect to which options or appreciation rights are being surrendered. For purposes of this Section 11(b)(vii) and for purposes of determining Xx. Xxxxxxxx'x right following his termination of employment with the Company or Bank to exercise any options or appreciation rights not surrendered pursuant hereto, Xx. Xxxxxxxx shall be deemed fully vested in all options and appreciation rights under any stock option or appreciation rights plan or program maintained by, or covering employees of, the Company or Bank, even if he is not vested under such plan or program, and shall have been paid a period of three months from the date of termination of employment to exercise such stock options or appreciation rights.
(viii) at the election of the Company or the Bank made within thirty (30) days following Xx. Xxxxxxxx'x termination of employment with the Company and the Bank, upon the surrender of any shares awarded to Xx. Xxxxxxxx under any restricted stock plan maintained by, or covering employees of, the Company and the Bank, a lump sum payment in an amount equal to the Officer during each product of:
(A) the fair market value of a share of stock of the same class of stock granted under such calendar year at plan, determined as of the highest annual rate date of salary achieved during Xx. Xxxxxxxx termination of employment; multiplied by
(B) the remaining unexpired Assurance Periodnumber of shares which are being surrendered. For purposes of this Section 11(b)(viii) and for purposes of determining Xx. Xxxxxxxx'x right following his termination of employment with the Company and the Bank to any stock not surrendered pursuant hereto, Xx. Xxxxxxxx shall be deemed fully vested in all shares awarded under any restricted stock plan maintained by, or covering employees of, the Company and the Bank, even if he is not vested under such payments plan;
(ix) the title to the car then currently provided to Xx. Xxxxxxxx shall be made without discounting for early payment .. transferred to Xx. Xxxxxxxx. The Company and the Bank and the Officer Xx. Xxxxxxxx hereby stipulate that the damages which may be incurred by the Officer Xx. Xxxxxxxx following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(bSection 11(b) constitute a reasonable estimate damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s Xx. Xxxxxxxx'x efforts, if any, to mitigate damages. The Company and the Bank and the Officer Xx. Xxxxxxxx further agree that the Company and the Bank may condition the payments and benefits (if any) due under sections 8(b)(iiiSections 11(b)(iii), (iv), (v), (vi) ), and (vii) on the receipt of the Officer’s Xx. Xxxxxxxx'x resignation from any and all positions which he holds as an officer, director or committee member with respect to the BankCompany, the Company Bank or any subsidiary or affiliate of either of them.
Appears in 2 contracts
Samples: Employment Agreement (Usb Holding Co Inc), Employment Agreement (Usb Holding Co Inc)
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his or her employment with the Bank shall terminate Company terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officer’s the Executive's voluntary resignation from employment with the Bank Company within ninety six (906) days months following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve in the same position in which the Officer was serving, on the day before the Assurance Period commenced office of Executive Vice President (or a more senior office) of the Company;
(B) if the Executive is or becomes a member of the Board, the failure of the stockholders of the Holding Company to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank Company of its material failure, whether by amendment of the Bank’s Organization Company's Certificate of Incorporation or By-laws, action of the Board or the Holding Company’s 's stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in Section 3 of this Agreement as of the Officer on the day before the Assurance Period commenced (or the functionsdate hereof, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Bank fully Company cures such failurefailure in a manner determined by the Executive, in his or her discretion, to be satisfactory;
(D) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which the Executive gives written notice to the Company of its material breach of any term, condition or covenant contained in this Agreement (including, without limitation, any reduction of the Executive's rate of base salary in effect from time to time and any change in the Officer terms and conditions of any compensation or benefit program in which the Executive participates which, either individually or together with other changes, has a material adverse effect on the aggregate value of his or her total compensation package), unless, during such material breach;thirty (30) day period, the Company cures such failure in a manner determined by the Executive, in his or her discretion, to be satisfactory; or
(E) a reduction in the compensation provided to relocation of the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s Executive's principal place of employment that would result in employment, without his or her written consent, to a one-way commuting time in excess location outside of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; orNassau County and Queens County, New York;
(ii) the discharge termination of the Officer by Executive's employment with the Bank Company for any other reason other than for “cause” as provided not described in section 9(aSection 10(a); then, subject to section 21. In such event, the Bank Company shall provide the benefits and pay to the Officer Executive the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained described in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commencedSection 9(b).
(b) Upon the termination of the Officer’s Executive's employment with the Bank Company under circumstances described in section 8(aSection 9(a) of this Agreement, the Bank Company shall pay and provide to the Officer Executive (or, in the event of the Officer’s death, to Executive's death following the Officer’s estate) on his Executive's termination of employment, subject to section 24 :his or her estate):
(i) the Officer’s his or her earned but unpaid compensation (including, without limitation, all items which constitute wages under section Section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(bSection 9(b)) as of the date of the termination of the Officer’s his or her employment with the BankCompany, such payment to be made at the time and in the manner prescribed by law applicable to the payment of wages but in no any event not later than thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer he or she is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s Company's officers and employees, including the annual bonus (if any) to which he or she is entitled under any cash-based annual bonus or performance compensation plan in effect for the year in which his or her termination occurs, to be paid at the same time and on the terms and conditions (including but not limited to achievement of performance goals) applicable under the relevant plan;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage (including any co-payments and deductibles, but excluding any premium sharing arrangements, it being the intention of the parties to this Agreement that the premiums for such insurance benefits shall be the sole cost and expense of the Company) equivalent to the coverage to which the Officer he or she would have been entitled under such plans (as in effect on the date of his or her termination of employment, or, if his or her termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) ), if the Officer he or she had continued working for the Bank Company during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation salary or compensation, as applicable, achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the BankCompany;
(iv) thirty (30) days following the Executive's termination of employment with the Company, a lump sum payment, payment in an amount equal to the present value representing an estimate of the salary that the Officer Executive would have earned if the Officer he or she had continued working for the Bank Company during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the Bank, where such present value is to be determined using a discount rate equal to Company (the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term RateSalary Severance Payment”), compounded . The Salary Severance Payment shall be computed using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) a lump sum payment in an amount equal to the excess, if any, offormula: SSP = BS x NY where:
(A) the present value of the aggregate benefits to which the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.
Appears in 2 contracts
Samples: Employment Agreement (Astoria Financial Corp), Employment Agreement (Astoria Financial Corp)
Termination of Employment with Severance Benefits. (a) In Executive shall be entitled to the severance benefits described in section 9(b) herein in the event that the Officer’s his employment with the Bank shall terminate terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The OfficerExecutive’s voluntary resignation for Good Reason from employment with the Bank within ninety six (906) days months following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect Executive to the Officer position stated in section 3 of this Agreement or the failure to serve in elect or re-elect him as trustee of the same position in which the Officer was serving, on the day before the Assurance Period commenced or a more senior officeBank;
(B) the failure expiration of a thirty (30) day period following the date on which Executive gives written notice to the Bank of its material failure, whether by amendment of the stockholders of Bank’s organization certificate or By-Laws, or the Holding Company to elect Bank’s state charter or reBy-elect the Officer as a member of the BoardLaws, if he was a member action of the Board on or otherwise, to vest in Executive, or continue to allow the Executive to perform, without material change or diminution, the functions, duties, or responsibilities prescribed in section 3 of this Agreement, unless, during such thirty (30) day before the Assurance Period commenced;period, such failure is cured; or
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank of its material failurebreach of any term, whether by amendment condition or covenant contained in this Agreement (including, without limitation any reduction of the BankExecutive’s Organization Certificate rate of base salary in effect from time to time or By-laws, action of the Board or the Holding Company’s stockholders or otherwise, to vest any change in the Officer the functionsterms and conditions of any compensation or benefit program in which Executive participates which, dutieseither individually or together with other changes, or responsibilities vested in the Officer has a material adverse effect on the day before the Assurance Period commenced (or the functions, duties and responsibilities aggregate value of a more senior office to which the Officer may be appointedhis total compensation package), unless unless, during such thirty (30) day period, the Bank fully cures such failurefailure is cured;
(D) the failure relocation of the Bank Bank’s offices at which the Executive is principally employed to cure a material breach of this Agreement by the Bank, within thirty (30) days following written notice location more than 30 miles from the Officer of such material breachoffices;
(E) any purported termination of the Executive’s employment in a reduction in the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program manner inconsistent with section 10 of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commencedthis Agreement;
(F) a change in the Officer’s principal place of employment that would result in a one-way commuting time in excess failure of the greater Bank and/or the Bank to obtain an effective agreement from any successor to assume and agree to perform this Agreement, as required by section 14 of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such changethis Agreement; or
(ii) the discharge termination by the Bank of the Officer by Executive’s employment with the Bank for any other reason not described in section 9(a) other than a termination of the Executive’s employment for “cause” or disability as provided discussion in section 9(a)10 hereto; or
(iii) subject to the provisions of section 10, the termination of the Executive’s employment for any other reason; then, subject to section 21, the Bank shall provide the benefits and pay to the Officer Executive the amounts provided for under described in section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced9(b).
(b) Upon the termination of the OfficerExecutive’s employment with the Bank under circumstances described in section 8(a9(a) of this Agreement, the Bank shall pay and provide to the Officer Executive (or, in the event of the Officer’s his death, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s earned but unpaid compensation (includingportion, without limitationif any, all items which constitute wages under section 190.1 of the New York Labor Law and compensation earned by the payment of which is not otherwise provided for under this section 8(b)) as of Executive through the date of the termination of the Officer’s his employment with the BankBank which remains unpaid as of such date, 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 thirty (30) days after the Executive’s termination of employment;
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained by the Bank for the benefit of the Bank’s their officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long long-term disability insurance benefits, in addition coverage plans under the plans and programs maintained by the Bank for similarly situated employees until the earlier to that provided pursuant to section 8(b)(iioccur of:
(A) and after taking into account the date the Executive first becomes eligible for such benefit coverage provided plans under the plans or programs maintained by any a subsequent employer, if and ; or
(B) the date the Remaining Unexpired Employment Period terminates;
(iv) an amount equal to the extent necessary to provide for the Officer, for the remaining unexpired Assurance Period, coverage equivalent to the coverage to which the Officer salary that Executive would have been entitled under such plans (as in effect on the date of his termination of employment, or, earned if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer he had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank;
(iv) a lump sum payment, in an amount equal to the present value of the salary that the Officer would have earned if the Officer had continued working for the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during that portion of the OfficerEmployment Period which is prior to Executive’s period termination of actual employment with the Bank, where such present value is to be determined using a discount rate equal to Bank (the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“CodeSalary Severance Payment”) (“Applicable Short-Term Rate”), compounded using the compounding periods corresponding to payable in accordance with the Bank’s regular payroll periods for its officersofficers (or at the Bank’s election in a lump sum with no present value applied), such lump sum Salary Severance Payment to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;; and
(v) a lump sum payment in an amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits to which annual bonuses that the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he Executive would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, earned if he had continued working for the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Periodperiod of three (3) years ending immediately prior to the date of termination (the “Bonus Severance Payment”). The Bonus Severance Payment shall be computed using the following formula: where “BSP” is the amount of the Bonus Severance Payment (before the deduction of applicable federal, state and local withholding taxes); “SSP” is the amount of the Salary Severance Payment (before the deduction of applicable federal, state and local withholding taxes); “ABP” is the aggregate of the annual bonuses paid or declared (whether or not paid) for the most recent period of three (3) calendar years to end on or before the Executive’s termination of employment; and “ASP” is the aggregate base salary actually paid to the Executive during such payments period of three (3) calendar years. The Bonus Severance Payment shall be in lieu of any claim to a continuation of participation in annual bonus plans of the Bank which the Executive might otherwise have and shall be made without discounting for early payment .. payable at the times that such bonuses would have been paid to the Executive had he remained employed by the Bank. The Bank and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b9(b) constitute a reasonable estimate damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the OfficerExecutive’s efforts, if any, to mitigate damages. The Bank and the Officer Executive further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii9(b)(iii), (iv9(b)(iv), (v), (vi) and (vii9(b)(v) on the receipt of the Officer(i) Executive’s resignation from any and all positions which he holds as an officer, trustee, director or committee member with respect to the Bank, the Company Bank or any subsidiary or affiliate of either of themthem and (ii) a release of claims (other than claims for indemnification and vested and accrued benefits) in favor of the Bank in a form specified by the Bank.
Appears in 2 contracts
Samples: Employment Agreement (CMS Bancorp, Inc.), Employment Agreement (CMS Bancorp, Inc.)
Termination of Employment with Severance Benefits. (a) In Executive shall be entitled to the severance benefits described in section 9(b) herein in the event that the Officer’s his employment with the Bank shall terminate Company terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officer’s Executive's voluntary resignation from employment with the Bank Company within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect Executive to the Officer to serve position stated in the same position in which the Officer was serving, on the day before the Assurance Period commenced section 3 of this Agreement (or a more senior office;office of the Company) or the failure of the Bank Board to appoint or re-appoint or elect or re-elect Executive to the position stated in section 3 of this Agreement (or a more senior position of the Bank); or
(B) the failure expiration of a thirty (30) day period following the date on which Executive gives written notice to the Company or the Bank, as the case may be, of its material failure, whether by amendment of the stockholders of Company's organization certificate or By-Laws, or the Holding Company to elect Bank's state charter or reBy-elect the Officer as a member of the BoardLaws, if he was a member action of the Board on or the Bank Board or otherwise, to vest in Executive the functions, duties, or responsibilities prescribed in section 3 of this Agreement, unless, during such thirty (30) day before the Assurance Period commenced;period, such failure is cured in a manner determined by Executive, in his discretion, to be satisfactory; or
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank Company or the Bank, as the case may be, of its material failurebreach of any term, whether by amendment condition or covenant contained in this Agreement (including, without limitation any reduction of the Bank’s Organization Certificate or By-laws, action Executive's rate of the Board or the Holding Company’s stockholders or otherwise, base salary in effect from time to vest time and any change in the Officer the functionsterms and conditions of any compensation or benefit program in which Executive participates which, dutieseither individually or together with other changes, or responsibilities vested in the Officer has a material adverse effect on the day before the Assurance Period commenced (or the functions, duties and responsibilities aggregate value of a more senior office to which the Officer may be appointedhis total compensation package), unless unless, during such thirty (30) day period, the Bank fully cures such failure;
(D) the failure of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days following written notice from the Officer of such material breach;
(E) a reduction in the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s principal place of employment that would result is cured in a one-way commuting time manner determined by Executive, in excess of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior his discretion, to such changebe satisfactory; or
(ii) subject to the discharge provisions of section 11, the Officer by termination of Executive's employment with the Bank Company for any other reason other than for “cause” as provided not described in section 9(a)) other than a termination of the Executive's employment for "cause"; then, subject to section 21, the Company shall provide (or cause the Bank shall provide the benefits and pay to the Officer provide) to Executive the amounts provided for under and benefits described in section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced9(b).
(b) Upon the termination of the Officer’s Executive's employment with the Bank Company under circumstances described in section 8(a9(a) of this Agreement, the Bank Company shall pay and provide (or cause the Bank to the Officer pay and provide) to Executive (or, in the event of the Officer’s deathhis death prior to such payment, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s earned but unpaid compensation (includingportion, without limitationif any, all items which constitute wages under section 190.1 of the New York Labor Law and compensation earned by the payment of which is not otherwise provided for under this section 8(b)) as of Executive through the date of the termination of the Officer’s his employment with the BankCompany which remains unpaid as of such date, 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 thirty (30) days after the Executive's termination of employment;
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs pro grams maintained by the Company and the Bank for the benefit of the Bank’s their officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long long-term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage equivalent to the coverage to which the Officer he would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) ), if the Officer he had continued working for the Bank Company during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation achieved during that portion of the Officer’s period Employ ment Period which is prior to Executive's termination of actual employment with the BankCompany;
(iv) within thirty (30) days following his termination of employment with the Company, a lump sum payment, in an amount equal to the present present value of the sum of (i) the salary that the Officer Executive would have earned if the Officer he had continued working for the Bank Company during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during that portion of the Officer’s period Employment Period which is prior to Executive's termination of actual employment with the Bank, Company; plus (ii) the bonuses the Executive would have earned had he continued working for the Company during the Remaining Unexpired Employment Period assuming Executive would have earned the highest annual bonus paid to him during the three years preceding the year in which his employment with the Company terminates; where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“"Code”) (“Applicable Short-Term Rate”"), compounded using the compounding periods period corresponding to the Bank’s Company's regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) a lump sum payment in an amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits to which the Officer would be entitled under any . The Company and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b9(b) constitute a reasonable estimate damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s Executive's efforts, if any, to mitigate damages. The Bank Company and the Officer Executive further agree that the Bank Company may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii9(b) on the receipt of the Officer’s Executive's resignation from any and all positions which he holds as an officer, director or committee member with respect to the BankCompany, the Company Bank or any subsidiary or affiliate of either of them.
Appears in 2 contracts
Samples: Employment Agreement (Westborough Financial Services Inc), Employment Agreement (Westborough Financial Services Inc)
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described in section 9(b) in the event that the Officer’s employment with the Bank shall terminate during the Assurance Period, or prior to the commencement of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account ofthat:
(i) The Officer’s voluntary resignation from his employment with the Bank Company terminates during the Employment Period as a result of the Executive's voluntary resignation within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve the position with the Company stated in the same position in which the Officer was serving, on the day before the Assurance Period commenced or a more senior officesection 3 of this Agreement;
(B) if the Executive is a member of the Board, the failure of the stockholders shareholders of the Holding Company to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) day 30)-day period following the date on which the Officer Executive gives written notice to the Bank Company of its material failure, whether by amendment of the Bank’s Organization Company's Certificate or of Incorporation, the Company's By-lawsLaws, action of the Board or the Holding Company’s stockholders 's shareholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in the Officer on the day before the Assurance Period commenced (or the functionssection 3 of this Agreement, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day 30)-day period, the Bank fully Company cures such failure;
(D) the failure expiration of a thirty (30)-day period following the Bank date on which the Executive gives written notice to cure a the Company of its material breach of any term, condition or covenant contained in this Agreement by (including, without limitation any reduction of the BankExecutive's rate of base salary in effect from time to time and any change in the terms and conditions of any compensation or benefit program in which the Executive participates which, within either individually or together with other changes, has a material adverse effect on the aggregate value of his total compensation package), unless, during such thirty (30) days following written notice from 30)-day period, the Officer of Company cures such material breachfailure;
(E) a reduction change in the compensation provided Executive's principal place of employment to a place that is not the Officerprincipal executive office of the Bank, or a material reduction in the benefits provided to the Officer under relocation of the Bank’s program 's principal executive office to a location that is both more than twenty-five (25) miles away from the Executive's principal residence and more than twenty- five (25) miles away from the location of employee benefits, compared with the compensation and benefits that were provided to the Officer Bank's principal executive office on the day before the Assurance Period commenced;date of this Agreement; or
(F) a change in the Officer’s principal place of employment that would result in a one-way commuting time in excess of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; or
(ii) the discharge of the Officer any material breach by the Bank for Company of any reason other than for “cause” as provided material term, condition or covenant contained in section 9(a); then, subject to section 21, the Bank shall provide the benefits and pay to the Officer the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result the Executive shall have given notice of the Officer’s termination of employment prior such materials adverse effect to the commencement of Company, and the Assurance Period, Company has not fully cured such failure within thirty (30) days after such notice is deemed given; or
(ii) the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated Executive's employment with the Bank until Company is terminated by the date on which the Officer’s Assurance Period would have commencedCompany for any reason other than for "cause" as provided in section 11(a).
(b) Upon the termination occurrence of any of the Officer’s employment with the Bank under circumstances events described in section 8(a9(a) of this Agreement, the Bank Company shall pay and provide to the Officer Executive (or, in the event of the Officer’s deathhis death thereafter and prior to payment, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s his earned but unpaid compensation salary (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law applicable law and the payment of which is not otherwise provided for under in this section 8(b9(b)) as of the date of the termination of the Officer’s his employment with the Company and the Bank, 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 thirty (30) days after termination of employmentemployment as defined in Treasury Regulation Section 1.409A-1(h)(1)(ii);
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Company's and the Bank’s 's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long long-term disability insurance benefitsbenefits on substantially the same terms and conditions (including any required premium-sharing arrangements, co-payments and deductibles) in addition effect for them immediately prior to that the Executive's termination for the Remaining Unexpired Employment Period for the Executive and his dependents. The coverage provided under this section 9(b)(iii) may, at the election of the Company, be secondary to the coverage provided pursuant to section 8(b)(ii9(b)(ii) and after taking into account the to any employer-paid coverage provided by any a subsequent employeremployer or through Medicare, if and to with the extent necessary to provide for result that benefits under the Officer, for the remaining unexpired Assurance Period, coverage equivalent to other coverages will offset the coverage to which required by this section 9(b)(iii). The Executive, the Officer would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer had continued working for Company and the Bank during agree that the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Banktermination benefits described in this Section 9(b)(iii) are intended to be exempt from Section 409A pursuant to Treasury Regulation Section 1.409A-1(b)(1) as non-taxable benefits;
(iv) a lump sum payment, payment in an amount equal to the present estimated present value of the salary that the Officer Executive would have earned if the Officer he had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the Officer’s period of actual employment with the Bank, where such present value is three (3) years ending immediately prior to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) a lump sum payment in an amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits to which the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of termination of employment by adding to (the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I"Salary Severance Payment"), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to . The Salary Severance Payment shall be determined computed using the mortality tables prescribed under section 415(b)(2)(E)(vfollowing formula: n (BS/PR) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
SSP=3 [-------------------------------] 1 n [1 + (vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iiiI / PR), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.]
Appears in 2 contracts
Samples: Employment Agreement (Westfield Financial Inc), Employment Agreement (Westfield Financial Inc)
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described in section 9(b) in the event that the Officer’s employment with the Bank shall terminate during the Assurance Period, or prior to the commencement of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account ofthat:
(i) The Officer’s voluntary resignation from his employment with the Bank terminates during the Employment Period as a result of the Executive’s voluntary resignation within ninety (90) 90 days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve the position with the Bank stated in the same position in which the Officer was serving, on the day before the Assurance Period commenced or a more senior officesection 3 of this Agreement;
(B) if the Executive is a member of the Board, the failure of the stockholders shareholders of the Holding Company Bank to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) -day period following the date on which the Officer Executive gives written notice to the Bank of its material failure, whether by amendment of the Bank’s Restated Organization Certificate or Certificate, the Bank’s By-lawsLaws, action of the Board or the Holding CompanyBank’s stockholders shareholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in the Officer on the day before the Assurance Period commenced (or the functionssection 3 of this Agreement, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) -day period, the Bank fully cures such failure;
(D) the failure expiration of a 30-day period following the date on which the Executive gives written notice to the Bank to cure a of its material breach of any term, condition or covenant contained in this Agreement by (including, without limitation any reduction of the BankExecutive’s rate of base salary in effect from time to time and any change in the terms and conditions of any compensation or benefit program in which the Executive participates which, within thirty (either individually or together with other changes, has a material adverse effect on the aggregate value of his total compensation package), unless, during such 30) days following written notice from -day period, the Officer of Bank cures such material breachfailure;
(E) a reduction in the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the OfficerExecutive’s principal place of employment to a place that would result in a one-way commuting time in excess is not the principal executive office of the greater Bank, or a relocation of the Bank’s principal executive office to a location that is both more than twenty-five miles away from the Executive’s principal residence and more than twenty-five miles away from the location of the Bank’s principal executive office on the date of this Agreement; or
(IF) 30 minutes any material breach by the Bank of any material term, condition or (II) covenant contained in this Agreement; provided, however, that the Officer’s commuting time immediately prior Executive shall have given notice of such materials adverse effect to the Bank, and the Bank has not fully cured such changefailure within thirty days after such notice is deemed given; or
(ii) the discharge of Executive’s employment with the Officer Bank is terminated by the Bank for any reason other than for “cause” as provided in section 9(a11(a); then, subject to section 21, the Bank shall provide the benefits and pay to the Officer the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced.
(b) Upon the termination occurrence of any of the Officer’s employment with the Bank under circumstances events described in section 8(a9(a) of this Agreement, the Bank shall pay and provide to the Officer Executive (or, in the event of the Officer’s deathhis death thereafter and prior to payment, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s his earned but unpaid compensation salary (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law applicable law and the payment of which is not otherwise provided for under in this section 8(b9(b)) as of the date of the termination of the Officer’s his employment with the Company and the Bank, 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 thirty (30) 30 days after termination of employment;
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Company’s and the Bank’s officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long long-term disability insurance benefitsbenefits on substantially the same terms and conditions (including any required premium-sharing arrangements, co-payments and deductibles) in addition effect for them immediately prior to that the Executive’s termination for the Remaining Unexpired Employment Period for the Executive and his dependents. The coverage provided under this section 9(b)(iii) may, at the election of the Company, be secondary to the coverage provided pursuant to section 8(b)(ii9(b)(ii) and after taking into account the to any employer-paid coverage provided by any a subsequent employeremployer or through Medicare, if and to with the extent necessary to provide for result that benefits under the Officer, for the remaining unexpired Assurance Period, coverage equivalent to other coverages will offset the coverage to which the Officer would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bankrequired by this section 9(b)(iii);
(iv) a lump sum payment, payment in an amount equal to the present estimated present value of the salary that the Officer Executive would have earned if the Officer he had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the Officer’s period of actual employment with the Bank, where such present value is to be determined using a discount rate equal three (3) years ending immediately prior to the date of termination (the “Salary Severance Payment”). The Salary Severance Payment shall be computed using the following formula: SSP=Sn1 [ (BS/PR) ] [1 + (I/PR)]n where “SSP” is the amount of the Salary Severance Payment (before the deduction of applicable short-federal, state and local withholding taxes); “BS” is the highest annual rate of salary achieved by the Executive during the period of three (3) years ending immediately prior to the date of termination; “PR” is the number of payroll periods that occur during a year under the Company’s normal payroll practices; “I” equals the applicable federal short term federal rate prescribed established under section 1274(d) 1274 of the Internal Revenue Code of 1986 (the “Code”) for the month in which the Executive’s termination of employment occurs (the “Applicable Short-Short Term RateAFR”), compounded using ) and “n” equals the compounding product of the Remaining Unexpired Employment Period at the Executive’s termination of employment (expressed in years and fractions of years) multiplied by the number of payroll periods corresponding to that occur during a year under the Company’s and the Bank’s regular normal payroll periods for its officers, such lump sum to practices. The Salary Severance Payment shall be paid made within five (5) business days after the Executive’s termination of employment and shall be in lieu of all other payments any claim to a continuation of base salary provided which the Executive might otherwise have and in lieu of cash severance benefits under any severance benefits program which may be in effect for under this Agreement in respect officers or employees of the period following any such terminationBank or the Company;
(v) a lump sum payment in an amount equal to the excess, if any, of:
(A) the estimated present value of the aggregate benefits to which annual bonuses that the Officer Executive would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank have earned if the Officer were 100% vested thereunder and he had continued working for the Company and the Bank during the remaining unexpired Assurance Period, such benefits Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the period of three (3) years ending immediately prior to be determined as of the date of termination (the “Bonus Severance Payment”). The Bonus Severance Payment shall be computed using the following formula: where “BSP” is the amount of employment by adding the Bonus Severance Payment (before the deduction of applicable federal, state and local withholding taxes); “SSP” is the amount of the Salary Severance Payment (before the deduction of applicable federal, state and local withholding taxes); “BP” is the aggregate of the annual bonuses paid or declared (whether or not paid) for the most recent period of three (3) calendar years to end on or before the Executive’s termination of employment; and “SP” is the aggregate base salary actually paid to the service actually recognized under Executive during such plans an additional period equal to of three (3) calendar years (excluding any year for which no bonus was declared or paid). The Bonus Severance Payment shall be made within five (5) business days after the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which Executive’s termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value shall be in lieu of any claim to a continuation of participation in annual bonus plans of the benefits to Bank or the Company which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming Executive might otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified planhave;
(vi) a lump sum payment in an amount equal to the estimated present value of the additional employer contributions long-term incentive bonuses that the Executive would have earned if he had continued working for the Company and the Bank during the Remaining Unexpired Employment Period (the “Incentive Severance Payment”). The Incentive Severance Payment shall be computed using the following formula: where “ISP” is the amount of the Incentive Severance Payment (before the deduction of applicable federal, state and local withholding taxes); “SSP” is the amount of the Salary Severance Payment (before the deduction of applicable federal, state and local withholding taxes); “ALTIP” is the aggregate of the most recently paid or if greater in declared (whether or not paid) long-term incentive compensation payments (but not more than three (3) such payments) for performance periods that end on or before the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at Executive’s termination of employment; “ALTSP” is the aggregate base salary actually paid to the Executive during the performance periods covered by the payments included in “ALTIP” and excluding base salary paid for any period for which no long-term incentive compensation payment was declared or paid; “RUP” is the Remaining Unexpired Employment Period, expressed in years and fractions of years; and “Y” is the aggregate (expressed in years and fractions of years) of the Remaining Unexpired Employment Period plus the number of years and fraction of years that have elapsed since the end of the last performance period for which a long-term incentive payment has been declared and paid. In the event that the Executive’s employment terminates prior to the payment date under any long-term incentive compensation plan, then for purposes of computing the Incentive Severance Payment, the “ALTIP” shall be deemed to be the average of the target and maximum award level under such plan and the “ALTSP” shall be deemed to be the Executive’s annual base salary as in effect on the Executive’s termination of employment. The Incentive Severance Payment shall be made within five (5) business days after the Executive’s termination of employment and shall be in lieu of any claim to a continuation of participation in cash long-term incentive compensation plans of the Bank or the Company which the Executive might otherwise have;
(vii) a lump sum payment in an amount equal to the excess (if any) of: (A) the present value of the aggregate benefits to which he would have been be entitled under any and all tax-qualified and non-tax-qualified defined contribution benefit plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for Company or the Bank during (the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi“Pension Plans”) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Company and the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Remaining Unexpired Employment Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
over (B) the salary that would have been paid present value of the benefits to which the Executive and his spouse and/or designated beneficiaries are actually entitled under such plans (the “Pension Severance Payment”). The Pension Severance Payment shall be computed according to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.formula:
Appears in 2 contracts
Samples: Employment Agreement (Westfield Financial Inc), Employment Agreement (Westfield Financial Inc)
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described in section 9(b) in the event that the Officer’s employment with the Bank shall terminate during the Assurance Period, or prior to the commencement of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account ofthat:
(i) The Officerher employment with the Company terminates during the Employment Period as a result of the Executive’s voluntary resignation from employment with the Bank within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve the position with the Company stated in the same position in which the Officer was serving, on the day before the Assurance Period commenced or a more senior officesection 3 of this Agreement;
(B) if the Executive is a member of the Board, the failure of the stockholders shareholders of the Holding Company to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) day 30)-day period following the date on which the Officer Executive gives written notice to the Bank Company of its material failure, whether by amendment of the BankCompany’s Organization Certificate or of Incorporation, the Company’s By-lawsLaws, action of the Board or the Holding Company’s stockholders shareholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in the Officer on the day before the Assurance Period commenced (or the functionssection 3 of this Agreement, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day 30)-day period, the Bank fully Company cures such failure;
(D) the failure expiration of a thirty (30)-day period following the Bank date on which the Executive gives written notice to cure a the Company of its material breach of any term, condition or covenant contained in this Agreement by (including, without limitation any reduction of the Executive’s rate of base salary in effect from time to time and any change in the terms and conditions of any compensation or benefit program in which the Executive participates which, either individually or together with other changes, has a material adverse effect on the aggregate value of her total compensation package), unless, during such thirty (30)-day period, the Company cures such failure;
(E) a change in the Executive’s principal place of employment to a place that is not the principal executive office of the Bank, or a relocation of the Bank’s principal executive office to a location that is both more than twenty-five (25) miles away from the Executive’s principal residence and more than twenty-five (25) miles away from the location of the Bank’s principal executive office on the date of this Agreement; or
(F) any material breach by the Company of any material term, condition or covenant contained in this Agreement; provided, however, that the Executive shall have given notice of such materials adverse effect to the Company, and the Company has not fully cured such failure within thirty (30) days following written after such notice from the Officer of such material breach;
(E) a reduction in the compensation provided to the Officer, is deemed given; or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s principal place of employment that would result in a one-way commuting time in excess of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; or
(ii) the discharge of the Officer by the Bank for any reason other than for “cause” as provided in section 9(a11(a); then, subject to section 21, the Bank shall provide the benefits and pay to the Officer the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced.
(b) Upon the termination occurrence of any of the Officer’s employment with the Bank under circumstances events described in section 8(a9(a) of this Agreement, the Bank Company shall pay and provide to the Officer Executive (or, in the event of the Officer’s deathher death thereafter and prior to payment, to the Officer’s her estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s her earned but unpaid compensation salary (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law applicable law and the payment of which is not otherwise provided for under in this section 8(b9(b)) as of the date of the termination of the Officer’s her employment with the Company and the Bank, 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 thirty (30) days after termination of employmentemployment as defined in Treasury Regulation Section 1.409A-1(h)(1)(ii);
(ii) the benefits, if any, to which the Officer she is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Company’s and the Bank’s officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long long-term disability insurance benefitsbenefits on substantially the same terms and conditions (including any required premium-sharing arrangements, co-payments and deductibles) in addition effect for them immediately prior to that the Executive’s termination for the Remaining Unexpired Employment Period for the Executive and her dependents. The coverage provided under this section 9(b)(iii) may, at the election of the Company, be secondary to the coverage provided pursuant to section 8(b)(ii9(b)(ii) and after taking into account the to any employer-paid coverage provided by any a subsequent employeremployer or through Medicare, if and to with the extent necessary to provide for result that benefits under the Officer, for the remaining unexpired Assurance Period, coverage equivalent to other coverages will offset the coverage to which required by this section 9(b)(iii). The Executive, the Officer would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer had continued working for Company and the Bank during agree that the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Banktermination benefits described in this Section 9(b)(iii) are intended to be exempt from Section 409A pursuant to Treasury Regulation Section 1.409A-1(b) (1) as non-taxable benefits;
(iv) a lump sum payment, payment in an amount equal to the present estimated present value of the salary that the Officer Executive would have earned if the Officer she had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the Officer’s period of actual employment with the Bank, where such present value is to be determined using a discount rate equal three (3) years ending immediately prior to the date of termination (the “Salary Severance Payment”). The Salary Severance Payment shall be computed using the following formula: where “SSP” is the amount of the Salary Severance Payment (before the deduction of applicable short-federal, state and local withholding taxes); “BS” is the highest annual rate of salary achieved by the Executive during the period of three (3) years ending immediately prior to the date of termination; “PR” is the number of payroll periods that occur during a year under the Company’s normal payroll practices; “I” equals the applicable federal short term federal rate prescribed established under section 1274(d) 1274 of the Internal Revenue Code of 1986 (the “Code”) for the month in which the Executive’s termination of employment occurs (the “Applicable Short-Short Term RateAFR”), compounded using ) and “n” equals the compounding product of the Remaining Unexpired Employment Period at the Executive’s termination of employment (expressed in years and fractions of years) multiplied by the number of payroll periods corresponding to that occur during a year under the Company’s and the Bank’s regular normal payroll periods for its officers, such lump sum to practices. The Salary Severance Payment shall be paid in lieu of all other payments any claim to a continuation of base salary provided which the Executive might otherwise have and in lieu of cash severance benefits under any severance benefits program which may be in effect for under this Agreement in respect officers or employees of the period following any such terminationBank or the Company;
(v) a lump sum payment in an amount equal to the excess, if any, of:
(A) the estimated present value of the aggregate benefits to which annual bonuses that the Officer Executive would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank have earned if the Officer were 100% vested thereunder and she had continued working for the Company and the Bank during the remaining unexpired Assurance Period, such benefits Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the period of three (3) years ending immediately prior to be determined as of the date of termination (the “Bonus Severance Payment”). The Bonus Severance Payment shall be computed using the following formula: where “BSP” is the amount of employment by adding the Bonus Severance Payment (before the deduction of applicable federal, state and local withholding taxes); “SSP” is the amount of the Salary Severance Payment (before the deduction of applicable federal, state and local withholding taxes); “BP” is the aggregate of the annual bonuses paid or declared (whether or not paid) for the most recent period of three (3) calendar years to end on or before the Executive’s termination of employment; and “SP” is the aggregate base salary actually paid to the service actually recognized under Executive during such period of three (3) calendar years (excluding any year for which no bonus was declared or paid). The Bonus Severance Payment shall be in lieu of any claim to a continuation of participation in annual bonus plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to Bank or the Company which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming Executive might otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified planhave;
(vi) a lump sum payment in an amount equal to the estimated present value of the additional employer contributions long-term incentive bonuses that the Executive would have earned if she had continued working for the Company and the Bank during the Remaining Unexpired Employment Period (the “Incentive Severance Payment”). The Incentive Severance Payment shall be computed using the following formula: where “ISP” is the amount of the Incentive Severance Payment (before the deduction of applicable federal, state and local withholding taxes); “SSP” is the amount of the Salary Severance Payment (before the deduction of applicable federal, state and local withholding taxes); “ALTIP” is the aggregate of the most recently paid or if greater in declared (whether or not paid) long-term incentive compensation payments (but not more than three (3) such payments) for performance periods that end on or before the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at Executive’s termination of employment; “ALTSP” is the aggregate base salary actually paid to the Executive during the performance periods covered by the payments included in “ALTIP” and excluding base salary paid for any period for which no long-term incentive compensation payment was declared or paid; “RUP” is the Remaining Unexpired Employment Period, expressed in years and fractions of years; and “Y” is the aggregate (expressed in years and fractions of years) of the Remaining Unexpired Employment Period plus the number of years and fraction of years that have elapsed since the end of the last performance period for which a long-term incentive payment has been declared and paid. In the event that the Executive’s employment terminates prior to the payment date under any long-term incentive compensation plan, then for purposes of computing the Incentive Severance Payment, the “ALTSP” shall be deemed to be the average of the target and maximum award level under such plan and the “ALTSP” shall be deemed to be the Executive’s annual base salary as in effect on the Executive’s termination of employment. The Incentive Severance Payment shall be in lieu of any claim to a continuation of participation in cash long-term incentive compensation plans of the Bank or the Company which the Executive might otherwise have;
(vii) a lump sum payment in an amount equal to the excess (if any) of (A) the present value of the aggregate benefits to which he she would have been be entitled under any and all tax-qualified and non-tax-qualified defined contribution benefit plans maintained by, or covering employees of, the Bank, Company or the Bank (the “Pension Plans”) if he were 100% vested thereunder and she had continued working for the Company and the. Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term RateRemaining Unexpired Employment Period; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
over (B) the salary that would have been paid present value of the benefits to which the Executive and her spouse and/or designated beneficiaries are actually entitled under such plans (the “Pension Severance Payment”). The Pension Severance Payment shall be computed according to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.formula:
Appears in 2 contracts
Samples: Employment Agreement (Westfield Financial Inc), Merger Agreement (Westfield Financial Inc)
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his or her employment with the Bank shall terminate Company terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officer’s the Executive's voluntary resignation from employment with the Bank Company within ninety six (906) days months following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve in the same position in which the Officer was serving, on the day before the Assurance Period commenced office of Executive Vice President (or a more senior office) of the Company;
(B) if the Executive is or becomes a member of the Board, the failure of the stockholders of the Holding Company to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank Company of its material failure, whether by amendment of the Bank’s Organization Company's Certificate of Incorporation or By-laws, action of the Board or the Holding Company’s 's stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in Section 3 of this Agreement as of the Officer on the day before the Assurance Period commenced (or the functionsdate hereof, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Bank fully Company cures such failurefailure in a manner determined by the Executive, in his or her discretion, to be satisfactory;
(D) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which the Executive gives written notice to the Company of its material breach of any term, condition or covenant contained in this Agreement (including, without limitation, any reduction of the Executive's rate of base salary in effect from time to time and any change in the Officer terms and conditions of such any compensation or benefit program in which the Executive participates which, either individually or together with other changes, has a material breach;adverse effect on the aggregate value of his or her total compensation
(E) a reduction in the compensation provided to relocation of the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s Executive's principal place of employment that would result in employment, without his or her written consent, to a one-way commuting time in excess location outside of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; orNassau County and Queens County, New York;
(ii) the discharge termination of the Officer by Executive's employment with the Bank Company for any other reason other than for “cause” as provided not described in section 9(aSection 10(a); then, subject to section 21. In such event, the Bank Company shall provide the benefits and pay to the Officer Executive the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained described in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commencedSection 9(b).
(b) Upon the termination of the Officer’s Executive's employment with the Bank Company under circumstances described in section 8(aSection 9(a) of this Agreement, the Bank Company shall pay and provide to the Officer Executive (or, in the event of the Officer’s death, to Executive's death following the Officer’s estate) on his Executive's termination of employment, subject to section 24 :his or her estate):
(i) the Officer’s his or her earned but unpaid compensation (including, without limitation, all items which constitute wages under section Section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(bSection 9(b)) as of the date of the termination of the Officer’s his or her employment with the BankCompany, such payment to be made at the time and in the manner prescribed by law applicable to the payment of wages but in no any event not later than thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer he or she is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s Company's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage (including any co-payments and deductibles, but excluding any premium sharing arrangements, it being the intention of the parties to this Agreement that the premiums for such insurance benefits shall be the sole cost and expense of the Company) equivalent to the coverage to which the Officer he or she would have been entitled under such plans (as in effect on the date of his or her termination of employment, or, if his or her termination of employment occurs after a Change of Control, on the date of
(iv) within thirty (30) days following the Executive's termination of such Change employment with the Company, a lump sum payment in an amount representing an estimate of Control, whichever benefits are greater) the salary that the Executive would have earned if the Officer he or she had continued working for the Bank Company during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank;
(iv) a lump sum payment, in an amount equal to the present value of the salary that the Officer would have earned if the Officer had continued working for the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the Bank, where such present value is to Company (the "Salary Severance Payment"). The Salary Severance Payment shall be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded computed using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) a lump sum payment in an amount equal to the excess, if any, offormula: SSP = BS x NY where:
(A) the present value of the aggregate benefits to which the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.
Appears in 2 contracts
Samples: Employment Agreement (Astoria Financial Corp), Employment Agreement (Astoria Financial Corp)
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described in section 9(b) in the event that the Officer’s employment with the Bank shall terminate during the Assurance Period, or prior to the commencement of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account ofthat:
(i) The Officer’s voluntary resignation from his employment with the Bank Company terminates during the Employment Period as a result of the Executive's voluntary resignation within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve the position with the Company stated in the same position in which the Officer was serving, on the day before the Assurance Period commenced or a more senior officesection 3 of this Agreement;
(B) if the Executive is a member of the Board, the failure of the stockholders shareholders of the Holding Company to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) day 30)-day period following the date on which the Officer Executive gives written notice to the Bank Company of its material failure, whether by amendment of the Bank’s Organization Company's Certificate or of Incorporation, the Company's By-lawsLaws, action of the Board or the Holding Company’s stockholders 's shareholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in the Officer on the day before the Assurance Period commenced (or the functionssection 3 of this Agreement, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day 30)-day period, the Bank fully Company cures such failure;
(D) the failure expiration of a thirty (30)-day period following the Bank date on which the Executive gives written notice to cure a the Company of its material breach of any term, condition or covenant contained in this Agreement by (including, without <PAGE> limitation any reduction of the BankExecutive's rate of base salary in effect from time to time and any change in the terms and conditions of any compensation or benefit program in which the Executive participates which, within either individually or together with other changes, has a material adverse effect on the aggregate value of his total compensation package), unless, during such thirty (30) days following written notice from 30)-day period, the Officer of Company cures such material breachfailure;
(E) a reduction change in the compensation provided Executive's principal place of employment to a place that is not the Officerprincipal executive office of the Bank, or a material reduction in the benefits provided to the Officer under relocation of the Bank’s program 's principal executive office to a location that is both more than twenty-five (25) miles away from the Executive's principal residence and more than twenty-five (25) miles away from the location of employee benefits, compared with the compensation and benefits that were provided to the Officer Bank's principal executive office on the day before the Assurance Period commenced;date of this Agreement; or
(F) a change in the Officer’s principal place of employment that would result in a one-way commuting time in excess of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; or
(ii) the discharge of the Officer any material breach by the Bank for Company of any reason other than for “cause” as provided material term, condition or covenant contained in section 9(a); then, subject to section 21, the Bank shall provide the benefits and pay to the Officer the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result the Executive shall have given notice of the Officer’s termination of employment prior such materials adverse effect to the commencement of Company, and the Assurance Period, Company has not fully cured such failure within thirty (30) days after such notice is deemed given; or
(ii) the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated Executive's employment with the Bank until Company is terminated by the date on which the Officer’s Assurance Period would have commencedCompany for any reason other than for "cause" as provided in section 11(a).
(b) Upon the termination occurrence of any of the Officer’s employment with the Bank under circumstances events described in section 8(a9(a) of this Agreement, the Bank Company shall pay and provide to the Officer Executive (or, in the event of the Officer’s deathhis death thereafter and prior to payment, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s his earned but unpaid compensation salary (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law applicable law and the payment of which is not otherwise provided for under in this section 8(b9(b)) as of the date of the termination of the Officer’s his employment with the Company and the Bank, 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 thirty (30) days after termination of employmentemployment as defined in Treasury Regulation Section 1.409A-1(h)(1)(ii);
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Company's and the Bank’s 's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long long-term disability insurance benefitsbenefits on substantially the same terms and conditions (including any required premium-sharing arrangements, co-payments and deductibles) in addition effect for them immediately prior to that the Executive's termination for the Remaining Unexpired Employment Period for the Executive and his dependents. The coverage provided under this section 9(b)(iii) may, at the election of the Company, be secondary to the coverage provided pursuant to section 8(b)(ii9(b)(ii) and after taking into account the to any employer-paid coverage provided by any a subsequent employeremployer or through Medicare, if and to with <PAGE> the extent necessary to provide for result that benefits under the Officer, for the remaining unexpired Assurance Period, coverage equivalent to other coverages will offset the coverage to which required by this section 9(b)(iii). The Executive, the Officer would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer had continued working for Company and the Bank during agree that the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Banktermination benefits described in this Section 9(b)(iii) are intended to be exempt from Section 409A pursuant to Treasury Regulation Section 1.409A-1(b)(1) as non-taxable benefits;
(iv) a lump sum payment, payment in an amount equal to the present estimated present value of the salary that the Officer Executive would have earned if the Officer he had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the Officer’s period of actual employment with the Bank, where such present value is to be determined using a discount rate equal three (3) years ending immediately prior to the date of termination (the "Salary Severance Payment"). The Salary Severance Payment shall be computed using the following formula: SSP=3 1 [ [1 + (I / PR)]n ] where "SSP" is the amount of the Salary Severance Payment (before the deduction of applicable short-federal, state and local withholding taxes); "BS" is the highest annual rate of salary achieved by the Executive during the period of three (3) years ending immediately prior to the date of termination; "PR" is the number of payroll periods that occur during a year under the Company's normal payroll practices; "I" equals the applicable federal short term federal rate prescribed established under section 1274(d) 1274 of the Internal Revenue Code of 1986 (“the "Code”") for the month in which the Executive's termination of employment occurs (“Applicable Short-the "Short Term Rate”), compounded using AFR") and "n" equals the compounding product of the Remaining Unexpired Employment Period at the Executive's termination of employment (expressed in years and fractions of years) multiplied by the number of payroll periods corresponding to that occur during a year under the Company's and the Bank’s regular 's normal payroll periods for its officers, such lump sum to practices. The Salary Severance Payment shall be paid made within five (5) business days after the Executive's termination of employment and shall be in lieu of all other payments any claim to a continuation of base salary provided which the Executive might otherwise have and in lieu of cash severance benefits under any severance benefits program which may be in effect for under this Agreement in respect officers or employees of the period following any such terminationBank or the Company;
(v) a lump sum payment in an amount equal to the excess, if any, of:
(A) the estimated present value of the aggregate benefits to which annual bonuses that the Officer Executive would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank have earned if the Officer were 100% vested thereunder and he had continued working for the Company and the Bank during the remaining unexpired Assurance Period, such benefits Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the period of three (3) years ending immediately prior to be determined as of the date of termination (the "Bonus Severance Payment"). The Bonus Severance Payment shall be computed using the following formula: where "BSP" is the amount of employment by adding the Bonus Severance Payment (before the deduction of applicable federal, state and local withholding taxes); "SSP" is the amount of the Salary Severance Payment (before the deduction of applicable federal, state and local withholding taxes); "BP" is the aggregate of the annual bonuses paid or declared <PAGE> (whether or not paid) for the most recent period of three (3) calendar years to end on or before the Executive's termination of employment; and "SP" is the aggregate base salary actually paid to the service actually recognized under Executive during such plans an additional period equal to of three (3) calendar years (excluding any year for which no bonus was declared or paid). The Bonus Severance Payment shall be made within five (5) business days after the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which Executive's termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value shall be in lieu of any claim to a continuation of participation in annual bonus plans of the benefits to Bank or the Company which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming Executive might otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified planhave;
(vi) a lump sum payment in an amount equal to the estimated present value of the additional employer contributions long-term incentive bonuses that the Executive would have earned if he had continued working for the Company and the Bank during the Remaining Unexpired Employment Period (the "Incentive Severance Payment"). The Incentive Severance Payment shall be computed using the following formula: where "ISP" is the amount of the Incentive Severance Payment (before the deduction of applicable federal, state and local withholding taxes); "SSP" is the amount of the Salary Severance Payment (before the deduction of applicable federal, state and local withholding taxes); "ALTIP" is the aggregate of the most recently paid or if greater in declared (whether or not paid) long-term incentive compensation payments (but not more than three (3) such payments) for performance periods that end on or before the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at Executive's termination of employment; "ALTSP" is the aggregate base salary actually paid to the Executive during the performance periods covered by the payments included in "ALTIP" and excluding base salary paid for any period for which no long-term incentive compensation payment was declared or paid; "RUP" is the Remaining Unexpired Employment Period, expressed in years and fractions of years; and "Y" is the aggregate (expressed in years and fractions of years) of the Remaining Unexpired Employment Period plus the number of years and fraction of years that have elapsed since the end of the last performance period for which a long-term incentive payment has been declared and paid. In the event that the Executive's employment terminates prior to the payment date under any long-term incentive compensation plan, then for purposes of computing the Incentive Severance Payment, the "ALTIP" shall be deemed to be the average of the target and maximum award level under such plan and the "ALTSP" shall be deemed to be the Executive's annual base salary as in effect on the Executive's termination of employment. The Incentive Severance Payment shall be made within five (5) business days after the Executive's termination of employment and shall be in lieu of any claim to a continuation of participation in cash long-term incentive compensation plans of the Bank or the Company which the Executive might otherwise have;
(vii) a lump sum payment in an amount equal to the excess (if any) of: (A) the present value of the aggregate benefits to which he would have been be entitled under any and all tax-qualified and non-tax-qualified defined contribution benefit plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for Company or the Bank during (the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi"Pension Plans") as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Company and the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Remaining Unexpired Employment Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
over (B) the salary that would have been paid present value of the benefits to which the Executive and his spouse and/or designated beneficiaries are actually entitled under such plans (the "Pension <PAGE> Severance Payment"). The Pension Severance Payment shall be computed according to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.formula:
Appears in 2 contracts
Samples: Employment Agreement (Westfield Financial Inc), Employment Agreement (Westfield Financial Inc)
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described in section 9(b) in the event that the Officer’s employment with the Bank shall terminate during the Assurance Period, or prior to the commencement of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account ofthat:
(i) The Officer’s voluntary resignation from his employment with the Bank terminates during the Employment Period as a result of the Executive's voluntary resignation within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve the position with the Bank stated in the same position in which the Officer was serving, on the day before the Assurance Period commenced or a more senior officesection 3 of this Agreement;
(B) if the Executive is a member of the Board, the failure of the stockholders shareholders of the Holding Company Bank to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) day 30)-day period following the date on which the Officer Executive gives written notice to the Bank of its material failure, whether by amendment of the Bank’s 's Restated Organization Certificate or Certificate, the Bank's By-lawsLaws, action of the Board or the Holding Company’s stockholders Bank's shareholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in the Officer on the day before the Assurance Period commenced (or the functionssection 3 of this Agreement, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day 30)-day period, the Bank fully cures such failure;
(D) the failure expiration of a thirty (30)-day period following the date on which the Executive gives written notice to the Bank to cure a of its material breach of any term, condition or covenant contained in this Agreement by (including, without limitation any reduction of the Executive's rate of base salary in effect from time to time and any change in the terms and conditions of any compensation or benefit program in which the Executive participates which, either individually or together with other changes, has a material adverse effect on the aggregate value of his total compensation package), unless, during such thirty (30)-day period, the Bank cures such failure;
(E) a change in the Executive's principal place of employment to a place that is not the principal executive office of the Bank, or a relocation of the Bank's principal executive office to a location that is both more than twenty-five (25) miles away from the Executive's principal residence and more than twenty-five (25) miles away from the location of the Bank's principal executive office on the date of this Agreement; or
(F) any material breach by the Bank of any material term, condition or covenant contained in this Agreement; provided, however, that the Executive shall have given notice of such materials adverse effect to the Bank, and the Bank has not fully cured such failure within thirty (30) days following written after such notice from the Officer of such material breach;
(E) a reduction in the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s principal place of employment that would result in a one-way commuting time in excess of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such changeis deemed given; or
(ii) the discharge of Executive's employment with the Officer Bank is terminated by the Bank for any reason other than for “"cause” " as provided in section 9(a11(a); then, subject to section 21, the Bank shall provide the benefits and pay to the Officer the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced.
(b) Upon the termination occurrence of any of the Officer’s employment with the Bank under circumstances events described in section 8(a9(a) of this Agreement, the Bank shall pay and provide to the Officer Executive (or, in the event of the Officer’s deathhis death thereafter and prior to payment, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s his earned but unpaid compensation salary (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law applicable law and the payment of which is not otherwise provided for under in this section 8(b9(b)) as of the date of the termination of the Officer’s his employment with the Company and the Bank, 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 thirty (30) days after termination of employmentemployment as defined in Treasury Regulation Section 1.409A-1(h)(1)(ii);
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Company's and the Bank’s 's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long long-term disability insurance benefitsbenefits on substantially the same terms and conditions (including any required premium-sharing arrangements, co-payments and deductibles) in addition effect for them immediately prior to that the Executive's termination for the Remaining Unexpired Employment Period for the Executive and his dependents. The coverage provided under this section 9(b)(iii) may, at the election of the Company, be secondary to the coverage provided pursuant to section 8(b)(ii9(b)(ii) and after taking into account the to any employer-paid coverage provided by any a subsequent employeremployer or through Medicare, if and to with the extent necessary to provide for result that benefits under the Officer, for the remaining unexpired Assurance Period, coverage equivalent to other coverages will offset the coverage to which required by this section 9(b)(iii). The Executive, the Officer would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer had continued working for Company and the Bank during agree that the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Banktermination benefits described in this Section 9(b)(iii) are intended to be exempt from Section 409A pursuant to Treasury Regulation Section 1.409A-1(b)(1) as non-taxable benefits;
(iv) a lump sum payment, payment in an amount equal to the present estimated present value of the salary that the Officer Executive would have earned if the Officer he had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the Officer’s period of actual employment with the Bank, where such present value is three (3) years ending immediately prior to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) a lump sum payment in an amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits to which the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of termination of employment by adding to (the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I"Salary Severance Payment"), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to . The Salary Severance Payment shall be determined computed using the mortality tables prescribed under section 415(b)(2)(E)(vfollowing formula: n (BS/PR) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
SSP=3 [-------------------------------] 1 n [1 + (vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iiiI / PR), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.]
Appears in 2 contracts
Samples: Employment Agreement (Westfield Financial Inc), Employment Agreement (Westfield Financial Inc)
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his employment with the Bank shall terminate Holding Company terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officer’s Executive's voluntary resignation from employment with the Bank Holding Company within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve the position stated in the same position in which the Officer was serving, on the day before the Assurance Period commenced section 3 of this Agreement (or a more senior office) of the Holding Company;
(B) if the Executive is a member of the Board as of the date of this Agreement, the failure of the stockholders of the Holding Company to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank Holding Company of its material failure, whether by amendment of the Bank’s Organization Holding Company's Or ganization Certificate or its By-lawsLaws, action of the Board or the Holding Company’s 's stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in the Officer on the day before the Assurance Period commenced (or the functionssection 3 of this Agreement, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Bank Holding Company fully cures such failure;; or
(D) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which the Executive gives written notice from the Officer of such material breach;
(E) a reduction in the compensation provided to the OfficerHolding Company of its material breach of any term, condition or a material covenant contained in this Agreement (including, without limitation any reduction of Executive's rate of base salary in the benefits provided effect from time to the Officer under the Bank’s program of employee benefits, compared with the compensation time and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a any change in the Officer’s principal place terms and conditions of employment that would result any compensation or benefit program in which Executive participates which, either individually or together with other changes, has a one-way commuting time in excess material adverse effect on the aggregate value of his total compensation package), unless, during such thirty (30) day period, the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to Holding Company fully cures such changefailure; or
(ii) subject to the discharge provisions of section 10, the Officer by termination of Executive's employment with the Bank Company for any other reason other than for “cause” as provided not described in section 9(a); then, subject to section 21, the Bank Holding Company shall provide the benefits and pay to the Officer Executive the amounts provided for under described in section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced9(b).
(b) Upon the termination of the Officer’s Executive's employment with the Bank Holding Company under circumstances described in section 8(a9(a) of this Agreement, the Bank Holding Company shall pay and provide to the Officer Executive (or, in the event of the Officer’s his death, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s his earned but unpaid compensation (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(b)) as of the date of the termination of the Officer’s his employment with the BankHolding Company, 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 thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs pro- grams maintained for the benefit of the Bank’s Holding Company's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long long-term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage equivalent to the coverage to which the Officer he would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) ), if the Officer he had continued working for the Bank Holding Company during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation achieved during that portion of the Officer’s period Employment Period which is prior to Executive's termination of actual employment with the BankHolding Company;
(iv) within thirty (30) days following his termination of employment with the Holding Company, a lump sum payment, in an amount equal to the present present value of the salary that the Officer Executive would have earned if the Officer he had continued working for the Bank Holding Company during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during that portion of the Officer’s period Employment Period which is prior to Executive's termination of actual employment with the BankHolding Company, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“"Code”) (“Applicable Short-Term Rate”"), compounded using the compounding periods period corresponding to the Bank’s Holding Company's regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) within thirty (30) days following his termination of employment with the Holding Company, a lump sum payment in an amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits to which the Officer he would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank Holding Company, if the Officer he were one-hundred percent (100% %) vested thereunder and had continued working for the Bank Holding Company during the remaining unexpired Assurance Remaining Unexpired Employment Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Remaining Unexpired Employment Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I9(b)(i), (iv) and (vii);; over
(B) the present value of the benefits to which the Officer he is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, monthly equal to the applicable longannualized rate of interest prescribed by the Pension Benefit Guaranty Corporation for the valuation of immediate annuities payable under terminating single-term federal rate prescribed under section 1274(d) of the Code employer defined benefit plans for the month in which his the Executive's termination of employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified planoccurs ("Applicable PBGC Rate");
(vi) within thirty (30) days following his termination of employment with the Holding Company, a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the BankHolding Company, as if he were one-hundred percent (100% %) vested thereunder and had continued working for the Bank Holding Company during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the BankHolding Company, and making the maximum amount of employee contributions, if any, required re quired under such plan or plans, such present value to be determined on the basis of the a discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term PBGC Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;and
(vii) the payments that would have been made to the Officer Executive under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, Holding Company if he had continued working for the Bank Holding Company during the remaining unexpired Assurance Remaining Unexpired Employment Period and had earned the maximum a bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be Remaining Unexpired Employment Period in an amount equal to the product of:
(A) the maximum percentage rate at which an highest annual bonus or incentive award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been actually paid to the Officer during each such him in any calendar year at the highest annual rate of salary achieved ending during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. three-year period ending on the date of termination of employment. The Bank Holding Company and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b9(b) constitute a reasonable estimate damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s Executive's efforts, if any, to mitigate damages. The Bank Holding Company and the Officer Executive further agree that the Bank Holding Company may condition the payments and benefits (if any) due under sections 8(b)(iii9(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s Executive's resignation from any and all positions which he holds as an officer, director or committee member with respect to the BankHolding Company, the Company Association or any subsidiary or affiliate of either of them.
Appears in 2 contracts
Samples: Executive Employment Agreement (Home Bancorp of Elgin Inc), Executive Employment Agreement (Home Bancorp of Elgin Inc)
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his or her employment with the Bank shall terminate Association terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officer’s the Executive's voluntary resignation from employment with the Bank Association within ninety six (906) days months following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer to serve in the same position in which the Officer was serving, on the day before the Assurance Period commenced or a more senior office;the
(B) if the Executive is or becomes a member of the Board, the failure of the stockholders of the Holding Company Association to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank Association of its material failure, whether by amendment of the Bank’s Association's Organization Certificate or By-laws, action of the Board or the Holding Company’s Association's stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in Section 3 of this Agreement as of the Officer on the day before the Assurance Period commenced (or the functionsdate hereof, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Bank fully Association cures such failure;
(D) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which the Executive gives written notice to the Association of its material breach of any term, condition or covenant contained in this Agreement (including, without limitation, any reduction of the Executive's rate of base salary in effect from time to time and any change in the Officer terms and conditions of any compensation or benefit program in which the Executive participates which, either individually or together with other changes, has a material adverse effect on the aggregate value of his or her total compensation package), unless, during such material breach;thirty (30) day period, the Association cures such failure; or
(E) a reduction in the compensation provided to relocation of the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s Executive's principal place of employment that would result in employment, without his or her written consent, to a one-way commuting time in excess location outside of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; orNassau County and Queens County, New York;
(ii) the discharge termination of the Officer by Executive's employment with the Bank Association for any other reason other than for “cause” as provided not described in section 9(aSection 10(a); then, . In such event and subject to section 21Section 27 of this Agreement, the Bank Association shall provide the benefits and pay to the Officer Executive the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained described in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commencedSection 9(b).
(b) Upon the termination of the Officer’s Executive's employment with the Bank Association under circumstances described in section 8(aSection 9(a) of this Agreement, the Bank Association shall pay and provide to the Officer Executive (or, in the event of the Officer’s death, to Executive's death following the Officer’s estate) on his Executive's termination of employment, subject to section 24 :
(i) the Officer’s earned but unpaid compensation (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(b)) as of the date of the termination of the Officer’s employment with the Bank, 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 thirty (30) days after termination of employment;his or her estate):
(ii) the benefits, if any, to which the Officer he or she is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s Association's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage (including any co-payments and deductibles, but excluding any premium sharing arrangements, it being the intention of the parties to this Agreement that the premiums for such insurance benefits shall be the sole cost and expense of the Association) equivalent to the coverage to which the Officer he or she would have been entitled under such plans (as in effect on the date of his or her termination of employment, or, if his or her termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) ), if the Officer he or she had continued working for the Bank Association during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation salary or compensation, as applicable, achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the BankAssociation;
(iv) within thirty (30) days following the Executive's termination of employment with the Association, a lump sum payment, payment in an amount equal to the present value representing an estimate of the salary that the Officer Executive would have earned if the Officer he or she had continued working for the Bank Association during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the Bank, where such present value is to Association (the "Salary Severance Payment"). The Salary Severance Payment shall be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded computed using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) a lump sum payment in an amount equal to the excess, if any, offormula: SSP = BS x NY where:
(A) the present value of the aggregate benefits to which the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.
Appears in 2 contracts
Samples: Employment Agreement (Astoria Financial Corp), Employment Agreement (Astoria Financial Corp)
Termination of Employment with Severance Benefits. (a) In Xx. Xxxxx shall be entitled to the severance benefits described herein in the event that the Officer’s his employment with the Company or the Bank shall terminate terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officer’s Xx. Xxxxx' voluntary resignation from employment with the Company and the Bank within ninety (90) days following:
(A) the failure of the Bank’s Board Boards to appoint or re-appoint or elect or re-elect Xx. Xxxxx to the Officer to serve in office of the same position in which the Officer was servingChairman, on the day before the Assurance Period commenced President or C.E.O. (or a more senior office) of the Company and the Bank;
(B) the failure of the stockholders of the Holding Company or the Bank to elect or re-elect the Officer Xx. Xxxxx as a member director of the Board, if he was a member Boards or the failure of the Board on Boards (or the day before the Assurance Period commencednominating committee thereof) to nominate Xx. Xxxxx for such election or re-election;
(C) the expiration of a thirty (30) day period following the date on which the Officer Xx. Xxxxx gives written notice to the Company and/or the Bank of its material failure, whether by amendment of the Company's or the Bank’s 's Organization Certificate or By-laws, action of the Board Boards or the Holding Company’s 's or the Bank's stockholders or otherwise, to vest in the Officer Xx. Xxxxx the functions, duties, or responsibilities vested prescribed in the Officer on the day before the Assurance Period commenced (or the functionsSection 3 of this Agreement, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Company and/or the Bank fully cures such failure;failure in a manner determined by Xx. Xxxxx and the Boards to be satisfactory; or
(D) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which Xx. Xxxxx gives written notice from the Officer of such material breach;
(E) a reduction in the compensation provided to the OfficerCompany and/or the Bank of its material breach of any term, condition or a material covenant contained in this Agreement (including, without limitation any reduction of Xx. Xxxxx' rate of base salary in the benefits provided effect from time to the Officer under the Bank’s program of employee benefits, compared with the compensation time and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a any change in the Officer’s principal place terms and conditions of employment that would result any compensation or benefit program in which Xx. Xxxxx participates which, either individually or together with other changes, has a material adverse effect on the aggregate value of his total compensation package), unless, during such thirty (30) day period, the Company and/or the Bank cures such failure in a one-way commuting time in excess of manner determined by Xx. Xxxxx and the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior Boards to such changebe satisfactory; or
(ii) Xx. Xxxxx' death; or
(iii) subject to the discharge provisions of Section 12, the Officer by termination of Xx. Xxxxx' employment with the Company or the Bank for any other reason other than for “cause” as provided not described in section 9(aSection 11(a); then, subject to section 21, the Bank shall provide the benefits and pay to the Officer the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced.
(b) Upon the termination of the Officer’s Xx. Xxxxx' employment with the Company and/or the Bank under circumstances described in section 8(aSection 11(a) of this Agreement, the Company or the Bank shall pay and provide to the Officer Xx. Xxxxx (or, in the event of the Officer’s his death, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s his earned but unpaid compensation (including, without limitation, all items which constitute wages under section Section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(bSection 11(b)) as of the date of the termination of the Officer’s his employment with the Company and the Bank, 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 thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Company's and the Bank’s 's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medicalmedical and the insurance provided under Section 5), dental, accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) Section 11 (b)(ii), and after taking into account the coverage provided by any subsequent employer, if and to the extent necessary to provide for the OfficerXx. Xxxxx, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage equivalent to the coverage to which the Officer he would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) ), if the Officer he had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation achieved during that portion of the Officer’s period Employment Period which is prior to Xx. Xxxxx' termination of actual employment with the Company or the Bank;
(iv) within thirty (30) days following his termination of employment with the Company and/or the Bank, a lump sum payment, in an amount equal to the present present value of the salary that the Officer Xx. Xxxxx would have earned if the Officer he had continued working for the Company and the Bank during the remaining unexpired Assurance Period for three years at the highest annual rate of salary achieved during that portion of the Officer’s period Employment Period which is prior to Xx. Xxxxx' termination of actual employment with the Company and the Bank, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section Section 1274(d) of the Internal Revenue Code of 1986 (“"Code”) (“Applicable Short-Term Rate”"), compounded using the compounding periods period corresponding to the Company's and the Bank’s 's regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination. At the option of Xx. Xxxxx, such payments may be made in equal monthly installments over a period of not less than three years, nor more than five years, in which case such payments will not be discounted;
(v) a lump sum payment in an amount equal to the excess, if any, of:
within thirty (A30) the present value of the aggregate benefits to which the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of days following his termination of employment by adding to with the service actually recognized under such plans an additional period equal to Company and/or the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I)Bank, (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Company and the Bank, if he were 100% vested thereunder and had continued working for the Bank Company and the Bank, during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation achieved during that portion of the Officer’s period Employment Period which is prior to Xx. Xxxxx' termination of actual employment with the Company or the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the a discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term applicable PBGC Rate; provided. At the option of Xx. Xxxxx, howeversuch payments may be made in equal monthly installments over a period of not less than three, that if nor more than five years, in which case such payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to will not be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plandiscounted;
(viivi) the payments payment that would have been made to the Officer Xx. Xxxxx under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Company or the Bank, if he had continued working for the Company or the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Remaining Unexpired Employment Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer Xx. Xxxxx under such incentive compensation plan, multiplied by
(B) net income of the Company for the most recent fiscal year which is prior to Xx. Xxxxx' termination of employment with the Company; such payments to be made in a lump sum payment in an amount equal to the present value of such payments as if made in accordance with Company's and/or Bank's Executive Bonus Plan, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under Section 1274(d) of the Code, within thirty (30) days following Xx. Xxxxx' termination of employment At the option of Xx. Xxxxx, such payments may be made in equal monthly installments over a period of not less than three, nor more than five years, in which case such payments will not be discounted;
(vii) at the election of the Company and the Bank made within thirty (30) days following his termination of employment with the Company and the Bank, upon the surrender of stock options or stock appreciation rights issued to Xx. Xxxxx under any stock option and appreciation rights plan or program maintained by, or covering employees of, the Company and the Bank, a lump sum payment in an amount equal to the product of:
(A) the excess of (i) the fair market value of a share of stock of the same class as the stock subject to the option or appreciation right, determined as of the date of termination of employment, over (ii) the exercise price per share for such option or appreciation right, as specified in or under the relevant plan or program; multiplied by
(B) the salary that would number of shares with respect to which options or appreciation rights are being surrendered. For purposes of this Section 11(b)(vii) and for purposes of determining Xx. Xxxxx' right following his termination of employment with the Company or Bank to exercise any options or appreciation rights not surrendered pursuant hereto, Xx. Xxxxx shall be deemed fully vested in all options and appreciation rights under any stock option or appreciation rights plan or program maintained by, or covering employees of, the Company or Bank, even if he is not vested under such plan or program, and shall have been paid a period of three months from the date of termination of employment to exercise such stock options or appreciation rights.
(viii) at the election of the Company or the Bank made within thirty (30) days following Xx. Xxxxx' termination of employment with the Company and the Bank, upon the surrender of any shares awarded to Xx. Xxxxx under any restricted stock plan maintained by, or covering employees of, the Company and the Bank, a lump sum payment in an amount equal to the Officer during each product of:
(A) the fair market value of a share of stock of the same class of stock granted under such calendar year at plan, determined as of the highest annual rate date of salary achieved during Xx. Xxxxx termination of employment; multiplied by
(B) the remaining unexpired Assurance Periodnumber of shares which are being surrendered. For purposes of this Section 11(b)(viii) and for purposes of determining Xx. Xxxxx' right following his termination of employment with the Company and the Bank to any stock not surrendered pursuant hereto, Xx. Xxxxx shall be deemed fully vested in all shares awarded under any restricted stock plan maintained by, or covering employees of the Company and the Bank, even if he is not vested under such payments plan;
(ix) the title to the car then currently provided to Xx. Xxxxx shall be made without discounting for early payment .. transferred to Xx. Xxxxx. The Company and the Bank and the Officer Xx. Xxxxx hereby stipulate that the damages which may be incurred by the Officer Xx. Xxxxx following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(bSection 11(b) constitute a reasonable estimate damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s Xx. Xxxxx' efforts, if any, to mitigate damages. The Company and the Bank and the Officer Xx. Xxxxx further agree that the Company and the Bank may condition the payments and benefits (if any) due under sections 8(b)(iiiSections 11(b)(iii), (iv), (v), (vi) ), and (vii) on the receipt of the Officer’s Xx. Xxxxx' resignation from any and all positions which he holds as an officer, director or committee member with respect to the BankCompany, the Company Bank or any subsidiary or affiliate of either of them.
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his employment with the Company and the Bank shall terminate terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The OfficerExecutive’s voluntary resignation from employment with the Company and the Bank within ninety (90) days following:
(A) the The failure of the Bank’s Board of Directors of either the Company or the Bank to appoint or re-appoint or elect or re-elect the Officer Executive to serve in the same position in which office of Chairman of the Officer was serving, on Company and Chairman of the day before the Assurance Period commenced Bank (or a more senior office, if any);
(B) the The failure of the stockholders of the Holding Company or Bank to elect or re-elect the Officer as a member Executive to the Board of Directors of the BoardCompany or the Bank, if he was a member respectively, or the failure of the Board on of Directors of the day before Company or the Assurance Period commencedBank (or the nominating committees thereof) to nominate the Executive for such election or re-election;
(C) the The expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Company or the Bank (i) of its or their material failure, whether by amendment of the Company’s or the Bank’s Organization Certificate Articles of Incorporation or By-lawsBylaws, action of the Board Company’s or the Holding Bank’s Board of Directors or the Company’s or the Bank’s stockholders or otherwise, to vest in the Officer the functions, duties, or responsibilities vested in the Officer on the day before the Assurance Period commenced (or Executive the functions, duties and or responsibilities prescribed in Section 3 of a more senior office this Agreement as of the date hereof, or (ii) that the Company or the Bank has or have prohibited, prevented or otherwise made it reasonably impracticable for the Executive to which the Officer may be appointed)perform his functions, unless duties or responsibilities as prescribed in Section 3 of this Agreement, unless, in either event, during such thirty (30) day period, the Company or the Bank fully cures such failurefailure in a manner determined by the Executive, in his discretion, to be satisfactory;
(D) the failure The expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which the Executive gives written notice to the Company or the Bank of its material breach of any term, condition or covenant contained in this Agreement (including, without limitation, any reduction of the Executive’s rate of base salary in effect from time to time and any adverse change in the Officer terms and conditions to the Executive of any Employee Pension Benefit Plan or Employee Welfare Benefit Plan or as to any other compensation or benefit program in which the Executive participates which, either individually or together with other changes, has or could have a material adverse effect on the aggregate value of his total compensation package), unless, during such material breach;thirty (30) day period, the Company or the Bank cures such failure in a manner determined by the Executive, in his discretion, to be satisfactory; or
(E) a reduction in The relocation of the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the OfficerExecutive’s principal place of employment that would result employment, without his written consent (which may be withheld in a one-way commuting time in excess the sole discretion of the greater Executive), to a location outside of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; orPalm Beach County, Florida.
(ii) the discharge The termination of the Officer Executive’s employment with the Company or the Bank by the Company or the Bank for any other reason other than for “cause” as provided not described in section 9(aSection 10(a); then. In such event, subject to section 21, the Company or the Bank shall provide the benefits and pay to the Officer Executive the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained described in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commencedSection 9(b).
(b) Upon the termination of the OfficerExecutive’s employment with the Company and/or the Bank prior to a Change of Control under circumstances described any of the events set forth in section 8(aSections 9(a)(i) or (ii) during the Employment Period, or upon a Change of this AgreementControl (as hereinafter defined), the Company and/or the Bank (jointly and/or severally) shall pay and provide to the Officer Executive (or, in the event of the Officer’s death, upon death then to the OfficerExecutive’s estate) on his termination of employment, subject to section 24 the following Severance Benefits:
(i) the OfficerThe Executive’s earned but unpaid compensation Cash Compensation (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(b)as determined pursuant to Section 4) in effect as of the date of the termination of the Officer’s employment with the Bankapplicable Triggering Event Date (as defined below), 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 thirty (30) days after termination the applicable Triggering Event Date (provided that if the Executive has made an irrevocable election under any deferred compensation arrangement subject to Section 409A of employment;the Code to defer any portion of such Cash Compensation, the terms of the applicable arrangement shall apply to distribution of such portion); and
(ii) If the benefitsTriggering Event Date is a termination of employment, if anythe Executive’s vested, accrued benefits in all Employee Benefit Plans to which the Officer is Executive was entitled pursuant to this Agreement as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s officers and employees;date of termination, payable in accordance with the terms of the applicable Employee Benefit Plan; and
(iii) continued group life, health Within thirty (including hospitalization, medical and major medical30) days following the effective date of any of the triggering events referred to in the first sentence in this Section 9(b) (the “Triggering Event Date”), accident payment of a lump sum amount equal to the product of (A) three (3), times (B) the average of the two (2) highest total annual amounts of Cash Compensation paid by the Company and/or Bank to any of its "Named Executive Officers" with respect to the five (5) full fiscal years of the Employment Period immediately preceding the year in which the Triggering Event Date occurs (such average defined in clause (B) being hereinafter referred to as the "Highest Total Cash Compensation"). Such lump sum shall not be reduced to a present value and long term disability insurance benefits, shall be paid in addition to that any other Compensation payments otherwise provided pursuant to section 8(b)(ii) and after taking into account the coverage provided by any subsequent employer, if and to the extent necessary to provide for the Officer, for the remaining unexpired Assurance Period, coverage equivalent to the coverage to which the Officer would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank;hereunder; and
(iv) Within thirty (30) days following the Triggering Event Date, payment of a lump sum payment, in an amount equal to the present value of the salary that the Officer would have earned if the Officer had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of salary achieved during the Officer’s period of actual employment with the Bank, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) a lump sum payment in an amount equal to the excess, if any, of:
(A) the The present value of both the aggregate current and future accrued benefits in each Employee Pension Benefit Plan that is a defined benefit plan to which the Officer Executive would have been entitled (which shall be entitled under any computed based on the Highest Total Cash Compensation and all qualified and non-qualified defined at the same rate of Employee Pension Benefit Plan funding and/or benefit pension plans maintained byaccrual, determined separately for each such Employee Pension Benefit Plan or covering employees ofas historically had been contributed, whichever is greater, for an Employment Period concluding on the Bank third anniversary of the Triggering Event Date as if the Officer were 100% vested thereunder and Executive had continued working for the Company and the Bank during for the remaining unexpired Assurance Period, Employment Period consisting of such three additional plan years). Such benefits to shall be determined separately for each such Employee Pension Benefit Plan in effect as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);date; over
(B) The present value of the accrued benefits to which the Executive is actually entitled under each such Employee Pension Benefit Plan that is a defined benefit plan as of the Triggering Event Date using comparable actuarial assumptions (where applicable) as then being utilized by such respective plan. In computing the present value of such lump sum payment, the benefits to which annualized rate of interest prescribed by the Officer is actually entitled Pension Benefit Guaranty Corporation for the computation of the value of lump sum payments otherwise payable under such terminating single employer defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his the Executive’s termination of employment terminates; provided, however, that if payments are made under this section 8(b)(voccurs (“Applicable PBGC Rate”) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;utilized; and
(viv) Within thirty (30) days following the Triggering Event Date, a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Company or the Bank, as if he were 100% vested thereunder and had continued working for the Company and the Bank during for a period of three years after the remaining unexpired Assurance Period at Triggering Event Date based on the highest annual rate of compensation Highest Total Cash Compensation achieved during that portion of the Officer’s period of actual employment with Employment Period which is prior to the BankTriggering Event Date, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the a discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant planEmployee Pension Benefit Plan; and
(vi) Subject to Section 26 of this Agreement, equal for fifteen years following the date of termination of employment (the “Benefits Period”), the Bank and/or Company shall provide the Executive and his spouse and eligible dependents with medical and dental insurance coverage (the “Health Care Benefits”) and life insurance benefits no less favorable than those which the Executive and his spouse and eligible dependents were receiving immediately prior to the Applicable Short-Term Ratedate of termination of employment; provided, however, that the Health Care Benefits shall be provided during the Benefits Period in such a manner that such benefits are excluded from the Executive’s income for federal income tax purposes; provided, further, however, that if payments are made the Executive becomes re-employed with another employer and is eligible to receive health care benefits under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts another employer-provided plan, the health care benefits provided hereunder shall be secondary to those provided under such defined contribution plans other plan during such applicable period of eligibility. The receipt of the Health Care Benefits shall be conditioned upon the Executive continuing to be vestedpay the monthly premium as in effect at the Company from time to time for coverage provided to former employees under Section 4980B of the Code in respect of the level of coverage in effect for the Executive and his spouse and dependents (i.e., single, single plus one, or family) (the “Applicable COBRA Premium”). During the portion of the Benefits Period in which the Executive and his eligible dependents continue to receive coverage under the Company’s Health Care Benefits plans, the paymentsCompany shall pay to the Executive a monthly amount equal to the Applicable COBRA Premium in respect of the maximum level of coverage that the Executive could otherwise elect to receive for the Executive and the Executive’s spouse and eligible dependents if the Executive were still an employee of the Company during the Benefits Period regardless of what level of coverage is actually elected, if any, attributable to such deemed vesting which payment shall be paid in advance on the same formfirst payroll day of each month, commencing with the month immediately following the Executive’s date of termination of employment. Notwithstanding the foregoing provisions of this Section 9(b), (x) in the event that the Executive is a Specified Employee (as defined in the SERP) as of the date of termination of employment, amounts payable under Sections 9(b)(iii-v) due to a qualifying termination of employment that constitute a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code that would otherwise be payable during the six-month period immediately following the date of termination of employment shall instead be paid, with interest on any delayed payment at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code determined as of the date of termination of employment, on the first business day after the date that is six months following the Executive’s date of termination of employment (the “Delayed Payment Date”), and paid at the same time, and (y) in the same manner, as benefits event that amounts are payable under Sections 9(b)(iii)-(v) due to a Change of Control but such Change of Control does not constitute a change in the corresponding non-qualified plan;
(vii) ownership or effective control of the payments that would have been made to the Officer under any cash bonus Company or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for or in the ownership of a substantial portion of the assets of the Company or the Bank during (as defined in Section 409A of the remaining unexpired Assurance Period Code and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Periodregulations thereunder), such payments to amounts shall instead be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year paid, with interest at the highest annual applicable federal rate provided for in Section 7872(f)(2)(A) of salary achieved during the remaining unexpired Assurance PeriodCode determined as of the date of the Change of Control, on the first to occur of the Executive’s termination of employment (or, if the Executive is a Specified Employee on such payments to be made without discounting for early payment .. date, the Delayed Payment Date) or a change in the ownership or effective control of the Company or the Bank, or in the ownership of a substantial portion of the assets of the Company or the Bank (each as defined in Section 409A of the Code and regulations thereunder). The Company, the Bank and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(bSection 9(b) constitute a reasonable estimate liquidated damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the OfficerExecutive’s efforts, if any, to mitigate damages. The Company, the Bank and the Officer Executive further agree that the Company and the Bank may condition the payments and benefits (if any) due under sections 8(b)(iiiSections 9(b)(iii), (iv), (v), (vi) and (viivi) on the receipt of the OfficerExecutive’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the BankCompany, the Company Bank or any subsidiary or affiliate of either either.
(c) Upon the termination of themthe Executive’s employment with the Company and/or the Bank under any of the events set forth in Sections 9(a)(i), 9(a)(ii), 10(a)(iii) or 10(a)(iv) during the Employment Period, or upon a Change of Control (as hereinafter defined) (including under terminations referred to in Section 11(c) hereof), any options to purchase the Company’s stock and any restricted stock grants granted to the Executive by the Company shall immediately vest, and such options may be exercised in accordance with the terms of such option grants at any time on or prior to their original expiration date.
(d) The parties shall take all steps necessary (including with regard to any post-termination services by the Executive) to ensure that the date of any termination of employment hereunder constitutes a “Separation from Service” (as defined in the SERP).
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his employment with the Bank shall terminate Company terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officer’s the Executive's voluntary resignation from employment with the Bank Company within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve in the same position in which the Officer was serving, on the day before the Assurance Period commenced office of President (or a more senior office) of the Company;
(B) the failure relocation of the stockholders of the Holding Company to elect or re-elect the Officer as a member of the Board, if he was a member of the Board on the day before the Assurance Period commenced;
(C) the expiration of a thirty (30) day period following the date on which the Officer gives written notice to the Bank of its material failure, whether by amendment of the Bank’s Organization Certificate or By-laws, action of the Board or the Holding Company’s stockholders or otherwise, to vest in the Officer the functions, duties, or responsibilities vested in the Officer on the day before the Assurance Period commenced (or the functions, duties and responsibilities of a more senior office to which the Officer may be appointed), unless during such thirty (30) day period, the Bank fully cures such failure;
(D) the failure of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days following written notice from the Officer of such material breach;
(E) a reduction in the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s Executive's principal place of employment that would result in employment, without his written consent, to a one-way commuting time in excess location outside of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; or_____________;
(ii) the discharge termination of the Officer by Executive's employment with the Bank Company for any other reason other than for “cause” as provided not described in section 9(a); then, subject to section 219. In such event, the Bank Company shall provide the benefits and pay to the Officer Executive the amounts provided for under described in section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced).
(b) Upon the termination of the Officer’s Executive's employment with the Bank Company under circumstances described in section 8(a) of this Agreement, the Bank Company shall pay and provide to the Officer Executive (or, in the event of the Officer’s deathhis death following such termination, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s his earned but unpaid compensation (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(b)) as of the date of the termination of the Officer’s his employment with the BankCompany, 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 thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s Company's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), accident and long term disability dental insurance benefits, in addition to that provided pursuant to section 8(b)(ii) ), and after taking into account the coverage provided by any subsequent employer, if and to the extent necessary to provide for the OfficerExecutive, for a period beginning on the remaining unexpired Assurance date his employment terminates and ending on the last day of the Employment Period, coverage equivalent to the coverage to which the Officer he would have been entitled under such plans (as in effect on the date of his termination of employment, orplans, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer he had continued working for the Bank Company during the remaining unexpired Assurance Employment Period at the highest annual rate of compensation achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the BankCompany;
(iv) within thirty (30) days following his termination of employment with the Company, a lump sum payment, payment in an amount equal to the present value of the salary that the Officer Executive would have earned if the Officer he had continued working for the Bank during Company for the remaining unexpired Assurance remainder of the Employment Period at the highest annual rate of salary achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the Bank, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded using the compounding periods corresponding to the Bank’s regular payroll periods for its officersCompany, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) within thirty (30) days following his termination of employment with the Company, a lump sum payment in an amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits to which the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, average annual cash incentive compensation or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of termination of employment by adding bonus paid to the service actually recognized under such plans an additional period equal Executive with respect to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for two complete calendar years immediately preceding the year in which termination of Executive's employment occurs all amounts payable under sections 8(b)(I)with the Company terminates, (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and multiplied by a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vestedfraction, the payments, if any, attributable to such deemed vesting shall be paid in numerator of which is the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a amount of lump sum payment described in an amount equal to section 8(b)(iv) and the present value denominator of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at is the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of base salary achieved during the remaining unexpired Assurance Periodportion of the Employment Period that is prior to the Executive's termination of employment. For purposes of this section 8(b)(v), such payments incentive compensation paid to the Executive while employed by Xxxx Deere Credit, Inc. d/b/a First New England Financial shall be made without discounting for early payment .. deemed incentive compensation paid to the Executive by the Company. The Bank Company and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s Executive's efforts, if any, to mitigate damages. The Bank Company and the Officer Executive further agree that the Bank Company may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (viiv) on the receipt of the Officer’s Executive's resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary parent or affiliate of either of themthe Company.
Appears in 1 contract
Samples: Employment Agreement (Republic Security Financial Corp)
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described in section 9(b) in the event that the Officer’s employment with the Bank shall terminate during the Assurance Period, or prior to the commencement of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account ofthat:
(i) The Officer’s voluntary resignation from his employment with the Bank terminates during the Employment Period as a result of the Executive’s voluntary resignation within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve the position with the Bank stated in the same position in which the Officer was serving, on the day before the Assurance Period commenced or a more senior officesection 3 of this Agreement;
(B) if the Executive is a member of the Board, the failure of the stockholders shareholders of the Holding Company Bank to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) day 30)-day period following the date on which the Officer Executive gives written notice to the Bank of its material failure, whether by amendment of the Bank’s Restated Organization Certificate or Certificate, the Bank’s By-lawsLaws, action of the Board or the Holding CompanyBank’s stockholders shareholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in the Officer on the day before the Assurance Period commenced (or the functionssection 3 of this Agreement, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day 30)-day period, the Bank fully cures such failure;
(D) the failure expiration of a thirty (30)-day period following the date on which the Executive gives written notice to the Bank to cure a of its material breach of any term, condition or covenant contained in this Agreement by (including, without limitation any reduction of the Executive’s rate of base salary in effect from time to time and any change in the terms and conditions of any compensation or benefit program in which the Executive participates which, either individually or together with other changes, has a material adverse effect on the aggregate value of his total compensation package), unless, during such thirty (30)-day period, the Bank cures such failure;
(E) a change in the Executive’s principal place of employment to a place that is not the principal executive office of the Bank, or a relocation of the Bank’s principal executive office to a location that is both more than twenty-five (25) miles away from the Executive’s principal residence and more than twenty-five (25) miles away from the location of the Bank’s principal executive office on the date of this Agreement; or
(F) any material breach by the Bank of any material term, condition or covenant contained in this Agreement; provided, however, that the Executive shall have given notice of such materials adverse effect to the Bank, and the Bank has not fully cured such failure within thirty (30) days following written after such notice from the Officer of such material breach;
(E) a reduction in the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s principal place of employment that would result in a one-way commuting time in excess of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such changeis deemed given; or
(ii) the discharge of Executive’s employment with the Officer Bank is terminated by the Bank for any reason other than for “cause” as provided in section 9(a11(a); then, subject to section 21, the Bank shall provide the benefits and pay to the Officer the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced.
(b) Upon the termination occurrence of any of the Officer’s employment with the Bank under circumstances events described in section 8(a9(a) of this Agreement, the Bank shall pay and provide to the Officer Executive (or, in the event of the Officer’s deathhis death thereafter and prior to payment, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s his earned but unpaid compensation salary (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law applicable law and the payment of which is not otherwise provided for under in this section 8(b9(b)) as of the date of the termination of the Officer’s his employment with the Company and the Bank, 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 thirty (30) days after termination of employmentemployment as defined in Treasury Regulation Section 1.409A-l(h)(1)(ii);
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Company’s and the Bank’s officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long long-term disability insurance benefitsbenefits on substantially the same terms and conditions (including any required premium-sharing arrangements, co-payments and deductibles) in addition effect for them immediately prior to that the Executive’s termination for the Remaining Unexpired Employment Period for the Executive and his dependents. The coverage provided under this section 9(b)(iii) may, at the election of the Company, be secondary to the coverage provided pursuant to section 8(b)(ii9(b)(ii) and after taking into account the to any employer-paid coverage provided by any a subsequent employeremployer or through Medicare, if and to with the extent necessary to provide for result that benefits under the Officer, for the remaining unexpired Assurance Period, coverage equivalent to other coverages will offset the coverage to which required by this section 9(b)(iii). The Executive, the Officer would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer had continued working for Company and the Bank during agree that the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Banktermination benefits described in this Section 9(b)(iii) are intended to be exempt from Section 409A pursuant to Treasury Regulation Section 1.409A-l(b) (1) as non-taxable benefits;
(iv) a lump sum payment, payment in an amount equal to the present estimated present value of the salary that the Officer Executive would have earned if the Officer he had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the Officer’s period of actual employment with the Bank, where such present value is to be determined using a discount rate equal three (3) years ending immediately prior to the date of termination (the “Salary Severance Payment”). The Salary Severance Payment shall be computed using the following formula: where “SSP” is the amount of the Salary Severance Payment (before the deduction of applicable short-federal, state and local withholding taxes); “BS” is the highest annual rate of salary achieved by the Executive during the period of three (3) years ending immediately prior to the date of termination; “PR” is the number of payroll periods that occur during a year under the Company’s normal payroll practices; “I” equals the applicable federal short term federal rate prescribed established under section 1274(d) 1274 of the Internal Revenue Code of 1986 (the “Code”) for the month in which the Executive’s termination of employment occurs (the “Applicable Short-Short Term RateAFR”), compounded using ) and “n” equals the compounding product of the Remaining Unexpired Employment Period at the Executive’s termination of employment (expressed in years and fractions of years) multiplied by the number of payroll periods corresponding to that occur during a year under the Company’s and the Bank’s regular normal payroll periods for its officers, such lump sum to practices. The Salary Severance Payment shall be paid made within five (5) business days after the Executive’s termination of employment and shall be in lieu of all other payments any claim to a continuation of base salary provided which the Executive might otherwise have and in lieu of cash severance benefits under any severance benefits program which may be in effect for under this Agreement in respect officers or employees of the period following any such terminationBank or the Company;
(v) a lump sum payment in an amount equal to the excess, if any, of:
(A) the estimated present value of the aggregate benefits to which annual bonuses that the Officer Executive would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank have earned if the Officer were 100% vested thereunder and he had continued working for the Company and the Bank during the remaining unexpired Assurance Period, such benefits Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the period of three (3) years ending immediately prior to be determined as of the date of termination (the “Bonus Severance Payment”). The Bonus Severance Payment shall be computed using the following formula: where “BSP” is the amount of employment by adding the Bonus Severance Payment (before the deduction of applicable federal, state and local withholding taxes); “SSP” is the amount of the Salary Severance Payment (before the deduction of applicable federal, state and local withholding taxes); “BP” is the aggregate of the annual bonuses paid or declared (whether or not paid) for the most recent period of three (3) calendar years to end on or before the Executive’s termination of employment; and “SP” is the aggregate base salary actually paid to the service actually recognized under Executive during such plans an additional period equal to of three (3) calendar years (excluding any year for which no bonus was declared or paid). The Bonus Severance Payment shall be made within five (5) business days after the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which Executive’s termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value shall be in lieu of any claim to a continuation of participation in annual bonus plans of the benefits to Bank or the Company which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming Executive might otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified planhave;
(vi) a lump sum payment in an amount equal to the estimated present value of the additional employer contributions long-term incentive bonuses that the Executive would have earned if he had continued working for the Company and the Bank during the Remaining Unexpired Employment Period (the “Incentive Severance Payment”). The Incentive Severance Payment shall be computed using the following formula: where “ISP” is the amount of the Incentive Severance Payment (before the deduction of applicable federal, state and local withholding taxes); “SSP” is the amount of the Salary Severance Payment (before the deduction of applicable federal, state and local withholding taxes); “ALTIP” is the aggregate of the most recently paid or if greater in declared (whether or not paid) long-term incentive compensation payments (but not more than three (3) such payments) for performance periods that end on or before the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at Executive’s termination of employment; “ALTSP” is the aggregate base salary actually paid to the Executive during the performance periods covered by the payments included in “ALTSP” and excluding base salary paid for any period for which no long-term incentive compensation payment was declared or paid; “RUT” is the Remaining Unexpired Employment Period, expressed in years and fractions of years; and “Y” is the aggregate (expressed in years and fractions of years) of the Remaining Unexpired Employment Period plus the number of years and fraction of years that have elapsed since the end of the last performance period for which a long-term incentive payment has been declared and paid. In the event that the Executive’s employment terminates prior to the payment date under any long-team incentive compensation plan, then for purposes of computing the Incentive Severance Payment, the “ALTSP” shall be deemed to be the average of the target and maximum award level under such plan and the “ALTSP” shall be deemed to be the Executive’s annual base salary as in effect on the Executive’s termination of employment. The Incentive Severance Payment shall be made within five (5) business days after the Executive’s termination of employment and shall be in lieu of any claim to a continuation of participation in cash long-term incentive compensation plans of the Bank or the Company which the Executive might otherwise have;
(vii) a lump sum payment in an amount equal to the excess (if any) of: (A) the present value of the aggregate benefits to which he would have been be entitled under any and all tax-qualified and non-tax-qualified defined contribution benefit plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for Company or the Bank during (the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi“Pension Plans”) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Company and the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Remaining Unexpired Employment Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
over (B) the salary that would have been paid present value of the benefits to which the Executive and his spouse and/or designated beneficiaries are actually entitled under such plans (the “Pension Severance Payment”). The Pension Severance Payment shall be computed according to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.formula:
Appears in 1 contract
Samples: Employment Agreement (Western New England Bancorp, Inc.)
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his employment with the Bank shall terminate Association terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officer’s Executive's voluntary resignation from employment with the Bank Association within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect reelect the Officer Executive to serve in the same position in which the Officer was serving, on the day before the Assurance Period commenced office of Vice President (or a more senior office) of the Association;
(B) the failure expiration of a thirty (30) day period following the date on which the Executive gives written notice to the Association of its material failure, whether by amendment of the stockholders of the Holding Company to elect Association's Organization Certificate or reBy-elect the Officer as a member of the Boardlaws, if he was a member action of the Board on or the Association's stockholders or otherwise, to vest in the Executive the functions, duties, or responsibilities prescribed in section 3 of this Agreement as of the date hereof, unless, during such thirty (30) day before period, the Assurance Period commencedAssociation fully cures such failure;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank Association of its material failurebreach of any term, whether by amendment condition or covenant contained in this Agreement (including, without limitation any reduction of the Bank’s Organization Certificate or By-laws, action Executive's rate of the Board or the Holding Company’s stockholders or otherwise, base salary in effect from time to vest time and any change in the Officer terms and conditions of any compensation or benefit program in which the functionsExecutive participates which, dutieseither individually or together with other changes, or responsibilities vested in the Officer has a material adverse effect on the day before the Assurance Period commenced (or the functions, duties and responsibilities aggregate value of a more senior office to which the Officer may be appointedhis total compensation package), unless unless, during such thirty (30) day period, the Bank Association fully cures such failure;
(D) the failure of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days following written notice from the Officer of such material breach;
(E) a reduction in the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s principal place of employment that would result in a one-way commuting time in excess of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; or
(ii) the discharge termination of the Officer by Executive's employment with the Bank Association for any other reason other than for “cause” as provided not described in section 9(a10(a)- (Termination for "Cause"); then. In such event, subject to section 2125, the Bank Association shall provide the benefits and pay to the Officer Executive in the amounts provided for under described in section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced9(b).
(b) Upon upon the termination of the Officer’s Executive's employment with the Bank Association under circumstances described in section 8(a9(a) of this Agreement, the Bank Association shall pay and provide to the Officer Executive (or, in the event of the Officer’s his death, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s his earned but unpaid compensation (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(b)) as of the date of the termination of the Officer’s his employment with the BankAssociation, 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 thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s Association's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive, for the remaining unexpired Assurance Perioda period of three (3) years, coverage equivalent to the coverage to which the Officer he would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of in Control, on the date of such Change of in Control, whichever benefits are greater) if the Officer he had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank;Association.
(iv) with thirty (30) days following his termination of employment with the Association, a lump sum payment, in an amount equal to three (3) times the present value of the salary that the Officer would have earned if the Officer had continued working for the Bank during the remaining unexpired Assurance Period at the Executive's highest annual rate of salary annual salary, including bonuses and stock awards included as W-2 wages, achieved during the Officer’s period of actual employment with the Bank, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;Employment Period.
(v) within thirty (30) days following his termination of employment with the Association, a lump sum payment in an amount equal to the excess, if any, ofto:
(A) the present value of the aggregate benefits to which the Officer he would be entitled under any and all qualified and non-qualified defined benefit pension plans retirement plans, maintained by, or covering employees of, of the Bank Association as if the Officer he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits at date of termination. Present value is to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in accordance with IRC Section 280G. In the case of a the Association's leveraged employee stock ownership plan or similar arrangementEmployee Stock Ownership Plan, the additional assets allocable to him through debt service, will be computed based on upon: (1) the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if assuming he were 100% vested thereunder in the Plan, and (2) the Association made the maximum amount of employee contributions required under the Plan during the remaining debt service period, and (3) the Executive had continued working for the Bank during the remaining unexpired Assurance Period Association at the highest annual rate of compensation achieved pay during the Officer’s period Employment Period.
(vi) at the election of actual the Association's Board of Directors made within thirty (30) days following his termination of employment with the BankAssociation, and making the maximum amount upon surrender of employee contributions, if any, required stock options or appreciation rights granted such Executive under such any stock option or appreciation rights plan or plans, such present value to be determined on the basis covering employees of the discount rateAssociation, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be lump sum payment equal to the product of:
(A) the maximum percentage rate at which an award was ever available excess of (1) the fair market value of a share of stock of the same class as the stock subject to the Officer option or appreciation right, determined as of the date of termination of employment, over (2) the exercise price per share for such option or appreciation right, as specified in or under such incentive compensation planthe relevant plan or program; multiplied by
(B) the salary that would have been paid number of shares with respect to which options or appreciation rights are being surrendered. For purposes of this section 9(b)(vi), the Executive shall be deemed fully vested in all options and appreciation rights under any stock option or appreciation rights plan or program maintained by, or covering employees of the Association, even if he is not vested under such plan or program.
(vii) at the election of the Association's Board of Directors made with thirty (30) days following the Executive's termination of employment with the Association, upon surrender of any shares awarded to the Officer during each Executive under any restricted stock plan maintained by, or covering employees of the Association, a lump sum payment in an amount equal to the product of:
(A) the fair market value of a share of stock of the same class of stock granted under such calendar year at plan, determined as of the highest annual rate date of salary achieved during the remaining unexpired Assurance PeriodExecutive's termination of employment; multiplied by
(B) the number of shares which are being surrendered. For purposes of this section 9(b)(vii), the Executive shall be deemed fully vested in all shares awarded under any restricted stock plan maintained by, or covering employees of, the Association, even if he is not vested under such payments to be made without discounting for early payment .. plan or program. The Bank Association and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b9(b) constitute a reasonable estimate damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s Executive's efforts, if any, to mitigate damages. The Bank Association and the Officer Executive further agree that the Bank Association may condition the payments and benefits (if any) due described under sections 8(b)(iii), (iv), (v), (vi) and (viisection 9(b) on the receipt of the Officer’s Executive's resignation from any and all positions which he holds as an officer, director officer or committee member with respect to employee of the BankAssociation, the Company Mutual Holding Company, or any subsidiary or affiliate of either of themthe Stock Holding Company.
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described in section 9(b) in the event that the Officer’s employment with the Bank shall terminate during the Assurance Period, or prior to the commencement of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account ofthat:
(i) The Officerhis employment with the Company terminates during the Employment Period as a result of the Executive’s voluntary resignation from employment with the Bank within ninety (90) 90 days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve the position with the Company stated in the same position in which the Officer was serving, on the day before the Assurance Period commenced or a more senior officesection 3 of this Agreement;
(B) if the Executive is a member of the Board, the failure of the stockholders shareholders of the Holding Company to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) -day period following the date on which the Officer Executive gives written notice to the Bank Company of its material failure, whether by amendment of the BankCompany’s Organization Certificate or of Incorporation, the Company’s By-lawsLaws, action of the Board or the Holding Company’s stockholders shareholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in the Officer on the day before the Assurance Period commenced (or the functionssection 3 of this Agreement, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) -day period, the Bank fully Company cures such failure;; or
(D) the failure expiration of a 30-day period following the Bank date on which the Executive gives written notice to cure a the Company of its material breach of any term, condition or covenant contained in this Agreement by (including, without limitation any reduction of the BankExecutive’s rate of base salary in effect from time to time and any change in the terms and conditions of any compensation or benefit program in which the Executive participates which, within thirty (either individually or together with other changes, has a material adverse effect on the aggregate value of his total compensation package), unless, during such 30) days following written notice from -day period, the Officer of Company cures such material breach;failure; or
(E) a reduction in the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the OfficerExecutive’s principal place of employment that would result in for a one-way commuting time distance in excess of 50 miles from the greater of (I) 30 minutes or (II) the OfficerCompany’s commuting time immediately prior to such changeprincipal office in Rome, New York; or
(ii) the discharge of Executive’s employment with the Officer Company is terminated by the Bank Company for any reason other than for “cause” as provided in section 9(a11(a); then, subject to section 21, the Bank shall provide the benefits and pay to the Officer the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced.
(b) Upon the termination occurrence of any of the Officer’s employment with the Bank under circumstances events described in section 8(a9(a) of this Agreement, the Bank Company shall pay and provide to the Officer Executive (or, in the event of the Officer’s deathhis death thereafter and prior to payment, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s his earned but unpaid compensation salary (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law applicable law and the payment of which is not otherwise provided for under in this section 8(b9(b)) as of the date of the termination of the Officer’s his employment with the Company and the Bank, 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 thirty (30) 30 days after termination of employment;
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Company’s and the Bank’s officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long term disability insurance benefits, coverage in addition to that provided pursuant to section 8(b)(ii) and after taking into account the coverage provided by any subsequent employer, if and to the extent necessary to provide for the Officer9(b)(ii), for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage equivalent to the coverage to which the Officer he would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) ), if the Officer he had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation salary achieved during the Officer’s period of actual employment with the BankEmployment Period, but taking into account any coverage provided from any subsequent employer;
(iv) within 30 days following the Executive’s termination of employment with the Company or the Bank, a lump sum payment, in an amount equal to the present present value of the salary (excluding any additional payments made to the Executive in lieu of the use of an automobile) that the Officer Executive would have earned if the Officer he had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the Officer’s period of actual employment with the BankEmployment Period, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 1986, as amended (“Code”) (“Applicable Short-Term Rate”), compounded using the compounding periods corresponding to the BankCompany’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) a lump sum payment in an amount equal to within 30 days following the excess, if any, of:
(A) the present value of the aggregate benefits to which the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of Executive’s termination of employment by adding to with the service actually recognized under such plans an additional period equal to Company or the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I)Bank, (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained byby the Company or the Bank in which Executive participates, or covering employees of, the Bank, as if he were 100% vested thereunder and had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation salary achieved during the Officer’s period of actual employment with the Bank, Employment Period and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the a discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Shortapplicable short-Term Rate; provided, however, that if payments are made term federal rate prescribed under this section 8(b)(vi1274(d) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified planCode;
(viivi) the payments that would have been made to the Officer Executive under any cash or stock bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, Company or the Bank if he had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Remaining Unexpired Employment Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer Executive under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer Executive during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Employment Period, ; such payments to be made (without discounting for early payment) within 30 days following the Executive’s termination of employment;
(vii) at the election of the Company, upon the surrender of options or appreciation rights issued to the Executive under any stock option and appreciation rights plan or program maintained by, or covering employees of, the Company or the Bank, a lump sum payment .. in an amount equal to the product of:
(A) the excess of (I) the fair market value of a share of stock of the same class as the stock subject to the option or appreciation right, determined as of the date of termination of employment, over (II) the exercise price per share for such option or appreciation right, as specified in or under the relevant plan or program; multiplied by
(B) the number of shares with respect to which options or appreciation rights are being surrendered. For purposes of this section 9(b)(vii), the Executive shall be deemed fully vested in all options and appreciation rights under any stock option or appreciation rights plan or program maintained by, or covering employees of, the Company or the Bank, even if he is not vested under such plan or program; and
(viii) at the election of the Company, upon the surrender of any shares awarded to the Executive under any restricted stock plan maintained by, or covering employees of, the Company or the Bank, a lump sum payment in an amount equal to the product of:
(A) the fair market value of a share of stock of the same class of stock granted under such plan, determined as of the date of the Executive’s termination of employment; multiplied by
(B) the number of shares which are being surrendered. For purposes of this section 9(b)(viii), the Executive shall be deemed fully vested in all shares awarded under any restricted stock plan maintained by, or covering employees of, the Company or the Bank, even if he is not vested under such plan. The Bank Company and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b9(b) constitute a reasonable estimate damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the OfficerExecutive’s efforts, if any, to mitigate damages. The Bank Company and the Officer Executive further agree that the Bank Company may condition the payments and benefits (if any) due under sections 8(b)(iii9(b)(iii), (iv), (v), (vi), (vii) and (viiviii) on the receipt of the OfficerExecutive’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the BankCompany, the Company Bank or any subsidiary or affiliate of either of them.
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described in section 9(b) in the event that the Officer’s employment with the Bank shall terminate during the Assurance Period, or prior to the commencement of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account ofthat:
(i) The Officer’s voluntary resignation from his employment with the Company and the Bank terminates during the Employment Period as a result of the Executive's voluntary resignation within ninety (90) 90 days following:
(A) the failure of the Bank’s Board or the Board of Directors of the Bank ("Bank Board") as the case may be, to appoint or re-appoint or elect or re-elect the Officer Executive to serve the position with the Company or the Bank stated in the same position in which the Officer was serving, on the day before the Assurance Period commenced section 3 of this Agreement (or a more senior office);
(B) if the Executive is a member of the Board or the Bank Board as the case may be, the failure of the stockholders shareholders of the Holding Company or the Bank to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the Bank Board or the failure of the Board on or the day before Bank Board (or the Assurance Period commencednominating committee thereof) to nominate the Executive for such election or re- election;
(C) the expiration of a thirty (30) -day period following the date on which the Officer Executive gives written notice to the Bank Company of its or the Bank's material failure, whether by amendment of the Company's Certificate of Incorporation, the Bank’s 's Restated Organization Certificate or Certificate, the Company's By-lawsLaws or the Bank's By-Laws, action of the Board or the Holding Bank Board or the Company’s stockholders 's shareholders or the Bank's shareholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in the Officer on the day before the Assurance Period commenced (or the functionssection 3 of this Agreement, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) -day period, the Company or the Bank fully cures such failure;; or
(D) the failure expiration of a 30-day period following the Bank date on which the Executive gives written notice to cure a the Company of its or the Bank's material breach of any term, condition or covenant contained in this Agreement by (including, without limitation any reduction of the BankExecutive's rate of base salary in effect from time to time and any change in the terms and conditions of any compensation or benefit program in which the Executive participates which, within thirty (either individually or together with other changes, has a material adverse effect on the aggregate value of his total compensation package), unless, during such 30) days following written notice from -day period, the Officer of Company or the Bank cures such material breach;failure; or
(E) a reduction in the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s Executive's principal place of employment that would result in for a one-way commuting time distance in excess of 50 miles from the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such changeBank's principal office in Rome, New York; or
(ii) the discharge of Executive's employment with the Officer Company and the Bank is terminated by the Company and the Bank for any reason other than for “"cause” " as provided in section 9(a11(a); then, subject to section 21, the Bank shall provide the benefits and pay to the Officer the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced.
(b) Upon the termination occurrence of any of the Officer’s employment with the Bank under circumstances events described in section 8(a9(a) of this Agreement, the Bank Company shall pay and provide to the Officer Executive (or, in the event of the Officer’s deathhis death thereafter and prior to payment, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s his earned but unpaid compensation salary (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law applicable law and the payment of which is not otherwise provided for under in this section 8(b9(b)) as of the date of the termination of the Officer’s his employment with the Company and the Bank, 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 thirty (30) 30 days after termination of employment;
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Company's and the Bank’s 's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long term disability insurance benefits, coverage in addition to that provided pursuant to section 8(b)(ii) and after taking into account the coverage provided by any subsequent employer, if and to the extent necessary to provide for the Officer9(b)(ii), for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage equivalent to the coverage to which the Officer he would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) ), if the Officer he had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation salary achieved during the Officer’s period of actual employment with the BankEmployment Period, but taking into account any coverage provided from any subsequent employer;
(iv) within 30 days following the Executive's termination of employment with the Company or the Bank, a lump sum payment, in an amount equal to the present present value of the salary (excluding any additional payments made to the Executive in lieu of the use of an automobile) that the Officer Executive would have earned if the Officer he had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the Officer’s period of actual employment with the BankEmployment Period, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 1986, as amended (“"Code”) (“Applicable Short-Term Rate”"), compounded using the compounding periods corresponding to the Bank’s Company's regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) within 30 days following the Executive's termination of employment with the Company or the Bank, a lump sum payment in an amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits to which the Officer he would be entitled under any and all qualified and non-qualified defined benefit pension plans plan maintained by, by the Company or covering employees of, the Bank in which Executive participates, if the Officer he were 100% vested thereunder and had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the Employment Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);; over
(B) the present value of the benefits to which the Officer he is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable longannualized rate of interest prescribed by the Pension Benefit Guaranty Corporation for the valuation of immediate annuities payable under terminating single-term federal rate prescribed under section 1274(d) of the Code employer defined benefit plans for the month in which his the Executive's termination of employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified planoccurs ("Applicable PBGC Rate");
(vi) within 30 days following the Executive's termination of employment with the Company or the Bank, a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-non- qualified defined contribution plans maintained byby the Company or the Bank in which Executive participates, or covering employees of, the Bank, as if he were 100% vested thereunder and had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation salary achieved during the Officer’s period of actual employment with the Bank, Employment Period and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the a discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term PBGC Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer Executive under any cash or stock bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, Company or the Bank if he had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Remaining Unexpired Employment Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer Executive under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer Executive during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Employment Period, ; such payments to be made (without discounting for early payment) within 30 days following the Executive's termination of employment;
(viii) upon the surrender of options or appreciation rights issued to the Executive under any stock option and appreciation rights plan or program maintained by, or covering employees of, the Company or the Bank, a lump sum payment .. in an amount equal to the product of:
(A) the excess of (I) the fair market value of a share of stock of the same class as the stock subject to the option or appreciation right, determined as of the date of termination of employment, over (II) the exercise price per share for such option or appreciation right, as specified in or under the relevant plan or program; multiplied by
(B) the number of shares with respect to which options or appreciation rights are being surrendered. For purposes of this section 9(b)(viii), the Executive shall be deemed fully vested in all options and appreciation rights under any stock option or appreciation rights plan or program maintained by, or covering employees of, the Company or the Bank, even if he is not vested under such plan or program; and
(ix) upon the surrender of any shares awarded to the Executive under any restricted stock plan maintained by, or covering employees of, the Company or the Bank, a lump sum payment in an amount equal to the product of:
(A) the fair market value of a share of stock of the same class of stock granted under such plan, determined as of the date of the Executive's termination of employment; multiplied by
(B) the number of shares which are being surrendered. For purposes of this section 9(b)(ix), the Executive shall be deemed fully vested in all shares awarded under any restricted stock plan maintained by, or covering employees of, the Company or the Bank, even if he is not vested under such plan. The Bank Company and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b9(b) constitute a reasonable estimate damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s Executive's efforts, if any, to mitigate damages. The Bank Company and the Officer Executive further agree that the Bank Company may condition the payments and benefits (if any) due under sections 8(b)(iii9(b)(iii), (iv), (v), (vi), (vii), (viii) and (viiix) on the receipt of the Officer’s Executive's resignation from any and all positions which he holds as an officer, director or committee member with respect to the BankCompany, the Company Bank or any subsidiary or affiliate of either of them.
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described in section 6(b) in the event that the Officer’s employment with the Bank shall terminate during the Assurance Period, or prior to the commencement of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account ofthat:
(i) The Officer’s voluntary resignation from his employment with the Bank within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer to serve in the same position in which the Officer was serving, on the day before the Assurance Period commenced or a more senior office;
(B) the failure of the stockholders of the Holding Company to elect or re-elect the Officer as a member of the Board, if he was a member of the Board on the day before the Assurance Period commenced;
(C) the expiration of a thirty (30) day period following the date on which the Officer gives written notice to the Bank of its material failure, whether by amendment of the Bank’s Organization Certificate or By-laws, action of the Board or the Holding Company’s stockholders or otherwise, to vest in the Officer the functions, duties, or responsibilities vested in the Officer on the day before the Assurance Period commenced (or the functions, duties and responsibilities of a more senior office to which the Officer may be appointed), unless during such thirty (30) day period, the Bank fully cures such failure;
(D) the failure of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days following written notice from the Officer of such material breach;
(E) a reduction in the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s principal place of employment that would result in a one-way commuting time in excess of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; or
(ii) the discharge of the Officer is terminated by the Bank during the Employment Period for any reason other than for “cause” as provided defined in section 9(a7(b); then, subject to section 21, ;
(ii) his employment with the Bank shall provide terminates during the benefits and pay to the Officer the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder Employment Period as a result of the OfficerExecutive’s termination voluntary resignation within 90 days following:
(A) the expiration of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until a thirty day period following the date on which the OfficerExecutive gives written notice to the Bank of its material breach of any term, condition or covenant contained in this Agreement (including, without limitation, any reduction of the Executive’s Assurance Period would have commencedrate of base salary in effect from time to time), unless during such thirty day period, the Bank cures such failure; or
(B) a change in the Executive’s principal place of employment to a location that is more than 40 miles from the Bank’s principal office in Bangor, Maine; or
(iii) the Executive voluntarily resigns following a “Change of Control” (as such term is defined in section 10(a) hereof) in the manner set forth in section 10(b) hereof.
(b) Upon the termination of the OfficerExecutive’s employment with at the Bank under the circumstances described in section 8(a6(a) of this Agreement, the Bank shall have no further obligations under this Agreement, other than to pay and or to provide to the Officer (or, in the event of the Officer’s death, to the Officer’s estate) on his termination of employment, subject to section 24 Executive with:
(i) the Officer’s earned compensation he has earned, but unpaid compensation (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(b)) unpaid, as of the date of the termination of the Officer’s his employment with the Bank, 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 thirty sixty (3060) days after termination of employment;
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained by the Bank for the benefit of the Bank’s officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long long-term disability insurance benefits, in addition coverage plans under the plans and programs maintained by the Bank for similarly situated employees until the earlier to that provided pursuant to section 8(b)(iioccur of:
(A) and after taking into account the coverage provided by any subsequent employer, if and to the extent necessary to provide for the Officer, for the remaining unexpired Assurance Period, coverage equivalent to the coverage to which the Officer would have been entitled under such plans (as in effect on the date of his termination of employment, the Executive first becomes eligible for such benefit coverage plans under plans or programs maintained by a subsequent employer or, if
(B) the date the Remaining Unexpired Employment Period terminates; and
(iv) a lump sum payment within sixty (60) days following his termination of employment occurs after a Change of Controlwith the Bank, on in an amount equal to the date of such Change of Control, whichever benefits are greater) salary that the Executive would have earned if the Officer he had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank;
(iv) a lump sum payment, in an amount equal to the present value of the salary that the Officer would have earned if the Officer had continued working for the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during that portion of the OfficerEmployment Period which is prior to the Executive’s period termination of actual employment with the Bank, where such present value is to be determined using a discount rate equal to by multiplying the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, Remaining Unexpired Employment Period by such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) a lump sum payment in an amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits to which the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. salary. The Bank and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date above first above written and that the payments and benefits contemplated by this section 8(b6(b) constitute a reasonable estimate damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the OfficerExecutive’s efforts, if any, to mitigate damages. The Bank and the Officer Executive further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi6(b)(iii) and 6(b)(iv) on: (viii) on the receipt of the OfficerExecutive’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the BankCompany, the Company Bank or any subsidiary or affiliate of either of themthem and (ii) the execution of a release in favor of such entities in such form as the Bank may determine for any and all claims against such entities.
Appears in 1 contract
Samples: Employment Agreement (Merrill Merchants Bancshares Inc)
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described in section 9(b) in the event that the Officer’s employment with the Bank shall terminate during the Assurance Period, or prior to the commencement of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account ofthat:
(i) The Officer’s voluntary resignation from her employment with the Bank terminates during the Employment Period as a result of the Executive's voluntary resignation within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve the position with the Bank stated in the same position in which the Officer was serving, on the day before the Assurance Period commenced or a more senior officesection 3 of this Agreement;
(B) if the Executive is a member of the Board, the failure of the stockholders shareholders of the Holding Company Bank to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) day 30)-day period following the date on which the Officer Executive gives written notice to the Bank of its material failure, whether by amendment of the Bank’s 's Restated Organization Certificate or Certificate, the Bank's By-lawsLaws, action of the Board or the Holding Company’s stockholders Bank's shareholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in the Officer on the day before the Assurance Period commenced (or the functionssection 3 of this Agreement, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day 30)-day period, the Bank fully cures such failure;
(D) the failure expiration of a thirty (30)-day period following the date on which the Executive gives written notice to the Bank to cure a of its material breach of any term, condition or covenant contained in this Agreement by (including, without limitation any reduction of the Executive's rate of base salary in effect from time to time and any change in the terms and conditions of any compensation or benefit program in which the Executive participates which, either individually or together with other changes, has a material adverse effect on the aggregate value of her total compensation package), unless, during such thirty (30)-day period, the Bank cures such failure;
(E) a change in the Executive's principal place of employment to a place that is not the principal executive office of the Bank, or a relocation of the Bank's principal executive office to a location that is both more than twenty-five (25) miles away from the Executive's principal residence and more than twenty-five (25) miles away from the location of the Bank's principal executive office on the date of this Agreement; or
(F) any material breach by the Bank of any material term, condition or covenant contained in this Agreement; provided, however, that the Executive shall have given notice of such materials adverse effect to the Bank, and the Bank has not fully cured such failure within thirty (30) days following written after such notice from the Officer of such material breach;
(E) a reduction in the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s principal place of employment that would result in a one-way commuting time in excess of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such changeis deemed given; or
(ii) the discharge of Executive's employment with the Officer Bank is terminated by the Bank for any reason other than for “cause” as provided in section 9(a11(a); then, subject to section 21, the Bank shall provide the benefits and pay to the Officer the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced.
(b) Upon the termination occurrence of any of the Officer’s employment with the Bank under circumstances events described in section 8(a9(a) of this Agreement, the Bank shall pay and provide to the Officer Executive (or, in the event of the Officer’s deathher death thereafter and prior to payment, to the Officer’s her estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s her earned but unpaid compensation salary (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law applicable law and the payment of which is not otherwise provided for under in this section 8(b9(b)) as of the date of the termination of the Officer’s her employment with the Company and the Bank, 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 thirty (30) days after termination of employmentemployment as defined in Treasury Regulation Section 1.409A-l(h)(1)(ii);
(ii) the benefits, if any, to which the Officer she is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Company's and the Bank’s 's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long long-term disability insurance benefitsbenefits on substantially the same terms and conditions (including any required premium-sharing arrangements, co-payments and deductibles) in addition effect for them immediately prior to that the Executive's termination for the Remaining Unexpired Employment Period for the Executive and her dependents. The coverage provided under this section 9(b)(iii) may, at the election of the Company, be secondary to the coverage provided pursuant to section 8(b)(ii9(b)(ii) and after taking into account the to any employer-paid coverage provided by any a subsequent employeremployer or through Medicare, if and to with the extent necessary to provide for result that benefits under the Officer, for the remaining unexpired Assurance Period, coverage equivalent to other coverages will offset the coverage to which required by this section 9(b)(iii). The Executive, the Officer would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer had continued working for Company and the Bank during agree that the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Banktermination benefits described in this Section 9(b)(iii) are intended to be exempt from Section 409A pursuant to Treasury Regulation Section 1.409A-l(b) (1) as non-taxable benefits;
(iv) a lump sum payment, payment in an amount equal to the present estimated present value of the salary that the Officer Executive would have earned if the Officer she had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the Officer’s period of actual employment with the Bank, where such present value is to be determined using a discount rate equal three (3) years ending immediately prior to the date of termination (the “Salary Severance Payment”). The Salary Severance Payment shall be computed using the following formula: where “SSP” is the amount of the Salary Severance Payment (before the deduction of applicable short-federal, state and local withholding taxes); “BS” is the highest annual rate of salary achieved by the Executive during the period of three (3) years ending immediately prior to the date of termination; “PR” is the number of payroll periods that occur during a year under the Company's normal payroll practices; “I” equals the applicable federal short term federal rate prescribed established under section 1274(d) 1274 of the Internal Revenue Code of 1986 (the “Code”) for the month in which the Executive's termination of employment occurs (the “Applicable Short-Short Term RateAFR”), compounded using ) and “n” equals the compounding product of the Remaining Unexpired Employment Period at the Executive's termination of employment (expressed in years and fractions of years) multiplied by the number of payroll periods corresponding to that occur during a year under the Company's and the Bank’s regular 's normal payroll periods for its officers, such lump sum to practices. The Salary Severance Payment shall be paid made within five (5) business days after the Executive's termination of employment and shall be in lieu of all other payments any claim to a continuation of base salary provided which the Executive might otherwise have and in lieu of cash severance benefits under any severance benefits program which may be in effect for under this Agreement in respect officers or employees of the period following any such terminationBank or the Company;
(v) a lump sum payment in an amount equal to the excess, if any, of:
(A) the estimated present value of the aggregate benefits to which annual bonuses that the Officer Executive would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank have earned if the Officer were 100% vested thereunder and she had continued working for the Company and the Bank during the remaining unexpired Assurance Period, such benefits Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the period of three (3) years ending immediately prior to be determined as of the date of termination (the “Bonus Severance Payment”). The Bonus Severance Payment shall be computed using the following formula: where “BSP” is the amount of the Bonus Severance Payment (before the deduction of applicable federal, state and local withholding taxes); “SSP” is the amount of the Salary Severance Payment (before the deduction of applicable federal, state and local withholding taxes); “ABP” is the aggregate of the annual bonuses paid or declared (whether or not paid) for the most recent period of three (3) calendar years to end on or before the Executive's termination of employment; and “ASP” is the aggregate base salary actually paid to the Executive during such period of three (3) calendar years (excluding any year for which no bonus was declared or paid). The Bonus Severance Payment shall be made within five (5) business days after the Executive's termination of employment by adding and shall be in lieu of any claim to a continuation of participation in annual bonus plans of the service actually recognized under such plans Bank or the Company which the Executive might otherwise have;
(vi) a lump sum payment in an additional period amount equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the estimated present value of the benefits to which long-term incentive bonuses that the Officer Executive would have earned if she had continued working for the Company and the Bank during the Remaining Unexpired Employment Period (the “Incentive Severance Payment”). The Incentive Severance Payment shall be computed using the following formula: where “ISP” is actually entitled under such defined benefit pension plans as the amount of the date Incentive Severance Payment (before the deduction of his terminationapplicable federal, state and local withholding taxes); where “SSP” is the amount of the Salary Severance Payment (before the deduction of applicable federal, state and local withholding taxes); “ALTIP” is the aggregate of the most recently paid or declared (whether or not paid) long-term incentive compensation payments (but not more than three (3) such present values are payments) for performance periods that end on or before the Executive's termination of employment; “ALTSP” is the aggregate base salary actually paid to be determined using the mortality tables prescribed under section 415(b)(2)(E)(vExecutive during the performance periods covered by the payments included in “ALTIP” and excluding base salary paid for any period for which no long-term incentive compensation payment was declared or paid; “RUP” is the Remaining Unexpired Employment Period, expressed in years and fractions of years; and “Y” is the aggregate (expressed in years and fractions of years) of the Code Remaining Unexpired Employment Period plus the number of years and fraction of years that have elapsed since the end of the last performance period for which a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed incentive payment has been declared and paid. In the event that the Executive's employment terminates prior to the payment date under section 1274(d) any long-term incentive compensation plan, then for purposes of computing the Incentive Severance Payment, the “ALTSP” shall be deemed to be the average of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts target and maximum award level under such defined benefit plans plan and the “ALTSP” shall be deemed to be vested, the payments, if any, attributable to such deemed vesting Executive's annual base salary as in effect on the Executive's termination of employment. The Incentive Severance Payment shall be paid made within five (5) business days after the Executive's termination of employment and shall be in lieu of any claim to a continuation of participation in cash long-term incentive compensation plans of the same form, and paid at Bank or the same time, and in Company which the same manner, as benefits under the corresponding non-qualified plan;Executive might otherwise have; and
(vivii) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he that would have been entitled credited directly to her account(s) under any and all tax-qualified and non-tax-qualified defined contribution plans maintained by, or covering employees of, the BankBank and the Company (the “Non-ESOP DC Plans”), if he were 100% vested thereunder and had continued working for plus the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present fair market value to be determined on the basis of the discount rate, compounded using the compounding period additional shares of employer securities or other property that corresponds would have been allocated to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) her account as a result of this section deeming otherwise unvested amounts employer contributions or dividends under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, any tax-qualified leveraged employee stock ownership plan and paid at the same time, and in the same manner, as benefits under the corresponding any related non-tax-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation supplemental plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that Company (the damages which may be incurred by “ESOP Plans”) if she had continued in employment during the Officer following any such termination of employment are not capable of accurate measurement as of Remaining Unexpired Employment Period (the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment“Defined Contribution Severance Payment”). Such damages The Defined Contribution Severance Payment shall be payable without any requirement of proof of actual damage and without regard computed according to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.following formula:
Appears in 1 contract
Samples: Employment Agreement (Western New England Bancorp, Inc.)
Termination of Employment with Severance Benefits. (a) In the event that the Officer’s employment with the Bank shall terminate during the Assurance Period, or prior to the commencement of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account of:
(i) The Officer’s voluntary resignation from employment with the Bank within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer to serve in the same position in which the Officer was serving, on the day before the Assurance Period commenced or a more senior office;
(B) the failure of the stockholders of the Holding Company to elect or re-elect the Officer as a member of the Board, if he was a member of the Board on the day before the Assurance Period commenced;
(C) the expiration of a thirty (30) day period following the date on which the Officer gives written notice to the Bank of its material failure, whether by amendment of the Bank’s Organization Certificate or By-laws, action of the Board or the Holding Company’s stockholders or otherwise, to vest in the Officer the functions, duties, or responsibilities vested in the Officer on the day before the Assurance Period commenced (or the functions, duties and responsibilities of a more senior office to which the Officer may be appointed), unless during such thirty (30) day period, the Bank fully cures such failure;
(D) the failure of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days following written notice from the Officer of such material breach;
(E) a reduction in the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s principal place of employment that would result in a one-way commuting time in excess of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; or
(ii) the discharge of the Officer by the Bank for any reason other than for “cause” as provided in section 9(a); then, subject to section 21, the Bank shall provide the benefits and pay to the Officer the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced.
(b) Upon the termination of the Officer’s employment with the Bank under circumstances described in section 8(a) of this Agreement, the Bank shall pay and provide to the Officer (or, in the event of the Officer’s death, to the Officer’s estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s earned but unpaid compensation (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(b)) as of the date of the termination of the Officer’s employment with the Bank, 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 thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) and after taking into account the coverage provided by any subsequent employer, if and to the extent necessary to provide for the Officer, for the remaining unexpired Assurance Period, coverage equivalent to the coverage to which the Officer would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank;
(iv) within thirty (30) days following the Officer’s termination of employment with the Bank, a lump sum payment, in an amount equal to the present pre-sent value of the salary that the Officer would have earned if the Officer had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of salary achieved during the Officer’s period of actual employment with the Bank, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) within thirty (30) days following the Officer’s termination of employment with the Bank, a lump sum payment in an amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits to which the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;.
(vi) within thirty (30) days following the Officer’s termination of employment with the Bank, a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made (without discounting for early payment .. payment) within thirty (30) days following the Officer’s termination of employment. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.
Appears in 1 contract
Samples: Employee Retention Agreement (Dime Community Bancshares Inc)
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described in section 9(b) in the event that the Officer’s employment with the Bank shall terminate during the Assurance Period, or prior to the commencement of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account ofthat:
(i) The Officer’s voluntary resignation from his employment with the Bank terminates during the Employment Period as a result of the Executive's voluntary resignation within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve the position with the Bank stated in the same position in which the Officer was serving, on the day before the Assurance Period commenced or a more senior officesection 3 of this Agreement;
(B) if the Executive is a member of the Board, the failure of the stockholders shareholders of the Holding Company Bank to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) day 30)-day period following the date on which the Officer Executive gives written notice to the Bank of its material failure, whether by amendment of the Bank’s 's Restated Organization Certificate or Certificate, the Bank's By-lawsLaws, action of the Board or the Holding Company’s stockholders Bank's shareholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in the Officer on the day before the Assurance Period commenced (or the functionssection 3 of this Agreement, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day 30)-day period, the Bank fully cures such failure;
(D) the failure expiration of a thirty (30)-day period following the date on which the Executive gives written notice to the Bank to cure a of its material breach of any term, condition or covenant contained in this Agreement by (including, without limitation any reduction of the Executive's rate of base salary in effect from time to time and any change in the terms and conditions of any compensation or benefit program in which the Executive participates which, either individually or together with other changes, has a material adverse effect on the aggregate value <PAGE> of his total compensation package), unless, during such thirty (30)-day period, the Bank cures such failure;
(E) a change in the Executive's principal place of employment to a place that is not the principal executive office of the Bank, or a relocation of the Bank's principal executive office to a location that is both more than twenty-five (25) miles away from the Executive's principal residence and more than twenty-five (25) miles away from the location of the Bank's principal executive office on the date of this Agreement; or
(F) any material breach by the Bank of any material term, condition or covenant contained in this Agreement; provided, however, that the Executive shall have given notice of such materials adverse effect to the Bank, and the Bank has not fully cured such failure within thirty (30) days following written after such notice from the Officer of such material breach;
(E) a reduction in the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s principal place of employment that would result in a one-way commuting time in excess of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such changeis deemed given; or
(ii) the discharge of Executive's employment with the Officer Bank is terminated by the Bank for any reason other than for “"cause” " as provided in section 9(a11(a); then, subject to section 21, the Bank shall provide the benefits and pay to the Officer the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced.
(b) Upon the termination occurrence of any of the Officer’s employment with the Bank under circumstances events described in section 8(a9(a) of this Agreement, the Bank shall pay and provide to the Officer Executive (or, in the event of the Officer’s deathhis death thereafter and prior to payment, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s his earned but unpaid compensation salary (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law applicable law and the payment of which is not otherwise provided for under in this section 8(b9(b)) as of the date of the termination of the Officer’s his employment with the Company and the Bank, 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 thirty (30) days after termination of employmentemployment as defined in Treasury Regulation Section 1.409A-1(h)(1)(ii);
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Company's and the Bank’s 's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long long-term disability insurance benefitsbenefits on substantially the same terms and conditions (including any required premium-sharing arrangements, co-payments and deductibles) in addition effect for them immediately prior to that the Executive's termination for the Remaining Unexpired Employment Period for the Executive and his dependents. The coverage provided under this section 9(b)(iii) may, at the election of the Company, be secondary to the coverage provided pursuant to section 8(b)(ii9(b)(ii) and after taking into account the to any employer-paid coverage provided by any a subsequent employeremployer or through Medicare, if and to with the extent necessary to provide for result that benefits under the Officer, for the remaining unexpired Assurance Period, coverage equivalent to other coverages will offset the coverage to which required by this section 9(b)(iii). The Executive, the Officer would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer had continued working for Company and the Bank during agree that the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank;termination benefits described in this Section 9(b)(iii) are intended to be exempt from Section 409A pursuant to Treasury Regulation Section 1.409A-1(b)(1) as non-taxable benefits; <PAGE>
(iv) a lump sum payment, payment in an amount equal to the present estimated present value of the salary that the Officer Executive would have earned if the Officer he had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the Officer’s period of actual employment with the Bank, where such present value is to be determined using a discount rate equal three (3) years ending immediately prior to the date of termination (the "Salary Severance Payment"). The Salary Severance Payment shall be computed using the following formula: SSP=3 1 [ [1 + (I / PR)]n ] where "SSP" is the amount of the Salary Severance Payment (before the deduction of applicable short-federal, state and local withholding taxes); "BS" is the highest annual rate of salary achieved by the Executive during the period of three (3) years ending immediately prior to the date of termination; "PR" is the number of payroll periods that occur during a year under the Company's normal payroll practices; "I" equals the applicable federal short term federal rate prescribed established under section 1274(d) 1274 of the Internal Revenue Code of 1986 (“the "Code”") for the month in which the Executive's termination of employment occurs (“Applicable Short-the "Short Term Rate”), compounded using AFR") and "n" equals the compounding product of the Remaining Unexpired Employment Period at the Executive's termination of employment (expressed in years and fractions of years) multiplied by the number of payroll periods corresponding to that occur during a year under the Company's and the Bank’s regular 's normal payroll periods for its officers, such lump sum to practices. The Salary Severance Payment shall be paid made within five (5) business days after the Executive's termination of employment and shall be in lieu of all other payments any claim to a continuation of base salary provided which the Executive might otherwise have and in lieu of cash severance benefits under any severance benefits program which may be in effect for under this Agreement in respect officers or employees of the period following any such terminationBank or the Company;
(v) a lump sum payment in an amount equal to the excess, if any, of:
(A) the estimated present value of the aggregate benefits to which annual bonuses that the Officer Executive would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank have earned if the Officer were 100% vested thereunder and he had continued working for the Company and the Bank during the remaining unexpired Assurance Period, such benefits Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the period of three (3) years ending immediately prior to be determined as of the date of termination (the "Bonus Severance Payment"). The Bonus Severance Payment shall be computed using the following formula: where "BSP" is the amount of employment by adding the Bonus Severance Payment (before the deduction of applicable federal, state and local withholding taxes); "SSP" is the amount of the Salary Severance Payment (before the deduction of applicable federal, state and local withholding taxes); "BP" is the aggregate of the annual bonuses paid or declared (whether or not paid) for the most recent period of three (3) calendar years to end on or before the Executive's termination of employment; and "SP" is the aggregate base salary actually paid to the service actually recognized under Executive during such plans an additional period equal to of three (3) calendar years (excluding any year for which no bonus was declared or paid). The Bonus Severance Payment shall be made within five (5) business days after the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which Executive's termination of employment occurs all amounts payable under sections 8(b)(I), (iv) <PAGE> and (vii);
(B) the present value shall be in lieu of any claim to a continuation of participation in annual bonus plans of the benefits to Bank or the Company which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming Executive might otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified planhave;
(vi) a lump sum payment in an amount equal to the estimated present value of the additional employer contributions long-term incentive bonuses that the Executive would have earned if he had continued working for the Company and the Bank during the Remaining Unexpired Employment Period (the "Incentive Severance Payment"). The Incentive Severance Payment shall be computed using the following formula: where "ISP" is the amount of the Incentive Severance Payment (before the deduction of applicable federal, state and local withholding taxes); "SSP" is the amount of the Salary Severance Payment (before the deduction of applicable federal, state and local withholding taxes); "ALTIP" is the aggregate of the most recently paid or if greater in declared (whether or not paid) long-term incentive compensation payments (but not more than three (3) such payments) for performance periods that end on or before the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at Executive's termination of employment; "ALTSP" is the aggregate base salary actually paid to the Executive during the performance periods covered by the payments included in "ALTIP" and excluding base salary paid for any period for which no long-term incentive compensation payment was declared or paid; "RUP" is the Remaining Unexpired Employment Period, expressed in years and fractions of years; and "Y" is the aggregate (expressed in years and fractions of years) of the Remaining Unexpired Employment Period plus the number of years and fraction of years that have elapsed since the end of the last performance period for which a long-term incentive payment has been declared and paid. In the event that the Executive's employment terminates prior to the payment date under any long-term incentive compensation plan, then for purposes of computing the Incentive Severance Payment, the "ALTIP" shall be deemed to be the average of the target and maximum award level under such plan and the "ALTSP" shall be deemed to be the Executive's annual base salary as in effect on the Executive's termination of employment. The Incentive Severance Payment shall be made within five (5) business days after the Executive's termination of employment and shall be in lieu of any claim to a continuation of participation in cash long-term incentive compensation plans of the Bank or the Company which the Executive might otherwise have;
(vii) a lump sum payment in an amount equal to the excess (if any) of: (A) the present value of the aggregate benefits to which he would have been be entitled under any and all tax-qualified and non-tax-qualified defined contribution benefit plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for Company or the Bank during (the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi"Pension Plans") as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Company and the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Remaining Unexpired Employment Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
over (B) the salary that would have been paid present value of the benefits to which the Executive and his spouse and/or designated beneficiaries are actually entitled under such plans (the "Pension Severance Payment"). The Pension Severance Payment shall be computed according to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.formula: <PAGE>
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his or her employment with the Bank shall terminate Association terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officer’s the Executive's voluntary resignation from employment with the Bank Association within ninety six (906) days months following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve in the same position in which the Officer was serving, on the day before the Assurance Period commenced office of Executive Vice President (or a more senior office) of the Association;
(B) if the Executive is or becomes a member of the Board, the failure of the stockholders of the Holding Company Association to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank Association of its material failure, whether by amendment of the Bank’s Association's Organization Certificate or By-laws, action of the Board or the Holding Company’s Association's stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in Section 3 of this Agreement as of the Officer on the day before the Assurance Period commenced (or the functionsdate hereof, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Bank fully Association cures such failure;
(D) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which the Executive gives written notice to the Association of its material breach of any term, condition or covenant contained in this Agreement (including, without limitation, any reduction of the Executive's rate of base salary in effect from time to time and any change in the Officer terms and conditions of any compensation or benefit program in which the Executive participates which, either individually or together with other changes, has a material adverse effect on the aggregate value of his or her total compensation package), unless, during such material breach;thirty (30) day period, the Association cures such failure; or
(E) a reduction in the compensation provided to relocation of the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s Executive's principal place of employment that would result in employment, without his or her written consent, to a one-way commuting time in excess location outside of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; orNassau County and Queens County, New York;
(ii) the discharge termination of the Officer by Executive's employment with the Bank Association for any other reason other than for “cause” as provided not described in section 9(aSection 10(a); then, . In such event and subject to section 21Section 27 of this Agreement, the Bank Association shall provide the benefits and pay to the Officer Executive the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained described in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commencedSection 9(b).
(b) Upon the termination of the Officer’s Executive's employment with the Bank Association under circumstances described in section 8(aSection 9(a) of this Agreement, the Bank Association shall pay and provide to the Officer Executive (or, in the event of the Officer’s death, to Executive's death following the Officer’s estate) on his Executive's termination of employment, subject to section 24 :his or her estate):
(i) the Officer’s his or her earned but unpaid compensation (including, without limitation, all items which constitute wages under section Section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(bSection 9(b)) as of the date of the termination of the Officer’s his or her employment with the BankAssociation, such payment to be made at the time and in the manner prescribed by law applicable to the payment of wages but in no any event not later than thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer he or she is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s Association's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage (including any co-payments and deductibles, but excluding any premium sharing arrangements, it being the intention of the parties to this Agreement that the premiums for such insurance benefits shall be the sole cost and expense of the Association) equivalent to the coverage to which the Officer he or she would have been entitled under such plans (as in effect on the date of his or her termination of employment, or, if his or her termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) ), if the Officer he or she had continued working for the Bank Association during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation salary or compensation, as applicable, achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the BankAssociation;
(iv) within thirty (30) days following the Executive's termination of employment with the Association, a lump sum payment, payment in an amount equal to the present value representing an estimate of the salary that the Officer Executive would have earned if the Officer he or she had continued working for the Bank Association during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the Bank, where such present value is to Association (the "Salary Severance Payment"). The Salary Severance Payment shall be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded computed using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) a lump sum payment in an amount equal to the excess, if any, offormula: SSP = BS x NY where:
(A) the present value of the aggregate benefits to which the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his employment with the Bank shall terminate Association terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officer’s the Executive's voluntary resignation from employment with the Bank Association within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Executive to the office of Vice Chairman and Chief Administrative Officer to serve in the same position in which the Officer was serving, on the day before the Assurance Period commenced (or a more senior office) of the Association;
(B) if the Executive is a member of the Board, the failure of the stockholders of the Holding Company Association to elect or re-elect the Officer as a member Executive to the Board or the failure of the Board, Board (or the nominating committee thereof) to nominate the Executive for such election or re-election if he was the Executive is a member of the Board on the day before Effective Date of this Agreement or thereafter becomes a member of the Assurance Period commencedBoard;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank Association of its material failure, whether by amendment of the Bank’s Association's Organization Certificate or By-laws, action of the Board or the Holding Company’s Association's stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in section 3 of this Agreement as of the Officer on the day before the Assurance Period commenced (or the functionsdate hereof, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Bank Association fully cures such failure;
(D) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which the Executive gives written notice to the Association of its material breach of any term, condition or covenant contained in this Agreement (including, without limitation any reduction of the Executive's rate of base salary in effect from time to time and any change in the Officer terms and conditions of any compensation or benefit program in which the Executive participates which, either individually or together with other changes, has a material adverse effect on the aggregate value of his total compensation package), unless, during such material breachthirty (30) day period, the Association fully cures such failure;
(E) a reduction in the compensation provided to relocation of the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s Executive's principal place of employment that would result in employment, without his written consent, to a one-way commuting time in excess location outside of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such changeNassau 5 County and Queens County, New York; or
(ii) the discharge termination of the Officer by Executive's employment with the Bank Association for any other reason other than for “cause” as provided not described in section 9(a10(a); then. In such event, subject to section 2125, the Bank Association shall provide the benefits and pay to the Officer Executive the amounts provided for under described in section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced9(b).
(b) Upon the termination of the Officer’s Executive's employment with the Bank Association under circumstances described in section 8(a9(a) of this Agreement, the Bank Association shall pay and provide to the Officer Executive (or, in the event of the Officer’s his death, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s his earned but unpaid compensation (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(b9(b)) as of the date of the termination of the Officer’s his employment with the BankAssociation, 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 thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s Association's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage equivalent to the coverage to which the Officer he would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer he had continued working for the Bank Association during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the BankAssociation;
(iv) within thirty (30) days following his termination of employment with the Association, a lump sum payment, in an amount equal to the present present value of the salary that the Officer Executive would have earned if the Officer he had continued working for the Bank Association during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the BankAssociation, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“"Code”) (“Applicable Short-Term Rate”"), compounded using the compounding periods period corresponding to the Bank’s 6 Association's regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) within thirty (30) days following his termination of employment with the Association, a lump sum payment in an amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits to which the Officer he would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank Association) if the Officer he were 100% vested thereunder and had continued working for the Bank Association during the remaining unexpired Assurance Period, Remaining Unexpired Employment Period (such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Remaining Unexpired Employment Period and by adding to the compensation recognized under such plans for the most recent year in which termination of employment occurs recognized all amounts payable under sections 8(b)(I9(b)(i), (iv), (vii), (viii) and (viiix);; over
(B) the present value of the benefits to which the Officer he is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable longannualized rate of interest prescribed by the Pension Benefit Guaranty Corporation for the valuation of immediate annuities payable under terminating single-term federal rate prescribed under section 1274(d) of the Code employer defined benefit plans for the month in which his the Executive's termination of employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;occurs ("Applicable PBGC Rate").
(vi) within thirty (30) days following his termination of employment with the Association, a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the BankAssociation, as if he were 100% vested thereunder and had continued working for the Bank Association during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the BankAssociation, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the a discount rate, compounded using the compounding period that corresponds to the frequency with which employer frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term PBGC Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
7 (vii) within thirty (30) days following his termination of employment with the Company, a lump sum payment in an amount equal to the present value of the payments that would have been made to the Officer Executive under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, Association if he had continued working for the Bank Association during the remaining unexpired Assurance Remaining Unexpired Employment Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Remaining Unexpired Employment Period, such payments to be equal to the product of:
(A) the maximum percentage rate of annual salary at which an award was ever available to the Officer Executive under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer Executive during each such calendar year at the highest annual rate of salary achieved during that portion of the remaining unexpired Assurance Period, Employment Period which is prior to the Executive's termination of employment with the Association: Where such payments present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Code, compounded annually;
(viii) at the election of the Association made without discounting within thirty (30) days following his termination of employment with the Association, upon the surrender of options or appreciation rights issued to the Executive under any stock option and appreciation rights plan or program maintained by, or covering employees of, the Association, a lump sum payment in an amount equal to the product of:
(A) the excess of (I) the fair market value of a share of stock of the same class as the stock subject to the option or appreciation right, determined as of the date of termination of employment, over (II) the exercise price per share for early such option or appreciation right, as specified in or under the relevant plan or program; multiplied by
(B) the number of shares with respect to which options or appreciation rights are being surrendered. For purposes of this section 9(b)(viii) and for purposes of determining the Executive's right following his termination of employment with the Association to exercise any options or appreciation rights not surrendered pursuant hereto, the Executive shall be deemed fully vested in all options and appreciation rights under any stock option or appreciation rights plan or program maintained by, or covering employees of, the Association, even if he is not vested under such plan or program;
(ix) at the election of the Association made within thirty (30) days 8 following the Executive's termination of employment with the Association, upon the surrender of any shares awarded to the Executive under any restricted stock plan maintained by, or covering employees of, the Association, a lump sum payment .. in an amount equal to the product of:
(A) the fair market value of a share of stock of the same class of stock granted under such plan, determined as of the date of the Executive's termination of employment; multiplied by
(B) the number of shares which are being surrendered. For purposes of this section 9(b)(ix) and for purposes of determining the Executive's right following his termination of employment with the Association to any stock not surrendered pursuant hereto, the Executive shall be deemed fully vested in all shares awarded under any restricted stock plan maintained by, or covering employees of, the Association, even if he is not vested under such plan. The Bank Association and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b9(b) constitute a reasonable estimate damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s Executive's efforts, if any, to mitigate damages. The Bank Association and the Officer Executive further agree that the Bank Association may condition the payments and benefits (if any) due under sections 8(b)(iii9(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s Executive's resignation from any and all positions which he holds as an officer, director or committee member with respect to the BankAssociation, the Company or any subsidiary or affiliate of either of them.
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described in section 9(b) in the event that the Officer’s employment with the Bank shall terminate during the Assurance Period, or prior to the commencement of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account ofthat:
(i) The Officerhis employment with the Company terminates during the Employment Period as a result of the Executive’s voluntary resignation from employment with the Bank within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve the position with the Company stated in the same position in which the Officer was serving, on the day before the Assurance Period commenced or a more senior officesection 3 of this Agreement;
(B) if the Executive is a member of the Board, the failure of the stockholders shareholders of the Holding Company to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) day 30)-day period following the date on which the Officer Executive gives written notice to the Bank Company of its material failure, whether by amendment of the BankCompany’s Organization Certificate or of Incorporation, the Company’s By-lawsLaws, action of the Board or the Holding Company’s stockholders shareholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in the Officer on the day before the Assurance Period commenced (or the functionssection 3 of this Agreement, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day 30)-day period, the Bank fully Company cures such failure;
(D) the failure expiration of a thirty (30)-day period following the Bank date on which the Executive gives written notice to cure a the Company of its material breach of any term, condition or covenant contained in this Agreement by (including, without limitation any reduction of the Executive’s rate of base salary in effect from time to time and any change in the terms and conditions of any compensation or benefit program in which the Executive participates which, either individually or together with other changes, has a material adverse effect on the aggregate value of his total compensation package), unless, during such thirty (30)-day period, the Company cures such failure;
(E) a change in the Executive’s principal place of employment to a place that is not the principal executive office of the Bank, or a relocation of the Bank’s principal executive office to a location that is both more than twenty-five (25) miles away from the Executive’s principal residence and more than twenty-five (25) miles away from the location of the Bank’s principal executive office on the date of this Agreement; or
(F) any material breach by the Company of any material term, condition or covenant contained in this Agreement; provided, however, that the Executive shall have given notice of such materials adverse effect to the Company, and the Company has not fully cured such failure within thirty (30) days following written after such notice from the Officer of such material breach;
(E) a reduction in the compensation provided to the Officer, is deemed given; or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s principal place of employment that would result in a one-way commuting time in excess of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; or
(ii) the discharge of the Officer by the Bank for any reason other than for “cause” as provided in section 9(a11(a); then, subject to section 21, the Bank shall provide the benefits and pay to the Officer the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced.
(b) Upon the termination occurrence of any of the Officer’s employment with the Bank under circumstances events described in section 8(a9(a) of this Agreement, the Bank Company shall pay and provide to the Officer Executive (or, in the event of the Officer’s deathhis death thereafter and prior to payment, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s his earned but unpaid compensation salary (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law applicable law and the payment of which is not otherwise provided for under in this section 8(b9(b)) as of the date of the termination of the Officer’s his employment with the Company and the Bank, 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 thirty (30) days after termination of employmentemployment as defined in Treasury Regulation Section 1.409A-1(h)(1)(ii);
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Company’s and the Bank’s officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long long-term disability insurance benefitsbenefits on substantially the same terms and conditions (including any required premium-sharing arrangements, co-payments and deductibles) in addition effect for them immediately prior to that the Executive’s termination for the Remaining Unexpired Employment Period for the Executive and his dependents. The coverage provided under this section 9(b)(iii) may, at the election of the Company, be secondary to the coverage provided pursuant to section 8(b)(ii9(b)(ii) and after taking into account the to any employer-paid coverage provided by any a subsequent employeremployer or through Medicare, if and to with the extent necessary to provide for result that benefits under the Officer, for the remaining unexpired Assurance Period, coverage equivalent to other coverages will offset the coverage to which required by this section 9(b)(iii). The Executive, the Officer would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer had continued working for Company and the Bank during agree that the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Banktermination benefits described in this Section 9(b)(iii) are intended to be exempt from Section 409A pursuant to Treasury Regulation Section 1.409A-1(b) (1) as non-taxable benefits;
(iv) a lump sum payment, payment in an amount equal to the present estimated present value of the salary that the Officer Executive would have earned if the Officer he had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the Officer’s period of actual employment with the Bank, where such present value is to be determined using a discount rate equal three (3) years ending immediately prior to the date of termination (the “Salary Severance Payment”). The Salary Severance Payment shall be computed using the following formula: where “SSP” is the amount of the Salary Severance Payment (before the deduction of applicable short-federal, state and local withholding taxes); “BS” is the highest annual rate of salary achieved by the Executive during the period of three (3) years ending immediately prior to the date of termination; “PR” is the number of payroll periods that occur during a year under the Company’s normal payroll practices; “I” equals the applicable federal short term federal rate prescribed established under section 1274(d) 1274 of the Internal Revenue Code of 1986 (the “Code”) for the month in which the Executive’s termination of employment occurs (the “Applicable Short-Short Term RateAFR”), compounded using ) and “n” equals the compounding product of the Remaining Unexpired Employment Period at the Executive’s termination of employment (expressed in years and fractions of years) multiplied by the number of payroll periods corresponding to that occur during a year under the Company’s and the Bank’s regular normal payroll periods for its officers, such lump sum to practices. The Salary Severance Payment shall be paid made within five (5) business days after the Executive’s termination of employment and shall be in lieu of all other payments any claim to a continuation of base salary provided which the Executive might otherwise have and in lieu of cash severance benefits under any severance benefits program which may be in effect for under this Agreement in respect officers or employees of the period following any such terminationBank or the Company;
(v) a lump sum payment in an amount equal to the excess, if any, of:
(A) the estimated present value of the aggregate benefits to which annual bonuses that the Officer Executive would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank have earned if the Officer were 100% vested thereunder and he had continued working for the Company and the Bank during the remaining unexpired Assurance Period, such benefits Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the period of three (3) years ending immediately prior to be determined as of the date of termination (the “Bonus Severance Payment”). The Bonus Severance Payment shall be computed using the following formula: where “BSP” is the amount of employment by adding the Bonus Severance Payment (before the deduction of applicable federal, state and local withholding taxes); “SSP” is the amount of the Salary Severance Payment (before the deduction of applicable federal, state and local withholding taxes); “BP” is the aggregate of the annual bonuses paid or declared (whether or not paid) for the most recent period of three (3) calendar years to end on or before the Executive’s termination of employment; and “SP” is the aggregate base salary actually paid to the service actually recognized under Executive during such plans an additional period equal to of three (3) calendar years (excluding any year for which no bonus was declared or paid). The Bonus Severance Payment shall be made within five (5) business days after the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which Executive’s termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value shall be in lieu of any claim to a continuation of participation in annual bonus plans of the benefits to Bank or the Company which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming Executive might otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified planhave;
(vi) a lump sum payment in an amount equal to the estimated present value of the additional employer contributions long-term incentive bonuses that the Executive would have earned if he had continued working for the Company and the Bank during the Remaining Unexpired Employment Period (the “Incentive Severance Payment”). The Incentive Severance Payment shall be computed using the following formula: where “ISP” is the amount of the Incentive Severance Payment (before the deduction of applicable federal, state and local withholding taxes); “SSP” is the amount of the Salary Severance Payment (before the deduction of applicable federal, state and local withholding taxes); “ALTIP” is the aggregate of the most recently paid or if greater in declared (whether or not paid) long-term incentive compensation payments (but not more than three (3) such payments) for performance periods that end on or before the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at Executive’s termination of employment; “ALTSP” is the aggregate base salary actually paid to the Executive during the performance periods covered by the payments included in “ALTIP” and excluding base salary paid for any period for which no long-term incentive compensation payment was declared or paid; “RUP” is the Remaining Unexpired Employment Period, expressed in years and fractions of years; and “Y” is the aggregate (expressed in years and fractions of years) of the Remaining Unexpired Employment Period plus the number of years and fraction of years that have elapsed since the end of the last performance period for which a long-term incentive payment has been declared and paid. In the event that the Executive’s employment terminates prior to the payment date under any long-term incentive compensation plan, then for purposes of computing the Incentive Severance Payment, the “ALTSP” shall be deemed to be the average of the target and maximum award level under such plan and the “ALTSP” shall be deemed to be the Executive’s annual base salary as in effect on the Executive’s termination of employment. The Incentive Severance Payment shall be made within five (5) business days after the Executive’s termination of employment and shall be in lieu of any claim to a continuation of participation in cash long-term incentive compensation plans of the Bank or the Company which the Executive might otherwise have;
(vii) a lump sum payment in an amount equal to the excess (if any) of (A) the present value of the aggregate benefits to which he would have been be entitled under any and all tax-qualified and non-tax-qualified defined contribution benefit plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for Company or the Bank during (the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi“Pension Plans”) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Company and the. Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Remaining Unexpired Employment Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
over (B) the salary that would have been paid present value of the benefits to which the Executive and his spouse and/or designated beneficiaries are actually entitled under such plans (the “Pension Severance Payment”). The Pension Severance Payment shall be computed according to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.formula:
Appears in 1 contract
Samples: Employment Agreement (Western New England Bancorp, Inc.)
Termination of Employment with Severance Benefits. (a) In Executive shall be entitled to the severance benefits described in section 9(b) herein in the event that the Officer’s his employment with the Company or the Bank shall terminate terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officer’s voluntary Executive's resignation for Good Reason from employment with the Bank Company within ninety one hundred eighty (90180) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect Executive to the Officer to serve position stated in the same position in which the Officer was serving, on the day before the Assurance Period commenced section 3 of this Agreement (or a more senior officeoffice of the Company) or the failure of the Board of Directors of the Bank ("Bank Board") to appoint or re-appoint or elect or re-elect Executive to the position stated in section 3 of this Agreement (or a more senior position of the Bank);
(B) the failure expiration of a thirty (30) day period following the date on which Executive gives written notice to the Company or the Bank, as the case may be, of its material failure, whether by amendment of the stockholders of Company's organization certificate or By-Laws, or the Holding Company to elect Bank's state charter or reBy-elect the Officer as a member Laws, action of the Board, if he was Bank Board or the Company's stockholders or otherwise, to vest in Executive, or continue to allow the Executive to perform, without material change or diminution, the functions, duties, or responsibilities prescribed in section 3 of this Agreement, unless, during such thirty (30) day period, such failure is cured in a member of the Board on the day before the Assurance Period commenced;manner determined by Executive, in his discretion, to be satisfactory; or
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank Company or the Bank, as the case may be, of its material failurebreach of any term, whether by amendment condition or covenant contained in this Agreement (including, without limitation any reduction of the Bank’s Organization Certificate or By-laws, action Executive's rate of the Board or the Holding Company’s stockholders or otherwise, base salary in effect from time to vest time and any change in the Officer the functionsterms and conditions of any compensation or benefit program in which Executive participates which, dutieseither individually or together with other changes, or responsibilities vested in the Officer has a material adverse effect on the day before the Assurance Period commenced (or the functions, duties and responsibilities aggregate value of a more senior office to which the Officer may be appointedhis total compensation package), unless unless, during such thirty (30) day period, the Bank fully cures such failurefailure is cured in a manner determined by Executive, in his discretion, to be satisfactory;
(D) the failure relocation of the Bank to cure a material breach of this Agreement by Company or the Bank, within thirty (30) days following written notice 's offices at which the Executive is principally employed to a location more than 50 miles from the Officer of such material breachoffices;
(E) any purported termination of the Executive's employment in a reduction in the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program manner inconsistent with section 10 of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;this Agreement; or
(F) a change in the Officer’s principal place of employment that would result in a one-way commuting time in excess failure of the greater Company and/or the Bank to obtain an effective agreement from any successor to assume and agree to perform this Agreement, as required by section 14 of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such changethis Agreement; or
(ii) subject to the discharge provisions of section 10, the Officer by termination of Executive's employment with the Bank Company for any other reason other than for “cause” as provided not described in section 9(a)) other than a termination of the Executive's employment for "cause"; then, subject to section 21, the Company shall provide (or cause the Bank shall provide to pay and provide) the benefits and pay to the Officer Executive the amounts provided for under described in section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced9(b).
(b) Upon the termination of the Officer’s Executive's employment with the Bank Company under circumstances described in section 8(a9(a) of this Agreement, the Bank Company shall pay and provide (or cause the Bank to the Officer pay and provide) to Executive (or, in the event of the Officer’s his death, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s earned but unpaid compensation (includingportion, without limitationif any, all items which constitute wages under section 190.1 of the New York Labor Law and compensation earned by the payment of which is not otherwise provided for under this section 8(b)) as of Executive through the date of the termination of the Officer’s his employment with the BankCompany which remains unpaid as of such date, 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 thirty (30) days after the Executive's termination of employment;
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained by the Company and the Bank for the benefit of the Bank’s their officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long long-term disability insurance benefits, in addition coverage plans under the plans and programs maintained by the Bank for similarly situated employees until the earlier to that provided pursuant to section 8(b)(iioccur of:
(A) and after taking into account the date the Executive first becomes eligible for such benefit coverage provided plans under the plans or programs maintained by any a subsequent employer, if and to the extent necessary to provide for the Officer, for the remaining unexpired Assurance Period, coverage equivalent to the coverage to which the Officer would have been entitled under such plans ; or
(as in effect on B) the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer had continued working for the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bankterminates;
(iv) within thirty (30) days following his termination of employment with the Company, a lump sum payment, in an amount equal to the present present value of the salary that the Officer Executive would have earned if the Officer he had continued working for the Bank Company during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during that portion of the Officer’s period Employment Period which is prior to Executive's termination of actual employment with the BankCompany, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“"Code”) (“Applicable Short-Term Rate”"), compounded using the compounding periods period corresponding to the Bank’s Company's regular payroll periods for its officers, such lump sum (the "Salary Severance Payment") to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) within thirty (30) days following his termination of employment with the Company and the Bank, a lump sum payment in an amount equal to the excess, if any, of:
(A) the estimated present value of the aggregate benefits to which annual bonuses that the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he Executive would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, earned if he had continued working for the Bank Company during the remaining unexpired Assurance Remaining Unexpired Employment Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments period of three (3) years ending immediately prior to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that of termination (the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment"Bonus Severance Payment"). Such damages The Bonus Severance Payment shall be payable without any requirement of proof of actual damage and without regard to computed using the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits following formula: BSP = SSP x (if any) due under sections 8(b)(iiiABP / ASP), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his employment with the Bank shall terminate Association terminates during the Assurance Period, or prior to the commencement of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 term of this Agreement on account ofunder any of the following circumstances:
(i) The Officer’s Executive's voluntary resignation from employment with the Bank Association within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect Executive to the Officer to serve office described in the same position in which the Officer was serving, on the day before the Assurance Period commenced section 1 of this Agreement (or a more senior officeoffice of the Association);
(B) if Executive is a member of the Board as of the date of this Agreement, the failure of the stockholders of the Holding Company Association to elect or re-elect Executive or the Officer as a member of the Board, if he was a member failure of the Board on (or the day before the Assurance Period commencednominating committee thereof) to nominate Executive for such election or re-election;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank Association of its material failure, whether by amendment of the Bank’s Association's Organization Certificate or By-laws, action of the Board or the Holding Company’s Association's stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in the Officer on the day before the Assurance Period commenced (or the functionssection 1 of this Agreement, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Bank Association fully cures such failure;; or
(D) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which Executive gives written notice from the Officer of such material breach;
(E) a reduction in the compensation provided to the OfficerAssociation of its material breach of any term, condition or a material covenant contained in this Agreement (including, without limitation any reduction of Executive's rate of Base Salary in the benefits provided effect from time to the Officer under the Bank’s program of employee benefits, compared with the compensation time and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a any change in the Officer’s principal place terms and conditions of employment that would result any compensation or benefit program in which Executive participates which, alone or together with other changes, has a one-way commuting time in excess material adverse effect on the aggregate value of his total compensation package), unless, during such thirty (30) day period, the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to Association fully cures such changefailure; or
(ii) the discharge termination of Executive's employment with the Officer by the Bank Association for any other reason other than for “cause” as provided not described in section 9(a)7; then, subject to section 21sections 15 and 16, the Bank Association shall provide the benefits and pay to the Officer Executive the amounts provided for under described in section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced4(b).
(b) Upon the termination of the Officer’s Executive's employment with the Bank Association under circumstances described in section 8(a4(a) of this Agreement, the Bank Association shall pay and provide to the Officer Executive (or, in the event of the Officer’s his death, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s his earned but unpaid compensation (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law applicable law and the payment of which is not otherwise provided for under this section 8(bSection 4(b)) ), as of the date of the termination of the Officer’s his employment with the BankAssociation, 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 thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s Association's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long long-term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 4(b)(ii), and after taking into account the coverage provided by any subsequent employer, if and to the extent necessary to provide for the OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage equivalent to the coverage to which the Officer he would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer he had continued working work ing for the Bank Association during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation achieved during that portion of the Officer’s period term of actual this Agreement which is prior to Executive's termination of employment with the BankAssociation, it being understood that Executive's "qualifying event" for purposes of continuation coverage under the Consolidated Budget Reconciliation Act ("COBRA") shall occur at the expiration of this period;
(iv) within five (5) days following his termination of employment with the Association, a lump sum payment, in an amount equal to the present value of the salary that the Officer Executive would have earned if the Officer he had continued working for the Bank Association during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during that portion of the Officer’s period term of actual this Agreement which is prior to Executive's termination of employment with the Bank, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such Association. Such lump sum is to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) within thirty (30) days following his termination of employment with the Association, a lump sum payment in an amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits to which the Officer he would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank Association, if the Officer he were 100% vested thereunder and had continued working for the Bank Association during the remaining unexpired Assurance Re maining Unexpired Employment Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Remaining Unexpired Employment Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I4(b)(i), (iv) and (viivi);; over
(B) the present value of the benefits to which the Officer he is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code (as hereinafter defined) and a discount rate, compounded monthly, monthly equal to the applicable long-term federal annualized rate of interest prescribed by the Pension Benefit Guaranty Corporation for the valuation of immediate annuities payable under section 1274(d) of the Code terminating single- employer defined benefit plans for the month in which his the Executive's termination of employment terminatesoccurs ("Applicable PBGC Rate"); provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;and
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions within five (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at 5) days following his termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the BankAssociation, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer Executive under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, Association if he had continued working for the Bank Association during the remaining unexpired Assurance Re maining Unexpired Employment Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be Remaining Unexpired Employment Period a bonus in an amount equal to the product of:
(A) the maximum percentage rate at which an highest annual bonus or incentive award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been actually paid to the Officer during each such him in any calendar year at the highest annual rate of salary achieved ending during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. three-year period ending on the date of termination of employment. The Bank Association and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination termi nation of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b4(b) constitute a reasonable estimate damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s Executive's efforts, if any, to mitigate damages. The Bank Association and the Officer Executive further agree that the Bank Association may condition the payments and benefits (if any) due under sections 8(b)(iii4(b)(iii), (iv), (v), and (vi) and (vii) on the receipt of the Officer’s Executive's resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, Holding Company or the Company Association or any subsidiary or affiliate of either of them.
Appears in 1 contract
Samples: Employment Agreement (First Palm Beach Bancorp Inc)
Termination of Employment with Severance Benefits. (a) In Xx. Xxxxxxx shall be entitled to the severance benefits described herein in the event that the Officer’s his employment with the Bank shall terminate Holding Company terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officer’s Xx. Xxxxxxx'x voluntary resignation from employment with the Bank Holding Company within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect Xx. Xxxxxxx to the office of President and Chief Executive Officer to serve in the same position in which the Officer was serving, on the day before the Assurance Period commenced (or a more senior office) of the Holding Company;
(B) the failure of the stockholders of the Holding Company to elect or re-elect Xx. Xxxxxxx or the Officer as a member of the Board, if he was a member failure of the Board on (or the day before the Assurance Period commencednominating committee thereof) to nominate Xx. Xxxxxxx for such election or re-election;
(C) the expiration of a thirty (30) day period following the date on which the Officer Xx. Xxxxxxx gives written notice to the Bank Holding Company of its material failure, whether by amendment of the Bank’s Organization Certificate Holding Company's Articles of Incorporation or By-laws, action of the Board or the Holding Company’s 's stockholders or otherwise, to vest in the Officer Xx. Xxxxxxx the functions, duties, or responsibilities vested prescribed in the Officer on the day before the Assurance Period commenced (or the functionssection 3 of this Agreement, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Bank fully Holding Company cures such failure;failure in a manner determined by Xx. Xxxxxxx, in his discretion, to be satisfactory; or
(D) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which Xx. Xxxxxxx gives written notice from the Officer of such material breach;
(E) a reduction in the compensation provided to the OfficerHolding Company of its material breach of any term, condition or a material covenant contained in this Agreement (including, without limitation any reduction of Xx. Xxxxxxx'x rate of base salary in the benefits provided effect from time to the Officer under the Bank’s program of employee benefits, compared with the compensation time and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a any change in the Officer’s principal place terms and conditions of employment that would result any compensation or benefit program in which Xx. Xxxxxxx participates which, either individually or together with other changes, has a one-way commuting time in excess material adverse effect on the aggregate value of his total compensation package), unless, during such thirty (30) day period, the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to Holding Company fully cures such changefailure; or
(ii) the discharge termination of Xx. Xxxxxxx'x employment with the Officer by the Bank Holding Company for any other reason other than for “cause” as provided not described in section 9(a10(a); . In such event, then, subject to section 21, the Bank Holding Company shall provide the benefits and pay to the Officer Xx. Xxxxxxx the amounts provided for under described in section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced9(b).
(b) Upon the termination of the Officer’s Xx. Xxxxxxx'x employment with the Bank Holding Company under circumstances described in section 8(a9(a) of this Agreement, the Bank Holding Company shall pay and provide to the Officer Xx. Xxxxxxx (or, in the event of the Officer’s his death, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s his earned but unpaid compensation (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(b)) as of the date of the termination of the Officer’s his employment with the BankHolding Company, 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 thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s Holding Company's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long long-term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerXx. Xxxxxxx, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage equivalent to the coverage to which the Officer he would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) ), if the Officer he had continued working for the Bank Holding Company during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation achieved during that portion of the Officer’s period Employment Period which is prior to Xx. Xxxxxxx'x termination of actual employment with the BankHolding Company;
(iv) thirty (30) days following his termination of employment with the Holding Company, a lump sum payment, in an amount equal to the present present value of the salary that the Officer Xx. Xxxxxxx would have earned if the Officer he had continued working for the Bank Holding Company during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during that portion of the Officer’s period Employment Period which is prior to Xx. Xxxxxxx'x termination of actual employment with the BankHolding Company, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-the "Short Term Rate”AFR"), compounded using the compounding periods period corresponding to the Bank’s Holding Company's regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) thirty (30) days following his termination of employment with the Holding Company, a lump sum payment in an amount equal to the excess, if any, of:
product of (A) the present value of the aggregate benefits to which the Officer would be entitled under any and all qualified and nonBank’s “normal cost” for its tax-qualified defined benefit pension plans maintained plan for the most recently completed fiscal year of the plan (expressed as a percentage of the compensation recognized in the plan’s benefit formula and determined by, or covering employees ofon the basis of information furnished by, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(Iplan’s actuary), (iv) and (vii);
multiplied by (B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed amount payable under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan9(b)(iv);
(vi) thirty (30) days following his termination of employment with the Holding Company, a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the BankHolding Company, if he were 100% vested thereunder and had continued working for the Bank Holding Company during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation achieved during that portion of the Officer’s period Employment Period which is prior to Xx. Xxxxxxx'x termination of actual employment with the BankHolding Company, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the a discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Short Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified planAFR;
(vii) the payments that would have been made to the Officer Xx. Xxxxxxx under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, Holding Company if he had continued working for the Bank Holding Company during the remaining unexpired Assurance Remaining Unexpired Employment Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Remaining Unexpired Employment Period, such payments each annual payment to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer Xx. Xxxxxxx under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer Xx. Xxxxxxx during each such calendar year at the highest annual rate of salary achieved during that portion of the remaining unexpired Assurance Period, Employment Period which is prior to Xx. Xxxxxxx'x termination of employment with the Holding Company; where such payments are to be made (without discounting for early payment .. payment) thirty (30) days following Xx. Xxxxxxx'x termination of employment;
(viii) Xx. Xxxxxxx shall be deemed fully vested in all options and appreciation rights under any stock option or appreciation rights plan or program maintained by, or covering employees of, the Holding Company, even if he is not vested under such plan or program;
(ix) Xx. Xxxxxxx shall be deemed fully vested in all shares awarded under any restricted stock plan maintained by, or covering employees of, the Holding Company, even if he is not vested under such plan. The Bank Holding Company and the Officer Xx. Xxxxxxx hereby stipulate that the damages which may be incurred by the Officer Xx. Xxxxxxx following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b9(b) constitute a reasonable estimate damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s Xx. Xxxxxxx'x efforts, if any, to mitigate damages. The Bank Holding Company and the Officer Xx. Xxxxxxx further agree that the Bank Holding Company may condition the payments and benefits (if any) due under sections 8(b)(iii9(b)(iii), (iv), (v), (vi) and (vii) on the receipt receipt, not later than thirty (30) days after termination of the Officer’s employment, of Xx. Xxxxxxx'x resignation from any and all positions which he holds as an officer, director or committee member with respect to the BankHolding Company, the Company Bank or any subsidiary or affiliate of either of them; provided that the Holding Company requests such resignations in writing not later than twenty (20) days after termination of employment.
Appears in 1 contract
Samples: Employment Agreement (North Central Bancshares Inc)
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his employment with the Bank shall terminate Association terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officer’s the Executive's voluntary resignation from employment with the Bank Association within ninety six (906) days months following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve in the same position in which the Officer was serving, on the day before the Assurance Period commenced office of Executive Vice President (or a more senior office) of the Association;
(B) if the Executive is a member of the Board, the failure of the stockholders of the Holding Company Association to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank Association of its material failure, whether by amendment of the Bank’s Organization Certificate Association's Charter or By-laws, action of the Board or the Holding Company’s Association's stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in Section 3 of this Agreement as of the Officer on the day before the Assurance Period commenced (or the functionsdate hereof, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Bank fully Association cures such failurefailure in a manner determined by the Executive, in his or her discretion, to be satisfactory;
(D) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which the Executive gives written notice to the Association of its material breach of any term, condition or covenant contained in this Agreement (including, without limitation, any reduction of the Executive's rate of base salary in effect from time to time and any change in the Officer terms and conditions of any compensation or benefit program in which the Executive participates which, either individually or together with other changes, has a material adverse effect on the aggregate value of his total compensation package), unless, during such material breach;thirty (30) day period, the Association cures such failure in a manner determined by the Executive, in his or her discretion, to be satisfactory; or
(E) a reduction in the compensation provided to relocation of the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s Executive's principal place of employment that would result in employment, without his or her written consent, to a one-way commuting time in excess location outside of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; orNassau County and Queens County, New York;
(ii) the discharge termination of the Officer by Executive's employment with the Bank Association for any other reason other than for “cause” as provided not described in section 9(aSection 10(a); then, . In such event and subject to section 21Section 27 of this Agreement, the Bank Association shall provide the benefits and pay to the Officer Executive the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained described in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commencedSection 9(b).
(b) Upon the termination of the Officer’s Executive's employment with the Bank Association under circumstances described in section 8(aSection 9(a) of this Agreement, the Bank Association shall pay and provide to the Officer Executive (or, in the event of the Officer’s death, to Executive's death following the Officer’s estate) on his Executive's termination of employment, subject to section 24 :his or her estate):
(i) the Officer’s his or her earned but unpaid compensation (including, without limitation, all items which constitute wages under section Section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(bSection 9(b)) as of the date of the termination of the Officer’s his or her employment with the BankAssociation, such payment to be made at the time and in the manner prescribed by law applicable to the payment of wages but in no any event not later than thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer he or she is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs programs maintained for the benefit of the Bank’s Association's officers and employees, including the annual bonus (if any) to which he or she is entitled under any cash-based annual bonus or performance compensation plan in effect for the year in which his or her termination occurs, to be paid at the same time and on the terms and conditions (including but not limited to achievement of performance goals) applicable under the relevant plan;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage (including any co-payments and deductibles, but excluding any premium sharing arrangements, it being the intention of the parties to this Agreement that the premiums for such insurance benefits shall be the sole cost and expense of the Association) equivalent to the coverage to which the Officer he or she would have been entitled under such plans (as in effect on the date of his or her termination of employment, or, if his or her termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) ), if the Officer he or she had continued working for the Bank Association during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation salary or compensation, as applicable, achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the BankAssociation;
(iv) thirty (30) days following the Executive's termination of employment with the Association, a lump sum payment, payment in an amount equal to the present value representing an estimate of the salary that the Officer Executive would have earned if the Officer he or she had continued working for the Bank Association during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the Bank, where such present value is to Association (the "Salary Severance Payment"). The Salary Severance Payment shall be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded computed using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) a lump sum payment in an amount equal to the excess, if any, offormula: SSP = BS x NY where:
(A) the present value of the aggregate benefits to which the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described in section 6(b) in the event that the Officer’s employment with the Bank shall terminate during the Assurance Period, or prior to the commencement of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account ofthat:
(i) The Officer’s voluntary resignation from her employment with the Bank within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer to serve in the same position in which the Officer was serving, on the day before the Assurance Period commenced or a more senior office;
(B) the failure of the stockholders of the Holding Company to elect or re-elect the Officer as a member of the Board, if he was a member of the Board on the day before the Assurance Period commenced;
(C) the expiration of a thirty (30) day period following the date on which the Officer gives written notice to the Bank of its material failure, whether by amendment of the Bank’s Organization Certificate or By-laws, action of the Board or the Holding Company’s stockholders or otherwise, to vest in the Officer the functions, duties, or responsibilities vested in the Officer on the day before the Assurance Period commenced (or the functions, duties and responsibilities of a more senior office to which the Officer may be appointed), unless during such thirty (30) day period, the Bank fully cures such failure;
(D) the failure of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days following written notice from the Officer of such material breach;
(E) a reduction in the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s principal place of employment that would result in a one-way commuting time in excess of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; or
(ii) the discharge of the Officer is terminated by the Bank during the Employment Period for any reason other than for “cause” as provided defined in section 9(a7(b); then, subject to section 21, ;
(ii) her employment with the Bank shall provide terminates during the benefits and pay to the Officer the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder Employment Period as a result of the OfficerExecutive’s termination voluntary resignation within 90 days following:
(A) the expiration of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until a thirty day period following the date on which the OfficerExecutive gives written notice to the Bank of its material breach of any term, condition or covenant contained in this Agreement (including, without limitation, any reduction of the Executive’s Assurance Period would have commencedrate of base salary in effect from time to time), unless during such thirty day period, the Bank cures such failure; or
(B) a change in the Executive’s principal place of employment to a location that is more than 40 miles from the Bank’s principal office in Bangor, Maine; or
(iii) the Executive voluntarily resigns following a “Change of Control” (as such term is defined in section 10(a) hereof) in the manner set forth in section 10(b) hereof.
(b) Upon the termination of the OfficerExecutive’s employment with at the Bank under the circumstances described in section 8(a6(a) of this Agreement, the Bank shall have no further obligations under this Agreement, other than to pay and or to provide to the Officer (or, in the event of the Officer’s death, to the Officer’s estate) on his termination of employment, subject to section 24 Executive with:
(i) the Officer’s earned compensation she has earned, but unpaid compensation (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(b)) unpaid, as of the date of the termination of the Officer’s her employment with the Bank, 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 thirty sixty (3060) days after termination of employment;
(ii) the benefits, if any, to which the Officer she is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained by the Bank for the benefit of the Bank’s officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long long-term disability insurance benefits, in addition coverage plans under the plans and programs maintained by the Bank for similarly situated employees until the earlier to that provided pursuant to section 8(b)(iioccur of:
(A) and after taking into account the coverage provided by any subsequent employer, if and to the extent necessary to provide for the Officer, for the remaining unexpired Assurance Period, coverage equivalent to the coverage to which the Officer would have been entitled under such plans (as in effect on the date of his the Executive first becomes eligible for such benefit coverage plans under plans or programs maintained by a subsequent employer or
(B) the date the Remaining Unexpired Employment Period terminates; and
(iv) a lump sum payment within sixty (60) days following her termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank;
(iv) , a lump sum payment, in an amount equal to the present value of the salary that the Officer Executive would have earned if the Officer she had continued working for the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during that portion of the OfficerEmployment Period which is prior to the Executive’s period termination of actual employment with the Bank, where such present value is to be determined using a discount rate equal to by multiplying the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, Remaining Unexpired Employment Period by such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) a lump sum payment in an amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits to which the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. salary. The Bank and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date above first above written and that the payments and benefits contemplated by this section 8(b6(b) constitute a reasonable estimate damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the OfficerExecutive’s efforts, if any, to mitigate damages. The Bank and the Officer Executive further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi6(b)(iii) and 6(b)(iv) on: (viii) on the receipt of the OfficerExecutive’s resignation from any and all positions which he she holds as an officer, director or committee member with respect to the BankCompany, the Company Bank or any subsidiary or affiliate of either of themthem and (ii) the execution of a release in favor of such entities in such form as the Bank may determine for any and all claims against such entities.
Appears in 1 contract
Samples: Employment Agreement (Merrill Merchants Bancshares Inc)
Termination of Employment with Severance Benefits. (a) In The Commercial Loan Officer shall be entitled to the severance benefits described in section 6(b) in the event that the Officer’s that;
(i) his employment with is terminated by the Bank shall terminate during the Assurance Period, or prior to the commencement of the Assurance Employment Period but within three (3) months of and in connection with a Change of Control for any reason other than for "cause" as defined in section 10 of this Agreement on account of:
(i7(b) The Officer’s voluntary resignation from employment with the Bank within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer to serve in the same position in which the Officer was serving, on the day before the Assurance Period commenced or a more senior office;
(B) the failure of the stockholders of the Holding Company to elect or re-elect the Officer as a member of the Board, if he was a member of the Board on the day before the Assurance Period commenced;
(C) the expiration of a thirty (30) day period following the date on which the Officer gives written notice to the Bank of its material failure, whether by amendment of the Bank’s Organization Certificate or By-laws, action of the Board or the Holding Company’s stockholders or otherwise, to vest in the Officer the functions, duties, or responsibilities vested in the Officer on the day before the Assurance Period commenced (or the functions, duties and responsibilities of a more senior office to which the Officer may be appointed), unless during such thirty (30) day period, the Bank fully cures such failure;
(D) the failure of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days following written notice from the Officer of such material breach;
(E) a reduction in the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s principal place of employment that would result in a one-way commuting time in excess of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; or
(ii) the discharge Commercial Loan Officer voluntarily resigns following a "Change of the Officer by the Bank for any reason other than for “cause” Control" (as provided such term is defined in section 9(a); then, subject to section 21, the Bank shall provide the benefits and pay to the Officer the amounts provided for under section 8(b10(a) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(bhereof) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions manner set forth in effect at the time of his actual termination of servicesection 10(b) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commencedhereof.
(b) Upon the termination of the Commercial Loan Officer’s 's employment with at the Bank under the circumstances described in section 8(a6(a)(i) or (ii) of this Agreement, the Bank shall have no further obligations under this Agreement, other than to pay and or to provide to the Commercial Loan Officer (or, in the event of the Officer’s death, to the Officer’s estate) on his termination of employment, subject to section 24 with:
(i) the Officer’s earned compensation he has earned, but unpaid compensation (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(b)) unpaid, as of the date of the termination of the Officer’s his employment with the Bank, 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 thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained by the Bank for the benefit of the Bank’s officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long long- term disability insurance benefits, in addition coverage plans under the plans and programs maintained by the Bank for similarly situated employees until the earlier to that provided pursuant to section 8(b)(iioccur of:
(A) and after taking into account the coverage provided by any subsequent employer, if and to the extent necessary to provide for the Officer, for the remaining unexpired Assurance Period, coverage equivalent to the coverage to which the Officer would have been entitled under such plans (as in effect on the date of his termination of employment, the Commercial Loan Officer first becomes eligible for such benefit coverage plans under plans or programs maintained by a subsequent employee or, if his termination of employment occurs after a Change of Control, on
(B) the date of such Change of Control, whichever benefits are greater) if the Officer had continued working for the Bank during the remaining unexpired Assurance Remaining Un-expired Employment Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bankterminates;
(iv) within thirty (30) days following his termination of employment with the Bank, a lump sum payment, in an amount equal to the present present value of the salary that the Commercial Loan Officer would have earned if the Officer he had continued working for the Bank during the remaining unexpired Assurance Remaining Un- expired Employment Period at the highest annual rate of salary achieved during that portion of the Employment Period which is prior to the Commercial Loan Officer’s period 's termination of actual employment with the Bank, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“"Code”) (“Applicable Short-Term Rate”"), compounded using the compounding periods period corresponding to the Bank’s 's regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) a lump sum payment in an amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits to which the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during event the Officer’s period of actual 's employment with the Bank, and making the maximum amount Bank terminated following a Change of employee contributions, if any, required under Control (as such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this term is defined in section 8(b)(vi10(a) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits hereof) under the corresponding non-qualified plan;
(vii) circumstances described in section 6(a)(ii), then, for purposes of calculating the payments that would have been made lump sum amount payable to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees ofthis subsection 6(b)(iv), the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance "Remaining Un-expired Employment Period, such payments " shall be deemed to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other nonthirty-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of themsix consecutive month period.
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his employment with the Bank shall terminate Company terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officerthe Executive’s voluntary resignation from employment with the Bank Company within ninety forty-five (9045) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve the office stated in the same position in which the Officer was serving, on the day before the Assurance Period commenced section 3 of this Agreement (or a more senior office) of the Company;
(B) the failure expiration of a thirty (30) day period following the date on which the Executive gives written notice to the Company of its material failure, whether by amendment of the stockholders of the Holding Company to elect Company’s Organization Certificate or reBy-elect the Officer as a member of the Boardlaws, if he was a member action of the Board on or the Company’s stockholders or otherwise, to vest in the Executive the functions, duties, or responsibilities prescribed in section 3 of this Agreement as of the date hereof, unless, during such thirty (30) day before period, the Assurance Period commencedCompany fully cures such failure;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank Company of its material failurebreach of any term, whether by amendment condition or covenant contained in this Agreement (including, without limitation any reduction of the BankExecutive’s Organization Certificate or By-laws, action rate of the Board or the Holding Company’s stockholders or otherwise, base salary in effect from time to vest time and any change in the Officer terms and conditions of any compensation or benefit program in which the functionsExecutive participates which, dutieseither individually or together with other changes, or responsibilities vested in the Officer has a material adverse effect on the day before the Assurance Period commenced (or the functions, duties and responsibilities aggregate value of a more senior office to which the Officer may be appointedhis total compensation package), unless unless, during such thirty (30) day period, the Bank Company fully cures such failure;
(D) the failure of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days following written notice from the Officer of such material breach;
(E) a reduction in the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s principal place of employment that would result in a one-way commuting time in excess of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; or
(ii) the discharge termination of the Officer Executive’s employment with the Company for any other reason not described in section 10(a); or
(iii) the Executive’s mandatory resignation from employment with the Company within 45 days following the failure of the stockholders of the Company to elect or re-elect the Executive to the Board of the failure of the Board (or the nominating committee thereof) to nominate the Executive for such election or reelection; provided, however, that such failure is not the result of a vote cast by the Bank for any reason other than for “cause” as provided in section 9(a); thenExecutive. In such event, subject to section 2126, the Bank Company shall provide the benefits and pay to the Officer Executive the amounts provided for under described in section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced9(b).
(b) Upon the termination of the OfficerExecutive’s employment with the Bank Company under circumstances described in section 8(a9(a) of this Agreement, the Bank Company shall pay and provide to the Officer Executive (or, in the event of the Officer’s his death, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s his earned but unpaid compensation (includingcompensation, without limitationincluding bonuses awarded and not yet received, all items which constitute wages under section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(b)) as of the date of the termination of the Officer’s his employment with the BankCompany, 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 thirty (30) days after termination of employment;
(ii) the The benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs program maintained for the benefit of the BankCompany’s officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage equivalent to the coverage to which the Officer he would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of in Control, on the date of such Change of in Control, whichever benefits are greater) if the Officer he had continued working for the Bank Company during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation achieved during that portion of the OfficerEmployment Period which is prior to the Executive’s period termination of actual employment with the Bank;Company; and
(iv) within thirty (30) days following his termination of employment with the Company, a lump sum payment, in an amount equal to the present value Executive’s Remaining Unexpired Employment Period expressed as a number of years carried to two decimal places multiplied by the salary that Executive’s average annual compensation received from the Officer would have earned if the Officer had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of salary achieved during the Officer’s period of actual employment with the Bank, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) a lump sum payment in an amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits to which the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees ofCompany, the Bank if and any subsidiary thereof. For purposes of this section, the Officer were 100% vested thereunder and had continued working Executive’s average annual compensation shall be the average of the Executive’s compensation for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of five calendar years preceding his termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all as reported on IRS Form W-2 less amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. option exercises. The Bank Company and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b9(b) constitute a reasonable estimate damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the OfficerExecutive’s efforts, if any, to mitigate damages. The Bank Company and the Officer Executive further agree that the Bank Company may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi9(b)(iii) and (viiiv) on the receipt of the OfficerExecutive’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to and the Company shall pay the severance benefits and amounts described in Section 9(b) herein in the event that the Officer’s his employment with the Bank shall terminate Company terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The OfficerExecutive’s voluntary resignation from employment with the Bank Company within ninety (90) days of the following:: Third Amended and Restated Employment Agreement BankUnited Financial Corporation
(A) the failure of the Bank’s Board to appoint or re-appoint reappoint or elect or re-elect the Officer Executive to serve in the same position in which office of Chairman of the Officer was serving, on the day before the Assurance Period commenced Board or a more senior office;Chief Executive Officer; or
(B) the failure of the stockholders of the Holding Company to elect or re-elect the Officer as a member of Executive or the Board, if he was a member failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commenced;Executive for such election or re-election; or
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank Company of its material failure, whether by amendment of the BankCompany’s Organization Certificate Charter or By-lawsBylaws, action of the Board or the Holding Company’s stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in the Officer on the day before the Assurance Period commenced (or the functionsSection 3 of this Agreement, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Bank fully Company cures such failure;failure in a manner determined by the Executive, in his discretion, to be satisfactory; or
(D) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which the Executive gives written notice to the Company of its material breach of any term, condition or covenant contained in this Agreement (including, without limitation, any reduction of the Executive’s rate of base salary in effect from time to time and any change in the Officer terms and conditions of any compensation or benefit program in which the Executive participates which, either individually or together with other changes, has a material adverse effect on the aggregate value of his total compensation package), unless, during such material breach;thirty (30) day period, the Company cures such failure in a manner determined by the Executive, in his discretion, to be satisfactory; or
(E) the relocation of the executive offices of the Company, a reduction distance of more than fifteen (15) miles from its current Coral Gables, Florida location or of more than twenty-five (25) miles from the current address of the Executive’s residence as shown in the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s principal place of employment that would result in a one-way commuting time in excess records of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such changeCompany; or
(ii) subject to the discharge provisions of Section 10, the termination of the Officer Executive’s employment by the Bank Company for any reason other than for “cause” as provided in section 9(a); then, subject to section 21, the Bank shall provide the benefits and pay to the Officer the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commencedreason.
(b) Upon the termination of the OfficerExecutive’s employment with the Bank Company under circumstances described in section 8(aSection 9(a) of this Agreement, the Bank Company shall pay and provide to the Officer Executive (or, in the event of the Officer’s death, to the Officer’s estate) on his death following such termination of employment, subject provide to section 24 :his estate):
(i) the Officer’s his earned but unpaid Salary and other compensation (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law applicable state law and the payment of which is not otherwise provided for under this section 8(bSection 9(b)) as of the date of the termination of the Officer’s his employment with the BankCompany, such payment to be made at the Third Amended and Restated Employment Agreement BankUnited Financial Corporation time and in the manner prescribed by law applicable to the payment of wages but in no event later than thirty (30) days after termination of employment;; plus
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s officers and employees;employees of the Company; plus
(iii) continued group life, health (including hospitalization, medical, major medical and major medicalany supplemental insurance coverages), dental, accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive and his dependents, for the remaining unexpired Assurance PeriodRemaining Unexpired Employment Period or to age 65, whichever is later, coverage equivalent to the coverage to which the Officer he would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of in Control, on the date of such Change of in Control, whichever benefits are greater) ), if the Officer he had continued working for the Bank Company during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation Salary achieved during that portion of the OfficerEmployment Period which is prior to the Executive’s period termination of actual employment with the Bank;Company, subject to the maximum insurance amounts specified under the Company’s policies, and with such continued coverages to be provided to the Executive at the Company’s expense through COBRA or in any other manner determined by the Committee, to be appropriate including, but not limited to, through the purchase of an individual policy or policies; plus
(iv) within thirty (30) days following his termination of employment with the Company, a lump sum payment, in an amount equal to the present value greater of the salary that the Officer would have earned if the Officer had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of salary achieved during the Officer’s period of actual employment with the Bank, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d(A) of the Internal Revenue Code of 1986 or (“Code”B) (“Applicable Short-Term Rate”), compounded using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) a lump sum payment in an amount equal to the excess, if any, ofwhere:
(A) is five times the present following: the sum of (1) the highest Salary awarded to the Executive for any of the five fiscal years 2002 through 2006, (2) the highest cash bonuses awarded to the Executive for any of the five fiscal years 2002 through 2006, and (3) the highest cash value of restricted stock grants awarded to the Executive for any one of the five fiscal years 2002 through 2006 (provided, however, that the cash value of the aggregate benefits restricted stock grants (determined as of the date of each such grant) included in the calculation will be included only up to an amount which equals fifty percent (50%) of the Officer would be entitled under total of the highest Salary and highest cash bonuses awarded to the Executive in any of the fiscal years 2002 through 2006), and
(B) three times the following: the sum of (1) the highest Salary awarded to the Executive for any of the five fiscal years preceding the Executive’s termination of employment with the Company, (2) the highest cash bonuses awarded to the Executive for any of the five fiscal years preceding the Third Amended and all qualified Restated Employment Agreement BankUnited Financial Corporation Executive’s termination of employment with the Company, and non-qualified defined benefit pension plans maintained by, or covering employees of, (3) the Bank if highest cash value of restricted stock grants awarded to the Officer were 100% vested thereunder and had continued working Executive for any one of the Bank during five fiscal years preceding the remaining unexpired Assurance Period, such benefits to Executive’s termination of employment with the Company (provided that the cash value of the restricted stock grants shall be determined as of the date of each such grant); plus
(v) within thirty (30) days following his termination of employment by adding to with the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I)Company, (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the BankCompany, if he were 100% vested thereunder and had continued working for the Bank Company during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation achieved during that portion of the OfficerEmployment Period which is prior to the Executive’s period termination of actual employment with the BankCompany, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the a discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to a discount rate, compounded monthly equal to the Applicable Shortannualized rate of interest prescribed by the Pension Benefit Guaranty Corporation for the valuation of immediate annuities payable under a terminating single-Term Rateemployer defined benefit plan for the month in which the Executive’s termination of employment occurs; provided, however, that if payments are made under this section 8(b)(viplus
(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same timeelection of the Company made within thirty (30) days following the Executive’s termination of employment with the Company, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made subject to the Officer consent of the Executive, which shall not be unreasonably withheld, upon the surrender of options or appreciation rights issued to the Executive under any cash bonus stock option and appreciation rights plan or long-term or short-term cash incentive compensation plan program maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award Company a lump sum payment in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be an amount equal to the product of:
(A) the maximum percentage rate at which an award was ever available excess of (I) the fair market value of a share of stock of the same class as the stock subject to the Officer option or appreciation right, determined as of the date of termination of employment, over (II) the exercise price per share for such option or appreciation right, as specified in or under such incentive compensation planthe relevant plan or program; multiplied by
(B) the salary number of shares with respect to which options or appreciation rights are being surrendered. For purposes of this Section 9(b)(vi) and for purposes of determining the Executive’s right following his termination of employment with the Company to exercise any options or appreciation rights not surrendered pursuant hereto, the Executive shall be deemed fully vested in all options and appreciation rights under any stock option or appreciation rights plan or program maintained by, or covering employees of, the Company, even if he is not vested under such plan or program; plus Third Amended and Restated Employment Agreement BankUnited Financial Corporation
(vii) at the election of the Company made within thirty (30) days following the Executive’s termination of employment with the Company, subject to the consent of the Executive, which shall not be unreasonably withheld, upon the surrender of any shares awarded to the Executive under any restricted stock plan maintained by, or covering employees of, the Company a lump sum payment in an amount equal to the product of:
(A) the fair market value of a share of stock of the same class of stock granted under such plan, determined as of the date of the Executive’s termination of employment; multiplied by
(B) the number of shares which are being surrendered. For purposes of this Section 9(b)(vii) and for purposes of determining the Executive’s right following his termination of employment with the Company to any stock not surrendered pursuant hereto, the Executive shall be deemed fully vested in all shares awarded under any restricted stock plan maintained by, or covering employees of, the Company, even if the shares are not vested or earned under such plan; plus
(viii) with the following: (A) the personal use, at the Company’s expense for the Remaining Unexpired Employment Period, of a late model automobile comparable to that would have used by the Executive prior to his termination of employment; (B) the right of the Executive to purchase, at book value, the membership in up to two country clubs which the Company has maintained for the benefit of the Executive; (C) the transfer to the Executive of the life insurance policies that the Company maintains on the life of the Executive as part of his benefits in accordance with Section 5; (D) the continued use, at the Company’s expense for the Remaining Unexpired Employment Period, of the secretarial services, Internet and Bloomberg Financial Market Commodities and News Access Subscriptions, cellular telephones, pagers and the lap-top computer which had been provided to the Executive immediately prior to his termination of employment; and (E) the right of the Executive to purchase, at book value as shown or calculated in the records of the Company, the furnishings of his office at the Company; and plus
(ix) any and all deferred compensation, including Deferred Option Shares, shall be released and paid to the Officer during each Executive, except to the extent that such calendar year at acceleration would result in an excise tax under Section 409A of the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. Code. The Bank Company and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(bSection 9(b) constitute a reasonable estimate damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable Third Amended and Restated Employment Agreement BankUnited Financial Corporation without any requirement of proof of actual damage and without regard to the OfficerExecutive’s efforts, if any, to mitigate damages. In no event shall any of the foregoing provisions of this Section 9(b) entitle the Executive to additional grants of statutory or non-statutory options to purchase shares of common stock of the Company pursuant to any incentive stock option plan then in effect.
(c) The Bank Company and the Officer Executive further agree that the Bank Company may condition the payments and benefits (if any) due under sections 8(b)(iiiSections 9(b)(iii), (iv), (v), (vi) and (viiviii) on on
(i) the receipt of the OfficerExecutive’s resignation from any and all positions which he holds as an officer, director or committee member with respect to officer of the BankCompany, the Company Bank or any subsidiary or affiliate of either of them; provided that the Executive may elect to remain as a non-chairman director on the Board of Directors, notwithstanding his resignation as Chairman of the Board;
(ii) the Executive’s making an offer to the Board of Directors to resign as a director of the Company or a member of a committee of the Board; provided, however, that the Executive’s resignation shall only be final if all of the members of the Board, not including Family Members, as defined in Rule 4200(a)(14) of the Nasdaq Stock Market, vote to accept the offer, at the time the offer is made; and
(iii) if termination occurs other than as specified in Section 11 for termination upon or following a change in control, the execution by the Executive of covenants not to compete with the business of the Company or its affiliates or solicit business customers or employees of the Company or its affiliates for a period of twelve (12) months following the date of such payment, such covenants to contain substantially the terms attached as Exhibit C to this Agreement.
(d) Notwithstanding any provision of this Agreement to the contrary, no payment or benefit will be made to the Executive under this Section 9 prior to the expiration of six months from the date of his termination of employment if such payment or benefit will result in the imposition of an excise tax under Code section 409A.
(i) with respect to the benefits described in Section 9(b)(viii)(A) and (D), if necessary for compliance with section 409A of the Code, the Executive will, for the six-month period commencing with his termination of employment, pay the Company its cost of providing such benefits. Such payment shall be made on the first business day of each month during this period for the prior month. At the end of the six-month period following Executive’s termination of employment, the Company will reimburse him for the payments made during the six-month period.
(ii) with respect to the benefits described in Section 9(b)(viii)(A) and (D), during the Remaining Unexpired Employment Period after the first six-month period, the Company shall make the payments for such benefits within 30 days of the annual billing for such benefits. Third Amended and Restated Employment Agreement BankUnited Financial Corporation Page 11 of 23
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described in Section 9(b) in the event that the Officer’s employment with the Bank shall terminate during the Assurance Period, or prior to the commencement of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account ofthat:
(i) The Officer’s voluntary resignation from her employment with the Bank Company terminates during the Employment Period as a result of the Executive's voluntary resignation within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve the position with the Company stated in the same position in which the Officer was serving, on the day before the Assurance Period commenced or a more senior officeSection 3 of this Agreement;
(B) if the Executive is a member of the Board, the failure of the stockholders shareholders of the Holding Company to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) day 30)-day period following the date on which the Officer Executive gives written notice to the Bank Company of its material failure, whether by amendment of the Bank’s Organization Company's Certificate or of Incorporation, the Company's By-lawsLaws, action of the Board or the Holding Company’s stockholders 's shareholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in the Officer on the day before the Assurance Period commenced (or the functionsSection 3 of this Agreement, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day 30)-day period, the Bank fully Company cures such failure;
(D) the failure expiration of a thirty (30)-day period following the Bank date on which the Executive gives written notice to cure a the Company of its material breach of any term, condition or covenant contained in this Agreement by (including, without limitation any reduction of the BankExecutive's rate of base salary in effect from time to time and any change in the terms and conditions of any compensation or benefit program in which the Executive participates which, within either individually or together with other changes, has a material adverse effect on the aggregate value of her total compensation package), unless, during such thirty (30) days following written notice from 30)-day period, the Officer of Company cures such material breachfailure;
(E) a reduction change in the compensation provided Executive's principal place of employment to a place that is not the Officerprincipal executive office of the Bank, or a material reduction in the benefits provided to the Officer under relocation of the Bank’s program 's principal executive office to a location that is both more than twenty-five (25) miles away from the Executive's principal residence and more than twenty-five (25) miles away from the location of employee benefits, compared with the compensation and benefits that were provided to the Officer Bank's principal executive office on the day before the Assurance Period commenced;date of this Agreement; or
(F) a change in the Officer’s principal place of employment that would result in a one-way commuting time in excess of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; or
(ii) the discharge of the Officer any material breach by the Bank for Company of any reason other than for “cause” as provided material term, condition or covenant contained in section 9(a); then, subject to section 21, the Bank shall provide the benefits and pay to the Officer the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result the Executive shall have given notice of the Officer’s termination of employment prior such materials adverse effect to the commencement of Company, and the Assurance Period, Company has not fully cured such failure within thirty (30) days after such notice is deemed given; or
(ii) the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated Executive’s employment with the Bank until Company is terminated by the date on which the Officer’s Assurance Period would have commencedCompany for any reason other than for "cause" as provided in Section 11(a).
(b) Upon the termination occurrence of any of the Officer’s employment with the Bank under circumstances events described in section 8(aSection 9(a) of this Agreement, the Bank Company shall pay and provide to the Officer Executive (or, in the event of the Officer’s deathher death thereafter and prior to payment, to the Officer’s her estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s her earned but unpaid compensation salary (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law applicable law and the payment of which is not otherwise provided for under in this section 8(bSection 9(b)) as of the date of the termination of the Officer’s her employment with the Company and the Bank, 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 thirty (30) days after termination of employmentemployment as defined in Treasury Regulation Section 1.409A-1(h)(1)(ii);
(ii) the benefits, if any, to which the Officer she is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Company's and the Bank’s 's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long long-term disability insurance benefitsbenefits on substantially the same terms and conditions (including any required premium-sharing arrangements, co-payments and deductibles) in addition effect for them immediately prior to that the Executive's termination for the Remaining Unexpired Employment Period for the Executive and her dependents. The coverage provided under this Section 9(b)(iii) may, at the election of the Company, be secondary to the coverage provided pursuant to section 8(b)(iiSection 9(b)(ii) and after taking into account the to any employer-paid coverage provided by any a subsequent employeremployer or through Medicare, if and to with the extent necessary to provide for result that benefits under the Officer, for the remaining unexpired Assurance Period, coverage equivalent to other coverages will offset the coverage to which required by this Section 9(b)(iii). The Executive, the Officer would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer had continued working for Company and the Bank during agree that the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Banktermination benefits described in this Section 9(b)(iii) are intended to be exempt from Section 409A pursuant to Treasury Regulation Section 1.409A-1(b) (1) as non-taxable benefits;
(iv) a lump sum payment, payment in an amount equal to the present estimated present value of the salary that the Officer Executive would have earned if the Officer she had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the Officer’s period of actual employment with the Bank, where such present value is to be determined using a discount rate equal three (3) years ending immediately prior to the date of termination (the "Salary Severance Payment"). The Salary Severance Payment shall be computed using the following formula: where "SSP" is the amount of the Salary Severance Payment (before the deduction of applicable short-federal, state and local withholding taxes); "BS" is the highest annual rate of salary achieved by the Executive during the period of three (3) years ending immediately prior to the date of termination; "PR" is the number of payroll periods that occur during a year under the Company's normal payroll practices; "I" equals the applicable federal short term federal rate prescribed established under section 1274(d) Section 1274 of the Internal Revenue Code of 1986 (“the "Code”") for the month in which the Executive's termination of employment occurs (“Applicable Short-the "Short Term Rate”), compounded using AFR") and "n" equals the compounding product of the Remaining Unexpired Employment Period at the Executive's termination of employment (expressed in years and fractions of years) multiplied by the number of payroll periods corresponding to that occur during a year under the Company's and the Bank’s regular 's normal payroll periods for its officers, such lump sum to practices. The Salary Severance Payment shall be paid made within five (5) business days after the Executive's termination of employment and shall be in lieu of all other payments any claim to a continuation of base salary provided which the Executive might otherwise have and in lieu of cash severance benefits under any severance benefits program which may be in effect for under this Agreement in respect officers or employees of the period following any such terminationBank or the Company;
(v) a lump sum payment in an amount equal to the excess, if any, of:
(A) the estimated present value of the aggregate benefits to which annual bonuses that the Officer Executive would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank have earned if the Officer were 100% vested thereunder and she had continued working for the Company and the Bank during the remaining unexpired Assurance Period, such benefits Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the period of three (3) years ending immediately prior to be determined as of the date of termination (the "Bonus Severance Payment"). The Bonus Severance Payment shall be computed using the following formula: where "BSP" is the amount of the Bonus Severance Payment (before the deduction of applicable federal, state and local withholding taxes); "SSP" is the amount of the Salary Severance Payment (before the deduction of applicable federal, state and local withholding taxes); "ABP" is the aggregate of the annual bonuses paid or declared (whether or not paid) for the most recent period of three (3) calendar years to end on or before the Executive's termination of employment; and "ASP" is the aggregate base salary actually paid to the Executive during such period of three (3) calendar years (excluding any year for which no bonus was declared or paid). The Bonus Severance Payment shall be made within five (5) business days after the Executive's termination of employment by adding and shall be in lieu of any claim to a continuation of participation in annual bonus plans of the service actually recognized under such plans Bank or the Company which the Executive might otherwise have;
(vi) a lump sum payment in an additional period amount equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the estimated present value of the benefits to which long-term incentive bonuses that the Officer Executive would have earned if she had continued working for the Company and the Bank during the Remaining Unexpired Employment Period (the "Incentive Severance Payment"). The Incentive Severance Payment shall be computed using the following formula: where "ISP" is actually entitled under such defined benefit pension plans as the amount of the date Incentive Severance Payment (before the deduction of his terminationapplicable federal, state and local withholding taxes); where "SSP" is the amount of the Salary Severance Payment (before the deduction of applicable federal, state and local withholding taxes); "ALTIP" is the aggregate of the most recently paid or declared (whether or not paid) long-term incentive compensation payments (but not more than three (3) such present values are payments) for performance periods that end on or before the Executive's termination of employment; "ALTSP" is the aggregate base salary actually paid to be determined using the mortality tables prescribed under section 415(b)(2)(E)(vExecutive during the performance periods covered by the payments included in "ALTIP" and excluding base salary paid for any period for which no long-term incentive compensation payment was declared or paid; "RUP" is the Remaining Unexpired Employment Period, expressed in years and fractions of years; and "Y" is the aggregate (expressed in years and fractions of years) of the Code Remaining Unexpired Employment Period plus the number of years and fraction of years that have elapsed since the end of the last performance period for which a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed incentive payment has been declared and paid. In the event that the Executive's employment terminates prior to the payment date under section 1274(d) any long-term incentive compensation plan, then for purposes of computing the Incentive Severance Payment, the "ALTSP" shall be deemed to be the average of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts target and maximum award level under such defined benefit plans plan and the "ALTSP" shall be deemed to be vested, the payments, if any, attributable to such deemed vesting Executive's annual base salary as in effect on the Executive's termination of employment. The Incentive Severance Payment shall be paid made within five (5) business days after the Executive's termination of employment and shall be in lieu of any claim to a continuation of participation in cash long-term incentive compensation plans of the same form, and paid at Bank or the same time, and in Company which the same manner, as benefits under the corresponding non-qualified planExecutive might otherwise have;
(vivii) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he that would have been entitled credited directly to her account(s) under any and all tax-qualified and non-tax-qualified defined contribution plans maintained by, or covering employees of, the BankBank and the Company (the "Non-ESOP DC Plans"), if he were 100% vested thereunder and had continued working for plus the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present fair market value to be determined on the basis of the discount rate, compounded using the compounding period additional shares of employer securities or other property that corresponds would have been allocated to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) her account as a result of this section deeming otherwise unvested amounts employer contributions or dividends under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, any tax-qualified leveraged employee stock ownership plan and paid at the same time, and in the same manner, as benefits under the corresponding any related non-tax-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation supplemental plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that Company (the damages which may be incurred by "ESOP Plans") if she had continued in employment during the Officer following any such termination of employment are not capable of accurate measurement as of Remaining Unexpired Employment Period (the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment"Defined Contribution Severance Payment"). Such damages The Defined Contribution Severance Payment shall be payable without any requirement of proof of actual damage and without regard computed according to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.following formula:
Appears in 1 contract
Samples: Employment Agreement (Western New England Bancorp, Inc.)
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his or her employment with the Bank shall terminate Association terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officerthe Executive’s voluntary resignation from employment with the Bank Association within ninety six (906) days months following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Executive to the office of Executive Vice President, Treasurer and Chief Financial Officer to serve in the same position in which the Officer was serving, on the day before the Assurance Period commenced (or a more senior office) of the Association;
(B) if the Executive is or becomes a member of the Board, the failure of the stockholders of the Holding Company Association to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank Association of its material failure, whether by amendment of the BankAssociation’s Organization Certificate or By-laws, action of the Board or the Holding CompanyAssociation’s stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in Section 3 of this Agreement as of the Officer on the day before the Assurance Period commenced (or the functionsdate hereof, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Bank fully Association cures such failure;
(D) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which the Executive gives written notice to the Association of its material breach of any term, condition or covenant contained in this Agreement (including, without limitation, any reduction of the Executive’s rate of base salary in effect from time to time and any change in the Officer terms and conditions of any compensation or benefit program in which the Executive participates which, either individually or together with other changes, has a material adverse effect on the aggregate value of his or her total compensation package), unless, during such material breach;thirty (30) day period, the Association cures such failure; or
(E) a reduction in the compensation provided to relocation of the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the OfficerExecutive’s principal place of employment that would result in employment, without his or her written consent, to a one-way commuting time in excess location outside of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; orNassau County and Queens County, New York;
(ii) the discharge termination of the Officer by Executive’s employment with the Bank Association for any other reason other than for “cause” as provided not described in section 9(aSection 10(a); then, . In such event and subject to section 21Section 27 of this Agreement, the Bank Association shall provide the benefits and pay to the Officer Executive the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained described in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commencedSection 9(b).
(b) Upon the termination of the OfficerExecutive’s employment with the Bank Association under circumstances described in section 8(aSection 9(a) of this Agreement, the Bank Association shall pay and provide to the Officer Executive (or, in the event of the OfficerExecutive’s death, to death following the OfficerExecutive’s estate) on his termination of employment, subject to section 24 :his or her estate):
(i) the Officer’s his or her earned but unpaid compensation (including, without limitation, all items which constitute wages under section Section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(bSection 9(b)) as of the date of the termination of the Officer’s his or her employment with the BankAssociation, such payment to be made at the time and in the manner prescribed by law applicable to the payment of wages but in no any event not later than thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer he or she is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the BankAssociation’s officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage (including any co-payments and deductibles, but excluding any premium sharing arrangements, it being the intention of the parties to this Agreement that the premiums for such insurance benefits shall be the sole cost and expense of the Association) equivalent to the coverage to which the Officer he or she would have been entitled under such plans (as in effect on the date of his or her termination of employment, or, if his or her termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) ), if the Officer he or she had continued working for the Bank Association during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation salary or compensation, as applicable, achieved during that portion of the OfficerEmployment Period which is prior to the Executive’s period termination of actual employment with the BankAssociation;
(iv) within thirty (30) days following the Executive’s termination of employment with the Association, a lump sum payment, payment in an amount equal to the present value representing an estimate of the salary that the Officer Executive would have earned if the Officer he or she had continued working for the Bank Association during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during that portion of the OfficerEmployment Period which is prior to the Executive’s period termination of actual employment with the Bank, where such present value Association (the "Salary Severance Payment”). The Salary Severance Payment shall be computed using the following formula: SSP = BS x NY where: “SSP” is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) amount of the Internal Revenue Code Salary Severance Payment, before the deduction of 1986 (“Code”) (“Applicable Short-Term Rate”)applicable federal, compounded using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such terminationstate and local withholding taxes;
(v) a lump sum payment in an amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits to which the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his or her employment with the Bank shall terminate Company terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officer’s the Executive's voluntary resignation from employment with the Bank Company within ninety six (906) days months following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve in the same position in which the Officer was serving, on the day before the Assurance Period commenced office of Executive Vice President and General Counsel (or a more senior office) of the Company;
(B) if the Executive is or becomes a member of the Board, the failure of the stockholders of the Holding Company to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank Company of its material failure, whether by amendment of the Bank’s Organization Company's Certificate of Incorporation or By-laws, action of the Board or the Holding Company’s 's stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in Section 3 of this Agreement as of the Officer on the day before the Assurance Period commenced (or the functionsdate hereof, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Bank fully Company cures such failurefailure in a manner determined by the Executive, in his or her discretion, to be satisfactory;
(D) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which the Executive gives written notice to the Company of its material breach of any term, condition or covenant contained in this Agreement (including, without limitation, any reduction of the Executive's rate of base salary in effect from time to time and any change in the Officer terms and conditions of such any compensation or benefit program in which the Executive participates which, either individually or together with other changes, has a material breach;adverse effect on the aggregate value of his or her total compensation
(E) a reduction in the compensation provided to relocation of the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s Executive's principal place of employment that would result in employment, without his or her written consent, to a one-way commuting time in excess location outside of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; orNassau County and Queens County, New York;
(ii) the discharge termination of the Officer by Executive's employment with the Bank Company for any other reason other than for “cause” as provided not described in section 9(aSection 10(a); then, subject to section 21. In such event, the Bank Company shall provide the benefits and pay to the Officer Executive the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained described in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commencedSection 9(b).
(b) Upon the termination of the Officer’s Executive's employment with the Bank Company under circumstances described in section 8(aSection 9(a) of this Agreement, the Bank Company shall pay and provide to the Officer Executive (or, in the event of the Officer’s death, to Executive's death following the Officer’s estate) on his Executive's termination of employment, subject to section 24 :his or her estate):
(i) the Officer’s his or her earned but unpaid compensation (including, without limitation, all items which constitute wages under section Section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(bSection 9(b)) as of the date of the termination of the Officer’s his or her employment with the BankCompany, such payment to be made at the time and in the manner prescribed by law applicable to the payment of wages but in no any event not later than thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer he or she is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s Company's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage (including any co-payments and deductibles, but excluding any premium sharing arrangements, it being the intention of the parties to this Agreement that the premiums for such insurance benefits shall be the sole cost and expense of the Company) equivalent to the coverage to which the Officer he or she would have been entitled under such plans (as in effect on the date of his or her termination of employment, or, if his or her termination of employment occurs after a Change of Control, on the date of
(iv) within thirty (30) days following the Executive's termination of such Change employment with the Company, a lump sum payment in an amount representing an estimate of Control, whichever benefits are greater) the salary that the Executive would have earned if the Officer he or she had continued working for the Bank Company during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank;
(iv) a lump sum payment, in an amount equal to the present value of the salary that the Officer would have earned if the Officer had continued working for the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the Bank, where such present value is to Company (the "Salary Severance Payment"). The Salary Severance Payment shall be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded computed using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) a lump sum payment in an amount equal to the excess, if any, offormula: SSP = BS x NY where:
(A) the present value of the aggregate benefits to which the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described in section 9(b) in the event that the Officer’s employment with the Bank shall terminate during the Assurance Period, or prior to the commencement of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account ofthat:
(i) The Officerhis employment with the Company terminates during the Employment Period as a result of the Executive’s voluntary resignation from employment with the Bank within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve the position with the Company stated in the same position in which the Officer was serving, on the day before the Assurance Period commenced or a more senior officesection 3 of this Agreement;
(B) if the Executive is a member of the Board, the failure of the stockholders shareholders of the Holding Company to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) day 30)-day period following the date on which the Officer Executive gives written notice to the Bank Company of its material failure, whether by amendment of the BankCompany’s Organization Certificate or of Incorporation, the Company’s By-lawsLaws, action of the Board or the Holding Company’s stockholders shareholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in the Officer on the day before the Assurance Period commenced (or the functionssection 3 of this Agreement, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day 30)-day period, the Bank fully Company cures such failure;
(D) the failure expiration of a thirty (30)-day period following the Bank date on which the Executive gives written notice to cure a the Company of its material breach of any term, condition or covenant contained in this Agreement by (including, without limitation any reduction of the Executive’s rate of base salary in effect from time to time and any change in the terms and conditions of any compensation or benefit program in which the Executive participates which, either individually or together with other changes, has a material adverse effect on the aggregate value of his total compensation package), unless, during such thirty (30)-day period, the Company cures such failure;
(E) a change in the Executive’s principal place of employment to a place that is not the principal executive office of the Bank, or a relocation of the Bank’s principal executive office to a location that is both more than twenty-five (25) miles away from the Executive’s principal residence and more than twenty-five (25) miles away from the location of the Bank’s principal executive office on the date of this Agreement; or
(F) any material breach by the Company of any material term, condition or covenant contained in this Agreement; provided, however, that the Executive shall have given notice of such materials adverse effect to the Company, and the Company has not fully cured such failure within thirty (30) days following written after such notice from the Officer of such material breach;
(E) a reduction in the compensation provided to the Officer, is deemed given; or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s principal place of employment that would result in a one-way commuting time in excess of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; or
(ii) the discharge of the Officer by the Bank for any reason other than for “cause” as provided in section 9(a11(a); then, subject to section 21, the Bank shall provide the benefits and pay to the Officer the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced.
(b) Upon the termination occurrence of any of the Officer’s employment with the Bank under circumstances events described in section 8(a9(a) of this Agreement, the Bank Company shall pay and provide to the Officer Executive (or, in the event of the Officer’s deathhis death thereafter and prior to payment, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s his earned but unpaid compensation salary (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law applicable law and the payment of which is not otherwise provided for under in this section 8(b9(b)) as of the date of the termination of the Officer’s his employment with the Company and the Bank, 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 thirty (30) days after termination of employmentemployment as defined in Treasury Regulation Section 1.409A-1(h)(1)(ii);
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Company’s and the Bank’s officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long long-term disability insurance benefitsbenefits on substantially the same terms and conditions (including any required premium-sharing arrangements, co-payments and deductibles) in addition effect for them immediately prior to that the Executive’s termination for the Remaining Unexpired Employment Period for the Executive and his dependents. The coverage provided under this section 9(b)(iii) may, at the election of the Company, be secondary to the coverage provided pursuant to section 8(b)(ii9(b)(ii) and after taking into account the to any employer-paid coverage provided by any a subsequent employeremployer or through Medicare, if and to with the extent necessary to provide for result that benefits under the Officer, for the remaining unexpired Assurance Period, coverage equivalent to other coverages will offset the coverage to which required by this section 9(b)(iii). The Executive, the Officer would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer had continued working for Company and the Bank during agree that the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Banktermination benefits described in this Section 9(b)(iii) are intended to be exempt from Section 409A pursuant to Treasury Regulation Section 1.409A-1(b)(1) as non-taxable benefits;
(iv) a lump sum payment, payment in an amount equal to the present estimated present value of the salary that the Officer Executive would have earned if the Officer he had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the Officer’s period of actual employment with the Bank, where such present value is to be determined using a discount rate equal three (3) years ending immediately prior to the date of termination (the “Salary Severance Payment”). The Salary Severance Payment shall be computed using the following formula: where “SSP” is the amount of the Salary Severance Payment (before the deduction of applicable short-federal, state and local withholding taxes); “BS” is the highest annual rate of salary achieved by the Executive during the period of three (3) years ending immediately prior to the date of termination; “PR” is the number of payroll periods that occur during a year under the Company’s normal payroll practices; “I” equals the applicable federal short term federal rate prescribed established under section 1274(d) 1274 of the Internal Revenue Code of 1986 (the “Code”) for the month in which the Executive’s termination of employment occurs (the “Applicable Short-Short Term RateAFR”), compounded using ) and “n” equals the compounding product of the Remaining Unexpired Employment Period at the Executive’s termination of employment (expressed in years and fractions of years) multiplied by the number of payroll periods corresponding to that occur during a year under the Company’s and the Bank’s regular normal payroll periods for its officers, such lump sum to practices. The Salary Severance Payment shall be paid made in lieu of all other payments any claim to a continuation of base salary provided which the Executive might otherwise have and in lieu of cash severance benefits under any severance benefits program which may be in effect for under this Agreement in respect officers or employees of the period following any such terminationBank or the Company;
(v) a lump sum payment in an amount equal to the excess, if any, of:
(A) the estimated present value of the aggregate benefits to which annual bonuses that the Officer Executive would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank have earned if the Officer were 100% vested thereunder and he had continued working for the Company and the Bank during the remaining unexpired Assurance Period, such benefits Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the period of three (3) years ending immediately prior to be determined as of the date of termination (the “Bonus Severance Payment”). The Bonus Severance Payment shall be computed using the following formula: where “BSP” is the amount of employment by adding the Bonus Severance Payment (before the deduction of applicable federal, state and local withholding taxes); “SSP” is the amount of the Salary Severance Payment (before the deduction of applicable federal, state and local withholding taxes); “BP” is the aggregate of the annual bonuses paid or declared (whether or not paid) for the most recent period of three (3) calendar years to end on or before the Executive’s termination of employment; and “SP” is the aggregate base salary actually paid to the service actually recognized under Executive during such period of three (3) calendar years (excluding any year for which no bonus was declared or paid). The Bonus Severance Payment shall be in lieu of any claim to a continuation of participation in annual bonus plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to Bank or the Company which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming Executive might otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified planhave;
(vi) a lump sum payment in an amount equal to the estimated present value of the additional employer contributions long-term incentive bonuses that the Executive would have earned if he had continued working for the Company and the Bank during the Remaining Unexpired Employment Period (the “Incentive Severance Payment”). The Incentive Severance Payment shall be computed using the following formula: where “ISP” is the amount of the Incentive Severance Payment (before the deduction of applicable federal, state and local withholding taxes); “SSP” is the amount of the Salary Severance Payment (before the deduction of applicable federal, state and local withholding taxes); “ALTIP” is the aggregate of the most recently paid or if greater in declared (whether or not paid) long-term incentive compensation payments (but not more than three (3) such payments) for performance periods that end on or before the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at Executive’s termination of employment; “ALTSP” is the aggregate base salary actually paid to the Executive during the performance periods covered by the payments included in “ALTIP” and excluding base salary paid for any period for which no long-term incentive compensation payment was declared or paid; “RUP” is the Remaining Unexpired Employment Period, expressed in years and fractions of years; and “Y” is the aggregate (expressed in years and fractions of years) of the Remaining Unexpired Employment Period plus the number of years and fraction of years that have elapsed since the end of the last performance period for which a long-term incentive payment has been declared and paid. In the event that the Executive’s employment terminates prior to the payment date under any long-term incentive compensation plan, then for purposes of computing the Incentive Severance Payment, the “ALTSP” shall be deemed to be the average of the target and maximum award level under such plan and the “ALTSP” shall be deemed to be the Executive’s annual base salary as in effect on the Executive’s termination of employment. The Incentive Severance Payment shall be in lieu of any claim to a continuation of participation in cash long-term incentive compensation plans of the Bank or the Company which the Executive might otherwise have;
(vii) a lump sum payment in an amount equal to the excess (if any) of (A) the present value of the aggregate benefits to which he would have been be entitled under any and all tax-qualified and non-tax-qualified defined contribution benefit plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for Company or the Bank during (the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi“Pension Plans”) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Company and the. Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Remaining Unexpired Employment Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
over (B) the salary that would have been paid present value of the benefits to which the Executive and his spouse and/or designated beneficiaries are actually entitled under such plans (the “Pension Severance Payment”). The Pension Severance Payment shall be computed according to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.formula:
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive's shall be entitled to the severance benefits described in section 9(b) in the event that the Officer’s employment with the Bank shall terminate during the Assurance Period, or prior to the commencement of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account ofthat:
(i) The Officer’s voluntary resignation from his employment with the Company or the Bank terminates during the Employment Period as a result of the Executive's voluntary resignation within ninety (90) 90 days following:
(A) the failure of the Bank’s Board or the Board of Directors of the Bank ("Bank Board") as the case may be, to appoint or re-appoint or elect or re-elect the Officer Executive to serve the position with the Company or the Bank stated in the same position in which the Officer was serving, on the day before the Assurance Period commenced section 3 of this Agreement (or a more senior office);
(B) if the Executive is a member of the Board or the Bank Board as the case may be, the failure of the stockholders shareholders of the Holding Company or the Bank to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the Bank Board or the failure of the Board on or the day before Bank Board (or the Assurance Period commencednominating committee thereof) to nominate the Executive for such election or re-election;
(C) the expiration of a thirty (30) -day period following the date on which the Officer Executive gives written notice to the Bank Company of its or the Bank's material failure, whether by amendment of the Company's Certificate of Incorporation, the Bank’s 's Restated Organization Certificate or Certificate, the Company's By-lawsLaws or the Bank's By-Laws, action of the Board or the Holding Bank Board or the Company’s stockholders 's shareholders or the Bank's shareholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in the Officer on the day before the Assurance Period commenced (or the functionssection 3 of this Agreement, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) -day period, the Company or the Bank fully cures such failure;
(D) the failure of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days following written notice from the Officer of such material breach;
(E) a reduction in the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;; or
(F) a change in the Officer’s Executive's principal place of employment that would result in for a one-way commuting time distance in excess of 50 miles from the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such changeBank's principal office in Warwick, New York; or
(ii) the discharge of Executive's employment with the Officer Company or the Bank is terminated by the Company or the Bank for any reason other than for “"cause” " as provided in section 9(a10(a); or
(iii) a Change of Control as defined in section 11 has occurred then, subject to section 21, the Bank Company shall provide the benefits and pay to the Officer Executive the amounts provided for under described in section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced9(b).
(b) Upon the termination occurrence of any of the Officer’s employment with the Bank under circumstances events described in section 8(a9(a) of this Agreement, the Bank Company shall pay and provide to the Officer Executive (or, in the event of the Officer’s his death, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s his earned but unpaid compensation salary (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law applicable law and the payment of which is not otherwise provided for under in this section 8(b9(b)) as of the date of the termination of the Officer’s his employment with the Company and the Bank, 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 thirty (30) 30 days after termination of employment;
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs pro grams maintained for the benefit of the Company's and the Bank’s 's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage equivalent to the coverage to which the Officer would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank;,
(iv) within 30 days following the Executive's termination of employment with the Company or the Bank, a lump sum payment, in an amount equal to the present present value of the salary (excluding any additional payments made to the Executive in lieu of the use of an automobile) that the Officer Executive would have earned if the Officer he had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the Officer’s period of actual employment with the BankEmployment Period, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 1986, as amended (“"Code”) (“Applicable Short-Term Rate”"), compounded using the compounding periods corresponding to the Bank’s Company's regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) within 30 days following the Executive's termination of employment with the Company or the Bank, a lump sum payment in an amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits to which the Officer he would be entitled under The Warwick Savings Bank Defined Benefit Pension Plan (together with the defined benefit portion of the Benefit Restoration Plan of The Warwick Savings Bank and any other supplemental defined benefit plan) and any and all other qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank Company or the Bank, if the Officer he were 100% vested thereunder and had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the Employment Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);; over
(B) the present value of the benefits to which the Officer he is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, monthly equal to the applicable long-term federal annualized rate of interest prescribed under section 1274(d) of by the Code Pension Benefit Guaranty Corporation for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result valuation of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;immediate annuities payable under
(vi) within 30 days following the Executive's termination of employment with the Company or the Bank, a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under The Warwick Savings Bank 401(k) Savings Plan, the Employee Stock Ownership Plan of Warwick Community Bancorp, Inc. (together with the defined contribution portion of the Benefit Restoration Plan of The Warwick Savings Bank or any other supplemental defined contribution plan) and any and all other qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Company or the Bank, as if he were 100% vested thereunder and had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation salary achieved during the Officer’s period of actual employment with the Bank, Employment Period and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the a discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term PBGC Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer Executive under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, Company or the Bank if he had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Remaining Unexpired Employment Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer Executive under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer Executive during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Employment Period, ; such payments to be made (without discounting for early payment) within 30 days following the Executive's termination of employment;
(viii) at the election of the Company made within 30 days following the occurrence of the event described in section 9(a), upon the surrender of options or appreciation rights issued to the Executive under any stock option and appreciation rights plan or program maintained by, or covering employees of, the Company or the Bank, a lump sum payment .. in an amount equal to the product of:
(A) the excess of (I) the fair market value of a share of stock of the same class as the stock subject to the option or appreciation right, determined as of the date of termination of employment, over (II) the exercise price per share for such option or appreciation right, as specified in or under the relevant plan or program; multiplied by
(B) the number of shares with respect to which options or appreciation rights are being surrendered. For purposes of this section 9(b)(viii), the Executive shall be deemed fully vested in all options and appreciation rights under any stock option or appreciation rights plan or program maintained by, or covering employees of, the Company or the Bank, even if he is not vested under such plan or program; and
(ix) at the election of the Company made within 30 days following the occurrence of the event described in section 9(a), upon the surrender of any shares awarded to the Executive under any restricted stock plan maintained by, or covering employees of, the Company or the Bank, a lump sum payment in an amount equal to the product of:
(A) the fair market value of a share of stock of the same class of stock granted under such plan, determined as of the date of the Executive's termination of employment; multiplied by
(B) the number of shares which are being surrendered. For purposes of this section 9(b)(ix), the Executive shall be deemed fully vested in all shares awarded under any restricted stock plan maintained by, or covering employees of, the Company or the Bank, even if he is not vested under such plan. The Bank Company and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b9(b) constitute a reasonable estimate damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s Executive's efforts, if any, to mitigate damages. The Bank Company and the Officer Executive further agree that the Bank Company may condition the payments and benefits (if any) due under sections 8(b)(iii9(b)(iii), (iv), (v), (vi) and (viivi) on the receipt of the Officer’s Executive's resignation from any and all positions which he holds as an officer, director or committee member with respect to the BankCompany, the Company Bank or any subsidiary or affiliate of either of them.
Appears in 1 contract
Samples: Employment Agreement (Warwick Community Bancorp Inc)
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described in section 9(b) in the event that the Officer’s employment with the Bank shall terminate during the Assurance Period, or prior to the commencement of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account ofthat:
(i) The Officer’s voluntary resignation from his employment with the Bank terminates during the Employment Period as a result of the Executive’s voluntary resignation within ninety (90) 90 days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve the position with the Bank stated in the same position in which the Officer was serving, on the day before the Assurance Period commenced or a more senior officesection 3 of this Agreement;
(B) if the Executive is a member of the Board, the failure of the stockholders shareholders of the Holding Company Bank to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) -day period following the date on which the Officer Executive gives written notice to the Bank of its material failure, whether by amendment of the Bank’s Restated Organization Certificate or Certificate, the Bank’s By-lawsLaws, action of the Board or the Holding CompanyBank’s stockholders shareholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in the Officer on the day before the Assurance Period commenced (or the functionssection 3 of this Agreement, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) -day period, the Bank fully cures such failure;; or
(D) the failure expiration of a 30-day period following the date on which the Executive gives written notice to the Bank to cure a of its material breach of any term, condition or covenant contained in this Agreement by (including, without limitation any reduction of the BankExecutive’s rate of base salary in effect from time to time and any change in the terms and conditions of any compensation or benefit program in which the Executive participates which, within thirty (either individually or together with other changes, has a material adverse effect on the aggregate value of his total compensation package), unless, during such 30) days following written notice from -day period, the Officer of Bank cures such material breach;failure; or
(E) a reduction in the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the OfficerExecutive’s principal place of employment that would result in for a one-way commuting time distance in excess of 50 miles from the greater of (I) 30 minutes or (II) the OfficerBank’s commuting time immediately prior to such changeprincipal office in Rome, New York; or
(ii) the discharge of Executive’s employment with the Officer Bank is terminated by the Bank for any reason other than for “cause” as provided in section 9(a11(a); then, subject to section 21, the Bank shall provide the benefits and pay to the Officer the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced.
(b) Upon the termination occurrence of any of the Officer’s employment with the Bank under circumstances events described in section 8(a9(a) of this Agreement, the Bank shall pay and provide to the Officer Executive (or, in the event of the Officer’s deathhis death thereafter and prior to payment, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s his earned but unpaid compensation salary (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law applicable law and the payment of which is not otherwise provided for under in this section 8(b9(b)) as of the date of the termination of the Officer’s his employment with the Company and the Bank, 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 thirty (30) 30 days after termination of employment;
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Company’s and the Bank’s officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long term disability insurance benefits, coverage in addition to that provided pursuant to section 8(b)(ii) and after taking into account the coverage provided by any subsequent employer, if and to the extent necessary to provide for the Officer9(b)(ii), for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage equivalent to the coverage to which the Officer he would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) ), if the Officer he had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation salary achieved during the Officer’s period of actual employment with the BankEmployment Period, but taking into account any coverage provided from any subsequent employer;
(iv) within 30 days following the Executive’s termination of employment with the Company or the Bank, a lump sum payment, in an amount equal to the present present value of the salary (excluding any additional payments made to the Executive in lieu of the use of an automobile) that the Officer Executive would have earned if the Officer he had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the Officer’s period of actual employment with the BankEmployment Period, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 1986, as amended (“Code”) (“Applicable Short-Term Rate”), compounded using the compounding periods corresponding to the BankCompany’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) a lump sum payment in an amount equal to within 30 days following the excess, if any, of:
(A) the present value of the aggregate benefits to which the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of Executive’s termination of employment by adding to with the service actually recognized under such plans an additional period equal to Company or the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I)Bank, (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained byby the Company or the Bank in which Executive participates, or covering employees of, the Bank, as if he were 100% vested thereunder and had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation salary achieved during the Officer’s period of actual employment with the Bank, Employment Period and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the a discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Shortapplicable short-Term Rate; provided, however, that if payments are made term federal rate prescribed under this section 8(b)(vi1274(d) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified planCode;
(viivi) the payments that would have been made to the Officer Executive under any cash or stock bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, Company or the Bank if he had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Remaining Unexpired Employment Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer Executive under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer Executive during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Employment Period, ; such payments to be made (without discounting for early payment .. payment) within 30 days following the Executive’s termination of employment; The Bank and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b9(b) constitute a reasonable estimate damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the OfficerExecutive’s efforts, if any, to mitigate damages. The Bank and the Officer Executive further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii9(b)(iii), (iv), (v), (vi) and (viivi) on the receipt of the OfficerExecutive’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the BankCompany, the Company Bank or any subsidiary or affiliate of either of them.
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his or her employment with the Bank shall terminate Association terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officer’s the Executive's voluntary resignation from employment with the Bank Association within ninety six (906) days months following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Executive to the office of Chairman, President and Chief Executive Officer to serve in the same position in which the Officer was serving, on the day before the Assurance Period commenced (or a more senior office) of the Association;
(B) if the Executive is or becomes a member of the Board, the failure of the stockholders of the Holding Company Association to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank Association of its material failure, whether by amendment of the Bank’s Association's Organization Certificate or By-laws, action of the Board or the Holding Company’s Association's stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in Section 3 of this Agreement as of the Officer on the day before the Assurance Period commenced (or the functionsdate hereof, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Bank fully Association cures such failure;
(D) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which the Executive gives written notice to the Association of its material breach of any term, condition or covenant contained in this Agreement (including, without limitation, any reduction of the Executive's rate of base salary in effect from time to time and any change in the Officer terms and conditions of any compensation or benefit program in which the Executive participates which, either individually or together with other changes, has a material adverse effect on the aggregate value of his or her total compensation package), unless, during such material breach;thirty (30) day period, the Association cures such failure; or
(E) a reduction in the compensation provided to relocation of the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s Executive's principal place of employment that would result in employment, without his or her written consent, to a one-way commuting time in excess location outside of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; orNassau County and Queens County, New York;
(ii) the discharge termination of the Officer by Executive's employment with the Bank Association for any other reason other than for “cause” as provided not described in section 9(aSection 10(a); then, . In such event and subject to section 21Section 27 of this Agreement, the Bank Association shall provide the benefits and pay to the Officer Executive the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained described in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commencedSection 9(b).
(b) Upon the termination of the Officer’s Executive's employment with the Bank Association under circumstances described in section 8(aSection 9(a) of this Agreement, the Bank Association shall pay and provide to the Officer Executive (or, in the event of the Officer’s death, to Executive's death following the Officer’s estate) on his Executive's termination of employment, subject to section 24 :his or her estate):
(i) the Officer’s his or her earned but unpaid compensation (including, without limitation, all items which constitute wages under section Section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(bSection 9(b)) as of the date of the termination of the Officer’s his or her employment with the BankAssociation, such payment to be made at the time and in the manner prescribed by law applicable to the payment of wages but in no any event not later than thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer he or she is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s Association's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage (including any co-payments and deductibles, but excluding any premium sharing arrangements, it being the intention of the parties to this Agreement that the premiums for such insurance benefits shall be the sole cost and expense of the Association) equivalent to the coverage to which the Officer he or she would have been entitled under such plans (as in effect on the date of his or her termination of employment, or, if his or her termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) ), if the Officer he or she had continued working for the Bank Association during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation salary or compensation, as applicable, achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the BankAssociation;
(iv) within thirty (30) days following the Executive's termination of employment with the Association, a lump sum payment, payment in an amount equal to the present value representing an estimate of the salary that the Officer Executive would have earned if the Officer he or she had continued working for the Bank Association during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the Bank, where such present value is to Association (the "Salary Severance Payment"). The Salary Severance Payment shall be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded computed using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) a lump sum payment in an amount equal to the excess, if any, offormula: SSP = BS x NY where:
(A) the present value of the aggregate benefits to which the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his employment with the Bank shall terminate Association terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officer’s Executive's voluntary resignation from employment with the Bank Association within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect reelect the Officer Executive to serve in the same position in which the Officer was serving, on the day before the Assurance Period commenced office of Secretary/Treasuer and Vice President (or a more senior office) of the Association;
(B) the failure expiration of a thirty (30) day period following the date on which the Executive gives written notice to the Association of its material failure, whether by amendment of the stockholders of the Holding Company to elect Association's Organization Certificate or reBy-elect the Officer as a member of the Boardlaws, if he was a member action of the Board on or the Association's stockholders or otherwise, to vest in the Executive the functions, duties, or responsibilities prescribed in section 3 of this Agreement as of the date hereof, unless, during such thirty (30) day before period, the Assurance Period commencedAssociation fully cures such failure;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank Association of its material failurebreach of any term, whether by amendment condition or covenant contained in this Agreement (including, without limitation any reduction of the Bank’s Organization Certificate or By-laws, action Executive's rate of the Board or the Holding Company’s stockholders or otherwise, base salary in effect from time to vest time and any change in the Officer terms and conditions of any compensation or benefit program in which the functionsExecutive participates which, dutieseither individually or together with other changes, or responsibilities vested in the Officer has a material adverse effect on the day before the Assurance Period commenced (or the functions, duties and responsibilities aggregate value of a more senior office to which the Officer may be appointedhis total compensation package), unless unless, during such thirty (30) day period, the Bank Association fully cures such failure;
(D) the failure of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days following written notice from the Officer of such material breach;
(E) a reduction in the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s principal place of employment that would result in a one-way commuting time in excess of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; or
(ii) the discharge termination of the Officer by Executive's employment with the Bank Association for any other reason other than for “cause” as provided not described in section 9(a10(a)- (Termination for "Cause"); then. In such event, subject to section 2125, the Bank Association shall provide the benefits and pay to the Officer Executive in the amounts provided for under described in section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced9(b).
(b) Upon upon the termination of the Officer’s Executive's employment with the Bank Association under circumstances described in section 8(a9(a) of this Agreement, the Bank Association shall pay and provide to the Officer Executive (or, in the event of the Officer’s his death, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s his earned but unpaid compensation (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(b)) as of the date of the termination of the Officer’s his employment with the BankAssociation, 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 thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s Association's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive, for the remaining unexpired Assurance Perioda period of three (3) years, coverage equivalent to the coverage to which the Officer he would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of in Control, on the date of such Change of in Control, whichever benefits are greater) if the Officer he had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank;Association.
(iv) with thirty (30) days following his termination of employment with the Association, a lump sum payment, in an amount equal to three (3) times the present value of the salary that the Officer would have earned if the Officer had continued working for the Bank during the remaining unexpired Assurance Period at the Executive's highest annual rate of salary annual salary, including bonuses and stock awards included as W-2 wages, achieved during the Officer’s period of actual employment with the Bank, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;Employment Period.
(v) within thirty (30) days following his termination of employment with the Association, a lump sum payment in an amount equal to the excess, if any, ofto:
(A) the present value of the aggregate benefits to which the Officer he would be entitled under any and all qualified and non-qualified defined benefit pension plans retirement plans, maintained by, or covering employees of, of the Bank Association as if the Officer he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits at date of termination. Present value is to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in accordance with IRC Section 280G. In the case of a the Association's leveraged employee stock ownership plan or similar arrangementEmployee Stock Ownership Plan, the additional assets allocable to him through debt service, will be computed based on upon: (1) the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if assuming he were 100% vested thereunder in the Plan, and (2) the Association made the maximum amount of employee contributions required under the Plan during the remaining debt service period, and (3) the Executive had continued working for the Bank during the remaining unexpired Assurance Period Association at the highest annual rate of compensation achieved pay during the Officer’s period Employment Period.
(vi) at the election of actual the Association's Board of Directors made within thirty (30) days following his termination of employment with the BankAssociation, and making the maximum amount upon surrender of employee contributions, if any, required stock options or appreciation rights granted such Executive under such any stock option or appreciation rights plan or plans, such present value to be determined on the basis covering employees of the discount rateAssociation, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be lump sum payment equal to the product of:
(A) the maximum percentage rate at which an award was ever available excess of (1) the fair market value of a share of stock of the same class as the stock subject to the Officer option or appreciation right, determined as of the date of termination of employment, over (2) the exercise price per share for such option or appreciation right, as specified in or under such incentive compensation planthe relevant plan or program; multiplied by
(B) the salary that would have been paid number of shares with respect to which options or appreciation rights are being surrendered. For purposes of this section 9(b)(vi), the Executive shall be deemed fully vested in all options and appreciation rights under any stock option or appreciation rights plan or program maintained by, or covering employees of the Association, even if he is not vested under such plan or program.
(vii) at the election of the Association's Board of Directors made with thirty (30) days following the Executive's termination of employment with the Association, upon surrender of any shares awarded to the Officer during each Executive under any restricted stock plan maintained by, or covering employees of the Association, a lump sum payment in an amount equal to the product of:
(A) the fair market value of a share of stock of the same class of stock granted under such calendar year at plan, determined as of the highest annual rate date of salary achieved during the remaining unexpired Assurance PeriodExecutive's termination of employment; multiplied by
(B) the number of shares which are being surrendered. For purposes of this section 9(b)(vii), the Executive shall be deemed fully vested in all shares awarded under any restricted stock plan maintained by, or covering employees of, the Association, even if he is not vested under such payments to be made without discounting for early payment .. plan or program. The Bank Association and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b9(b) constitute a reasonable estimate damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s Executive's efforts, if any, to mitigate damages. The Bank Association and the Officer Executive further agree that the Bank Association may condition the payments and benefits (if any) due described under sections 8(b)(iii), (iv), (v), (vi) and (viisection 9(b) on the receipt of the Officer’s Executive's resignation from any and all positions which he holds as an officer, director officer or committee member with respect to employee of the BankAssociation, the Company Mutual Holding Company, or any subsidiary or affiliate of either of themthe Stock Holding Company.
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his employment with the Bank shall terminate Association terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officer’s Executive's voluntary resignation from employment with the Bank Association within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect reelect the Officer Executive to serve in the same position in which the Officer was servingoffice of Secretary, on the day before the Assurance Period commenced Treasurer, and Vice President (or a more senior office) of the Association;
(B) the failure expiration of a thirty (30) day period following the date on which the Executive gives written notice to the Association of its material failure, whether by amendment of the stockholders of the Holding Company to elect Association's Organization Certificate or reBy-elect the Officer as a member of the Boardlaws, if he was a member action of the Board on or the Association's stockholders or otherwise, to vest in the Executive the functions, duties, or responsibilities prescribed in section 3 of this Agreement as of the date hereof, unless, during such thirty (30) day before period, the Assurance Period commencedAssociation fully cures such failure;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank Association of its material failurebreach of any term, whether by amendment condition or covenant contained in this Agreement (including, without limitation any reduction of the Bank’s Organization Certificate or By-laws, action Executive's rate of the Board or the Holding Company’s stockholders or otherwise, base salary in effect from time to vest time and any change in the Officer terms and conditions of any compensation or benefit program in which the functionsExecutive participates which, dutieseither individually or together with other changes, or responsibilities vested in the Officer has a material adverse effect on the day before the Assurance Period commenced (or the functions, duties and responsibilities aggregate value of a more senior office to which the Officer may be appointedhis total compensation package), unless unless, during such thirty (30) day period, the Bank Association fully cures such failure;
(D) the failure of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days following written notice from the Officer of such material breach;
(E) a reduction in the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s principal place of employment that would result in a one-way commuting time in excess of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; or
(ii) the discharge termination of the Officer by Executive's employment with the Bank Association for any other reason other than for “cause” as provided not described in section 9(a10(a)- (Termination for "Cause"); then. In such event, subject to section 2125, the Bank Association shall provide the benefits and pay to the Officer Executive in the amounts provided for under described in section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced9(b).
(b) Upon upon the termination of the Officer’s Executive's employment with the Bank Association under circumstances described in section 8(a9(a) of this Agreement, the Bank Association shall pay and provide to the Officer Executive (or, in the event of the Officer’s his death, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s his earned but unpaid compensation (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(b)) as of the date of the termination of the Officer’s his employment with the BankAssociation, 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 thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s Association's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive, for the remaining unexpired Assurance Perioda period of three (3) years, coverage equivalent to the coverage to which the Officer he would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of in Control, on the date of such Change of in Control, whichever benefits are greater) if the Officer he had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank;Association.
(iv) with thirty (30) days following his termination of employment with the Association, a lump sum payment, in an amount equal to three (3) times the present value of the salary that the Officer would have earned if the Officer had continued working for the Bank during the remaining unexpired Assurance Period at the Executive's highest annual rate of salary annual salary, including bonuses and stock awards included as W-2 wages, achieved during the Officer’s period of actual employment with the Bank, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;Employment Period.
(v) within thirty (30) days following his termination of employment with the Association, a lump sum payment in an amount equal to the excess, if any, ofto:
(A) the present value of the aggregate benefits to which the Officer he would be entitled under any and all qualified and non-qualified defined benefit pension plans retirement plans, maintained by, or covering employees of, of the Bank Association as if the Officer he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits at date of termination. Present value is to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in accordance with IRC Section 280G. In the case of a the Association's leveraged employee stock ownership plan or similar arrangementEmployee Stock Ownership Plan, the additional assets allocable to him through debt service, will be computed based on upon: (1) the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if assuming he were 100% vested thereunder in the Plan, and (2) the Association made the maximum amount of employee contributions required under the Plan during the remaining debt service period, and (3) the Executive had continued working for the Bank during the remaining unexpired Assurance Period Association at the highest annual rate of compensation achieved pay during the Officer’s period Employment Period.
(vi) at the election of actual the Association's Board of Directors made within thirty (30) days following his termination of employment with the BankAssociation, and making the maximum amount upon surrender of employee contributions, if any, required stock options or appreciation rights granted such Executive under such any stock option or appreciation rights plan or plans, such present value to be determined on the basis covering employees of the discount rateAssociation, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be lump sum payment equal to the product of:
(A) the maximum percentage rate at which an award was ever available excess of (1) the fair market value of a share of stock of the same class as the stock subject to the Officer option or appreciation right, determined as of the date of termination of employment, over (2) the exercise price per share for such option or appreciation right, as specified in or under such incentive compensation planthe relevant plan or program; multiplied by
(B) the salary that would have been paid number of shares with respect to which options or appreciation rights are being surrendered. For purposes of this section 9(b)(vi), the Executive shall be deemed fully vested in all options and appreciation rights under any stock option or appreciation rights plan or program maintained by, or covering employees of the Association, even if he is not vested under such plan or program.
(vii) at the election of the Association's Board of Directors made with thirty (30) days following the Executive's termination of employment with the Association, upon surrender of any shares awarded to the Officer during each Executive under any restricted stock plan maintained by, or covering employees of the Association, a lump sum payment in an amount equal to the product of:
(A) the fair market value of a share of stock of the same class of stock granted under such calendar year at plan, determined as of the highest annual rate date of salary achieved during the remaining unexpired Assurance PeriodExecutive's termination of employment; multiplied by
(B) the number of shares which are being surrendered. For purposes of this section 9(b)(vii), the Executive shall be deemed fully vested in all shares awarded under any restricted stock plan maintained by, or covering employees of, the Association, even if he is not vested under such payments to be made without discounting for early payment .. plan or program. The Bank Association and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b9(b) constitute a reasonable estimate damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s Executive's efforts, if any, to mitigate damages. The Bank Association and the Officer Executive further agree that the Bank Association may condition the payments and benefits (if any) due described under sections 8(b)(iii), (iv), (v), (vi) and (viisection 9(b) on the receipt of the Officer’s Executive's resignation from any and all positions which he holds as an officer, director officer or committee member with respect to employee of the BankAssociation, the Company Mutual Holding Company, or any subsidiary or affiliate of either of themthe Stock Holding Company.
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his employment with the Bank shall terminate Holding Company terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officer’s Executive's voluntary resignation from employment with the Bank Holding Company within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve the position stated in the same position in which the Officer was serving, on the day before the Assurance Period commenced section 3 of this Agreement (or a more senior office) of the Holding Company;
(B) if the Executive is a member of the Board as of the date of this Agreement, the failure of the stockholders of the Holding Company to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank Holding Company of its material failure, whether by amendment of the Bank’s Organization Holding Company's Or ganization Certificate or its By-lawsLaws, action of the Board or the Holding Company’s 's stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in the Officer on the day before the Assurance Period commenced (or the functionssection 3 of this Agreement, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Bank Holding Company fully cures such failure;; or
(D) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which the Executive gives written notice from the Officer of such material breach;
(E) a reduction in the compensation provided to the OfficerHolding Company of its material breach of any term, condition or a material covenant contained in this Agreement (including, without limitation any reduction of Executive's rate of base salary in the benefits provided effect from time to the Officer under the Bank’s program of employee benefits, compared with the compensation time and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a any change in the Officer’s principal place terms and conditions of employment that would result any compensation or benefit program in which Executive participates which, either individually or together with other changes, has a one-way commuting time in excess material adverse effect on the aggregate value of his total compensation package), unless, during such thirty (30) day period, the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to Holding Company fully cures such changefailure; or
(ii) subject to the discharge provisions of section 10, the Officer by termination of Executive's employment with the Bank Company for any other reason other than for “cause” as provided not described in section 9(a); then, subject to section 21, the Bank Holding Company shall provide the benefits and pay to the Officer Executive the amounts provided for under described in section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced9(b).
(b) Upon the termination of the Officer’s Executive's employment with the Bank Holding Company under circumstances described in section 8(a9(a) of this Agreement, the Bank Holding Company shall pay and provide to the Officer Executive (or, in the event of the Officer’s his death, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s his earned but unpaid compensation (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(b)) as of the date of the termination of the Officer’s his employment with the BankHolding Company, 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 thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs pro grams maintained for the benefit of the Bank’s Holding Company's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long long-term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage equivalent to the coverage to which the Officer he would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) ), if the Officer he had continued working for the Bank Holding Company during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation achieved during that portion of the Officer’s period Employment Period which is prior to Executive's termination of actual employment with the BankHolding Company;
(iv) within thirty (30) days following his termination of employment with the Holding Company, a lump sum payment, in an amount equal to the present present value of the salary that the Officer Executive would have earned if the Officer he had continued working for the Bank Holding Company during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during that portion of the Officer’s period Employment Period which is prior to Executive's termination of actual employment with the BankHolding Company, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“"Code”) (“Applicable Short-Term Rate”"), compounded using the compounding periods period corresponding to the Bank’s Holding Company's regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) within thirty (30) days following his termination of employment with the Holding Company, a lump sum payment in an amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits to which the Officer he would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank Holding Company, if the Officer he were one-hundred percent (100% %) vested thereunder and had continued working for the Bank Holding Company during the remaining unexpired Assurance Remaining Unexpired Employment Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Remaining Unexpired Employment Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I9(b)(i), (iv) and (vii);; over
(B) the present value of the benefits to which the Officer he is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed prescr ibed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, monthly equal to the applicable longannualized rate of interest prescribed by the Pension Benefit Guaranty Corporation for the valuation of immediate annuities payable under terminating single-term federal rate prescribed under section 1274(d) of the Code employer defined benefit plans for the month in which his the Executive's termination of employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified planoccurs ("Applicable PBGC Rate");
(vi) within thirty (30) days following his termination of employment with the Holding Company, a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the BankHolding Company, as if he were one-hundred percent (100% %) vested thereunder and had continued working for the Bank Holding Company during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the BankHolding Company, and making the maximum amount of employee contributions, if any, required re quired under such plan or plans, such present value to be determined on the basis of the a discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term PBGC Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;and
(vii) the payments that would have been made to the Officer Executive under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, Holding Company if he had continued working for the Bank Holding Company during the remaining unexpired Assurance Remaining Unexpired Employment Period and had earned the maximum a bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be Remaining Unexpired Employment Period in an amount equal to the product of:
(A) the maximum percentage rate at which an highest annual bonus or incentive award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been actually paid to the Officer during each such him in any calendar year at the highest annual rate of salary achieved ending during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. three-year period ending on the date of termination of employment. The Bank Holding Company and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b9(b) constitute a reasonable estimate damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s Executive's efforts, if any, to mitigate damages. The Bank Holding Company and the Officer Executive further agree that the Bank Holding Company may condition the payments and benefits (if any) due under sections 8(b)(iii9(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s Executive's resignation from any and all positions which he holds as an officer, director or committee member with respect to the BankHolding Company, the Company Association or any subsidiary or affiliate of either of them.
Appears in 1 contract
Samples: Executive Employment Agreement (Home Bancorp of Elgin Inc)
Termination of Employment with Severance Benefits. (a) In Executive shall be entitled to the severance benefits described in section 9(b) herein in the event that the Officer’s her employment with the Bank shall terminate terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officer’s Executive's voluntary resignation from employment with the Bank within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect Executive to the Officer to serve position stated in the same position in which the Officer was serving, on the day before the Assurance Period commenced section 3 of this Agreement (or a more senior officeoffice of the Bank);
(B) in the event that the Executive is a member of the Board, the failure of the stockholders of the Holding Company Bank to elect or re-elect Executive to the Officer as a member of Board or the Board, if he was a member failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank of its material failure, whether by amendment of the Bank’s 's Organization Certificate or By-lawsLaws, action of the Board or the Holding Company’s Bank's stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in the Officer on the day before the Assurance Period commenced (or the functionssection 3 of this Agreement, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Bank fully cures such failure;failure is cured in a manner determined by Executive, in her discretion, to be satisfactory; or
(D) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which Executive gives written notice from the Officer of such material breach;
(E) a reduction in the compensation provided to the OfficerBank of its material breach of any term, condition or a material covenant contained in this Agreement (including, without limitation any reduction of Executive's rate of base salary in the benefits provided effect from time to the Officer under the Bank’s program of employee benefits, compared with the compensation time and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a any change in the Officer’s principal place terms and conditions of employment that would result any compensation or benefit program in which Executive participates which, either individually or together with other changes, has a material adverse effect on the aggregate value of her total compensation package), unless, during such thirty (30) day period, such failure is cured in a one-way commuting time manner determined by Executive, in excess of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior her discretion, to such changebe satisfactory; or
(ii) subject to the discharge provisions of section 10, the Officer by termination of Executive's employment with the Bank for any other reason other than for “cause” as provided not described in section 9(a); ) other than a termination of the Executive's employment for "cause;" then, subject to section 21, the Bank shall provide the benefits and pay to the Officer Executive the amounts provided for under described in section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced9(b).
(b) Upon the termination of the Officer’s Executive's employment with the Bank under circumstances described in section 8(a9(a) of this Agreement, the Bank shall pay and provide to the Officer Executive (or, in the event of the Officer’s her death, to the Officer’s her estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s earned but unpaid portion, if any, of the compensation (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law applicable law and the payment of which is not otherwise provided for under this section 8(b9(b)) as of earned by the Executive through the date of the termination of the Officer’s her employment with the BankBank which remains unpaid as of such date, 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 thirty (30) days after the Executive's termination of employment;
(ii) the benefits, if any, to which the Officer she is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s 's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long long-term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage equivalent to the coverage to which the Officer she would have been entitled under such plans (as in effect on the date of his her termination of employment, or, if his her termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) ), if the Officer she had continued working for the Bank Company during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation achieved during that portion of the Officer’s period Employment Period which is prior to Executive's termination of actual employment with the Bank;; and
(iv) within thirty (30) days following her termination of employment with the Bank, a lump sum payment, in an amount equal to the present present value of the salary that the Officer Executive would have earned if the Officer she had continued working for the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during that portion of the Officer’s period Employment Period which is prior to Executive's termination of actual employment with the Bank, where such present value is to be determined using a discount dis count rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“"Code”) (“Applicable Short-Term Rate”"), compounded using the compounding periods period corresponding to the Bank’s 's regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect re spect of the period following any such termination;
(v) a lump sum payment in an amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits to which the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. . The Bank and the Officer Executive each hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b9(b) constitute a reasonable estimate damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s Executive's efforts, if any, to mitigate damages. The Bank and the Officer Executive further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi9(b)(iii) and (viiiv) on the receipt of the Officer’s Executive's resignation from any and all positions which he she holds as an officer, director or committee member with respect to the Bank, the Company RFS Bancorp, Revere Bancorp, M.H.C., or any subsidiary or affiliate of either any of them.
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his employment with the Company and the Bank shall terminate terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The OfficerExecutive’s voluntary resignation from employment with the Company and the Bank within ninety (90) days following:
(A) the The failure of the Bank’s Board of Directors of either the Company or the Bank to appoint or re-appoint or elect or re-elect the Executive to the office of Chief Executive Officer to serve in of the same position in which Company and Chief Executive Officer and President of the Officer was serving, on the day before the Assurance Period commenced Bank (or a more senior office, if any);
(B) the The failure of the stockholders of the Holding Company or Bank to elect or re-elect the Officer as a member Executive to the Board of Directors of the BoardCompany or the Bank, if he was a member respectively, or the failure of the Board on of Directors of the day before Company or the Assurance Period commencedBank (or the nominating committees thereof) to nominate the Executive for such election or re-election;
(C) the The expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Company or the Bank (1) of its or their material failure, whether by amendment of the Company’s or the Bank’s Organization Certificate Articles of Incorporation or By-lawsBylaws, action of the Board Company’s or the Holding Bank’s Board of Directors or the Company’s or the Bank’s stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in Section 3 of this Agreement as of the Officer on date hereof, or (ii), that the day before the Assurance Period commenced (Company or the Bank has or have prohibited, prevented, or otherwise made it reasonably impracticable for the Executive to perform his functions, duties and duties, or responsibilities as prescribed in Section 3 of a more senior office to which the Officer may be appointed)this Agreement, unless unless, in either event, during such thirty (30) day period, the Company or the Bank fully cures such failurefailure in a manner determined by the Executive, in his discretion, to be satisfactory;
(D) the failure The expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which the Executive gives written notice to the Company or the Bank of its material breach of any term, condition or covenant contained in this Agreement (including, without limitation, any reduction of the Executive’s rate of base salary in effect from time to time and any adverse change in the Officer terms and conditions to the Executive of any Employee Pension Plan or Employee Welfare Benefit Plan (as hereinafter defined) or as to any other compensation or benefit program in which the Executive participates which, either individually or together with other changes, has or could have a material adverse effect on the aggregate value of his total compensation package), unless, during such material breach;thirty (30) day period, the Company or the Bank cures such failure in a manner determined by the Executive, in his discretion, to be satisfactory; or
(E) a reduction in The relocation of the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the OfficerExecutive’s principal place of employment that would result employment, without his written consent (which may be withheld in a one-way commuting time in excess the sole discretion of the greater Executive), to a location outside of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; orPalm Beach County, Florida.
(ii) the discharge The termination of the Officer by Executive’s employment with the Company or the Bank for any other reason other than for “cause” as provided not described in section 9(aSection 10(a); then. In such event, subject to section 21, the Company or the Bank shall provide the benefits and pay to the Officer Executive the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained described in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commencedSection 9(b).
(b) Upon the termination of the OfficerExecutive’s employment with the Company and/or the Bank under circumstances described any of the events set forth in section 8(aSections 9(a)(1) or (ii) during the Employment Period; or upon a Change of this AgreementControl (as hereinafter defined), the Company and/or the Bank (jointly and/or severally) shall pay and provide to the Officer Executive (or, in the event of the Officer’s death, upon death then to the OfficerExecutive’s estate) on his termination of employment, subject to section 24 the following Severance Benefits:
(i) the OfficerThe Executive’s earned but unpaid compensation Cash Compensation (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(b)as determined pursuant to Section 4) in effect as of the date of the termination of the Officer’s his employment with the Company and the Bank, 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 thirty (30) days after termination the date of employment;termination; and,
(ii) the benefitsThe Executive’s vested, if any, accrued benefits in all Employee Benefit Plans to which the Officer is Executive was entitled (or which he had accrued) pursuant to this Agreement as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s officers and employees;date of termination; and,
(iii) continued group life, health Within thirty (including hospitalization, medical and major medical30) days following the effective date of any of the triggering events referred to in the first sentence in this Section 9(b) (the “Triggering Event Date”), accident and long term disability insurance benefits, in addition payment of a lump sum amount equal to two times the Cash Compensation that provided pursuant to section 8(b)(ii) and after taking into account the coverage provided by any subsequent employer, if and to the extent necessary to provide for the Officer, for the remaining unexpired Assurance Period, coverage equivalent to the coverage to which the Officer Executive would have been entitled under such plans (as in effect on the date of his termination of employment, or, earned if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer he had continued working for the Company and the Bank during for a period of 1095 days after the remaining unexpired Assurance Period Triggering Event Date and at the highest annual or annualized rate of compensation Cash Compensation achieved during that portion of the OfficerEmployment Period prior to the Executive’s period termination of actual employment with the Company and the Bank;. Such lump sum shall not be reduced to a present value and shall be paid in addition to any other Compensation payments otherwise provided hereunder; and,
(iv) Within thirty (30) days following the Triggering Event Date, payment of a lump sum payment, in an amount equal to the present value of the salary that the Officer would have earned if the Officer had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of salary achieved during the Officer’s period of actual employment with the Bank, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) a lump sum payment in an amount equal to the excess, if any, of:
(A) the The present value of both the aggregate current and future accrued benefits in each Employee Pension Plan to which the Officer Executive would have been entitled (which shall be entitled under any computed at the highest annual or annualized rate of Cash Compensation in effect during the Employment period and all qualified at the same rate of Employee Pension Plan funding and/or benefit accrual, determined separately for each such Employee Pension plan or as historically had been contributed, whichever is greater, and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank as if the Officer were Executive had been 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, in such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans for an additional period Employment Period equal to three (3) complete plan years commending at the remaining unexpired Assurance Period and by adding to termination date as if the compensation recognized under such plans Executive had continued working for the year Company and the Bank for the Employment Period consisting of such three additional plan years. Such benefits shall be determined separately for each such Employee Pension Plan in which effect as of the termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);date; over
(B) The present value of the accrued benefits to which the Executive is actually entitled under each such Employee Pension Plan as of the termination date using comparable actuarial assumptions (where applicable) as then being utilized by such respective plan. In computing the present value of such lump sum payment, the benefits to which annualized rate of interest prescribed by the Officer is actually entitled Pension Benefit Guaranty Corporation for the computation of the value of lump sum payments otherwise payable under such terminating single employer defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his the Executive’s termination of employment terminates; provided, however, that if payments are made under this section 8(b)(voccurs (“Applicable PBGC Rate”) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;utilized; and,
(viv) Within thirty (30) days following his termination of employment with the Company and the Bank, a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Company or the Bank, as if he were 100% vested thereunder and had continued working for the Company and the Bank during for a period of three years after the remaining unexpired Assurance Period date his employment terminates at the highest annual rate of compensation achieved during that portion of the OfficerEmployment Period which is prior to the Executive’s period termination of actual employment with the Company and the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the a discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant planEmployee Pension Plan; and
(vi) Future participation in Welfare Benefit Plans in such amounts and in such coverages which were in effect on behalf of the Executive, equal the Executive’s spouse and dependents immediately preceding the date of termination, which shall be continued and paid for by the Bank and/or the Company on behalf of the Executive for a period of fifteen (15) years subsequent to the Applicable Short-Term Rate; provideddate of termination (“Coverage Period”): Life insurance, howeverhealth and medical coverage (including hospitalization medical, that if payments are made under this section 8(b)(viprescription drug coverage, etc.) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vesteddental insurance, the payments, if any, attributable to such deemed vesting shall be paid in the same form, accident and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term disability insurance benefits, (whether or shortnot fully insured, partially insured or self-term cash incentive compensation plan maintained byinsured) in addition to that provided pursuant to Section 9(b)(ii), or covering employees ofbut after taking into account the benefits provided pursuant to any Welfare Benefit Plan provided by any subsequent employer during any portion of the Coverage Period (but only during such portion, or, if the termination date occurs after a Change of Control, the BankWelfare Benefit Coverage in effect on the date of such Change of Control, whichever Welfare Benefit Coverage is greater), if he had continued working for the Company and the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance such Coverage Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved Cash Compensation in effect during any portion of the remaining unexpired Assurance PeriodEmployment Period prior to the Executive’s termination date. The Company, such payments to be made without discounting for early payment .. The the Bank and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(bSection 9(b) constitute a reasonable estimate liquidated damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the OfficerExecutive’s efforts, if any, to mitigate damages. The Company, the Bank and the Officer Executive further agree that the Company and the Bank may condition the payments and benefits (if any) due under sections 8(b)(iiiSections 9(b)(iii), (iv), (v), and (vi) and (vii) on the receipt of the OfficerExecutive’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the BankCompany, the Company Bank or any subsidiary or affiliate of either either.
(c) Upon the termination of themthe Executive’s employment with the Company and/or the Bank under any of the events set forth in Sections 9(a)(i), 9(a)(ii), 10(a)(iii) or 10(a)(iv) during the Employment Period, or upon a Change of Control (as hereinafter defined) (including under terminations referred to in Section 11(c) hereof), any options to purchase the Company’s stock granted to the Executive by the Company shall immediately vest, and may be exercised in accordance with the terms of such option grants at any time on or prior to their original expiration date.
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his employment with the Bank shall terminate Association terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The OfficerExecutive’s voluntary resignation from employment with the Bank Association within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect reelect the Officer Executive to serve in the same position in which the Officer was serving, on the day before the Assurance Period commenced office of Secretary/Treasuer and Vice President (or a more senior office) of the Association;
(B) the failure expiration of a thirty (30) day period following the date on which the Executive gives written notice to the Association of its material failure, whether by amendment of the stockholders of the Holding Company to elect Association’s Organization Certificate or reBy-elect the Officer as a member of the Boardlaws, if he was a member action of the Board on or the Association’s stockholders or otherwise, to vest in the Executive the functions, duties, or responsibilities prescribed in section 3 of this Agreement as of the date hereof, unless, during such thirty (30) day before period, the Assurance Period commencedAssociation fully cures such failure;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank Association of its material failurebreach of any term, whether by amendment condition or covenant contained in this Agreement (including, without limitation any reduction of the BankExecutive’s Organization Certificate or By-laws, action rate of the Board or the Holding Company’s stockholders or otherwise, base salary in effect from time to vest time and any change in the Officer terms and conditions of any compensation or benefit program in which the functionsExecutive participates which, dutieseither individually or together with other changes, or responsibilities vested in the Officer has a material adverse effect on the day before the Assurance Period commenced (or the functions, duties and responsibilities aggregate value of a more senior office to which the Officer may be appointedhis total compensation package), unless unless, during such thirty (30) day period, the Bank Association fully cures such failure;
(D) the failure of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days following written notice from the Officer of such material breach;
(E) a reduction in the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s principal place of employment that would result in a one-way commuting time in excess of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; or
(ii) the discharge termination of the Officer by Executive’s employment with the Bank Association for any other reason other than not described in section 10(a)- (Termination for “cause” as provided in section 9(aCause”); then. In such event, subject to section 2125, the Bank Association shall provide the benefits and pay to the Officer Executive in the amounts provided for under described in section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced9(b).
(b) Upon upon the termination of the OfficerExecutive’s employment with the Bank Association under circumstances described in section 8(a9(a) of this Agreement, the Bank Association shall pay and provide to the Officer Executive (or, in the event of the Officer’s his death, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s his earned but unpaid compensation (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(b)) as of the date of the termination of the Officer’s his employment with the BankAssociation, 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 thirty (30) days after termination of employmentemployment as defined in Treasury Regulation Section 1.409A-1(h)(1)(ii);
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the BankAssociation’s officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive, for the remaining unexpired Assurance Perioda period of three (3) years, coverage equivalent to the coverage to which the Officer he would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of in Control, on the date of such Change of in Control, whichever benefits are greater) if the Officer he had continued working for the Bank during Association. The Executive and the remaining unexpired Assurance Period at Association agree that the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank;termination benefits described in this Section 9(b)(iii) are intended to be exempt from Section 409A pursuant to Treasury Regulation Section 1.409A-1(b)(1) as non-taxable benefits.
(iv) with thirty (30) days following his termination of employment with the Association, a lump sum payment, in an amount equal to three (3) times the present value of the salary that the Officer would have earned if the Officer had continued working for the Bank during the remaining unexpired Assurance Period at the Executive’s highest annual rate of salary annual salary, including bonuses and stock awards included as W-2 wages, achieved during the Officer’s period of actual employment with the Bank, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;Employment Period.
(v) within thirty (30) days following his termination of employment with the Association, a lump sum payment in an amount equal to the excess, if any, ofto:
(A) the present value of the aggregate benefits to which the Officer he would be entitled under any and all qualified and non-qualified defined benefit pension plans retirement plans, maintained by, or covering employees of, of the Bank Association as if the Officer he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits at date of termination. Present value is to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in accordance with IRC Section 280G. In the case of a the Association’s leveraged employee stock ownership plan or similar arrangementEmployee Stock Ownership Plan, the additional assets allocable to him through debt service, will be computed based on upon: (1) the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if assuming he were 100% vested thereunder in the Plan, and (2) the Association made the maximum amount of employee contributions required under the Plan during the remaining debt service period, and (3) the Executive had continued working for the Bank during the remaining unexpired Assurance Period Association at the highest annual rate of compensation achieved pay during the OfficerEmployment Period.
(vi) at the election of the Association’s period Board of actual Directors made within thirty (30) days following his termination of employment with the BankAssociation, and making the maximum amount upon surrender of employee contributions, if any, required stock options or appreciation rights granted such Executive under such any stock option or appreciation rights plan or plans, such present value to be determined on the basis covering employees of the discount rateAssociation, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be lump sum payment equal to the product of:
(A) the maximum percentage rate at which an award was ever available excess of (1) the fair market value of a share of stock of the same class as the stock subject to the Officer option or appreciation right, determined as of the date of termination of employment, over (2) the exercise price per share for such option or appreciation right, as specified in or under such incentive compensation planthe relevant plan or program; multiplied by
(B) the salary that would have been paid number of shares with respect to which options or appreciation rights are being surrendered. For purposes of this section 9(b)(vi), the Executive shall be deemed fully vested in all options and appreciation rights under any stock option or appreciation rights plan or program maintained by, or covering employees of the Association, even if he is not vested under such plan or program.
(vii) at the election of the Association’s Board of Directors made with thirty (30) days following the Executive’s termination of employment with the Association, upon surrender of any shares awarded to the Officer during Executive under any restricted stock plan maintained by, or covering employees of the Association, a lump sum payment in an amount equal to the product of:
(A) the fair market value of a share of stock of the same class of stock granted under such plan, determined as of the date of the Executive’s termination of employment; multiplied by
(B) the number of shares which are being surrendered. For purposes of this section 9(b)(vii), the Executive shall be deemed fully vested in all shares awarded under any restricted stock plan maintained by, or covering employees of, the Association, even if he is not vested under such plan or program.
(c) The Executive and the Association acknowledge that each such calendar year at of the highest annual rate payments and benefits promised to the Executive under this Agreement must either comply with the requirements of salary achieved during Section 409A and the remaining unexpired Assurance Periodregulations thereunder or qualify for an exception from compliance. To that end, such payments the Executive and the Association agree that the termination benefits described in Sections 9(b)(i), (iv), (v), (vi) and (vii) are intended to be made without discounting for early payment .. exempt from Section 409A pursuant to Treasury Regulation Section 1.409A-1(b)(4) as short-term deferrals. The Bank Association and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b9(b) constitute a reasonable estimate damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the OfficerExecutive’s efforts, if any, to mitigate damages. The Bank Association and the Officer Executive further agree that the Bank Association may condition the payments and benefits (if any) due described under sections 8(b)(iii), (iv), (v), (vi) and (viisection 9(b) on the receipt of the OfficerExecutive’s resignation from any and all positions which he holds as an officer, director officer or committee member with respect to employee of the BankAssociation, the Company Mutual Holding Company, or any subsidiary or affiliate of either of themthe Stock Holding Company.
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In the event that the Officer’s Executive's employment with the Bank shall terminate during the Assurance Period, or prior to the commencement of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account of:
(i) The Officer’s Executive's voluntary resignation from employment with the Bank within ninety (90) days following:
(A) the failure of the Bank’s 's Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve in the same (or the equivalent) position in which the Officer Executive was serving, serving on the day before the Assurance Period commenced or a more senior office;
(B) the failure of the stockholders of the Holding Company to elect or re-elect the Officer as a member of the Board, if he was a member of the Board on the day before the Assurance Period commenced;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank of its material failure, whether by amendment of the Bank’s 's Organization Certificate or By-laws, action of the Board or the Holding Company’s stockholders 's shareholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested in the Officer Executive on the day before the Assurance Period commenced (or the functions, duties and responsibilities of a more senior office to which the Officer Executive may be appointed), unless during such thirty (30) day period, the Bank fully cures such failure;
(DC) the failure of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days following written notice from the Officer Executive of such material breach;
(ED) a reduction in the compensation provided to the OfficerExecutive, or a material reduction in the benefits provided to the Officer Executive under the Bank’s 's program of employee benefits, compared with the compensation and benefits that were provided to the Officer Executive on the day before the Assurance Period commenced;
(FE) a change in the Officer’s Executive's principal place of employment that would result in to a one-way commuting time in excess location outside of Palm Beach County, Florida, or, if the Executive's principal place of employment on the day before the Assurance Period begins is outside Palm Beach County, Florida, then to a location outside of the greater county in which the Executive's principal place of (I) 30 minutes or (II) employment is located on the Officer’s commuting time immediately prior to such changeday before the Assurance Period begins, without the Executive's consent; or
(ii) the discharge of the Officer Executive by the Bank for any reason other than for “"cause” " as provided in section 9(a); then, subject to section 21, the Bank shall provide the benefits and pay to the Officer the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced.
(b) Upon the termination of the Officer’s employment with the Bank under circumstances described in section 8(a) of this Agreement, the Bank shall pay and provide to the Officer (or, in the event of the Officer’s death, to the Officer’s estate) on his termination of employment, subject to section 24 :
(i) the Officer’s earned but unpaid compensation (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(b)) as of the date of the termination of the Officer’s employment with the Bank, 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 thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) and after taking into account the coverage provided by any subsequent employer, if and to the extent necessary to provide for the Officer, for the remaining unexpired Assurance Period, coverage equivalent to the coverage to which the Officer would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank;
(iv) a lump sum payment, in an amount equal to the present value of the salary that the Officer would have earned if the Officer had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of salary achieved during the Officer’s period of actual employment with the Bank, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) a lump sum payment in an amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits to which the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.
Appears in 1 contract
Samples: Change of Control Agreement (Republic Security Financial Corp)
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his employment with the Bank shall terminate terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officer’s Executive's voluntary resignation from employment with the Bank within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Executive to the office of Chairman of the Board, President and Chief Executive Officer to serve in of the same position in which the Officer was serving, on the day before the Assurance Period commenced or a more senior officeBank;
(B) the failure of the stockholders of the Holding Company Bank to elect or re-elect the Officer as a member of Executive or the Board, if he was a member failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank of its material failure, whether by amendment of the Bank’s 's Organization Certificate or By-laws, action of the Board or the Holding Company’s Bank's stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in the Officer on the day before the Assurance Period commenced (or the functionssection 3 of this Agreement, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Bank fully cures such failure;failure in a manner determined by the Executive, in his discretion, to be satisfactory; or
(D) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which the Executive gives written notice to the Bank of its material breach of any term, condition or covenant contained in this Agreement (including, without limitation any reduction of the Executive's rate of base salary in effect from time to time and any change in the Officer terms and conditions of any compensation or benefit program in which the Executive participates which, either individually or together with other changes, has a material adverse effect on the aggregate value of his total compensation package), unless, during such material breach;thirty (30) day period, the Bank cures such failure in a manner determined by the Executive, in his discretion, to be satisfactory; or
(E) a reduction in the compensation provided to relocation of the Officer, or a material reduction in the benefits provided to the Officer under executive offices of the Bank’s program , a distance of employee benefitsmore than 25 miles from its current Coral Gables, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s principal place of employment that would result in a one-way commuting time in excess of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; orFlorida location.
(ii) subject to the discharge provisions of section 10, the termination of the Officer Executive's employment by the Bank for any reason other than for “cause” as provided in section 9(a)reason; then, subject to section 21, the Bank shall provide the benefits and pay to the Officer Executive the amounts provided for under described in section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced9(b).
(b) Upon the termination of the Officer’s Executive's employment with the Bank under circumstances described in section 8(a9(a) of this Agreement, the Bank shall pay and provide to the Officer Executive (or, in the event of the Officer’s death, to the Officer’s estate) on his death following such termination of employment, subject employment to section 24 :his estate):
(i) the Officer’s his earned but unpaid compensation (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law applicable state law and the payment of which is not otherwise provided for under this section 8(b9(b)) as of the date of the termination of the Officer’s his employment with the Bank, 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 thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s 's officers and employees;
(iii) continued group life, health (including hospitalization, medical, major medical and major medicalany supplemental insurance coverages), dental, accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage equivalent to the coverage to which the Officer he would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of in Control, on the date of such Change of in Control, whichever benefits are greater) ), if the Officer he had continued working for the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the Bank and with such continued coverages to be provided to the Executive at the Bank's expense through COBRA or in any other manner determined by the Board to be appropriate including, but not limited to, through the purchase of an individual policy or policies;
(iv) within thirty (30) days following his termination of employment with the Bank, a lump sum payment, in an amount equal to the present present value of the salary Salary that the Officer Executive would have earned if the Officer he had continued working for the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary Salary achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the Bank, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“"Code”) (“Applicable Short-Term Rate”"), compounded using the compounding periods period corresponding to the Bank’s 's regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary Salary provided for under this Agreement in respect of the period following any such termination;
(v) within thirty (30) days following his termination of employment with the Bank, a lump sum payment in an amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits to which the Officer he would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank Bank, if the Officer he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Remaining Unexpired Employment Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I9(b)(i), (iv), (vii), (viii) and (viiix);; over
(B) the present value of the benefits to which the Officer he is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, monthly equal to the applicable longannualized rate of interest prescribed by the Pension Benefit Guaranty Corporation for the valuation of immediate annuities payable under terminating single-term federal rate prescribed under section 1274(d) of the Code employer defined benefit plans for the month in which his the Executive's termination of employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified planoccurs ("Applicable PBGC Rate");
(vi) within thirty (30) days following his termination of employment with the Bank, a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the a discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term PBGC Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer Executive under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, Bank if he had continued working for the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Remaining Unexpired Employment Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer Executive under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer Executive during each such calendar year at the highest annual rate of salary achieved during that portion of the remaining unexpired Assurance Period, Employment Period which is prior to the Executive's termination of employment with the Bank: such payments to be made (without discounting for early payment) within thirty (30) days following the Executive's termination of employment;
(viii) at the election of the Bank made within thirty (30) days following his termination of employment with the Bank, upon the surrender of options or appreciation rights issued to the Executive under any stock option and appreciation rights plan or program maintained by, or covering employees of, the Bank, a lump sum payment .. in an amount equal to the product of:
(A) the excess of (I) the fair market value of a share of stock of the same class as the stock subject to the option or appreciation right, determined as of the date of termination of employment, over (II) the exercise price per share for such option or appreciation right, as specified in or under the relevant plan or program; multiplied by
(B) the number of shares with respect to which options or appreciation rights are being surrendered. For purposes of this section 9(b)(viii) and for purposes of determining the Executive's right following his termination of employment with the Bank to exercise any options or appreciation rights not surrendered pursuant hereto, the Executive shall be deemed fully vested in all options and appreciation rights under any stock option or appreciation rights plan or program maintained by, or covering employees of, the Bank, even if he is not vested under such plan or program;
(ix) at the election of the Bank made within thirty (30) days following the Executive's termination of employment with the Bank, upon the surrender of any shares awarded to the Executive under any restricted stock plan maintained by, or covering employees of, the Bank, a lump sum payment in an amount equal to the product of:
(A) the fair market value of a share of stock of the same class of stock granted under such plan, determined as of the date of the Executive's termination of employment; multiplied by
(B) the number of shares which are being surrendered. For purposes of this section 9(b)(ix) and for purposes of determining the Executive's right following his termination of employment with the Bank to any stock not surrendered pursuant hereto, the Executive shall be deemed fully vested in all shares awarded under any restricted stock plan maintained by, or covering employees of, the Bank, even if he is not vested under such plan.
(x) In addition, the Bank shall provide the Executive with (A) personal use, at the Bank expense for the Remaining Unexpired Employment Period, of a late model automobile comparable to that used by the Executive prior to his termination of employment; (B) the right of the Executive to purchase, at book value, the membership in up to two country clubs which the Bank has maintained for the benefit of the Executive; (C) the transfer to the Executive of two $1 million life insurance policies that the Bank then maintains on the life of the Executive as part of his benefits; and (D) continued use, at the Bank expense for the Remaining Unexpired Employment Period, of the secretarial services, Internet and Bloomberg Financial Market Commodities and News Access Subscriptions, cellular telephones, pagers and the lap-top computer which had been provided to the Executive immediately prior to his termination of employment. The Bank and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b9(b) constitute a reasonable estimate damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s Executive's efforts, if any, to mitigate damages. The Bank and the Officer Executive further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii9(b)(iii), (iv), (v), (vi), (vii) and (viix) on the receipt of the Officer’s Executive's resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company Bank or any subsidiary or affiliate of either of them. In no event shall any of the foregoing provisions of this section 9(b) entitle the Executive to additional grants of statutory or non-statutory options to purchase shares of common stock of the Company pursuant to any incentive stock option plan, then in effect.
Appears in 1 contract
Samples: Bank Employment Agreement (Bankunited Financial Corp)
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his employment with the Bank shall terminate Company terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officerthe Executive’s voluntary resignation from employment with the Bank Company within ninety forty-five (9045) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve the office stated in the same position in which the Officer was serving, on the day before the Assurance Period commenced section 3 of this Agreement (or a more senior office) of the Company;
(B) if the Executive is or becomes a member of the Board, the failure of the stockholders of the Holding Company to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election; provided, however, that such failure is not the result of a vote cast by the Executive;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank Company of its material failure, whether by amendment of the BankCompany’s Organization Certificate or By-laws, action of the Board or the Holding Company’s stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in section 3 of this Agreement as of the Officer on the day before the Assurance Period commenced (or the functionsdate hereof, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Bank Company fully cures such failure;
(D) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which the Executive gives written notice from the Officer of such material breach;
(E) a reduction in the compensation provided to the OfficerCompany of its material breach of any term, condition or a material covenant contained in this Agreement (including, without limitation any reduction of the Executive’s rate of base salary in the benefits provided effect from time to the Officer under the Bank’s program of employee benefits, compared with the compensation time and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a any change in the Officer’s principal place terms and conditions of employment that would result any compensation or benefit program in which the Executive participates which, either individually or together with other changes, has a one-way commuting time in excess material adverse effect on the aggregate value of her total compensation package), unless, during such thirty (30) day period, the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to Company fully cures such changefailure; or
(ii) the discharge termination of the Officer by Executive’s employment with the Bank Company for any other reason other than for “cause” as provided not described in section 9(a10(a); then. In such event, subject to section 2126, the Bank Company shall provide the benefits and pay to the Officer Executive the amounts provided for under described in section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced9(b).
(b) Upon the termination of the OfficerExecutive’s employment with the Bank Company under circumstances described in section 8(a9(a) of this Agreement, the Bank Company shall pay and provide to the Officer Executive (or, in the event of the Officer’s her death, to the Officer’s her estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s her earned but unpaid compensation (includingcompensation, without limitationincluding bonuses awarded and not yet received, all items which constitute wages under section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(b)) as of the date of the termination of the Officer’s her employment with the BankCompany, 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 thirty (30) days after termination of employment;
(ii) the The benefits, if any, to which the Officer she is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs program maintained for the benefit of the BankCompany’s officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage equivalent to the coverage to which the Officer she would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his her termination of employment occurs after a Change of in Control, on the date of such Change of in Control, whichever benefits are greater) if the Officer she had continued working for the Bank Company during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation achieved during that portion of the OfficerEmployment Period which is prior to the Executive’s period termination of actual employment with the Bank;Company; and
(iv) within thirty (30) days following her termination of employment with the Company, a lump sum payment, in an amount equal to the present value Executive’s Remaining Unexpired Employment Period expressed as a number of years carried to two decimal places multiplied by the salary that Executive’s average annual compensation received from the Officer would have earned if the Officer had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of salary achieved during the Officer’s period of actual employment with the Bank, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) a lump sum payment in an amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits to which the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees ofCompany, the Bank if and any subsidiary thereof. For purposes of this section, the Officer were 100% vested thereunder and had continued working Executive’s average annual compensation shall be the average of the Executive’s compensation for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of five calendar years preceding her termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all as reported on IRS Form W-2 less amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. option exercises. The Bank Company and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b9(b) constitute a reasonable estimate damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the OfficerExecutive’s efforts, if any, to mitigate damages. The Bank Company and the Officer Executive further agree that the Bank Company may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi9(b)(iii) and (viiiv) on the receipt of the OfficerExecutive’s resignation from any and all positions which he she holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his or her employment with the Bank shall terminate Association terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officer’s the Executive's voluntary resignation from employment with the Bank Association within ninety six (906) days months following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve in the same position in which the Officer was serving, on the day before the Assurance Period commenced office of Executive Vice President and Secretary (or a more senior office) of the Association;
(B) if the Executive is or becomes a member of the Board, the failure of the stockholders of the Holding Company Association to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank Association of its material failure, whether by amendment of the Bank’s Association's Organization Certificate or By-laws, action of the Board or the Holding Company’s Association's stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in Section 3 of this Agreement as of the Officer on the day before the Assurance Period commenced (or the functionsdate hereof, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Bank fully Association cures such failure;
(D) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which the Executive gives written notice to the Association of its material breach of any term, condition or covenant contained in this Agreement (including, without limitation, any reduction of the Executive's rate of base salary in effect from time to time and any change in the Officer terms and conditions of any compensation or benefit program in which the Executive participates which, either individually or together with other changes, has a material adverse effect on the aggregate value of his or her total compensation package), unless, during such material breach;thirty (30) day period, the Association cures such failure; or
(E) a reduction in the compensation provided to relocation of the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s Executive's principal place of employment that would result in employment, without his or her written consent, to a one-way commuting time in excess location outside of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; orNassau County and Queens County, New York;
(ii) the discharge termination of the Officer by Executive's employment with the Bank Association for any other reason other than for “cause” as provided not described in section 9(aSection 10(a); then, . In such event and subject to section 21Section 27 of this Agreement, the Bank Association shall provide the benefits and pay to the Officer Executive the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained described in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commencedSection 9(b).
(b) Upon the termination of the Officer’s Executive's employment with the Bank Association under circumstances described in section 8(aSection 9(a) of this Agreement, the Bank Association shall pay and provide to the Officer Executive (or, in the event of the Officer’s death, to Executive's death following the Officer’s estate) on his Executive's termination of employment, subject to section 24 :his or her estate):
(i) the Officer’s his or her earned but unpaid compensation (including, without limitation, all items which constitute wages under section Section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(bSection 9(b)) as of the date of the termination of the Officer’s his or her employment with the BankAssociation, such payment to be made at the time and in the manner prescribed by law applicable to the payment of wages but in no any event not later than thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer he or she is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s Association's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage (including any co-payments and deductibles, but excluding any premium sharing arrangements, it being the intention of the parties to this Agreement that the premiums for such insurance benefits shall be the sole cost and expense of the Association) equivalent to the coverage to which the Officer he or she would have been entitled under such plans (as in effect on the date of his or her termination of employment, or, if his or her termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) ), if the Officer he or she had continued working for the Bank Association during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation salary or compensation, as applicable, achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the BankAssociation;
(iv) within thirty (30) days following the Executive's termination of employment with the Association, a lump sum payment, payment in an amount equal to the present value representing an estimate of the salary that the Officer Executive would have earned if the Officer he or she had continued working for the Bank Association during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the Bank, where such present value is to Association (the "Salary Severance Payment"). The Salary Severance Payment shall be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded computed using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) a lump sum payment in an amount equal to the excess, if any, offormula: SSP = BS x NY where:
(A) the present value of the aggregate benefits to which the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In the event that the Officer’s 's employment with the Bank shall terminate during the Assurance Period, or prior to the commencement of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account of:
(i) The Officer’s 's voluntary resignation from employment with the Bank within ninety (90) days following:
(A) the failure of the Bank’s 's Board to appoint or re-appoint or elect or re-elect the Officer to serve in the same position in which the Officer was serving, on the day before the Assurance Period commenced or a more senior office;
(B) the failure of the stockholders of the Holding Company to elect or re-elect the Officer as a member of the Board, if he was a member of the Board on the day before the Assurance Period commenced;
(C) the expiration of a thirty (30) day period following the date on which the Officer gives written notice to the Bank of its material failure, whether by amendment of the Bank’s 's Organization Certificate or By-laws, action of the Board or the Holding Company’s 's stockholders or otherwise, to vest in the Officer the functions, duties, or responsibilities vested in the Officer on the day before the Assurance Period commenced (or the functions, duties and responsibilities of a more senior office to which the Officer may be appointed), unless during such thirty (30) day period, the Bank fully cures such failure;
(D) the failure of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days following written notice from the Officer of such material breach;
(E) a reduction in the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s 's program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s 's principal place of employment that would result in a one-way commuting time in excess of the greater of (I) 30 minutes or (II) the Officer’s 's commuting time immediately prior to such change; or
(ii) the discharge of the Officer by the Bank for any reason other than that for “"cause” " as provided in section 9(a); then, subject to section 21, the Bank shall provide the benefits and pay to the Officer the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s 's termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s 's Assurance Period would have commenced.
(b) Upon the termination of the Officer’s 's employment with the Bank under circumstances described in section 8(a) of this Agreement, the Bank shall pay and provide to the Officer (or, in the event of the Officer’s 's death, to the Officer’s 's estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s 's earned but unpaid compensation (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(b)) as of the date of the termination of the Officer’s 's employment with the Bank, 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 thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s 's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) and after taking into account the coverage provided by any subsequent employer, if and to the extent necessary to provide for the Officer, for the remaining unexpired Assurance Period, coverage equivalent to the coverage to which the Officer would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s 's period of actual employment with the Bank;
(iv) within thirty (30) days following the Officer's termination of employment with the Bank, a lump sum payment, in an amount equal to the present value of the salary that the Officer would have earned if the Officer had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of salary achieved during the Officer’s 's period of actual employment with the Bank, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“"Code”") (“Applicable Short-Term Rate”), compounded using the compounding periods corresponding to the Bank’s 's regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) within thirty (30) days following the Officer's termination of employment with the Bank, a lump sum payment in an amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits to which the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I8(b)(i), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding nonterminates ("Applicable Long-qualified plan;Term Rate").
(vi) within thirty (30) days following the Officer's termination of employment with the Bank, a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s 's period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;and
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made (without discounting for early payment .. payment) within thirty (30) days following the Officer's termination of employment; and The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s 's efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s 's resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.
Appears in 1 contract
Samples: Employee Retention Agreement (Dime Community Bancshares Inc)
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his employment with the Company and the Bank shall terminate terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The OfficerExecutive’s voluntary resignation from employment with the Company and the Bank within ninety (90) days following:
(A) the The failure of the Bank’s Board of Directors of either the Company or the Bank to appoint or re-appoint or elect or re-elect the Executive to the office of President of the Company and Chief Operating Officer to serve in and Chief Financial Officer of the same position in which the Officer was serving, on the day before the Assurance Period commenced Bank (or a more senior office, if any);
(B) the The failure of the stockholders of the Holding Company or Bank to elect or re-elect the Officer as a member Executive to the Board of Directors of the BoardCompany or the Bank, if he was a member respectively, or the failure of the Board on of Directors of the day before Company or the Assurance Period commencedBank (or the nominating committees thereof) to nominate the Executive for such election or re-election;
(C) the The expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Company or the Bank (i) of its or their material failure, whether by amendment of the Company’s or the Bank’s Organization Certificate Articles of Incorporation or By-lawsBylaws, action of the Board Company’s or the Holding Bank’s Board of Directors or the Company’s or the Bank’s stockholders or otherwise, to vest in the Officer the functions, duties, or responsibilities vested in the Officer on the day before the Assurance Period commenced (or Executive the functions, duties and or responsibilities prescribed in Section 3 of a more senior office this Agreement as of the date hereof, or (ii) that the Company or the Bank has or have prohibited, prevented or otherwise made it reasonably impracticable for the Executive to which the Officer may be appointed)perform his functions, unless duties or responsibilities as prescribed in Section 3 of this Agreement, unless, in either event, during such thirty (30) day period, the Company or the Bank fully cures such failurefailure in a manner determined by the Executive, in his discretion, to be satisfactory;
(D) the failure The expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which the Executive gives written notice to the Company or the Bank of its material breach of any term, condition or covenant contained in this Agreement (including, without limitation, any reduction of the Executive’s rate of base salary in effect from time to time and any adverse change in the Officer terms and conditions to the Executive of any Employee Pension Benefit Plan or Employee Welfare Benefit Plan or as to any other compensation or benefit program in which the Executive participates which, either individually or together with other changes, has or could have a material adverse effect on the aggregate value of his total compensation package), unless, during such material breach;thirty (30) day period, the Company or the Bank cures such failure in a manner determined by the Executive, in his discretion, to be satisfactory; or
(E) a reduction in The relocation of the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the OfficerExecutive’s principal place of employment that would result employment, without his written consent (which may be withheld in a one-way commuting time in excess the sole discretion of the greater Executive), to a location outside of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; orPalm Beach County, Florida.
(ii) the discharge The termination of the Officer Executive’s employment with the Company or the Bank by the Company or the Bank for any other reason other than for “cause” as provided not described in section 9(aSection 10(a); then. In such event, subject to section 21, the Company or the Bank shall provide the benefits and pay to the Officer Executive the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained described in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commencedSection 9(b).
(b) Upon the termination of the OfficerExecutive’s employment with the Company and/or the Bank prior to a Change of Control under circumstances described any of the events set forth in section 8(aSections 9(a)(i) or (ii) during the Employment Period, or upon a Change of this AgreementControl (as hereinafter defined), the Company and/or the Bank (jointly and/or severally) shall pay and provide to the Officer Executive (or, in the event of the Officer’s death, upon death then to the OfficerExecutive’s estate) on his termination of employment, subject to section 24 the following Severance Benefits:
(i) the OfficerThe Executive’s earned but unpaid compensation Cash Compensation (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(b)as determined pursuant to Section 4) in effect as of the date of the termination of the Officer’s employment with the Bankapplicable Triggering Event Date (as defined below), 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 thirty (30) days after termination the applicable Triggering Event Date (provided that if the Executive has made an irrevocable election under any deferred compensation arrangement subject to Section 409A of employment;the Code to defer any portion of such Cash Compensation, the terms of the applicable arrangement shall apply to distribution of such portion); and
(ii) If the benefitsTriggering Event Date is a termination of employment, if anythe Executive’s vested, accrued benefits in all Employee Benefit Plans to which the Officer is Executive was entitled pursuant to this Agreement as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s officers and employees;date of termination, payable in accordance with the terms of the applicable Employee Benefit Plan; and
(iii) continued group life, health Within thirty (including hospitalization, medical and major medical30) days following the effective date of any of the triggering events referred to in the first sentence in this Section 9(b) (the “Triggering Event Date”), accident payment of a lump sum amount equal to the product of (A) three (3), times (B) the average of the two (2) highest total annual amounts of Cash Compensation paid by the Company and/or Bank to any of its "Named Executive Officers" with respect to the five (5) full fiscal years of the Employment Period immediately preceding the year in which the Triggering Event Date occurs (such average defined in clause (B) being hereinafter referred to as the "Highest Total Cash Compensation"). Such lump sum shall not be reduced to a present value and long term disability insurance benefits, shall be paid in addition to that any other Compensation payments otherwise provided pursuant to section 8(b)(ii) and after taking into account the coverage provided by any subsequent employer, if and to the extent necessary to provide for the Officer, for the remaining unexpired Assurance Period, coverage equivalent to the coverage to which the Officer would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank;hereunder; and
(iv) Within thirty (30) days following the Triggering Event Date, payment of a lump sum payment, in an amount equal to the present value of the salary that the Officer would have earned if the Officer had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of salary achieved during the Officer’s period of actual employment with the Bank, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) a lump sum payment in an amount equal to the excess, if any, of:
(A) the The present value of both the aggregate current and future accrued benefits in each Employee Pension Benefit Plan that is a defined benefit plan to which the Officer Executive would have been entitled (which shall be entitled under any computed based on the Highest Total Cash Compensation and all qualified and non-qualified defined at the same rate of Employee Pension Benefit Plan funding and/or benefit pension plans maintained byaccrual, determined separately for each such Employee Pension Benefit Plan or covering employees ofas historically had been contributed, whichever is greater, for an Employment Period concluding on the Bank third anniversary of the Triggering Event Date as if the Officer were 100% vested thereunder and Executive had continued working for the Company and the Bank during for the remaining unexpired Assurance Period, Employment Period consisting of such three additional plan years). Such benefits to shall be determined separately for each such Employee Pension Benefit Plan in effect as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);date; over
(B) The present value of the accrued benefits to which the Executive is actually entitled under each such Employee Pension Benefit Plan that is a defined benefit plan as of the Triggering Event Date using comparable actuarial assumptions (where applicable) as then being utilized by such respective plan. In computing the present value of such lump sum payment, the benefits to which annualized rate of interest prescribed by the Officer is actually entitled Pension Benefit Guaranty Corporation for the computation of the value of lump sum payments otherwise payable under such terminating single employer defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his the Executive’s termination of employment terminates; provided, however, that if payments are made under this section 8(b)(voccurs (“Applicable PBGC Rate”) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;utilized; and
(viv) Within thirty (30) days following the Triggering Event Date, a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Company or the Bank, as if he were 100% vested thereunder and had continued working for the Company and the Bank during for a period of three years after the remaining unexpired Assurance Period at Triggering Event Date based on the highest annual rate of compensation Highest Total Cash Compensation achieved during that portion of the Officer’s period of actual employment with Employment Period which is prior to the BankTriggering Event Date, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the a discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant planEmployee Pension Benefit Plan; and
(vi) Subject to Section 26 of this Agreement, equal for fifteen years following the date of termination of employment (the “Benefits Period”), the Bank and/or Company shall provide the Executive and his spouse and eligible dependents with medical and dental insurance coverage (the “Health Care Benefits”) and life insurance benefits no less favorable than those which the Executive and his spouse and eligible dependents were receiving immediately prior to the Applicable Short-Term Ratedate of termination of employment; provided, however, that the Health Care Benefits shall be provided during the Benefits Period in such a manner that such benefits are excluded from the Executive’s income for federal income tax purposes; provided, further, however, that if payments are made the Executive becomes re-employed with another employer and is eligible to receive health care benefits under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts another employer-provided plan, the health care benefits provided hereunder shall be secondary to those provided under such defined contribution plans other plan during such applicable period of eligibility. The receipt of the Health Care Benefits shall be conditioned upon the Executive continuing to be vestedpay the monthly premium as in effect at the Company from time to time for coverage provided to former employees under Section 4980B of the Code in respect of the level of coverage in effect for the Executive and his spouse and dependents (i.e., single, single plus one, or family) (the “Applicable COBRA Premium”). During the portion of the Benefits Period in which the Executive and his eligible dependents continue to receive coverage under the Company’s Health Care Benefits plans, the paymentsCompany shall pay to the Executive a monthly amount equal to the Applicable COBRA Premium in respect of the maximum level of coverage that the Executive could otherwise elect to receive for the Executive and the Executive’s spouse and eligible dependents if the Executive were still an employee of the Company during the Benefits Period regardless of what level of coverage is actually elected, if any, attributable to such deemed vesting which payment shall be paid in advance on the same formfirst payroll day of each month, commencing with the month immediately following the Executive’s date of termination of employment. Notwithstanding the foregoing provisions of this Section 9(b), (x) in the event that the Executive is a Specified Employee (as defined in the SERP) as of the date of termination of employment, amounts payable under Sections 9(b)(iii-v) due to a qualifying termination of employment that constitute a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code that would otherwise be payable during the six-month period immediately following the date of termination of employment shall instead be paid, with interest on any delayed payment at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code determined as of the date of termination of employment, on the first business day after the date that is six months following the Executive’s date of termination of employment (the “Delayed Payment Date”), and paid at the same time, and (y) in the same manner, as benefits event that amounts are payable under Sections 9(b)(iii)-(v) due to a Change of Control but such Change of Control does not constitute a change in the corresponding non-qualified plan;
(vii) ownership or effective control of the payments that would have been made to the Officer under any cash bonus Company or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for or in the ownership of a substantial portion of the assets of the Company or the Bank during (as defined in Section 409A of the remaining unexpired Assurance Period Code and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Periodregulations thereunder), such payments to amounts shall instead be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year paid, with interest at the highest annual applicable federal rate provided for in Section 7872(f)(2)(A) of salary achieved during the remaining unexpired Assurance PeriodCode determined as of the date of the Change of Control, on the first to occur of the Executive’s termination of employment (or, if the Executive is a Specified Employee on such payments to be made without discounting for early payment .. date, the Delayed Payment Date) or a change in the ownership or effective control of the Company or the Bank, or in the ownership of a substantial portion of the assets of the Company or the Bank (each as defined in Section 409A of the Code and regulations thereunder). The Company, the Bank and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(bSection 9(b) constitute a reasonable estimate liquidated damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the OfficerExecutive’s efforts, if any, to mitigate damages. The Company, the Bank and the Officer Executive further agree that the Company and the Bank may condition the payments and benefits (if any) due under sections 8(b)(iiiSections 9(b)(iii), (iv), (v), (vi) and (viivi) on the receipt of the OfficerExecutive’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the BankCompany, the Company Bank or any subsidiary or affiliate of either either.
(c) Upon the termination of themthe Executive’s employment with the Company and/or the Bank under any of the events set forth in Sections 9(a)(i), 9(a)(ii), 10(a)(iii) or 10(a)(iv) during the Employment Period, or upon a Change of Control (as hereinafter defined) (including under terminations referred to in Section 11(c) hereof), any options to purchase the Company’s stock and any restricted stock grants granted to the Executive by the Company shall immediately vest, and such options may be exercised in accordance with the terms of such option grants at any time on or prior to their original expiration date.
(d) The parties shall take all steps necessary (including with regard to any post-termination services by the Executive) to ensure that the date of any termination of employment hereunder constitutes a “Separation from Service” (as defined in the SERP).
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his employment with the Company and the Bank shall terminate terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The OfficerExecutive’s voluntary resignation from employment with the Company and the Bank within ninety (90) days following:
(A) the The failure of the Bank’s Board of Directors of either the Company or the Bank to appoint or re-appoint or elect or re-elect the Executive to the office of President of the Company and Chief Operating Officer to serve in and Chief Financial Officer of the same position in which the Officer was serving, on the day before the Assurance Period commenced Bank (or a more senior office, if any);
(B) the The failure of the stockholders of the Holding Company or Bank to elect or re-elect the Officer as a member Executive to the Board of Directors of the BoardCompany or the Bank, if he was a member respectively, or the failure of the Board on of Directors of the day before Company or the Assurance Period commencedBank (or the nominating committees thereof) to nominate the Executive for such election or re-election;
(C) the The expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Company or the Bank (i) of its or their material failure, whether by amendment of the Company’s or the Bank’s Organization Certificate Articles of Incorporation or By-lawsBylaws, action of the Board Company’s or the Holding Bank’s Board of Directors or the Company’s or the Bank’s stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in Section 3 of this Agreement as of the Officer on date hereof, or (ii), that the day before the Assurance Period commenced (Company or the Bank has or have prohibited, prevented, or otherwise made it reasonably impracticable for the Executive to perform his functions, duties and duties, or responsibilities as prescribed in Section 3 of a more senior office to which the Officer may be appointed)this Agreement, unless unless, in either event, during such thirty (30) day period, the Company or the Bank fully cures such failurefailure in a manner determined by the Executive, in his discretion, to be satisfactory;
(D) the failure The expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which the Executive gives written notice to the Company or the Bank of its material breach of any term, condition or covenant contained in this Agreement (including, without limitation, any reduction of the Executive’s rate of base salary in effect from time to time and any adverse change in the Officer terms and conditions to the Executive of any Employee Pension Plan or Employee Welfare Benefit Plan (as hereinafter defined) or as to any other compensation or benefit program in which the Executive participates which, either individually or together with other changes, has or could have a material adverse effect on the aggregate value of his total compensation package), unless, during such material breach;thirty (30) day period, the Company or the Bank cures such failure in a manner determined by the Executive, in his discretion, to be satisfactory; or
(E) a reduction in The relocation of the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the OfficerExecutive’s principal place of employment that would result employment, without his written consent (which may be withheld in a one-way commuting time in excess the sole discretion of the greater Executive), to a location outside of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; orPalm Beach County, Florida.
(ii) the discharge The termination of the Officer by Executive’s employment with the Company or the Bank for any other reason other than for “cause” as provided not described in section 9(aSection 10(a); then. In such event, subject to section 21, the Company or the Bank shall provide the benefits and pay to the Officer Executive the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained described in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commencedSection 9(b).
(b) Upon the termination of the OfficerExecutive’s employment with the Company and/or the Bank under circumstances described any of the events set forth in section 8(aSections 9(a)(i) or (ii) during the Employment Period; or upon a Change of this AgreementControl (as hereinafter defined), the Company and/or the Bank (jointly and/or severally) shall pay and provide to the Officer Executive (or, in the event of the Officer’s death, upon death then to the OfficerExecutive’s estate) on his termination of employment, subject to section 24 the following Severance Benefits:
(i) the OfficerThe Executive’s earned but unpaid compensation Cash Compensation (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(b)as determined pursuant to Section 4) in effect as of the date of the termination of the Officer’s his employment with the Company and the Bank, 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 thirty (30) days after termination the date of employment;termination; and,
(ii) the benefitsThe Executive’s vested, if any, accrued benefits in all Employee Benefit Plans to which the Officer is Executive was entitled (or which he had accrued) pursuant to this Agreement as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s officers and employees;date of termination; and,
(iii) continued group life, health Within thirty (including hospitalization, medical and major medical30) days following the effective date of any of the triggering events referred to in the first sentence in this Section 9(b) (the “Triggering Event Date”), accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) and after taking into account the coverage provided by any subsequent employer, if and payment of a lump sum amount equal to the extent necessary to provide for Cash Compensation that the Officer, for the remaining unexpired Assurance Period, coverage equivalent to the coverage to which the Officer Executive would have been entitled under such plans (as in effect on the date of his termination of employment, or, earned if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer he had continued working for the Company and the Bank during for a period of 1095 days after the remaining unexpired Assurance Period Triggering Event Date and at the highest annual or annualized rate of compensation Cash Compensation achieved during that portion of the OfficerEmployment Period prior to the Executive’s period termination of actual employment with the Company and the Bank;. Such lump sum shall not be reduced to a present value and shall be paid in addition to any other Compensation payments otherwise provided hereunder; and,
(iv) Within thirty (30) days following the Triggering Event Date, payment of a lump sum payment, in an amount equal to the present value of the salary that the Officer would have earned if the Officer had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of salary achieved during the Officer’s period of actual employment with the Bank, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) a lump sum payment in an amount equal to the excess, if any, of:
(A) the The present value of both the aggregate current and future accrued benefits in each Employee Pension Plan to which the Officer Executive would have been entitled (which shall be entitled under any computed at the highest annual or annualized rate of Cash Compensation in effect during the Employment period and all qualified at the same rate of Employee Pension Plan funding and/or benefit accrual, determined separately for each such Employee Pension plan or as historically had been contributed, whichever is greater, and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank as if the Officer were Executive had been 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, in such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans for an additional period Employment Period equal to three (3) complete plan years commending at the remaining unexpired Assurance Period and by adding to termination date as if the compensation recognized under such plans Executive had continued working for the year Company and the Bank for the Employment Period consisting of such three additional plan years. Such benefits shall be determined separately for each such Employee Pension Plan in which effect as of the termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);date; over
(B) The present value of the accrued benefits to which the Executive is actually entitled under each such Employee Pension Plan as of the termination date using comparable actuarial assumptions (where applicable) as then being utilized by such respective plan. In computing the present value of such lump sum payment, the benefits to which annualized rate of interest prescribed by the Officer is actually entitled Pension Benefit Guaranty Corporation for the computation of the value of lump sum payments otherwise payable under such terminating single employer defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his the Executive’s termination of employment terminates; provided, however, that if payments are made under this section 8(b)(voccurs (“Applicable PBGC Rate”) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;utilized; and,
(viv) Within thirty (30) days following his termination of employment with the Company and the Bank, a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Company or the Bank, as if he were 100% vested thereunder and had continued working for the Company and the Bank during for a period of three years after the remaining unexpired Assurance Period date his employment terminates at the highest annual rate of compensation achieved during that portion of the OfficerEmployment Period which is prior to the Executive’s period termination of actual employment with the Company and the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the a discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant planEmployee Pension Plan; and
(vi) Future participation in Welfare Benefit Plans in such amounts and in such coverages which were in effect on behalf of the Executive, equal the Executive’s spouse and dependents immediately preceding the date of termination, which shall be continued and paid for by the Bank and/or the Company on behalf of the Executive for a period of fifteen (15) years subsequent to the Applicable Short-Term Rate; provideddate of termination (“Coverage Period”): Life insurance, howeverhealth and medical coverage (including hospitalization medical, that if payments are made under this section 8(b)(viprescription drug coverage, etc.) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vesteddental insurance, the payments, if any, attributable to such deemed vesting shall be paid in the same form, accident and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term disability insurance benefits, (whether or shortnot fully insured, partially insured or self-term cash incentive compensation plan maintained byinsured) in addition to that provided pursuant to Section 9(b)(ii), or covering employees ofbut after taking into account the benefits provided pursuant to any Welfare Benefit Plan provided by any subsequent employer during any portion of the Coverage Period (but only during such portion, or, if the termination date occurs after a Change of Control, the BankWelfare Benefit Coverage in effect on the date of such Change of Control, whichever Welfare Benefit Coverage is greater), if he had continued working for the Company and the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance such Coverage Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved Cash Compensation in effect during any portion of the remaining unexpired Assurance PeriodEmployment Period prior to the Executive’s termination date. The Company, such payments to be made without discounting for early payment .. The the Bank and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(bSection 9(b) constitute a reasonable estimate liquidated damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the OfficerExecutive’s efforts, if any, to mitigate damages. The Company, the Bank and the Officer Executive further agree that the Company and the Bank may condition the payments and benefits (if any) due under sections 8(b)(iiiSections 9(b)(iii), (iv), (v), and (vi) and (vii) on the receipt of the OfficerExecutive’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the BankCompany, the Company Bank or any subsidiary or affiliate of either either.
(c) Upon the termination of themthe Executive’s employment with the Company and/or the Bank under any of the events set forth in Sections 9(a)(i), 9(a)(ii), 10(a)(iii) or 10(a)(iv) during the Employment Period, or upon a Change of Control (as hereinafter defined) (including under terminations referred to in Section 11(c) hereof), any options to purchase the Company’s stock granted to the Executive by the Company shall immediately vest, and may be exercised in accordance with the terms of such option grants at any time on or prior to their original expiration date.
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his or her employment with the Bank shall terminate Company terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officer’s the Executive's voluntary resignation from employment with the Bank Company within ninety six (906) days months following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Executive to the office of Vice Chairman and Chief Administrative Officer to serve in the same position in which the Officer was serving, on the day before the Assurance Period commenced (or a more senior office) of the Company;
(B) if the Executive is or becomes a member of the Board, the failure of the stockholders of the Holding Company to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank Company of its material failure, whether by amendment of the Bank’s Organization Company's Certificate of Incorporation or By-laws, action of the Board or the Holding Company’s 's stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in Section 3 of this Agreement as of the Officer on the day before the Assurance Period commenced (or the functionsdate hereof, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Bank fully Company cures such failurefailure in a manner determined by the Executive, in his or her discretion, to be satisfactory;
(D) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which the Executive gives written notice to the Company of its material breach of any term, condition or covenant contained in this Agreement (including, without limitation, any reduction of the Executive's rate of base salary in effect from time to time and any change in the Officer terms and conditions of any compensation or benefit program in which the Executive participates which, either individually or together with other changes, has a material adverse effect on the aggregate value of his or her total compensation package), unless, during such material breach;thirty (30) day period, the Company cures such failure in a manner determined by the Executive, in his or her discretion, to be satisfactory; or
(E) a reduction in the compensation provided to relocation of the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s Executive's principal place of employment that would result in employment, without his or her written consent, to a one-way commuting time in excess location outside of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; orNassau County and Queens County, New York;
(ii) the discharge termination of the Officer by Executive's employment with the Bank Company for any other reason other than for “cause” as provided not described in section 9(aSection 10(a); then, subject to section 21. In such event, the Bank Company shall provide the benefits and pay to the Officer Executive the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained described in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commencedSection 9(b).
(b) Upon the termination of the Officer’s Executive's employment with the Bank Company under circumstances described in section 8(aSection 9(a) of this Agreement, the Bank Company shall pay and provide to the Officer Executive (or, in the event of the Officer’s death, to Executive's death following the Officer’s estate) on his Executive's termination of employment, subject to section 24 :his or her estate):
(i) the Officer’s his or her earned but unpaid compensation (including, without limitation, all items which constitute wages under section Section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(bSection 9(b)) as of the date of the termination of the Officer’s his or her employment with the BankCompany, such payment to be made at the time and in the manner prescribed by law applicable to the payment of wages but in no any event not later than thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer he or she is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s Company's officers and employees, including the annual bonus (if any) to which he or she is entitled under any cash-based annual bonus or performance compensation plan in effect for the year in which his or her termination occurs, to be paid at the same time and on the terms and conditions (including but not limited to achievement of performance goals) applicable under the relevant plan;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage (including any co-payments and deductibles, but excluding any premium sharing arrangements, it being the intention of the parties to this Agreement that the premiums for such insurance benefits shall be the sole cost and expense of the Company) equivalent to the coverage to which the Officer he or she would have been entitled under such plans (as in effect on the date of his or her termination of employment, or, if his or her termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) ), if the Officer he or she had continued working for the Bank Company during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation salary or compensation, as applicable, achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the BankCompany;
(iv) thirty (30) days following the Executive's termination of employment with the Company, a lump sum payment, payment in an amount equal to the present value representing an estimate of the salary that the Officer Executive would have earned if the Officer he or she had continued working for the Bank Company during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the Bank, where such present value is to be determined using a discount rate equal to Company (the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term RateSalary Severance Payment”), compounded . The Salary Severance Payment shall be computed using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) a lump sum payment in an amount equal to the excess, if any, offormula: SSP = BS x NY where:
(A) the present value of the aggregate benefits to which the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his employment with the Bank shall terminate Company terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officer’s the Executive's voluntary resignation from employment with the Bank Company within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Executive to the office of Vice Chairman and Chief Administrative Officer to serve in the same position in which the Officer was serving, on the day before the Assurance Period commenced (or a more senior office) of the Company;
(B) if the Executive is a member of the Board, the failure of the stockholders of the Holding Company to elect or re-elect the Officer as a member Executive to the Board or the failure of the Board, Board (or the nominating committee thereof) to nominate the Executive for such election or re-election if he was the Executive is a member of the Board on the day before Effective Date of this Agreement or thereafter becomes a member of the Assurance Period commencedBoard;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank Company of its material failure, whether by amendment of the Bank’s Company's Organization Certificate or By-laws, action of the Board or the Holding Company’s 's stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in section 3 of this Agreement as of the Officer on the day before the Assurance Period commenced (or the functionsdate hereof, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Bank fully Company cures such failurefailure in a manner determined by the Executive, in his discretion, to be satisfactory;
(D) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which the Executive gives written notice to the Company of its material breach of any term, condition or covenant contained in this Agreement (including, without limitation, any reduction of the Executive's rate of base salary in effect from time to time and any change in the Officer terms and conditions of any compensation or benefit program in which the Executive participates which, either individually or together with other changes, has a material adverse effect on the aggregate value of his total compensation package), unless, during such material breach;thirty (30) day period, the Company cures such failure in a manner determined by the Executive, in his discretion, to be satisfactory; or
(E) a reduction in the compensation provided to relocation of the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s Executive's principal place of employment that would result in employment, without his written consent, to a one-way commuting time in excess location outside of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; orNassau County and Queens County, New York;
(ii) the discharge termination of the Officer by Executive's employment with the Bank Company for any other reason other than for “cause” as provided not described in section 9(a10(a); then, subject to section 21. In such event, the Bank Company shall provide the benefits and pay to the Officer Executive the amounts provided for under described in section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced9(b).
(b) Upon the termination of the Officer’s Executive's employment with the Bank Company under circumstances described in section 8(a9(a) of this Agreement, the Bank Company shall pay and provide to the Officer Executive (or, in the event of the Officer’s his death, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s his earned but unpaid compensation (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(b9(b)) as of the date of the termination of the Officer’s his employment with the BankCompany, 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 thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s Company's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage equivalent to the coverage to which the Officer he would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) ), if the Officer he had continued working for the Bank Company during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the BankCompany;
(iv) within thirty (30) days following his termination of employment with the Company, a lump sum payment, payment in an amount equal to the present present value of the salary that the Officer Executive would have earned if the Officer he had continued working for the Bank Company during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the BankCompany, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“"Code”) (“Applicable Short-Term Rate”"), compounded using the compounding periods period corresponding to the Bank’s Company's regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) within thirty (30) days following his termination of employment with the Company, a lump sum payment in an amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits to which the Officer he would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank Company, if the Officer he were 100% vested thereunder and had continued working for the Bank Company during the remaining unexpired Assurance Remaining Unexpired Employment Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Remaining Unexpired Employment Period and by adding to the compensation recognized under such plans for the most recent year in which termination of employment occurs recognized all amounts payable under sections 8(b)(I9(b)(i), (iv), (vii), (viii) and (viiix);; over
(B) the present value of the benefits to which the Officer he is actually entitled under such defined benefit pension plans as of the date of his termination; : where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable longannualized rate of interest prescribed by the Pension Benefit Guaranty Corporation for the valuation of immediate annuities payable under terminating single-term federal rate prescribed under section 1274(d) of the Code employer defined benefit plans for the month in which his the Executive's termination of employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified planoccurs ("Applicable PBGC Rate");
(vi) within thirty (30) days following his termination of employment with the Company, a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the BankCompany, as if he were 100% vested thereunder and had continued working for the Bank Company during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the BankCompany, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the a discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term PBGC Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) within thirty (30) days following his termination of employment with the Company, a lump sum payment in an amount equal to the present value of the payments that would have been made to the Officer Executive under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, Company if he had continued working for the Bank Company during the remaining unexpired Assurance Remaining Unexpired Employment Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Remaining Unexpired Employment Period, such payments to be equal to the product of:
(A) the maximum percentage rate of annual salary at which an award was ever available to the Officer Executive under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer Executive during each such calendar year at the highest annual rate of salary achieved during that portion of the remaining unexpired Assurance Period, Employment Period which is prior to the Executive's termination of employment with the Company: Where such payments present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Code, compounded annually;
(viii) at the election of the Company made without discounting within thirty (30) days following his termination of employment with the Company, upon the surrender of options or appreciation rights issued to the Executive under any stock option and appreciation rights plan or program maintained by, or covering employees of, the Company, a lump sum payment in an amount equal to the product of:
(A) the excess of (I) the fair market value of a share of stock of the same class as the stock subject to the option or appreciation right, determined as of the date of termination of employment, over (II) the exercise price per share for early such option or appreciation right, as specified in or under the relevant plan or program; multiplied by
(B) the number of shares with respect to which options or appreciation rights are being surrendered. For purposes of this section 9(b)(viii) and for purposes of determining the Executive's right following his termination of employment with the Company to exercise any options or appreciation rights not surrendered pursuant hereto, the Executive shall be deemed fully vested in all options and appreciation rights under any stock option or appreciation rights plan or program maintained by, or covering employees of, the Company, even if he is not vested under such plan or program;
(ix) at the election of the Company made within thirty (30) days following the Executive's termination of employment with the Company, upon the surrender of any shares awarded to the Executive under any restricted stock plan maintained by, or covering employees of, the Company, a lump sum payment .. in an amount equal to the product of:
(A) the fair market value of a share of stock of the same class of stock granted under such plan, determined as of the date of the Executive's termination of employment; multiplied by
(B) the number of shares which are being surrendered. For purposes of this section 9(b)(ix) and for purposes of determining the Executive's right following his termination of employment with the Company to any stock not surrendered pursuant hereto, the Executive shall be deemed fully vested in all shares awarded under any restricted stock plan maintained by, or covering employees of, the Company, even if he is not vested under such plan. The Bank Company and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b9(b) constitute a reasonable estimate damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s Executive' s efforts, if any, to mitigate damages. The Bank Company and the Officer Executive further agree that the Bank Company may condition the payments and benefits (if any) due under sections 8(b)(iii9(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s Executive's resignation from any and all positions which he holds as an officer, director or committee member with respect to the BankCompany, the Company Association or any subsidiary or affiliate of either of them.
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his employment with the Bank shall terminate Association terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officer’s the Executive's voluntary resignation from employment with the Bank Association within ninety six (906) days months following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Executive to the office of Executive Vice President, Treasurer and Chief Financial Officer to serve in the same position in which the Officer was serving, on the day before the Assurance Period commenced (or a more senior office) of the Association;
(B) if the Executive is a member of the Board, the failure of the stockholders of the Holding Company Association to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank Association of its material failure, whether by amendment of the Bank’s Organization Certificate Association's Charter or By-laws, action of the Board or the Holding Company’s Association's stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in Section 3 of this Agreement as of the Officer on the day before the Assurance Period commenced (or the functionsdate hereof, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Bank fully Association cures such failurefailure in a manner determined by the Executive, in his or her discretion, to be satisfactory;
(D) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which the Executive gives written notice to the Association of its material breach of any term, condition or covenant contained in this Agreement (including, without limitation, any reduction of the Executive's rate of base salary in effect from time to time and any change in the Officer terms and conditions of any compensation or benefit program in which the Executive participates which, either individually or together with other changes, has a material adverse effect on the aggregate value of his total compensation package), unless, during such material breach;thirty (30) day period, the Association cures such failure in a manner determined by the Executive, in his or her discretion, to be satisfactory; or
(E) a reduction in the compensation provided to relocation of the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s Executive's principal place of employment that would result in employment, without his or her written consent, to a one-way commuting time in excess location outside of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; orNassau County and Queens County, New York;
(ii) the discharge termination of the Officer by Executive's employment with the Bank Association for any other reason other than for “cause” as provided not described in section 9(aSection 10(a); then, . In such event and subject to section 21Section 27 of this Agreement, the Bank Association shall provide the benefits and pay to the Officer Executive the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained described in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commencedSection 9(b).
(b) Upon the termination of the Officer’s Executive's employment with the Bank Association under circumstances described in section 8(aSection 9(a) of this Agreement, the Bank Association shall pay and provide to the Officer Executive (or, in the event of the Officer’s death, to Executive's death following the Officer’s estate) on his Executive's termination of employment, subject to section 24 :his or her estate):
(i) the Officer’s his or her earned but unpaid compensation (including, without limitation, all items which constitute wages under section Section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(bSection 9(b)) as of the date of the termination of the Officer’s his or her employment with the BankAssociation, such payment to be made at the time and in the manner prescribed by law applicable to the payment of wages but in no any event not later than thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer he or she is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s Association's officers and employees, including the annual bonus (if any) to which he or she is entitled under any cash-based annual bonus or performance compensation plan in effect for the year in which his or her termination occurs, to be paid at the same time and on the terms and conditions (including but not limited to achievement of performance goals) applicable under the relevant plan;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage (including any co-payments and deductibles, but excluding any premium sharing arrangements, it being the intention of the parties to this Agreement that the premiums for such insurance benefits shall be the sole cost and expense of the Association) equivalent to the coverage to which the Officer he or she would have been entitled under such plans (as in effect on the date of his or her termination of employment, or, if his or her termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) ), if the Officer he or she had continued working for the Bank Association during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation salary or compensation, as applicable, achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the BankAssociation;
(iv) thirty (30) days following the Executive's termination of employment with the Association, a lump sum payment, payment in an amount equal to the present value representing an estimate of the salary that the Officer Executive would have earned if the Officer he or she had continued working for the Bank Association during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the Bank, where such present value is to Association (the "Salary Severance Payment"). The Salary Severance Payment shall be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded computed using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) a lump sum payment in an amount equal to the excess, if any, offormula: SSP = BS x NY where:
(A) the present value of the aggregate benefits to which the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his employment with the Bank shall terminate Association terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officer’s the Executive's voluntary resignation from employment with the Bank Association within ninety six (906) days months following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Executive to the office of President and Chief Operating Officer to serve in the same position in which the Officer was serving, on the day before the Assurance Period commenced (or a more senior office) of the Association;
(B) if the Executive is a member of the Board, the failure of the stockholders of the Holding Company Association to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank Association of its material failure, whether by amendment of the Bank’s Organization Certificate Association's Charter or By-laws, action of the Board or the Holding Company’s Association's stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in Section 3 of this Agreement as of the Officer on the day before the Assurance Period commenced (or the functionsdate hereof, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Bank fully Association cures such failurefailure in a manner determined by the Executive, in his or her discretion, to be satisfactory;
(D) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which the Executive gives written notice to the Association of its material breach of any term, condition or covenant contained in this Agreement (including, without limitation, any reduction of the Executive's rate of base salary in effect from time to time and any change in the Officer terms and conditions of any compensation or benefit program in which the Executive participates which, either individually or together with other changes, has a material adverse effect on the aggregate value of his total compensation package), unless, during such material breach;thirty (30) day period, the Association cures such failure in a manner determined by the Executive, in his or her discretion, to be satisfactory; or
(E) a reduction in the compensation provided to relocation of the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s Executive's principal place of employment that would result in employment, without his or her written consent, to a one-way commuting time in excess location outside of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; orNassau County and Queens County, New York;
(ii) the discharge termination of the Officer by Executive's employment with the Bank Association for any other reason other than for “cause” as provided not described in section 9(aSection 10(a); then, . In such event and subject to section 21Section 27 of this Agreement, the Bank Association shall provide the benefits and pay to the Officer Executive the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained described in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commencedSection 9(b).
(b) Upon the termination of the Officer’s Executive's employment with the Bank Association under circumstances described in section 8(aSection 9(a) of this Agreement, the Bank Association shall pay and provide to the Officer Executive (or, in the event of the Officer’s death, to Executive's death following the Officer’s estate) on his Executive's termination of employment, subject to section 24 :his or her estate):
(i) the Officer’s his or her earned but unpaid compensation (including, without limitation, all items which constitute wages under section Section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(bSection 9(b)) as of the date of the termination of the Officer’s his or her employment with the BankAssociation, such payment to be made at the time and in the manner prescribed by law applicable to the payment of wages but in no any event not later than thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer he or she is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs programs maintained for the benefit of the Bank’s Association's officers and employees, including the annual bonus (if any) to which he or she is entitled under any cash-based annual bonus or performance compensation plan in effect for the year in which his or her termination occurs, to be paid at the same time and on the terms and conditions (including but not limited to achievement of performance goals) applicable under the relevant plan;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage (including any co-payments and deductibles, but excluding any premium sharing arrangements, it being the intention of the parties to this Agreement that the premiums for such insurance benefits shall be the sole cost and expense of the Association) equivalent to the coverage to which the Officer he or she would have been entitled under such plans (as in effect on the date of his or her termination of employment, or, if his or her termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) ), if the Officer he or she had continued working for the Bank Association during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation salary or compensation, as applicable, achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the BankAssociation;
(iv) thirty (30) days following the Executive's termination of employment with the Association, a lump sum payment, payment in an amount equal to the present value representing an estimate of the salary that the Officer Executive would have earned if the Officer he or she had continued working for the Bank Association during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the Bank, where such present value is to Association (the "Salary Severance Payment"). The Salary Severance Payment shall be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded computed using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) a lump sum payment in an amount equal to the excess, if any, offormula: SSP = BS x NY where:
(A) the present value of the aggregate benefits to which the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his employment with the Bank shall terminate Holding Company terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officer’s the Executive's voluntary resignation from employment with the Bank Holding Company within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve the position stated in the same position in which the Officer was serving, on the day before the Assurance Period commenced section 3 of this Agreement (or a more senior officeoffice of the Holding Company);
(B) if the Executive is a member of the Board as of the date of this Agreement, the failure of the stockholders of the Holding Company to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank Holding Company of its material failure, whether by amendment of the Bank’s Organization Holding Company's Or ganization Certificate or By-laws, action of the Board or the Holding Company’s 's stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in the Officer on the day before the Assurance Period commenced (or the functionssection 3 of this Agreement, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Bank Holding Company fully cures such failure;; or
(D) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which the Executive gives written notice from the Officer of such material breach;
(E) a reduction in the compensation provided to the OfficerHolding Company of its material breach of any term, condition or a material covenant contained in this Agreement (including, without limitation any reduction of the Executive's rate of base salary in the benefits provided effect from time to the Officer under the Bank’s program of employee benefits, compared with the compensation time and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a any change in the Officer’s principal place terms and conditions of employment that would result any compensation or benefit program in which the Executive participates which, either individually or together with other changes, has a one-way commuting time in excess material adverse effect on the aggregate value of his total compensation package), unless, during such thirty (30) day period, the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to Holding Company fully cures such changefailure; or
(ii) subject to the discharge provisions of section 10, the termination of the Officer by Executive's employment with the Bank Holding Company for any other reason other than for “cause” as provided not described in section 9(a); then, subject to section 21, the Bank Holding Company shall provide the benefits and pay to the Officer Executive the amounts provided for under described in section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced9(b).
(b) Upon the termination of the Officer’s Executive's employment with the Bank Holding Company under circumstances described in section 8(a9(a) of this Agreement, the Bank Holding Company shall pay and provide to the Officer Executive (or, in the event of the Officer’s his death, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s his earned but unpaid compensation (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(b)) as of the date of the termination of the Officer’s his employment with the BankHolding Company, 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 thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs pro grams maintained for the benefit of the Bank’s Holding Company's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long long-term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage equivalent to the coverage to which the Officer he would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) ), if the Officer he had continued working for the Bank Holding Company during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the Holding Company and if, upon the expiration of such coverage, the Executive has received or is eligible to receive pension benefits under a pension plan of the Holding Company or the Bank, a further continuation of such health (including hospitalization, medical and major medical) coverage for the remaining lifetimes of the Executive and his spouse;
(iv) within thirty (30) days following his termination of employment with the Holding Company, a lump sum payment, in an amount equal to the present present value of the salary that the Officer Executive would have earned if the Officer he had continued working for the Bank Holding Company during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the BankHolding Company, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“"Code”) (“Applicable Short-Term Rate”"), compounded using the compounding periods period corresponding to the Bank’s Holding Company's regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) within thirty (30) days following his termination of employment with the Holding Company, a lump sum payment in an amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits to which the Officer he would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank Holding Company, if the Officer he were 100% vested thereunder and had continued working for the Bank Holding Company during the remaining unexpired Assurance Remaining Unexpired Employment Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Remaining Unexpired Employment Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I9(b)(i), (iv) and (vii);; over
(B) the present value of the benefits to which the Officer he is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed prescr ibed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, monthly equal to the applicable longannualized rate of interest prescribed by the Pension Benefit Guaranty Corporation for the valuation of immediate annuities payable under terminating single-term federal rate prescribed under section 1274(d) of the Code employer defined benefit plans for the month in which his the Executive's termination of employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified planoccurs ("Applicable PBGC Rate");
(vi) within thirty (30) days following his termination of employment with the Holding Company, a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the BankHolding Company, as if he were 100% vested thereunder and had continued working for the Bank Holding Company during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the BankHolding Company, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the a discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term PBGC Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;and
(vii) the payments that would have been made to the Officer Executive under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, Holding Company if he had continued working for the Bank Holding Company during the remaining unexpired Assurance Remaining Unexpired Employment Period and had earned the maximum a bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be Remaining Unexpired Employment Period in an amount equal to the product of:
(A) the maximum percentage rate at which an highest annual bonus or incentive award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been actually paid to the Officer during each such him in any calendar year at the highest annual rate of salary achieved ending during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. three-year period ending on the date of termination of employment. The Bank Holding Company and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b9(b) constitute a reasonable estimate damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s Executive's efforts, if any, to mitigate damages. The Bank Holding Company and the Officer Executive further agree that the Bank Holding Company may condition the payments and benefits (if any) due under sections 8(b)(iii9(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s Executive's resignation from any and all positions which he holds as an officer, director or committee member with respect to the BankHolding Company, the Company Bank or any subsidiary or affiliate of either of them.
Appears in 1 contract
Samples: Executive Employment Agreement (Big Foot Financial Corp)
Termination of Employment with Severance Benefits. (a) In Executive shall be entitled to the severance benefits described in section 9(b) herein in the event that the Officer’s his employment with the Bank shall terminate terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but following circumstances:
(i) Executive’s resignation for Good Reason from employment with the Bank within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account of:
(i) The Officer’s voluntary resignation from employment with the Bank within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect Executive to the Officer position stated in section 3 of this Agreement or the failure to serve in elect or re-elect him as a director of the same position in which the Officer was serving, on the day before the Assurance Period commenced or a more senior officeBank;
(B) the failure expiration of a thirty (30) day period following the date on which Executive gives written notice to the Bank of its material failure, whether by amendment of the stockholders of Bank’s organization certificate or By-Laws, or the Holding Company to elect Bank’s state charter or reBy-elect the Officer as a member of the BoardLaws, if he was a member action of the Board on or otherwise, to vest in Executive, or continue to allow the Executive to perform, without material change or diminution, the functions, duties, or responsibilities prescribed in section 3 of this Agreement, unless, during such thirty (30) day before the Assurance Period commenced;period, such failure is cured; or
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank of its material failurebreach of any term, whether by amendment condition or covenant contained in this Agreement (including, without limitation any reduction of the BankExecutive’s Organization Certificate rate of base salary in effect from time to time or By-laws, action of the Board or the Holding Company’s stockholders or otherwise, to vest any change in the Officer the functionsterms and conditions of any compensation or benefit program in which Executive participates which, dutieseither individually or together with other changes, or responsibilities vested in the Officer has a material adverse effect on the day before aggregate value of his total compensation package; provided, however, that this section 9(a)(i)C) shall not require any grants of phantom equity to be made to Executive and, provided further, that this section 9(a)(i)(C) shall not apply to across the Assurance Period commenced board changes or reductions in benefits applicable to all employees provided that such changes and/or reductions occur prior to a Change of Control (or the functions, duties and responsibilities of a more senior office to which the Officer may be appointedas defined in section 11(a) hereof), unless unless, during such thirty (30) day period, the Bank fully cures such failurefailure is cured;
(D) the failure relocation of the Bank Bank’s offices at which the Executive is principally employed to cure a material breach of this Agreement by the Bank, within thirty (30) days following written notice location more than 30 miles from the Officer of such material breachoffices;
(E) any purported termination of the Executive’s employment in a reduction in the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program manner inconsistent with section 10 of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commencedthis Agreement;
(F) a change in the Officer’s principal place of employment that would result in a one-way commuting time in excess failure of the greater Bank and/or the Bank to obtain an effective agreement from any successor to assume and agree to perform this Agreement, as required by section 14 of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such changethis Agreement; or
(ii) the discharge termination by the Bank of the Officer by Executive’s employment with the Bank for any other reason not described in section 9(a) other than a termination of the Executive’s employment for “cause” or disability as provided discussion in section 9(a)10 hereto; or
(iii) subject to the provisions of section 10, the termination of the Executive’s employment for any other reason; then, subject to section 21, the Bank shall provide the benefits and pay to the Officer Executive the amounts provided for under described in section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced9(b).
(b) Upon the termination of the OfficerExecutive’s employment with the Bank under circumstances described in section 8(a9(a) of this Agreement, the Bank shall pay and provide to the Officer Executive (or, in the event of the Officer’s his death, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s earned but unpaid compensation (includingportion, without limitationif any, all items which constitute wages under section 190.1 of the New York Labor Law and compensation earned by the payment of which is not otherwise provided for under this section 8(b)) as of Executive through the date of the termination of the Officer’s his employment with the BankBank which remains unpaid as of such date, 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 thirty (30) days after the Executive’s termination of employment;
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained by the Bank for the benefit of the Bank’s their officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long long-term disability insurance benefits, in addition coverage plans under the plans and programs maintained by the Bank for similarly situated employees until the earlier to that provided pursuant to section 8(b)(iioccur of:
(A) and after taking into account the date the Executive first becomes eligible for such benefit coverage provided plans under the plans or programs maintained by any a subsequent employer; or
(B) the expiration of the Remaining Unexpired Employment Period; provided, if and however, that, to the extent necessary that the promise or provision of any continued group health benefit pursuant to provide this Section 9(b)(iii) would cause a group health plan maintained for the Officerofficers or employees of the Bank to fail to comply with section 2716 of the Public Health Service Act, for the remaining unexpired Assurance PeriodExecutive shall be provided with distributions of cash in lieu of such benefit, coverage equivalent to at the coverage to same times and in the same forms as the premium payments which the Officer would have been entitled under made to provide such plans benefit, in amounts adequate for the Executive to purchase a comparable health benefit;
(as in effect on iv) an amount equal to the date of his termination of employment, or, salary that Executive would have earned if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer he had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank;
(iv) a lump sum payment, in an amount equal to the present value of the salary that the Officer would have earned if the Officer had continued working for the Bank during Remaining Unexpired Employment Period following the remaining unexpired Assurance Period date on which the Executive’s employment terminates at the highest annual rate of salary achieved during that portion of the OfficerEmployment Period which is prior to Executive’s period termination of actual employment with the Bank, where such present value is to be determined using a discount rate equal to Bank (the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“CodeSalary Severance Payment”) (“Applicable Short-Term Rate”), compounded using the compounding periods corresponding to payable in accordance with the Bank’s regular payroll periods for its officers, such lump sum Salary Severance Payment to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;; and
(v) a lump sum payment in an amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits to which annual bonuses that the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he Executive would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, earned if he had continued working for the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period and had earned following the maximum bonus or incentive award in each calendar year that ends during date on which the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year Executive’s employment terminates at the highest annual rate of salary achieved during the remaining unexpired Assurance Periodperiod of three (3) years ending immediately prior to the date of termination (the “Bonus Severance Payment”). The Bonus Severance Payment shall be computed using the following formula: where “BSP” is the amount of the Bonus Severance Payment (before the deduction of applicable federal, state and local withholding taxes); “SSP” is the amount of the Salary Severance Payment expressed as a lump sum with no present value applied (before the deduction of applicable federal, state and local withholding taxes); “ABP” is the aggregate of the annual bonuses paid or declared (whether or not paid) for the most recent period of three (3) calendar years to end on or before the Executive’s termination of employment; and “ASP” is the aggregate base salary actually paid to the Executive during such payments period of three (3) calendar years. The Bonus Severance Payment shall be in lieu of any claim to a continuation of participation in annual bonus plans of the Bank which the Executive might otherwise have and shall be made without discounting for early payment .. payable at the times that such bonuses would have been paid to the Executive had he remained employed by the Bank. The Bank and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b9(b) constitute a reasonable estimate damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the OfficerExecutive’s efforts, if any, to mitigate damages. The Bank and the Officer Executive further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii9(b)(iii), (iv9(b)(iv), (v), (vi) and (vii9(b)(v) on the receipt of the Officer(i) Executive’s resignation from any and all positions which he holds as an officer, trustee, director or committee member with respect to the Bank, the Company Bank or any subsidiary or affiliate of either of themthem and (ii) a release of claims (other than claims for indemnification and vested and accrued benefits) in favor of the Bank in a form specified by the Bank; provided, however, that the Executive shall execute and deliver to the Bank no later than 53 days following the date of termination any resignation or release that is a condition of the payments and benefits (if any) due under sections 9(b)(iii), 9(b)(iv), and 9(b)(v) and not revoke said release. Any release required under this section 9 shall be in a form reasonably prescribed by the Bank. If any resignation or release is a condition of the payments and benefits (if any) due under sections 9(b)(iii), 9(b)(iv), and 9(b)(v), severance payments and benefits will commence following the expiration of the 60 day period following termination of employment, provided that the Executive has resigned and/or executed and delivered and not revoked the release no later than 53 days following the date of termination and said release, if applicable, is effective upon the 60th day following termination of employment.
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his or her employment with the Bank shall terminate Association terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officerthe Executive’s voluntary resignation from employment with the Bank Association within ninety six (906) days months following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve in the same position in office or title to which the Officer was serving, on the day before the Assurance Period commenced he or she had been elected or appointed (or a more senior officeoffice or title);
(B) if the Executive is or becomes a member of the Board, the failure of the stockholders of the Holding Company Association to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank Association of its material failure, whether by amendment of the BankAssociation’s Organization Certificate of Incorporation or By-laws, action of the Board or the Holding CompanyAssociation’s stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in Section 3 of this Agreement as of the Officer on the day before the Assurance Period commenced (or the functionsdate hereof, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Bank fully Association cures such failurefailure in a manner determined by the Executive, in his or her discretion, to be satisfactory;
(D) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which the Executive gives written notice to the Association of its material breach of any term, condition or covenant contained in this Agreement (including, without limitation, any reduction of the Executive’s rate of base salary in effect from time to time and any change in the Officer terms and conditions of any compensation or benefit program in which the Executive participates which, either individually or together with other changes, has a material adverse effect on the aggregate value of his or her total compensation package, other than an across-the-board change that is generally applicable to all similarly situated employees), unless, during such material breach;thirty (30) day period, the Association cures such failure in a manner determined by the Executive, in his or her discretion, to be satisfactory; or
(E) a reduction in the compensation provided to relocation of the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the OfficerExecutive’s principal place of employment employment, without his or her written consent, to a location that would result in a increases his or her one-way commuting time in excess of the greater of distance by more than fifty (I50) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; ormiles;
(ii) the discharge termination of the Officer by Executive’s employment with the Bank Association for any other reason other than for “cause” as provided not described in section 9(aSection 10(a); then, subject to section 21. In such event, the Bank Association shall provide the benefits and pay to the Officer Executive the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained described in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commencedSection 9(b).
(b) Upon the termination of the OfficerExecutive’s employment with the Bank Association under circumstances described in section 8(aSection 9(a) of this Agreement, the Bank Association shall pay and provide to the Officer Executive (or, in the event of the OfficerExecutive’s death, to death following the OfficerExecutive’s estate) on his termination of employment, subject to section 24 :his or her estate):
(i) the Officer’s following payments and benefits (together, the “Standard Termination Entitlements”):
(A) his or her earned but unpaid compensation (including, without limitation, all items which constitute wages under section Section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(bSection 9(b)) as of the date of the termination of the Officer’s his or her employment with the BankAssociation, such payment to be made at the time and in the manner prescribed by law applicable to the payment of wages but in no any event not later than thirty (30) days after termination of employment;; and
(iiB) the benefits, if any, to which the Officer he or she is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the BankAssociation’s officers and employees, including the annual bonus (if any) to which he or she is entitled under any cash-based annual bonus or performance compensation plan in effect for the year in which his or her termination occurs, to be paid at the same time and on the terms and conditions (including but not limited to achievement of performance goals) applicable under the relevant plan; and
(ii) the following additional payments and benefits (the “Additional Termination Entitlements”):
(1) if Executive’s employment terminates before or in the absence of a Change of Control, payment of (or reimbursement to the Executive for) the same portion of premium due for group health plan continuation coverage required to be provided under applicable federal, state or local law that the Association pays for similarly situated active employees for the lesser of the Remaining Unexpired Employment Period or the period for which such continuation coverage is required by law;
(iii2) if Executive’s employment terminates upon or after a Change of Control, continued group life, health (including hospitalization, medical and major medical), dental, accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) Section 9(b)(i)(B), and after taking into account the coverage provided by any subsequent employer, if and to the extent necessary to provide for the OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage (including any co-payments and deductibles) equivalent to, and subject to substantially the same the premium sharing arrangements as, the coverage to which the Officer he or she would have been entitled under such plans (as in effect on the date of his or her termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) ), if the Officer he or she had continued working for the Bank Association during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank;
(iv) a lump sum payment, in an amount equal to the present value of the salary that the Officer would have earned if the Officer had continued working for the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary or compensation, as applicable, achieved during that portion of the OfficerEmployment Period which is prior to the Executive’s period termination of actual employment with the Bank, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such terminationAssociation;
(vB) continued payment of the Executive’s base salary, at the annual rate in effective immediately prior to termination of employment, for the Remaining Unexpired Employment Period, in ratable installments during such period, no less frequently than monthly;
(C) a lump sum payment in an amount equal to double the excessannual cash incentive payment, if anycomputed at the target level of performance (which is based on 100% of goal achievement), of:which the Executive is eligible to receive for the year in which termination occurs ;
(AD) at the present value election of the aggregate benefits Association made within thirty (30) days following the Executive’s termination of employment with the Association, upon the surrender of all options or appreciation rights issued to which the Officer would be entitled Executive under any stock option and all qualified and non-qualified defined benefit pension plans appreciation rights plan or program maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance PeriodAssociation, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to (the present value of the additional employer contributions “Option Surrender Payment”) calculated as follows: OSP = (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employmentFMV - EP) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product ofx N where:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his employment with the Company and the Bank shall terminate terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The OfficerExecutive’s voluntary resignation from employment with the Company and the Bank within ninety (90) days following:
(A) the The failure of the Bank’s Board of Directors of either the Company or the Bank to appoint or re-appoint or elect or re-elect the Officer Executive to serve in the same position in which office of Chairman of the Officer was serving, on Company and Chairman of the day before the Assurance Period commenced Bank (or a more senior office, if any);
(B) the The failure of the stockholders of the Holding Company or Bank to elect or re-elect the Officer as a member Executive to the Board of Directors of the BoardCompany or the Bank, if he was a member respectively, or the failure of the Board on of Directors of the day before Company or the Assurance Period commencedBank (or the nominating committees thereof) to nominate the Executive for such election or re-election;
(C) the The expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Company or the Bank (i) of its or their material failure, whether by amendment of the Company’s or the Bank’s Organization Certificate Articles of Incorporation or By-lawsBylaws, action of the Board Company’s or the Holding Bank’s Board of Directors or the Company’s or the Bank’s stockholders or otherwise, to vest in the Officer the functions, duties, or responsibilities vested in the Officer on the day before the Assurance Period commenced (or Executive the functions, duties and or responsibilities prescribed in Section 3 of a more senior office this Agreement as of the date hereof, or (ii) that the Company or the Bank has or have prohibited, prevented or otherwise made it reasonably impracticable for the Executive to which the Officer may be appointed)perform his functions, unless duties or responsibilities as prescribed in Section 3 of this Agreement, unless, in either event, during such thirty (30) day period, the Company or the Bank fully cures such failurefailure in a manner determined by the Executive, in his discretion, to be satisfactory;
(D) the failure The expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which the Executive gives written notice to the Company or the Bank of its material breach of any term, condition or covenant contained in this Agreement (including, without limitation, any reduction of the Executive’s rate of base salary in effect from time to time and any adverse change in the Officer terms and conditions to the Executive of any Employee Pension Benefit Plan or Employee Welfare Benefit Plan or as to any other compensation or benefit program in which the Executive participates which, either individually or together with other changes, has or could have a material adverse effect on the aggregate value of his total compensation package), unless, during such material breach;thirty (30) day period, the Company or the Bank cures such failure in a manner determined by the Executive, in his discretion, to be satisfactory; or
(E) a reduction in The relocation of the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the OfficerExecutive’s principal place of employment that would result employment, without his written consent (which may be withheld in a one-way commuting time in excess the sole discretion of the greater Executive), to a location outside of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; orPalm Beach County, Florida.
(ii) the discharge The termination of the Officer Executive’s employment with the Company or the Bank by the Company or the Bank for any other reason other than for “cause” as provided not described in section 9(aSection 10(a); then. In such event, subject to section 21, the Company or the Bank shall provide the benefits and pay to the Officer Executive the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained described in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commencedSection 9(b).
(b) Upon the termination of the OfficerExecutive’s employment with the Company and/or the Bank prior to a Change of Control under circumstances described any of the events set forth in section 8(aSections 9(a)(i) or (ii) during the Employment Period; or upon a Change of this AgreementControl (as hereinafter defined), the Company and/or the Bank (jointly and/or severally) shall pay and provide to the Officer Executive (or, in the event of the Officer’s death, upon death then to the OfficerExecutive’s estate) on his termination of employment, subject to section 24 the following Severance Benefits:
(i) the OfficerThe Executive’s earned but unpaid compensation Cash Compensation (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(b)as determined pursuant to Section 4) in effect as of the date of the termination of the Officer’s employment with the Bankapplicable Triggering Event Date (as defined below), 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 thirty (30) days after termination the applicable Triggering Event Date (provided that if the Executive has made an irrevocable election under any deferred compensation arrangement subject to Section 409A of employment;the Code to defer any portion of such Cash Compensation, the terms of the applicable arrangement shall apply to distribution of such portion); and
(ii) If the benefitsTriggering Event Date is a termination of employment, if anythe Executive’s vested, accrued benefits in all Employee Benefit Plans to which the Officer is Executive was entitled pursuant to this Agreement as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s officers and employees;date of termination, payable in accordance with the terms of the applicable Employee Benefit Plan; and
(iii) continued group life, health Within thirty (including hospitalization, medical and major medical30) days following the effective date of any of the triggering events referred to in the first sentence in this Section 9(b) (the “Triggering Event Date”), accident and long term disability insurance benefits, in addition payment of a lump sum amount equal to two times the Cash Compensation that provided pursuant to section 8(b)(ii) and after taking into account the coverage provided by any subsequent employer, if and to the extent necessary to provide for the Officer, for the remaining unexpired Assurance Period, coverage equivalent to the coverage to which the Officer Executive would have been entitled under such plans (as in effect on the date of his termination of employment, or, earned if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer he had continued working for the Company and the Bank during for a period of 1,095 days after the remaining unexpired Assurance Period Triggering Event Date and at the highest annual or annualized, rate of compensation Cash Compensation achieved during that portion of the Officer’s period of actual employment with Employment Period prior to the Bank;Triggering Event Date. Such lump sum shall not be reduced to a present value and shall be paid in addition to any other Compensation payments otherwise provided hereunder; and
(iv) Within thirty (30) days following the Triggering Event Date, payment of a lump sum payment, in an amount equal to the present value of the salary that the Officer would have earned if the Officer had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of salary achieved during the Officer’s period of actual employment with the Bank, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) a lump sum payment in an amount equal to the excess, if any, of:
(A) the The present value of both the aggregate current and future accrued benefits in each Employee Pension Benefit Plan that is a defined benefit plan to which the Officer Executive would have been entitled (which shall be entitled under any computed at the highest annual or annualized rate of Cash Compensation in effect during the Employment Period and all qualified and non-qualified defined at the same rate of Employee Pension Benefit Plan funding and/or benefit pension plans maintained byaccrual, determined separately for each such Employee Pension Benefit Plan or covering employees ofas historically had been contributed, whichever is greater, for an Employment Period concluding on the Bank third anniversary of the Triggering Event Date as if the Officer were 100% vested thereunder and Executive had continued working for the Company and the Bank during for the remaining unexpired Assurance Period, Employment Period consisting of such three additional plan years. Such benefits to shall be determined separately for each such Employee Pension Benefit Plan in effect as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);date; over
(B) The present value of the accrued benefits to which the Executive is actually entitled under each such Employee Pension Benefit Plan that is a defined benefit plan as of the Triggering Event Date using comparable actuarial assumptions (where applicable) as then being utilized by such respective plan. In computing the present value of such lump sum payment, the benefits to which annualized rate of interest prescribed by the Officer is actually entitled Pension Benefit Guaranty Corporation for the computation of the value of lump sum payments otherwise payable under such terminating single employer defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his the Executive’s termination of employment terminates; provided, however, that if payments are made under this section 8(b)(voccurs (“Applicable PBGC Rate”) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;utilized; and
(viv) Within thirty (30) days following the Triggering Event Date, a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Company or the Bank, as if he were 100% vested thereunder and had continued working for the Company and the Bank during for a period of three years after the remaining unexpired Assurance Period Triggering Event Date at the highest annual rate of compensation achieved during that portion of the Officer’s period of actual employment with Employment Period which is prior to the BankTriggering Event Date, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the a discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant planEmployee Pension Benefit Plan; and
(vi) Subject to Section 26 of this Agreement, equal for fifteen years following the date of termination of employment (the “Benefits Period”), the Bank and/or Company shall provide the Executive and his spouse and eligible dependents with medical and dental insurance coverage (the “Health Care Benefits”) and life insurance benefits no less favorable than those which the Executive and his spouse and eligible dependents were receiving immediately prior to the Applicable Short-Term Ratedate of termination of employment; provided, however, that the Health Care Benefits shall be provided during the Benefits Period in such a manner that such benefits are excluded from the Executive’s income for federal income tax purposes; provided, further, however, that if payments are made the Executive becomes re-employed with another employer and is eligible to receive health care benefits under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts another employer-provided plan, the health care benefits provided hereunder shall be secondary to those provided under such defined contribution plans other plan during such applicable period of eligibility. The receipt of the Health Care Benefits shall be conditioned upon the Executive continuing to be vestedpay the monthly premium as in effect at the Company from time to time for coverage provided to former employees under Section 4980B of the Code in respect of the level of coverage in effect for the Executive and his spouse and dependents (i.e., single, single plus one, or family) (the “Applicable COBRA Premium”). During the portion of the Benefits Period in which the Executive and his eligible dependents continue to receive coverage under the Company’s Health Care Benefits plans, the paymentsCompany shall pay to the Executive a monthly amount equal to the Applicable COBRA Premium in respect of the maximum level of coverage that the Executive could otherwise elect to receive for the Executive and the Executive’s spouse and eligible dependents if the Executive were still an employee of the Company during the Benefits Period regardless of what level of coverage is actually elected, if any, attributable to such deemed vesting which payment shall be paid in advance on the same formfirst payroll day of each month, commencing with the month immediately following the Executive’s date of termination of employment. Notwithstanding the foregoing provisions of this Section 9(b), (x) in the event that the Executive is a Specified Employee (as defined in the SERP) as of the date of termination of employment, amounts payable under Sections 9(b)(iii-v) due to a qualifying termination of employment that constitute a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code that would otherwise be payable during the six-month period immediately following the date of termination of employment shall instead be paid, with interest on any delayed payment at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code determined as of the date of termination of employment, on the first business day after the date that is six months following the Executive’s date of termination of employment (the “Delayed Payment Date”), and paid at the same time, and (y) in the same manner, as benefits event that amounts are payable under Sections 9(b)(iii)-(v) due to a Change of Control but such Change of Control does not constitute a change in the corresponding non-qualified plan;
(vii) ownership or effective control of the payments that would have been made to the Officer under any cash bonus Company or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for or in the ownership of a substantial portion of the assets of the Company or the Bank during (as defined in Section 409A of the remaining unexpired Assurance Period Code and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Periodregulations thereunder), such payments to amounts shall instead be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year paid, with interest at the highest annual applicable federal rate provided for in Section 7872(f)(2)(A) of salary achieved during the remaining unexpired Assurance PeriodCode determined as of the date of the Change of Control, on the first to occur of the Executive’s termination of employment (or, if the Executive is a Specified Employee on such payments to be made without discounting for early payment .. date, the Delayed Payment Date) or a change in the ownership or effective control of the Company or the Bank, or in the ownership of a substantial portion of the assets of the Company or the Bank (each as defined in Section 409A of the Code and regulations thereunder). The Company, the Bank and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(bSection 9(b) constitute a reasonable estimate liquidated damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the OfficerExecutive’s efforts, if any, to mitigate damages. The Company, the Bank and the Officer Executive further agree that the Company and the Bank may condition the payments and benefits (if any) due under sections 8(b)(iiiSections 9(b)(iii), (iv), (v), (vi) and (viivi) on the receipt of the OfficerExecutive’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the BankCompany, the Company Bank or any subsidiary or affiliate of either either.
(c) Upon the termination of themthe Executive’s employment with the Company and/or the Bank under any of the events set forth in Sections 9(a)(i), 9(a)(ii), 10(a)(iii) or 10(a)(iv) during the Employment Period, or upon a Change of Control (as hereinafter defined) (including under terminations referred to in Section 11(c) hereof), any options to purchase the Company’s stock granted to the Executive by the Company shall immediately vest, and may be exercised in accordance with the terms of such option grants at any time on or prior to their original expiration date.
(d) The parties shall take all steps necessary (including with regard to any post-termination services by the Executive) to ensure that the date of any termination of employment hereunder constitutes a “Separation from Service” (as defined in the SERP).
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described in section 9(b) herein in the event that the Officer’s his employment with the Bank shall terminate terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officerthe Executive’s voluntary resignation for Good Reason from employment with the Bank within ninety six (906) months following any of the following events, provided that Executive has given the Bank written notice of the event alleged to be Good Reason within 90 days after its occurrence and that the Bank has not fully and reasonably cured the occurrence within thirty (30) days followingafter receiving such written notice of it from the Executive:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve the position stated in the same position in which the Officer was serving, on the day before the Assurance Period commenced section 3 of this Agreement or a more senior office;
(B) the failure of the stockholders of the Holding Company to elect or re-elect the Officer him as a member trustee of the Board, if he was a member of the Board on the day before the Assurance Period commencedBank;
(CB) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank of its material failure, whether by amendment of the Bank’s Organization Certificate organization certificate or By-lawsLaws, or the Bank’s state charter or By-Laws, action of the Board or the Holding Company’s stockholders or otherwise, to vest in the Officer Executive, or continue to allow the Executive to perform, without material change or diminution, the functions, duties, or responsibilities vested prescribed in section 3 of this Agreement; or
(C) the Bank’s material breach of any term, condition or covenant contained in this Agreement (including, without limitation any reduction of the Executive’s rate of base salary in effect from time to time or any change in the Officer terms and conditions of any compensation or benefit program in which the Executive participates which, either individually or together with other changes, has a material adverse effect on the day before the Assurance Period commenced (or the functions, duties and responsibilities aggregate value of a more senior office to which the Officer may be appointedhis total compensation package), unless during such thirty (30) day period, the Bank fully cures such failure;
(D) the failure relocation of the Bank Bank’s offices at which the Executive is principally employed to cure a material breach of this Agreement by the Bank, within thirty location more than forty (3040) days following written notice miles from the Officer of such material breachoffices;
(E) a reduction in any purported termination of the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the BankExecutive’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s principal place of employment that would result in a one-way commuting time in excess manner inconsistent with section 10 of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; orthis Agreement;
(ii) the discharge termination by the Bank of the Officer by Executive’s employment with the Bank for any other reason not described in section 9(a) other than a termination of the Executive’s employment for “cause” or disability as provided discussion in section 9(a)10 hereto; or
(iii) subject to the provisions of section 10, the termination of the Executive’s employment for any other reason; then, subject to section 21, the Bank shall provide the benefits and pay to the Officer Executive the amounts provided for under described in section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced9(b).
(b) Upon the termination of the OfficerExecutive’s employment with the Bank under circumstances described in section 8(a9(a) of this Agreement, the Bank shall shall, subject to Employee’s execution of a general release of claims in a form reasonably satisfactory to the Bank, pay and provide to the Officer Executive (or, in the event of the Officer’s his death, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s earned but unpaid compensation (includingportion, without limitationif any, all items which constitute wages under section 190.1 of the New York Labor Law and compensation earned by the payment of which is not otherwise provided for under this section 8(b)) as of Executive through the date of the termination of the Officer’s his employment with the BankBank which remains unpaid as of such date, 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 thirty (30) days after the Executive’s termination of employmentemployment as determined consistently with Treasury Regulation Section 1.409A-1(h)(1)(ii);
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained by the Bank for the benefit of the Bank’s their officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long long-term disability insurance benefits, in addition coverage plans under the plans and programs maintained by the Bank for similarly situated employees until the earlier to that provided pursuant to section 8(b)(iioccur of:
(A) and after taking into account the date the Executive first becomes eligible for such benefit coverage provided plans under the plans or programs maintained by any a subsequent employer, if and ; or
(B) the date the Remaining Unexpired Employment Period terminates;
(iv) an amount (the “Salary Severance Payment”)equal to the extent necessary to provide for greater of (1) the Officer, for Executive’s annual salary at the remaining unexpired Assurance Period, coverage equivalent to the coverage to which the Officer would have been entitled under such plans (as rate in effect on the date of immediately prior to his termination of employment, or, or (2) the salary that the Executive would have earned if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer he had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank;
(iv) a lump sum payment, in an amount equal to the present value of the salary that the Officer would have earned if the Officer had continued working for the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during that portion of the OfficerEmployment Period which is prior to the Executive’s period termination of actual employment with the Bank, where such Bank payable in a lump sum payment with no present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded using the compounding periods corresponding to the Bank’s regular payroll periods for its officersapplied, such lump sum Salary Severance Payment to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;; and
(v) a lump sum payment in an amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits to which annual bonuses that the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he Executive would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, earned if he had continued working for the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Periodperiod of three (3) years ending immediately prior to the date of termination (the “Bonus Severance Payment”). The Bonus Severance Payment shall be computed using the following formula: where “BSP” is the amount of the Bonus Severance Payment (before the deduction of applicable federal, state and local withholding taxes); “SSP” is the amount of the Salary Severance Payment (before the deduction of applicable federal, state and local withholding taxes); “ABP” is the aggregate of the annual bonuses paid or declared (whether or not paid) for the most recent period of three (3) calendar years to end on or before the Executive’s termination of employment; and “ASP” is the aggregate base salary actually paid to the Executive during such period of three (3) calendar years. The Bonus Severance Payment shall be in lieu of any claim to a continuation of participation in annual bonus plans of the Bank which the Executive might otherwise have and shall be payable in a lump sum with no present value applied. The payments to described in sections 9(b)(iv) and 9(b)(v) shall be made without discounting for early payment .. within 2 1/2 months following the end of the taxable year of the Executive or the Bank, whichever is longer, in which the termination event occurs. The Bank and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b9(b) constitute a reasonable estimate damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the OfficerExecutive’s efforts, if any, to mitigate damages. The Bank and the Officer Executive further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii9(b)(iii), (iv9(b)(iv), (v), (vi) and (vii9(b)(v) on the receipt of (i) the OfficerExecutive’s resignation from any and all positions which he holds as an officer, trustee, director or committee member with respect to the Bank, the Company Bank or any subsidiary or affiliate of either of themthem and (ii) a release of claims (other than claims for indemnification and vested and accrued benefits) in favor of the Bank in a form specified by the Bank.
(c) The Executive and the Bank acknowledge that each of the payments and benefits promised to the Executive under this Agreement must either comply with the requirements of Section 409A and the regulations thereunder or qualify for an exception from compliance. To that end, the Executive and the Bank agree that the termination benefits described in sections 9(b)(i), 9(b)(iv) and 9(b)(v) are intended to be exempt from Section 409A pursuant to Treasury Regulation Section 1.409A-1(b)(4) as short-term deferrals and the termination benefits described in this section 9(b)(iii) are intended to be exempt from Section 409A pursuant to Treasury Regulation Section 1.409A-1(b)(1) as non-taxable benefits.
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In Xx. Xxxxxx shall be entitled to the severance benefits described herein in the event that the Officer’s his employment with the Company or the Bank shall terminate terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officer’s Xx. Xxxxxx'x voluntary resignation from employment with the Company and the Bank within ninety (90) days following:
(A) the failure of the Bank’s Board Boards to appoint or re-appoint or elect or re-elect Xx. Xxxxxx to the office of Senior Executive Vice President, Chief Credit Officer to serve in the same position in which the Officer was serving, on the day before the Assurance Period commenced and Assistant Secretary (or a more senior office) of the Company and the Bank;
(B) the failure of the stockholders of the Holding Company or the Bank to elect or re-elect the Officer Xx. Xxxxxx as a member director of the Board, if he was a member Boards or the failure of the Board on Boards (or the day before the Assurance Period commencednominating committee thereof) to nominate Xx. Xxxxxx for such election or re-election;
(C) the expiration of a thirty (30) day period following the date on which the Officer Xx. Xxxxxx gives written notice to the Company and/or the Bank of its material failure, whether by amendment of the Company's or the Bank’s 's Organization Certificate or By-laws, action of the Board Boards or the Holding Company’s 's or the Bank's stockholders or otherwise, to vest in the Officer Xx. Xxxxxx the functions, duties, or responsibilities vested prescribed in the Officer on the day before the Assurance Period commenced (or the functionsSection 3 of this Agreement, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Company and/or the Bank fully cures such failure;failure in a manner determined by Xx. Xxxxxx and the Boards to be satisfactory; or
(D) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which Xx. Xxxxxx gives written notice from the Officer of such material breach;
(E) a reduction in the compensation provided to the OfficerCompany and/or the Bank of its material breach of any term, condition or a material covenant contained in this Agreement (including, without limitation any reduction of Xx. Xxxxxx'x rate of base salary in the benefits provided effect from time to the Officer under the Bank’s program of employee benefits, compared with the compensation time and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a any change in the Officer’s principal place terms and conditions of employment that would result any compensation or benefit program in which Xx. Xxxxxx participates which, either individually or together with other changes, has a material adverse effect on the aggregate value of his total compensation package), unless, during such thirty (30) day period, the Company and/or the Bank cures such failure in a one-way commuting time in excess of manner determined by Xx. Xxxxxx and the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior Boards to such changebe satisfactory; or
(ii) Xx. Xxxxxx'x death; or
(iii) subject to the discharge provisions of Section 12, the Officer by termination of Xx. Xxxxxx'x employment with the Company or the Bank for any other reason other than for “cause” as provided not described in section 9(aSection 11(a); then, subject to section 21, the Bank shall provide the benefits and pay to the Officer the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced.
(b) Upon the termination of the Officer’s Xx. Xxxxxx'x employment with the Company and/or the Bank under circumstances described in section 8(aSection 11(a) of this Agreement, the Company or the Bank shall pay and provide to the Officer Xx. Xxxxxx (or, in the event of the Officer’s his death, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s his earned but unpaid compensation (including, without limitation, all items which constitute wages under section Section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(bSection 11(b)) as of the date of the termination of the Officer’s his employment with the Company and the Bank, 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 thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Company's and the Bank’s 's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medicalmedical and the insurance provided under Section 5), dental, accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) Section 11(b)(ii), and after taking into account the coverage provided by any subsequent employer, if and to the extent necessary to provide for the OfficerXx. Xxxxxx, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage equivalent to the coverage to which the Officer he would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) ), if the Officer he had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation achieved during that portion of the Officer’s period Employment Period which is prior to Xx. Xxxxxx'x termination of actual employment with the Company or the Bank;
(iv) within thirty (30) days following his termination of employment with the Company and/or the Bank, a lump sum payment, in an amount equal to the present present value of the salary that the Officer Xx. Xxxxxx would have earned if the Officer he had continued working for the Company and the Bank during the remaining unexpired Assurance Period for one year at the highest annual rate of salary achieved during that portion of the Officer’s period Employment Period which is prior to Xx. Xxxxxx'x termination of actual employment with the Company and the Bank, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section Section 1274(d) of the Internal Revenue Code of 1986 (“"Code”) (“Applicable Short-Term Rate”"), compounded using the compounding periods period corresponding to the Company's and the Bank’s 's regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination. At the option of Xx. Xxxxxx, such payments may be made in equal monthly installments over a period of not less than three years, nor more than five years, in which case such payments will not be discounted;
(v) a lump sum payment in an amount equal to the excess, if any, of:
within thirty (A30) the present value of the aggregate benefits to which the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of days following his termination of employment by adding to with the service actually recognized under such plans an additional period equal to Company and/or the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I)Bank, (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Company and the Bank, if he were 100% vested thereunder and had continued working for the Bank Company and the Bank, during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation achieved during that portion of the Officer’s period Employment Period which is prior to Xx. Xxxxxx'x termination of actual employment with the Company or the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the a discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term applicable PBGC Rate; provided. At the option of Xx. Xxxxxx, howeversuch payments may be made in equal monthly installments over a period of not less than three, that if nor more than five years, in which case such payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to will not be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plandiscounted;
(viivi) the payments payment that would have been made to the Officer Xx. Xxxxxx under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Company or the Bank, if he had continued working for the Company or the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Remaining Unexpired Employment Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer Xx. Xxxxxx under such incentive compensation plan, multiplied by
(B) net income of the Company for the most recent fiscal year which is prior to Xx. Xxxxxx'x termination of employment with the Company; such payments to be made in a lump sum payment in an amount equal to the present value of such payments as if made in accordance with Company's and/or Bank's Executive Bonus Plan, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under Section 1274(d) of the Code, within thirty (30) days following Xx. Xxxxxx'x termination of employment. At the option of Xx. Xxxxxx, such payments may be made in equal monthly installments over a period of not less than three, nor more than five years, in which case such payments will not be discounted;
(vii) at the election of the Company and the Bank made within thirty (30) days following his termination of employment with the Company and the Bank, upon the surrender of stock options or stock appreciation rights issued to Xx. Xxxxxx under any stock option and appreciation rights plan or program maintained by, or covering employees of, the Company and the Bank, a lump sum payment in an amount equal to the product of:
(A) the excess of (i) the fair market value of a share of stock of the same class as the stock subject to the option or appreciation right, determined as of the date of termination of employment, over (ii) the exercise price per share for such option or appreciation right, as specified in or under the relevant plan or program; multiplied by
(B) the salary that would number of shares with respect to which options or appreciation rights are being surrendered. For purposes of this Section 11(b)(vii) and for purposes of determining Xx. Xxxxxx'x right following his termination of employment with the Company or the Bank to exercise any options or appreciation rights not surrendered pursuant hereto, Xx. Xxxxxx shall be deemed fully vested in all options and appreciation rights under any stock option or appreciation rights plan or program maintained by, or covering employees of, the Company or Bank, even if he is not vested under such plan or program, and shall have been paid a period of three months from the date of termination of employment to exercise such stock options or appreciation rights.
(viii) at the election of the Company or the Bank made within thirty (30) days following Xx. Xxxxxx'x termination of employment with the Company and the Bank, upon the surrender of any shares awarded to Xx. Xxxxxx under any restricted stock plan maintained by, or covering employees of, the Company and the Bank, a lump sum payment in an amount equal to the Officer during each product of:
(A) the fair market value of a share of stock of the same class of stock granted under such calendar year at plan, determined as of the highest annual rate date of salary achieved during Xx. Xxxxxx termination of employment; multiplied by
(B) the remaining unexpired Assurance Periodnumber of shares which are being surrendered. For purposes of this Section 11(b)(viii) and for purposes of determining Xx. Xxxxxx'x right following his termination of employment with the Company and the Bank to any stock not surrendered pursuant hereto, Xx. Xxxxxx shall be deemed fully vested in all shares awarded under any restricted stock plan maintained by, or covering employees of, the Company and the Bank, even if he is not vested under such payments plan;
(ix) the title to the car then currently provided to Xx. Xxxxxx shall be made without discounting for early payment .. transferred to Xx. Xxxxxx. The Company and the Bank and the Officer Xx. Xxxxxx hereby stipulate that the damages which may be incurred by the Officer Xx. Xxxxxx following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(bSection 11(b) constitute a reasonable estimate damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s Xx. Xxxxxx'x efforts, if any, to mitigate damages. The Company and the Bank and the Officer Xx. Xxxxxx further agree that the Company and the Bank may condition the payments and benefits (if any) due under sections 8(b)(iiiSections 11(b)(iii), (iv), (v), (vi) ), and (vii) on the receipt of the Officer’s Xx. Xxxxxx'x resignation from any and all positions which he holds as an officer, director or committee member with respect to the BankCompany, the Company Bank or any subsidiary or affiliate of either of them.
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In Executive shall be entitled to the severance benefits described in section 9(b) herein in the event that the Officer’s his employment with the Bank shall terminate terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officer’s Executive's voluntary resignation from employment with the Bank within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect Executive to the Officer to serve position stated in the same position in which the Officer was serving, on the day before the Assurance Period commenced section 3 of this Agreement (or a more senior officeoffice of the Bank);
(B) in the event that the Executive is a member of the Board, the failure of the stockholders of the Holding Company Bank to elect or re-elect Executive to the Officer as a member of Board or the Board, if he was a member failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank of its material failure, whether by amendment of the Bank’s Organization Certificate 's Charter or By-lawsLaws, action of the Board or the Holding Company’s Bank's stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in the Officer on the day before the Assurance Period commenced (or the functionssection 3 of this Agreement, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Bank fully cures such failure;failure is cured in a manner determined by Executive, in his discretion, to be satisfactory; or
(D) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which Executive gives written notice from the Officer of such material breach;
(E) a reduction in the compensation provided to the OfficerBank of its material breach of any term, condition or a material covenant contained in this Agreement (including, without limitation any reduction of Executive's rate of base salary in the benefits provided effect from time to the Officer under the Bank’s program of employee benefits, compared with the compensation time and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a any change in the Officer’s principal place terms and conditions of employment that would result any compensation or benefit program in which Executive participates which, either individually or together with other changes, has a material adverse effect on the aggregate value of his total compensation package), unless, during such thirty (30) day period, such failure is cured in a one-way commuting time manner determined by Executive, in excess of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior his discretion, to such changebe satisfactory; or
(ii) subject to the discharge provisions of section 10, the Officer by termination of Executive's employment with the Bank for any other reason other than for “cause” as provided not described in section 9(a); ) other than a termination of the Executive's employment for "cause;" then, subject to section 21, the Bank shall provide the benefits and pay to the Officer Executive the amounts provided for under described in section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced9(b).
(b) Upon the termination of the Officer’s Executive's employment with the Bank under circumstances described in section 8(a9(a) of this Agreement, the Bank shall pay and provide to the Officer Executive (or, in the event of the Officer’s his death, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s earned but unpaid portion, if any, of the compensation (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law applicable law and the payment of which is not otherwise provided for under this section 8(b9(b)) as of earned by the Executive through the date of the termination of the Officer’s his employment with the BankBank which remains unpaid as of such date, 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 thirty (30) days after the Executive's termination of employment;
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s 's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long long-term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage equivalent to the coverage to which the Officer he would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) ), if the Officer he had continued working for the Bank Company during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation achieved during that portion of the Officer’s period Employment Period which is prior to Executive's termination of actual employment with the Bank;; and
(iv) within thirty (30) days following his termination of employment with the Bank, a lump sum payment, in an amount equal to the present present value of the salary that the Officer Executive would have earned if the Officer he had continued working for the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during that portion of the Officer’s period Employment Period which is prior to Executive's termination of actual employment with the Bank, where such present value is to be determined using a discount dis count rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“"Code”) (“Applicable Short-Term Rate”"), compounded using the compounding periods period corresponding to the Bank’s 's regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect re spect of the period following any such termination;
(v) a lump sum payment in an amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits to which the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. . The Bank and the Officer Executive each hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b9(b) constitute a reasonable estimate damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s Executive's efforts, if any, to mitigate damages. The Bank and the Officer Executive further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi9(b)(iii) and (viiiv) on the receipt of the Officer’s Executive's resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company RFS Bancorp, Revere Bancorp, M.H.C., or any subsidiary or affiliate of either any of them.
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive's shall be entitled to the severance benefits described in section 9(b) in the event that the Officer’s employment with the Bank shall terminate during the Assurance Period, or prior to the commencement of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account ofthat:
(i) The Officer’s voluntary resignation from her employment with the Company or the Bank terminates during the Employment Period as a result of the Executive's voluntary resignation within ninety (90) 90 days following:
(A) the failure of the Bank’s Board or the Board of Directors of the Bank ("Bank Board") as the case may be, to appoint or re-appoint or elect or re-elect the Officer Executive to serve the position with the Company or the Bank stated in the same position in which the Officer was serving, on the day before the Assurance Period commenced section 3 of this Agreement (or a more senior office);
(B) if the Executive is a member of the Board or the Bank Board as the case may be, the failure of the stockholders shareholders of the Holding Company or the Bank to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the Bank Board or the failure of the Board on or the day before Bank Board (or the Assurance Period commencednominating committee thereof) to nominate the Executive for such election or re-election;
(C) the expiration of a thirty (30) -day period following the date on which the Officer Executive gives written notice to the Bank Company of its or the Bank's material failure, whether by amendment of the Company's Certificate of Incorporation, the Bank’s 's Restated Organization Certificate or Certificate, the Company's By-lawsLaws or the Bank's By-Laws, action of the Board or the Holding Bank Board or the Company’s stockholders 's shareholders or the Bank's shareholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in the Officer on the day before the Assurance Period commenced (or the functionssection 3 of this Agreement, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) -day period, the Company or the Bank fully cures such failure;; or
(D) the failure expiration of a 30-day period following the Bank date on which the Executive gives written notice to cure a the Company of its or the Bank's material breach of any term, condition or covenant contained in this Agreement by (including, without limitation any reduction of the Bank, within thirty (30) days following written notice Executive's rate of base salary in effect from the Officer of such material breach;
(E) a reduction time to time and any change in the terms and conditions of any compensation provided to or benefit program in which the OfficerExecutive participates which, either individually or together with other changes, has a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer adverse effect on the aggregate value of her total compensation package), unless, during such 30-day before period, the Assurance Period commencedCompany or the Bank cures such failure;
(F) a change in the Officer’s Executive's principal place of employment that would result in for a one-way commuting time distance in excess of 50 miles from the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such changeBank's principal office in Warwick, New York; or
(ii) the discharge of Executive's employment with the Officer Company or the Bank is terminated by the Company or the Bank for any reason other than for “"cause” " as provided in section 9(a10(a); then, subject to or
(iii) a Change of Control as defined in section 21, the Bank shall provide the benefits and pay to the Officer the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced11 has occurred.
(b) Upon the termination occurrence of any of the Officer’s employment with the Bank under circumstances events described in section 8(a9(a) of this Agreement, the Bank Company shall pay and provide to the Officer Executive (or, in the event of the Officer’s her death, to the Officer’s her estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s her earned but unpaid compensation salary (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law applicable law and the payment of which is not otherwise provided for under in this section 8(b9(b)) as of the date of the termination of the Officer’s her employment with the Company and the Bank, 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 thirty (30) 30 days after termination of employment;
(ii) the benefits, if any, to which the Officer her is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs pro grams maintained for the benefit of the Company's and the Bank’s 's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage equivalent to the coverage to which the Officer her would have been entitled under such plans (as in effect on the date of his her termination of employment, or, if his her termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) ), if the Officer her had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation salary achieved during the Officer’s period of actual employment with the BankEmployment Period;
(iv) within 30 days following the Executive's termination of employment with the Company or the Bank, a lump sum payment, in an amount equal to the present present value of the salary (excluding any additional payments made to the Executive in lieu of the use of an automobile) that the Officer Executive would have earned if the Officer her had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the Officer’s period of actual employment with the BankEmployment Period, where such present value is to be determined using a discount dis count rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 1986, as amended (“"Code”) (“Applicable Short-Term Rate”"), compounded using the compounding periods corresponding to the Bank’s Company's regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) within 30 days following the Executive's termination of employment with the Company or the Bank, a lump sum payment in an amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits to which the Officer her would be entitled under The Warwick Savings Bank Defined Benefit Pension Plan (together with the defined benefit portion of the Benefit Restoration Plan of The Warwick Savings Bank and any other supplemental defined benefit plan) and any and all other qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank Company or the Bank, if the Officer her were 100% vested thereunder and had continued con tinued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the Employment Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);; over
(B) the present value of the benefits to which the Officer her is actually entitled under such defined benefit pension plans as of the date of his her termination; where such present values are to be determined using the mortality tables prescribed prescr ibed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, monthly equal to the applicable longannualized rate of interest prescribed by the Pension Benefit Guaranty Corporation for the valuation of immediate annuities payable under terminating single-term federal rate prescribed under section 1274(d) of the Code employer defined benefit plans for the month in which his the Executive's termination of employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified planoccurs ("Applicable PBGC Rate");
(vi) within 30 days following the Executive's termination of employment with the Company or the Bank, a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he her would have been entitled under The Warwick Savings Bank 401(k) Savings Plan, the Employee Stock Ownership Plan of Warwick Community Bancorp, Inc. (together with the defined contribution portion of the Benefit Restoration Plan of The Warwick Savings Bank or any other supplemental defined contribution plan) and any and all other qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Company or the Bank, as if he her were 100% vested thereunder and had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation salary achieved during the Officer’s period of actual employment with the Bank, Employment Period and making the maximum amount of employee em ployee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the a discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term PBGC Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer Executive under any cash or stock bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, Company or the Bank if he her had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Remaining Unexpired Employment Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer Executive under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer Executive during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Employment Period, ; such payments to be made (without discounting for early payment) within 30 days following the Executive's termination of employment;
(viii) at the election of the Company made within 30 days following the occurrence of the event described in section 9(a), upon the surrender of options or appreciation rights issued to the Executive under any stock option and appreciation rights plan or program maintained by, or covering employees of, the Company or the Bank, a lump sum payment .. in an amount equal to the product of:
(A) the excess of (I) the fair market value of a share of stock of the same class as the stock subject to the option or appreciation right, determined as of the date of termination of employment, over (II) the exercise price per share for such option or appreciation right, as specified in or under the relevant plan or program; multiplied by
(B) the number of shares with respect to which options or appreciation rights are being surrendered. For purposes of this section 9(b)(viii), the Executive shall be deemed fully vested in all options and appreciation rights under any stock option or appreciation rights plan or program maintained by, or covering employees of, the Company or the Bank, even if her is not vested under such plan or program; and
(ix) at the election of the Company made within 30 days following the occurrence of the event described in section 9(a), upon the surrender of any shares awarded to the Executive under any restricted stock plan maintained by, or covering employees of, the Company or the Bank, a lump sum payment in an amount equal to the product of:
(A) the fair market value of a share of stock of the same class of stock granted under such plan, determined as of the date of the Executive's termination of employment; multiplied by
(B) the number of shares which are being surrendered. For purposes of this section 9(b)(ix), the Executive shall be deemed fully vested in all shares awarded under any restricted stock plan maintained by, or covering employees of, the Company or the Bank, even if her is not vested under such plan. The Bank Company and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b9(b) constitute a reasonable estimate damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s Executive's efforts, if any, to mitigate damages. The Bank Company and the Officer Executive further agree that the Bank Company may condition the payments and benefits (if any) due under sections 8(b)(iii9(b)(iii), (iv), (v), (vi) and (viivi) on the receipt of the Officer’s Executive's resignation from any and all positions which he her holds as an officer, director or committee member with respect to the BankCompany, the Company Bank or any subsidiary or affiliate of either of them.
Appears in 1 contract
Samples: Employment Agreement (Warwick Community Bancorp Inc)
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his or her employment with the Bank shall terminate Company terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officer’s the Executive's voluntary resignation from employment with the Bank Company within ninety six (906) days months following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve in the same position in which the Officer was serving, on the day before the Assurance Period commenced office of Executive Vice President (or a more senior office) of the Company;
(B) if the Executive is or becomes a member of the Board, the failure of the stockholders of the Holding Company to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank Company of its material failure, whether by amendment of the Bank’s Organization Company's Certificate of Incorporation or By-laws, action of the Board or the Holding Company’s 's stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in Section 3 of this Agreement as of the Officer on the day before the Assurance Period commenced (or the functionsdate hereof, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Bank fully Company cures such failurefailure in a manner determined by the Executive, in his or her discretion, to be satisfactory;
(D) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which the Executive gives written notice to the Company of its material breach of any term, condition or covenant contained in this Agreement (including, without limitation, any reduction of the Executive's rate of base salary in effect from time to time and any change in the Officer terms and conditions of any compensation or benefit program in which the Executive participates which, either individually or together with other changes, has a material adverse effect on the aggregate value of his or her total compensation package), unless, during such material breach;thirty (30) day period, the Company cures such failure in a manner determined by the Executive, in his or her discretion, to be satisfactory; or
(E) a reduction in the compensation provided to relocation of the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s Executive's principal place of employment that would result in employment, without his or her written consent, to a one-way commuting time in excess location outside of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; orNassau County and Queens County, New York;
(ii) the discharge termination of the Officer by Executive's employment with the Bank Company for any other reason other than for “cause” as provided not described in section 9(aSection 10(a); then, subject to section 21. In such event, the Bank Company shall provide the benefits and pay to the Officer Executive the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained described in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commencedSection 9(b).
(b) Upon the termination of the Officer’s Executive's employment with the Bank Company under circumstances described in section 8(aSection 9(a) of this Agreement, the Bank Company shall pay and provide to the Officer Executive (or, in the event of the Officer’s death, to Executive's death following the Officer’s estate) on his Executive's termination of employment, subject to section 24 :his or her estate):
(i) the Officer’s his or her earned but unpaid compensation (including, without limitation, all items which constitute wages under section Section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(bSection 9(b)) as of the date of the termination of the Officer’s his or her employment with the BankCompany, such payment to be made at the time and in the manner prescribed by law applicable to the payment of wages but in no any event not later than thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer he or she is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s Company's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage (including any co-payments and deductibles, but excluding any premium sharing arrangements, it being the intention of the parties to this Agreement that the premiums for such insurance benefits shall be the sole cost and expense of the Company) equivalent to the coverage to which the Officer he or she would have been entitled under such plans (as in effect on the date of his or her termination of employment, or, if his or her termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) ), if the Officer he or she had continued working for the Bank Company during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation salary or compensation, as applicable, achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the BankCompany;
(iv) within thirty (30) days following the Executive's termination of employment with the Company, a lump sum payment, payment in an amount equal to the present value representing an estimate of the salary that the Officer Executive would have earned if the Officer he or she had continued working for the Bank Company during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the Bank, where such present value is to Company (the "Salary Severance Payment"). The Salary Severance Payment shall be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded computed using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) a lump sum payment in an amount equal to the excess, if any, offormula: SSP = BS x NY where:
(A) the present value of the aggregate benefits to which the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his employment with the Bank shall terminate Association terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officer’s the Executive's voluntary resignation from employment with the Bank Association within ninety six (906) days months following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve in the same position in which the Officer was serving, on the day before the Assurance Period commenced office of Executive Vice President (or a more senior office) of the Association;
(B) if the Executive is a member of the Board, the failure of the stockholders of the Holding Company Association to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank Association of its material failure, whether by amendment of the Bank’s Organization Certificate Association's Charter or By-laws, action of the Board or the Holding Company’s Association's stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in Section 3 of this Agreement as of the Officer on the day before the Assurance Period commenced (or the functionsdate hereof, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Bank fully Association cures such failurefailure in a manner determined by the Executive, in his or her discretion, to be satisfactory;
(D) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which the Executive gives written notice to the Association of its material breach of any term, condition or covenant contained in this Agreement (including, without limitation, any reduction of the Executive's rate of base salary in effect from time to time and any change in the Officer terms and conditions of any compensation or benefit program in which the Executive participates which, either individually or together with other changes, has a material adverse effect on the aggregate value of his total compensation package), unless, during such material breach;thirty (30) day period, the Association cures such failure in a manner determined by the Executive, in his or her discretion, to be satisfactory; or
(E) a reduction in the compensation provided to relocation of the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s Executive's principal place of employment that would result in employment, without his or her written consent, to a one-way commuting time in excess location outside of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; orNassau County and Queens County, New York;
(ii) the discharge termination of the Officer by Executive's employment with the Bank Association for any other reason other than for “cause” as provided not described in section 9(aSection 10(a); then, . In such event and subject to section 21Section 27 of this Agreement, the Bank Association shall provide the benefits and pay to the Officer Executive the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained described in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commencedSection 9(b).
(b) Upon the termination of the Officer’s Executive's employment with the Bank Association under circumstances described in section 8(aSection 9(a) of this Agreement, the Bank Association shall pay and provide to the Officer Executive (or, in the event of the Officer’s death, to Executive's death following the Officer’s estate) on his Executive's termination of employment, subject to section 24 :his or her estate):
(i) the Officer’s his or her earned but unpaid compensation (including, without limitation, all items which constitute wages under section Section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(bSection 9(b)) as of the date of the termination of the Officer’s his or her employment with the BankAssociation, such payment to be made at the time and in the manner prescribed by law applicable to the payment of wages but in no any event not later than thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer he or she is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s Association's officers and employees, including the annual bonus (if any) to which he or she is entitled under any cash-based annual bonus or performance compensation plan in effect for the year in which his or her termination occurs, to be paid at the same time and on the terms and conditions (including but not limited to achievement of performance goals) applicable under the relevant plan;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage (including any co-payments and deductibles, but excluding any premium sharing arrangements, it being the intention of the parties to this Agreement that the premiums for such insurance benefits shall be the sole cost and expense of the Association) equivalent to the coverage to which the Officer he or she would have been entitled under such plans (as in effect on the date of his or her termination of employment, or, if his or her termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) ), if the Officer he or she had continued working for the Bank Association during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation salary or compensation, as applicable, achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the BankAssociation;
(iv) thirty (30) days following the Executive's termination of employment with the Association, a lump sum payment, payment in an amount equal to the present value representing an estimate of the salary that the Officer Executive would have earned if the Officer he or she had continued working for the Bank Association during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the Bank, where such present value is to Association (the "Salary Severance Payment"). The Salary Severance Payment shall be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded computed using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) a lump sum payment in an amount equal to the excess, if any, offormula: SSP = BS x NY where:
(A) the present value of the aggregate benefits to which the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his employment with the Bank shall terminate Company terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officer’s the Executive's voluntary resignation from employment with the Bank Company within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve in the same position in which the Officer was serving, on the day before the Assurance Period commenced office of Vice Chairman (or a more senior office) of the Company;
(B) the failure of the stockholders of the Holding Company to elect or re-elect the Officer as a member Executive to the Board or the failure of the Board, Board (or the nominating committee thereof) to nominate the Executive for such election or re-election if he was the Executive is a member of the Board on the day before date of this Agreement or thereafter becomes a member of the Assurance Period commencedBoard;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank Company of its material failure, whether by amendment of the Bank’s Company's Organization Certificate or By-laws, action of the Board or the Holding Company’s 's stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in section 3 of this Agreement as of the Officer on the day before the Assurance Period commenced (or the functionsdate hereof, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Bank fully Company cures such failurefailure in a manner determined by the Executive, in his sole discretion, to be satisfactory;
(D) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which the Executive gives written notice to the Company of its material breach of any term, condition or covenant contained in this Agreement (including, without limitation, any reduction of the Executive's rate of base salary in effect from time to time and any change in the Officer terms and conditions of any compensation or benefit program in which the Executive participates which, either individually or together with other changes, has a material adverse effect on the aggregate value of his total compensation package), unless, during such material breach;thirty (30) day period, the Company cures such failure in a manner determined by the Executive, in his sole discretion, to be satisfactory; or
(E) a reduction in the compensation provided to relocation of the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s Executive's principal place of employment that would result in employment, without his written consent, to a one-way commuting time in excess location outside of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; orNassau County and Queens County, New York;
(ii) the discharge termination of the Officer by Executive's employment with the Bank Company for any other reason other than for “cause” as provided not described in section 9(a10(a); then, subject to section 21. In such event, the Bank Company shall provide the benefits and pay to the Officer Executive the amounts provided for under described in section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced9(b).
(b) Upon the termination of the Officer’s Executive's employment with the Bank Company under circumstances described in section 8(a9(a) of this Agreement, the Bank Company shall pay and provide to the Officer Executive (or, in the event of the Officer’s his death, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s his earned but unpaid compensation (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(b9(b)) as of the date of the termination of the Officer’s his employment with the BankCompany, 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 thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s Company's officers and employees, as modified, where applicable, by this Agreement and Plan of Merger;
(iii) continued group life, health (including without limitation hospitalization, medical and major medical), dental, accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage equivalent to the coverage to which the Officer he would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) ), if the Officer he had continued working for the Bank Company during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the BankCompany;
(iv) within thirty (30) days following his termination of employment with the Company, a lump sum payment, payment in an amount equal to the present present value of the salary that the Officer Executive would have earned as if the Officer he had continued working for the Bank Company during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the BankCompany, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“"Code”) (“Applicable Short-Term Rate”"), compounded using the compounding periods period corresponding to the Bank’s Company's regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) within thirty (30) days following his termination of employment with the Company, a lump sum payment in an amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits to which the Officer he would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank Company, as if the Officer he were 100% vested thereunder and had continued working for the Bank Company during the remaining unexpired Assurance Remaining Unexpired Employment Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Remaining Unexpired Employment Period and by adding to the compensation recognized under such plans for the most recent year in which termination of employment occurs recognized all amounts payable under sections 8(b)(I9(b)(i), (iv), (vii), (viii) and (viiix);; over
(B) the present value of the benefits to which the Officer he is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable longannualized rate of interest prescribed by the Pension Benefit Guaranty Corporation for the valuation of immediate annuities payable under terminating single-term federal rate prescribed under section 1274(d) of the Code employer defined benefit plans for the month in which his the Executive's termination of employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified planoccurs ("Applicable PBGCRate");
(vi) within thirty (30) days following his termination of employment with the Company, a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the BankCompany, as if he were 100% vested thereunder and had continued working for the Bank Company during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the BankCompany, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the a discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term PBGC Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) within thirty (30) days following his termination of employment with the Company, a lump sum payment in an amount equal to the present value of the payments that would have been made to the Officer Executive under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, Company as if he had continued working for the Bank Company during the remaining unexpired Assurance Remaining Unexpired Employment Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Remaining Unexpired Employment Period, such payments to be equal to the product of:
(A) the maximum percentage rate of annual salary at which an award was ever available to the Officer Executive under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer Executive during each such calendar year at the highest annual rate of salary achieved during that portion of the remaining unexpired Assurance Period, Employment Period which is prior to the Executive's termination of employment with the Company where such payments present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Code, compounded annually;
(viii) at the election of the Company made without discounting within thirty (30) days following his termination of employment with the Company (with the written consent of the Executive in the case of options or appreciation rights resulting from the conversion of options granted by Seller pursuant to the Agreement and Plan of Merger), upon the surrender of options or appreciation rights issued to the Executive under any stock option and appreciation rights plan or program maintained by, or covering employees of, the Company, a lump sum payment in an amount equal to the product of:
(A) the excess of (I) the fair market value of a share of stock of the same class as the stock subject to the option or appreciation right, determined as of the date of termination of employment, over (II) the exer cise price per share for early such option or appreciation right, as specified in or under the relevant plan or program; multiplied by
(B) the number of shares with respect to which options or appreciation rights are being surrendered. For purposes of this section 9(b)(viii) and for purposes of determining the Executive's right following his termination of employment with the Company to exercise any options or appreciation rights not surrendered pursuant hereto, the Executive shall be deemed fully vested in all options and appreciation rights under any stock option or appreciation rights plan or program maintained by, or covering employees of, the Company, even if he is not otherwise vested under such plan or program;
(ix) at the election of the Company made within thirty (30) days following the Executive's termination of employment with the Company, upon the surrender of any unvested shares awarded to the Executive under any restricted stock plan maintained by, or covering employees of, the Company, a lump sum payment .. in an amount equal to the product of:
(A) the fair market value of a share of stock of the same class of stock granted under such plan, determined as of the date of the Executive's termination of employment; multiplied by
(B) the number of shares which are being surrendered. For purposes of this section 9(b)(ix) and for purposes of determining the Executive's right following his termination of employment with the Company to any stock not surrendered pursuant hereto, the Executive shall be deemed fully vested in all shares awarded under any restricted stock plan maintained by, or covering employees of, the Company, even if he is not otherwise vested under such plan. The Bank Company and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.section
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his employment with the Company and the Bank shall terminate terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The OfficerExecutive’s voluntary resignation from employment with the Company and the Bank within ninety (90) days following:
(A) the The failure of the Bank’s Board of Directors of either the Company or the Bank to appoint or re-appoint or elect or re-elect the Officer Executive to serve in the same position in which office of Chairman of the Officer was serving, on Company and Chairman of the day before the Assurance Period commenced Bank (or a more senior office, if any);
(B) the The failure of the stockholders of the Holding Company or Bank to elect or re-elect the Officer as a member Executive to the Board of Directors of the BoardCompany or the Bank, if he was a member respectively, or the failure of the Board on of Directors of the day before Company or the Assurance Period commencedBank (or the nominating committees thereof) to nominate the Executive for such election or re-election;
(C) the The expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Company or the Bank (i) of its or their material failure, whether by amendment of the Company’s or the Bank’s Organization Certificate Articles of Incorporation or By-lawsBylaws, action of the Board Company’s or the Holding Bank’s Board of Directors or the Company’s or the Bank’s stockholders or otherwise, to vest in the Officer the functions, duties, or responsibilities vested in the Officer on the day before the Assurance Period commenced (or Executive the functions, duties and or responsibilities prescribed in Section 3 of a more senior office this Agreement as of the date hereof, or (ii) that the Company or the Bank has or have prohibited, prevented or otherwise made it reasonably impracticable for the Executive to which the Officer may be appointed)perform his functions, unless duties or responsibilities as prescribed in Section 3 of this Agreement, unless, in either event, during such thirty (30) day period, the Company or the Bank fully cures such failurefailure in a manner determined by the Executive, in his discretion, to be satisfactory;
(D) the failure The expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which the Executive gives written notice to the Company or the Bank of its material breach of any term, condition or covenant contained in this Agreement (including, without limitation, any reduction of the Executive’s rate of base salary in effect from time to time and any adverse change in the Officer terms and conditions to the Executive of any Employee Pension Benefit Plan or Employee Welfare Benefit Plan or as to any other compensation or benefit program in which the Executive participates which, either individually or together with other changes, has or could have a material adverse effect on the aggregate value of his total compensation package), unless, during such material breach;thirty (30) day period, the Company or the Bank cures such failure in a manner determined by the Executive, in his discretion, to be satisfactory; or
(E) a reduction The relocation of the Executive’s principal place of employment, without his written consent (which may be withheld in the compensation provided sole discretion of the Executive), to the Officera location outside of Palm Beach County, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;Florida.
(F) a change in The acceptance by the Officer’s principal place Board of employment that would result in a one-way commuting time in excess Directors of the greater Company of the Executive's resignation from such Board of Directors tendered by the Executive solely as a result of, and pursuant to, the provisions of Article I, Section 11(d), of the Company's Bylaws (Ior any successor or similar requirement), provided that such Board of Directors does not determine that facts constituting "cause" (as defined in Section 10(a)(i) 30 minutes or (IIof this Agreement) exist with respect to the Officer’s commuting time immediately prior to such change; orExecutive.
(ii) the discharge The termination of the Officer Executive’s employment with the Company or the Bank by the Company or the Bank for any other reason other than for “cause” as provided not described in section 9(aSection 10(a); then. In such event, subject to section 21, the Company or the Bank shall provide the benefits and pay to the Officer Executive the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained described in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commencedSection 9(b).
(b) Upon the termination of the OfficerExecutive’s employment with the Company and/or the Bank prior to a Change of Control under circumstances described any of the events set forth in section 8(aSections 9(a)(i) or (ii) during the Employment Period, or upon a Change of this AgreementControl (as hereinafter defined), the Company and/or the Bank (jointly and/or severally) shall pay and provide to the Officer Executive (or, in the event of the Officer’s death, upon death then to the OfficerExecutive’s estate) on his termination of employment, subject to section 24 the following Severance Benefits:
(i) the OfficerThe Executive’s earned but unpaid compensation Cash Compensation (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(b)as determined pursuant to Section 4) in effect as of the date of the termination of the Officer’s employment with the Bankapplicable Triggering Event Date (as defined below), 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 thirty (30) days after termination the applicable Triggering Event Date (provided that if the Executive has made an irrevocable election under any deferred compensation arrangement subject to Section 409A of employment;the Code to defer any portion of such Cash Compensation, the terms of the applicable arrangement shall apply to distribution of such portion); and
(ii) If the benefitsTriggering Event Date is a termination of employment, if anythe Executive’s vested, accrued benefits in all Employee Benefit Plans to which the Officer is Executive was entitled pursuant to this Agreement as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s officers and employees;date of termination, payable in accordance with the terms of the applicable Employee Benefit Plan; and
(iii) continued group life, health Within thirty (including hospitalization, medical and major medical30) days following the effective date of any of the triggering events referred to in the first sentence in this Section 9(b) (the “Triggering Event Date”), accident payment of a lump sum amount equal to the product of (A) three (3), times (B) the average of the two (2) highest total annual amounts of Cash Compensation paid by the Company and/or Bank to any of its "Named Executive Officers" with respect to the five (5) full fiscal years of the Employment Period immediately preceding the year in which the Triggering Event Date occurs (such average defined in clause (B) being hereinafter referred to as the "Highest Total Cash Compensation"). Such lump sum shall not be reduced to a present value and long term disability insurance benefits, shall be paid in addition to that any other Compensation payments otherwise provided pursuant to section 8(b)(ii) and after taking into account the coverage provided by any subsequent employer, if and to the extent necessary to provide for the Officer, for the remaining unexpired Assurance Period, coverage equivalent to the coverage to which the Officer would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank;hereunder; and
(iv) Within thirty (30) days following the Triggering Event Date, payment of a lump sum payment, in an amount equal to the present value of the salary that the Officer would have earned if the Officer had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of salary achieved during the Officer’s period of actual employment with the Bank, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) a lump sum payment in an amount equal to the excess, if any, of:
(A) the The present value of both the aggregate current and future accrued benefits in each Employee Pension Benefit Plan that is a defined benefit plan to which the Officer Executive would have been entitled (which shall be entitled under any computed based on the Highest Total Cash Compensation and all qualified and non-qualified defined at the same rate of Employee Pension Benefit Plan funding and/or benefit pension plans maintained byaccrual, determined separately for each such Employee Pension Benefit Plan or covering employees ofas historically had been contributed, whichever is greater, for an Employment Period concluding on the Bank third anniversary of the Triggering Event Date as if the Officer were 100% vested thereunder and Executive had continued working for the Company and the Bank during for the remaining unexpired Assurance Period, Employment Period consisting of such three additional plan years). Such benefits to shall be determined separately for each such Employee Pension Benefit Plan in effect as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);date; over
(B) The present value of the accrued benefits to which the Executive is actually entitled under each such Employee Pension Benefit Plan that is a defined benefit plan as of the Triggering Event Date using comparable actuarial assumptions (where applicable) as then being utilized by such respective plan. In computing the present value of such lump sum payment, the benefits to which annualized rate of interest prescribed by the Officer is actually entitled Pension Benefit Guaranty Corporation for the computation of the value of lump sum payments otherwise payable under such terminating single employer defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his the Executive’s termination of employment terminates; provided, however, that if payments are made under this section 8(b)(voccurs (“Applicable PBGC Rate”) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;utilized; and
(viv) Within thirty (30) days following the Triggering Event Date, a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Company or the Bank, as if he were 100% vested thereunder and had continued working for the Company and the Bank during for a period of three years after the remaining unexpired Assurance Period at Triggering Event Date based on the highest annual rate of compensation Highest Total Cash Compensation achieved during that portion of the Officer’s period of actual employment with Employment Period which is prior to the BankTriggering Event Date, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the a discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant planEmployee Pension Benefit Plan; and
(vi) Subject to Section 26 of this Agreement, equal for fifteen years following the date of termination of employment (the “Benefits Period”), the Bank and/or Company shall provide the Executive and his spouse and eligible dependents with medical and dental insurance coverage (the “Health Care Benefits”) and life insurance benefits no less favorable than those which the Executive and his spouse and eligible dependents were receiving immediately prior to the Applicable Short-Term Ratedate of termination of employment; provided, however, that the Health Care Benefits shall be provided during the Benefits Period in such a manner that such benefits are excluded from the Executive’s income for federal income tax purposes; provided, further, however, that if payments are made the Executive becomes re-employed with another employer and is eligible to receive health care benefits under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts another employer-provided plan, the health care benefits provided hereunder shall be secondary to those provided under such defined contribution plans other plan during such applicable period of eligibility. The receipt of the Health Care Benefits shall be conditioned upon the Executive continuing to be vestedpay the monthly premium as in effect at the Company from time to time for coverage provided to former employees under Section 4980B of the Code in respect of the level of coverage in effect for the Executive and his spouse and dependents (i.e., single, single plus one, or family) (the “Applicable COBRA Premium”). During the portion of the Benefits Period in which the Executive and his eligible dependents continue to receive coverage under the Company’s Health Care Benefits plans, the paymentsCompany shall pay to the Executive a monthly amount equal to the Applicable COBRA Premium in respect of the maximum level of coverage that the Executive could otherwise elect to receive for the Executive and the Executive’s spouse and eligible dependents if the Executive were still an employee of the Company during the Benefits Period regardless of what level of coverage is actually elected, if any, attributable to such deemed vesting which payment shall be paid in advance on the same formfirst payroll day of each month, commencing with the month immediately following the Executive’s date of termination of employment. Notwithstanding the foregoing provisions of this Section 9(b), (x) in the event that the Executive is a Specified Employee (as defined in the SERP) as of the date of termination of employment, amounts payable under Sections 9(b)(iii-v) due to a qualifying termination of employment that constitute a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code that would otherwise be payable during the six-month period immediately following the date of termination of employment shall instead be paid, with interest on any delayed payment at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code determined as of the date of termination of employment, on the first business day after the date that is six months following the Executive’s date of termination of employment (the “Delayed Payment Date”), and paid at the same time, and (y) in the same manner, as benefits event that amounts are payable under Sections 9(b)(iii)-(v) due to a Change of Control but such Change of Control does not constitute a change in the corresponding non-qualified plan;
(vii) ownership or effective control of the payments that would have been made to the Officer under any cash bonus Company or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for or in the ownership of a substantial portion of the assets of the Company or the Bank during (as defined in Section 409A of the remaining unexpired Assurance Period Code and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Periodregulations thereunder), such payments to amounts shall instead be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year paid, with interest at the highest annual applicable federal rate provided for in Section 7872(f)(2)(A) of salary achieved during the remaining unexpired Assurance PeriodCode determined as of the date of the Change of Control, on the first to occur of the Executive’s termination of employment (or, if the Executive is a Specified Employee on such payments to be made without discounting for early payment .. date, the Delayed Payment Date) or a change in the ownership or effective control of the Company or the Bank, or in the ownership of a substantial portion of the assets of the Company or the Bank (each as defined in Section 409A of the Code and regulations thereunder). The Company, the Bank and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(bSection 9(b) constitute a reasonable estimate liquidated damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the OfficerExecutive’s efforts, if any, to mitigate damages. The Company, the Bank and the Officer Executive further agree that the Company and the Bank may condition the payments and benefits (if any) due under sections 8(b)(iiiSections 9(b)(iii), (iv), (v), (vi) and (viivi) on the receipt of the OfficerExecutive’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the BankCompany, the Company Bank or any subsidiary or affiliate of either either.
(c) Upon the termination of themthe Executive’s employment with the Company and/or the Bank under any of the events set forth in Sections 9(a)(i), 9(a)(ii), 10(a)(iii) or 10(a)(iv) during the Employment Period, or upon a Change of Control (as hereinafter defined) (including under terminations referred to in Section 11(c) hereof), any options to purchase the Company’s stock and any restricted stock grants granted to the Executive by the Company shall immediately vest, and such options may be exercised in accordance with the terms of such option grants at any time on or prior to their original expiration date.
(d) The parties shall take all steps necessary (including with regard to any post-termination services by the Executive) to ensure that the date of any termination of employment hereunder constitutes a “Separation from Service” (as defined in the SERP).
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his or her employment with the Bank shall terminate Company terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officer’s the Executive's voluntary resignation from employment with the Bank Company within ninety six (906) days months following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Executive to the office of Vice Chairman and Chief Administrative Officer to serve in the same position in which the Officer was serving, on the day before the Assurance Period commenced (or a more senior office) of the Company;
(B) if the Executive is or becomes a member of the Board, the failure of the stockholders of the Holding Company to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank Company of its material failure, whether by amendment of the Bank’s Organization Company's Certificate of Incorporation or By-laws, action of the Board or the Holding Company’s 's stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in Section 3 of this Agreement as of the Officer on the day before the Assurance Period commenced (or the functionsdate hereof, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Bank fully Company cures such failurefailure in a manner determined by the Executive, in his or her discretion, to be satisfactory;
(D) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which the Executive gives written notice to the Company of its material breach of any term, condition or covenant contained in this Agreement (including, without limitation, any reduction of the Executive's rate of base salary in effect from time to time and any change in the Officer terms and conditions of such any compensation or benefit program in which the Executive participates which, either individually or together with other changes, has a material breach;adverse
(E) a reduction in the compensation provided to relocation of the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s Executive's principal place of employment that would result in employment, without his or her written consent, to a one-way commuting time in excess location outside of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; orNassau County and Queens County, New York;
(ii) the discharge termination of the Officer by Executive's employment with the Bank Company for any other reason other than for “cause” as provided not described in section 9(aSection 10(a); then, subject to section 21. In such event, the Bank Company shall provide the benefits and pay to the Officer Executive the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained described in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commencedSection 9(b).
(b) Upon the termination of the Officer’s Executive's employment with the Bank Company under circumstances described in section 8(aSection 9(a) of this Agreement, the Bank Company shall pay and provide to the Officer Executive (or, in the event of the Officer’s death, to Executive's death following the Officer’s estate) on his Executive's termination of employment, subject to section 24 :his or her estate):
(i) the Officer’s his or her earned but unpaid compensation (including, without limitation, all items which constitute wages under section Section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(bSection 9(b)) as of the date of the termination of the Officer’s his or her employment with the BankCompany, such payment to be made at the time and in the manner prescribed by law applicable to the payment of wages but in no any event not later than thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer he or she is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s Company's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage (including any co-payments and deductibles, but excluding any premium sharing arrangements, it being the intention of the parties to this Agreement that the premiums for such insurance benefits shall be the sole cost and expense of the Company) equivalent to the coverage to which the Officer he or she would have been entitled under such plans (as in effect on the date of his or her termination of employment, or, if his or her
(iv) within thirty (30) days following the Executive's termination of employment occurs after with the Company, a Change lump sum payment in an amount representing an estimate of Control, on the date of such Change of Control, whichever benefits are greater) salary that the Executive would have earned if the Officer he or she had continued working for the Bank Company during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank;
(iv) a lump sum payment, in an amount equal to the present value of the salary that the Officer would have earned if the Officer had continued working for the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the Bank, where such present value is to Company (the "Salary Severance Payment"). The Salary Severance Payment shall be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded computed using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) a lump sum payment in an amount equal to the excess, if any, offormula: SSP = BS x NY where:
(A) the present value of the aggregate benefits to which the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s her employment with the Bank shall terminate terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officer’s the Executive's voluntary resignation from employment with the Bank within ninety forty-five (9045) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve the office stated in the same position in which the Officer was serving, on the day before the Assurance Period commenced section 3 of this Agreement (or a more senior office) of the Bank;
(B) if the Executive is or becomes a member of the Board, the failure of the stockholders of the Holding Company Bank to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election; PROVIDED, HOWEVER, that such failure is not the result of a vote cast by the Executive;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank of its material failure, whether by amendment of the Bank’s 's Organization Certificate or By-laws, action of the Board or the Holding Company’s Bank's stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in section 3 of this Agreement as of the Officer on the day before the Assurance Period commenced (or the functionsdate hereof, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Bank fully cures such failure;
(D) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which the Executive gives written notice from the Officer of such material breach;
(E) a reduction in the compensation provided to the OfficerBank of its material breach of any term, condition or a material covenant contained in this Agreement (including, without limitation any reduction of the Executive's rate of base salary in the benefits provided effect from time to the Officer under the Bank’s program of employee benefits, compared with the compensation time and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a any change in the Officer’s principal place terms and conditions of employment that would result any compensation or benefit program in which the Executive participates which, either individually or together with other changes, has a one-way commuting time in excess material adverse effect on the aggregate value of her total compensation package), unless, during such thirty (30) day period, the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to Bank fully cures such changefailure; or
(ii) the discharge termination of the Officer by Executive's employment with the Bank for any other reason other than for “cause” as provided not described in section 9(a10(a); then. In such event, subject to section 2125, the Bank shall provide the benefits and pay to the Officer Executive the amounts provided for under described in section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced9(b).
(b) Upon the termination of the Officer’s Executive's employment with the Bank under circumstances described in section 8(a9(a) of this Agreement, the Bank shall pay and provide to the Officer Executive (or, in the event of the Officer’s her death, to the Officer’s her estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s his earned but unpaid compensation (includingcompensation, without limitationincluding bonuses awarded and not yet received, all items which constitute wages under section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(b)) as of the date of the termination of the Officer’s her employment with the Bank, 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 thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer she is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs pro- grams maintained for the benefit of the Bank’s 's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage equivalent to the coverage to which the Officer she would have been entitled under such plans (as in effect on the date of his her termination of employment, or, if his her termination of employment occurs after a Change of in Control, on the date of such Change of in Control, whichever benefits are greater) if the Officer she had continued working for the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the Bank;; and
(iv) within thirty (30) days following her termination of employment with the Bank, a lump sum payment, in an amount equal to the present present value of the salary that the Officer Executive would have earned if the Officer she had continued working for the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the Bank, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“"Code”) (“Applicable Short-Term Rate”"), compounded using the compounding periods period corresponding to the Bank’s 's regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) a lump sum payment in an amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits to which the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. . The Bank and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.section
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to, and the Company shall pay, the - - severance benefits and amounts described in Section 9(b) herein in the event that the Officer’s his employment with the Bank shall terminate Company terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officer’s Executive's voluntary resignation from employment with the Bank Company within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint reappoint or elect or re-elect the Executive to the office of Chairman of the Board, President and Chief Executive Officer to serve in and Chief Operating Officer of the same position in which the Officer was serving, on the day before the Assurance Period commenced or a more senior office;Company; or
(B) the failure of the stockholders of the Holding Company to elect or re-elect the Officer as a member of Executive or the Board, if he was a member failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commenced;Executive for such election or re- election; or
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank Company of its material failure, whether by by, amendment of the Bank’s Organization Certificate Company's Charter or By-lawsLaws, action of the Board or the Holding Company’s 's stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in the Officer on the day before the Assurance Period commenced (or the functionsSection 3 of this Agreement, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Bank fully Company cures such failure;failure in a manner determined by the Executive, in his discretion, to be satisfactory; or
(D) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which the Executive gives written notice to the Company of its material breach of any term, condition or covenant contained in this Agreement (including, without limitation any reduction of the Executive's rate of base salary in effect from time to time and any change in the Officer terms and conditions of any compensation or benefit program in which the Executive participates which, either individually or together with other changes, has a material adverse effect on the aggregate value of his total compensation package), unless, during such material breach;thirty (30) day period, the Company cures such failure in a manner determined by the Executive, in his discretion, to be satisfactory; or
(E) a reduction in the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s principal place of employment that would result in a one-way commuting time in excess relocation of the greater executive offices of the Company, a distance of more than twelve (I12) 30 minutes or (II) the Officer’s commuting time immediately prior to such changemiles from its current Coral Gables, Florida location; or
(ii) subject to the discharge provisions of Section 10, the termination of the Officer Executive's employment by the Bank Company for any reason other than for “cause” as provided in section 9(a); then, subject to section 21, the Bank shall provide the benefits and pay to the Officer the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commencedreason.
(b) Upon the termination of the Officer’s Executive's employment with the Bank Company under circumstances described in section 8(aSection 9(a) of this Agreement, the Bank Company shall pay and provide to the Officer Executive (or, in the event of the Officer’s death, to the Officer’s estate) on his death following such termination of employment, subject provide to section 24 :his estate):
(i) the Officer’s his earned but unpaid compensation Salary (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law applicable state law and the payment of which is not otherwise provided for under this section 8(bSection 9(b)) as of the date of the termination of the Officer’s his employment with the BankCompany, 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 thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s officers and employeesemployees of the Company;
(iii) continued group life, health (including hospitalization, medical, major medical and major medicalany supplemental insurance coverages), dental, accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive and his dependents, for the remaining unexpired Assurance PeriodRemaining Unexpired Employment Period or to age 65, whichever is later, coverage equivalent to the coverage to which the Officer he would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of in Control, on the date of such Change of in Control, whichever benefits are greater) ), if the Officer he had continued working for the Bank Company during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation Salary achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the BankCompany, subject to the maximum insurance amounts specified under the Company's policies, and with such continued coverages to be provided to the Executive at the Company's expense through COBRA or in any other manner determined by the Board to be appropriate including, but not limited to, through the purchase of an individual policy or policies;
(iv) within thirty (30) days following his termination of employment with the Company, a lump sum payment, in an amount equal to the present dollar amount of the value of the salary that highest aggregate Salary (cash or stock) awarded to the Officer would have earned if Executive during any one year of the Officer had continued working for five years preceding the Bank during the remaining unexpired Assurance Period at the highest annual rate Executive's termination of salary achieved during the Officer’s period of actual employment with the BankCompany, where such present value is to be determined using a discount rate equal to by the applicable short-term federal rate prescribed under section 1274(d) number of years in the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded using the compounding periods corresponding to the Bank’s regular payroll periods for its officersRemaining Unexpired Employment Period, such lump sum to be paid (without discounting for early payment) in lieu of all other payments of salary Salary provided for under this Agreement in respect of the period following any such termination;
(v) within thirty (30) days following his termination of employment with the Company, a lump sum payment in an amount equal to the excess, if any, of:
: (A) the present value of the aggregate benefits to which the Officer he would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank Company, if the Officer he were 100% vested thereunder and had continued working for the Bank Company during the remaining unexpired Assurance Remaining Unexpired Employment Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Remaining Unexpired Employment Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iiiSections 9(b)(i), (iv), (vvii), (viviii) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.ix); over
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described in section 9(b) in the event that the Officer’s employment with the Bank shall terminate during the Assurance Period, or prior to the commencement of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account ofthat:
(i) The Officer’s voluntary resignation from his employment with the Bank terminates during the Employment Period as a result of the Executive’s voluntary resignation within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve the position with the Bank stated in the same position in which the Officer was serving, on the day before the Assurance Period commenced or a more senior officesection 3 of this Agreement;
(B) if the Executive is a member of the Board, the failure of the stockholders shareholders of the Holding Company Bank to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) day 30)-day period following the date on which the Officer Executive gives written notice to the Bank of its material failure, whether by amendment of the Bank’s Restated Organization Certificate or Certificate, the Bank’s By-lawsLaws, action of the Board or the Holding CompanyBank’s stockholders shareholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in the Officer on the day before the Assurance Period commenced (or the functionssection 3 of this Agreement, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day 30)-day period, the Bank fully cures such failure;; or
(D) the failure expiration of a thirty (30)-day period following the date on which the Executive gives written notice to the Bank to cure a of its material breach of any term, condition or covenant contained in this Agreement by (including, without limitation any reduction of the BankExecutive’s rate of base salary in effect from time to time and any change in the terms and conditions of any compensation or benefit program in which the Executive participates which, within either individually or together with other changes, has a material adverse effect on the aggregate value of his total compensation package), unless, during such thirty (30) days following written notice from 30)-day period, the Officer of Bank cures such material breach;failure; or
(E) a reduction in the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the OfficerExecutive’s principal place of employment that would result in for a one-way commuting time distance in excess of fifty (50) miles from the greater of (I) 30 minutes or (II) the OfficerBank’s commuting time immediately prior to such changeprincipal office in Rome, New York; or
(ii) the discharge of Executive’s employment with the Officer Bank is terminated by the Bank for any reason other than for “cause” as provided in section 9(a11(a); then, subject to section 21, the Bank shall provide the benefits and pay to the Officer the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced.
(b) Upon the termination occurrence of any of the Officer’s employment with the Bank under circumstances events described in section 8(a9(a) of this Agreement, the Bank shall pay and provide to the Officer Executive (or, in the event of the Officer’s deathhis death thereafter and prior to payment, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s his earned but unpaid compensation salary (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law applicable law and the payment of which is not otherwise provided for under in this section 8(b9(b)) as of the date of the termination of the Officer’s his employment with the Company and the Bank, 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 thirty (30) days after termination of employment, as defined in Treasury Regulation Section 1.409A-1(h)(1)(ii);
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Company’s and the Bank’s officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long term disability insurance benefits, coverage in addition to that provided pursuant to section 8(b)(ii) and after taking into account the coverage provided by any subsequent employer, if and to the extent necessary to provide for the Officer9(b)(ii), for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage equivalent to the coverage to which the Officer he would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) ), if the Officer he had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation salary achieved during the Officer’s period Employment Period, but taking into account any coverage provided from any subsequent employer. In addition, notwithstanding the foregoing, if the provision of actual any of the benefits covered by this Section 9(b)(iii) would trigger the 20% tax and interest penalties under Section 409A, then the benefit(s) that would trigger such tax and interest penalties shall not be provided (collectively, the “Excluded Benefits”), and in lieu of the Excluded Benefits the Bank shall pay to the Executive, in a lump sum within thirty (30) days following termination of employment with or within thirty (30) days after such determination should it occur after termination of employment, a cash amount equal to the Bankeconomic equivalent (as defined as the present value of the full monthly premium cost over the remaining unexpired term using the 120% discount rate of the short-term applicable federal rate as put forth in the IRS Regulations) of such Excluded Benefits;
(iv) within thirty (30) days following the Executive’s termination of employment with the Company or the Bank, a lump sum payment, in an amount equal to the present present value of the salary (excluding any additional payments made to the Executive in lieu of the use of an automobile) that the Officer Executive would have earned if the Officer he had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the Officer’s period of actual employment with the BankEmployment Period, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 1986, as amended (“Code”) (“Applicable Short-Term Rate”), compounded using the compounding periods corresponding to the BankCompany’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) a lump sum payment in an amount equal to within thirty (30) days following the excess, if any, of:
(A) the present value of the aggregate benefits to which the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of Executive’s termination of employment by adding to with the service actually recognized under such plans an additional period equal to Company or the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I)Bank, (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained byby the Company or the Bank in which Executive participates, or covering employees of, the Bank, as if he were 100% vested thereunder and had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation salary achieved during the Officer’s period of actual employment with the Bank, Employment Period and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the a discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Shortapplicable short-Term Rate; provided, however, that if payments are made term federal rate prescribed under this section 8(b)(vi1274(d) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified planCode;
(viivi) the payments that would have been made to the Officer Executive under any cash or stock bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, Company or the Bank if he had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Remaining Unexpired Employment Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer Executive under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer Executive during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Employment Period, ; such payments to be made (without discounting for early payment .. payment) within thirty (30) days following the Executive’s termination of employment; The Bank and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b9(b) constitute a reasonable estimate damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the OfficerExecutive’s efforts, if any, to mitigate damages. The Bank and the Officer Executive further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii9(b)(iii), (iv), (v), (vi) and (viivi) on the receipt of the OfficerExecutive’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the BankCompany, the Company Bank or any subsidiary or affiliate of either of them.
(c) The Executive, the Company and the Bank acknowledge that each of the payments and benefits promised to you under this Agreement must either comply with the requirements of Section 409A and the regulations thereunder or qualify for an exception from compliance. To that end, the Executive, the Company and the Bank agree that the termination benefits described in Section 9(b) are intended to be exempt from Section 409A pursuant to Treasury Regulation Section 1.409A-1(b)(4) as short-term deferrals.
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his employment with the Company and the Bank shall terminate terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The OfficerExecutive’s voluntary resignation from employment with the Company and the Bank within ninety (90) days following:
(A) the The failure of the Bank’s Board of Directors of either the Company or the Bank to appoint or re-appoint or elect or re-elect the Executive to the office of Chief Executive Officer to serve in of the same position in which Company and Chief Executive Officer and President of the Officer was serving, on the day before the Assurance Period commenced Bank (or a more senior office, if any);
(B) the The failure of the stockholders of the Holding Company or Bank to elect or re-elect the Officer as a member Executive to the Board of Directors of the BoardCompany or the Bank, if he was a member respectively, or the failure of the Board on of Directors of the day before Company or the Assurance Period commencedBank (or the nominating committees thereof) to nominate the Executive for such election or re-election;
(C) the The expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Company or the Bank (i) of its or their material failure, whether by amendment of the Company’s or the Bank’s Organization Certificate Articles of Incorporation or By-lawsBylaws, action of the Board Company’s or the Holding Bank’s Board of Directors or the Company’s or the Bank’s stockholders or otherwise, to vest in the Officer the functions, duties, or responsibilities vested in the Officer on the day before the Assurance Period commenced (or Executive the functions, duties and or responsibilities prescribed in Section 3 of a more senior office this Agreement as of the date hereof, or (ii) that the Company or the Bank has or have prohibited, prevented or otherwise made it reasonably impracticable for the Executive to which the Officer may be appointed)perform his functions, unless duties or responsibilities as prescribed in Section 3 of this Agreement, unless, in either event, during such thirty (30) day period, the Company or the Bank fully cures such failurefailure in a manner determined by the Executive, in his discretion, to be satisfactory;
(D) the failure The expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which the Executive gives written notice to the Company or the Bank of its material breach of any term, condition or covenant contained in this Agreement (including, without limitation, any reduction of the Executive’s rate of base salary in effect from time to time and any adverse change in the Officer terms and conditions to the Executive of any Employee Pension Benefit Plan or Employee Welfare Benefit Plan or as to any other compensation or benefit program in which the Executive participates which, either individually or together with other changes, has or could have a material adverse effect on the aggregate value of his total compensation package), unless, during such material breachthirty (30) day period, the Company or the Bank cures such failure in a manner determined by the Executive, in his discretion, to be satisfactory;
(E) a reduction The relocation of the Executive’s principal place of employment, without his written consent (which may be withheld in the compensation provided sole discretion of the Executive), to the Officera location outside of Palm Beach County, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;Florida; or
(F) a change in The acceptance by the Officer’s principal place Board of employment that would result in a one-way commuting time in excess Directors of the greater Company of the Executive's resignation from such Board of Directors tendered by the Executive solely as a result of, and pursuant to, the provisions of Article I, Section 11(d), of the Company's Bylaws (Ior any successor or similar requirement), provided that such Board of Directors does not determine that facts constituting "cause" (as defined in Section 10(a)(i) 30 minutes or (IIof this Agreement) exist with respect to the Officer’s commuting time immediately prior to such change; orExecutive.
(ii) the discharge The termination of the Officer Executive’s employment with the Company or the Bank by the Company or the Bank for any other reason other than for “cause” as provided not described in section 9(aSection 10(a); then. In such event, subject to section 21, the Company or the Bank shall provide the benefits and pay to the Officer Executive the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained described in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commencedSection 9(b).
(b) Upon the termination of the OfficerExecutive’s employment with the Company and/or the Bank prior to a Change of Control under circumstances described any of the events set forth in section 8(aSections 9(a)(i) or (ii) during the Employment Period, or upon a Change of this AgreementControl (as hereinafter defined), the Company and/or the Bank (jointly and/or severally) shall pay and provide to the Officer Executive (or, in the event of the Officer’s death, upon death then to the OfficerExecutive’s estate) on his termination of employment, subject to section 24 the following Severance Benefits:
(i) the OfficerThe Executive’s earned but unpaid compensation Cash Compensation (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(b)as determined pursuant to Section 4) in effect as of the date of the termination of the Officer’s employment with the Bankapplicable Triggering Event Date (as defined below), 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 thirty (30) days after termination the applicable Triggering Event Date (provided that if the Executive has made an irrevocable election under any deferred compensation arrangement subject to Section 409A of employment;the Code to defer any portion of such Cash Compensation, the terms of the applicable arrangement shall apply to distribution of such portion); and
(ii) If the benefitsTriggering Event Date is a termination of employment, if anythe Executive’s vested, accrued benefits in all Employee Benefit Plans to which the Officer is Executive was entitled pursuant to this Agreement as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s officers and employees;date of termination, payable in accordance with the terms of the applicable Employee Benefit Plan; and
(iii) continued group life, health Within thirty (including hospitalization, medical and major medical30) days following the effective date of any of the triggering events referred to in the first sentence in this Section 9(b) (the “Triggering Event Date”), accident payment of a lump sum amount equal to the product of (A) three (3), times (B) the average of the two (2) highest total annual amounts of Cash Compensation paid by the Company and/or Bank to any of its "Named Executive Officers" (as defined by the Securities and long term disability insurance benefitsExchange Commission in Item 402(a)(3) of its Regulation S-K, or any successor regulation) with respect to the five (5) full fiscal years of the Employment Period immediately preceding the year in which the Triggering Event Date occurs (such average defined in clause (B) being hereinafter referred to as the "Highest Total Cash Compensation"). Such lump sum shall not be reduced to a present value and shall be paid in addition to that any other Compensation payments otherwise provided pursuant to section 8(b)(ii) and after taking into account the coverage provided by any subsequent employer, if and to the extent necessary to provide for the Officer, for the remaining unexpired Assurance Period, coverage equivalent to the coverage to which the Officer would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank;hereunder; and
(iv) Within thirty (30) days following the Triggering Event Date, payment of a lump sum payment, in an amount equal to the present value of the salary that the Officer would have earned if the Officer had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of salary achieved during the Officer’s period of actual employment with the Bank, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) a lump sum payment in an amount equal to the excess, if any, of:
(A) the The present value of both the aggregate current and future accrued benefits in each Employee Pension Benefit Plan that is a defined benefit plan to which the Officer Executive would have been entitled (which shall be entitled under any computed based on the Highest Total Cash Compensation and all qualified and non-qualified defined at the same rate of Employee Pension Benefit Plan funding and/or benefit pension plans maintained byaccrual, determined separately for each such Employee Pension Benefit Plan or covering employees ofas historically had been contributed, whichever is greater, for an Employment Period concluding on the Bank third anniversary of the Triggering Event Date as if the Officer were 100% vested thereunder and Executive had continued working for the Company and the Bank during for the remaining unexpired Assurance Period, Employment Period consisting of such three additional plan years). Such benefits to shall be determined separately for each such Employee Pension Benefit Plan in effect as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);date; over
(B) The present value of the accrued benefits to which the Executive is actually entitled under each such Employee Pension Benefit Plan that is a defined benefit plan as of the Triggering Event Date using comparable actuarial assumptions (where applicable) as then being utilized by such respective plan. In computing the present value of such lump sum payment, the benefits to which annualized rate of interest prescribed by the Officer is actually entitled Pension Benefit Guaranty Corporation for the computation of the value of lump sum payments otherwise payable under such terminating single employer defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his the Executive’s termination of employment terminates; provided, however, that if payments are made under this section 8(b)(voccurs (“Applicable PBGC Rate”) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;utilized; and
(viv) Within thirty (30) days following the Triggering Event Date, a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Company or the Bank, as if he were 100% vested thereunder and had continued working for the Company and the Bank during for a period of three years after the remaining unexpired Assurance Period at Triggering Event Date based on the highest annual rate of compensation Highest Total Cash Compensation achieved during that portion of the Officer’s period of actual employment with Employment Period which is prior to the BankTriggering Event Date, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the a discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant planEmployee Pension Benefit Plan; and
(vi) Subject to Section 26 of this Agreement, equal for fifteen years following the date of termination of employment (the “Benefits Period”), the Bank and/or Company shall provide the Executive and his spouse and eligible dependents with medical and dental insurance coverage (the “Health Care Benefits”) and life insurance benefits no less favorable than those which the Executive and his spouse and eligible dependents were receiving immediately prior to the Applicable Short-Term Ratedate of termination of employment; provided, however, that the Health Care Benefits shall be provided during the Benefits Period in such a manner that such benefits are excluded from the Executive’s income for federal income tax purposes; provided, further, however, that if payments are made the Executive becomes re-employed with another employer and is eligible to receive health care benefits under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts another employer-provided plan, the health care benefits provided hereunder shall be secondary to those provided under such defined contribution plans other plan during such applicable period of eligibility. The receipt of the Health Care Benefits shall be conditioned upon the Executive continuing to be vestedpay the monthly premium as in effect at the Company from time to time for coverage provided to former employees under Section 4980B of the Code in respect of the level of coverage in effect for the Executive and his spouse and dependents (i.e., single, single plus one, or family) (the “Applicable COBRA Premium”). During the portion of the Benefits Period in which the Executive and his eligible dependents continue to receive coverage under the Company’s Health Care Benefits plans, the paymentsCompany shall pay to the Executive a monthly amount equal to the Applicable COBRA Premium in respect of the maximum level of coverage that the Executive could otherwise elect to receive for the Executive and the Executive’s spouse and eligible dependents if the Executive were still an employee of the Company during the Benefits Period regardless of what level of coverage is actually elected, if any, attributable to such deemed vesting which payment shall be paid in advance on the same formfirst payroll day of each month, commencing with the month immediately following the Executive’s date of termination of employment. Notwithstanding the foregoing provisions of this Section 9(b), (x) in the event that the Executive is a Specified Employee (as defined in the SERP) as of the date of termination of employment, amounts payable under Sections 9(b)(iii-v) due to a qualifying termination of employment that constitute a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code that would otherwise be payable during the six-month period immediately following the date of termination of employment shall instead be paid, with interest on any delayed payment at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code determined as of the date of termination of employment, on the first business day after the date that is six months following the Executive’s date of termination of employment (the “Delayed Payment Date”), and paid at the same time, and (y) in the same manner, as benefits event that amounts are payable under Sections 9(b)(iii)-(v) due to a Change of Control but such Change of Control does not constitute a change in the corresponding non-qualified plan;
(vii) ownership or effective control of the payments that would have been made to the Officer under any cash bonus Company or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for or in the ownership of a substantial portion of the assets of the Company or the Bank during (as defined in Section 409A of the remaining unexpired Assurance Period Code and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Periodregulations thereunder), such payments to amounts shall instead be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year paid, with interest at the highest annual applicable federal rate provided for in Section 7872(f)(2)(A) of salary achieved during the remaining unexpired Assurance PeriodCode determined as of the date of the Change of Control, on the first to occur of the Executive’s termination of employment (or, if the Executive is a Specified Employee on such payments to be made without discounting for early payment .. date, the Delayed Payment Date) or a change in the ownership or effective control of the Company or the Bank, or in the ownership of a substantial portion of the assets of the Company or the Bank (each as defined in Section 409A of the Code and regulations thereunder). The Company, the Bank and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(bSection 9(b) constitute a reasonable estimate liquidated damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the OfficerExecutive’s efforts, if any, to mitigate damages. The Company, the Bank and the Officer Executive further agree that the Company and the Bank may condition the payments and benefits (if any) due under sections 8(b)(iiiSections 9(b)(iii), (iv), (v), (vi) and (viivi) on the receipt of the OfficerExecutive’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the BankCompany, the Company Bank or any subsidiary or affiliate of either either.
(c) Upon the termination of themthe Executive’s employment with the Company and/or the Bank under any of the events set forth in Sections 9(a)(i), 9(a)(ii), 10(a)(iii) or 10(a)(iv) during the Employment Period, or upon a Change of Control (as hereinafter defined) (including under terminations referred to in Section 11(c) hereof), any options to purchase the Company’s stock and any restricted stock grants granted to the Executive by the Company shall immediately vest, and such options may be exercised in accordance with the terms of such option grants at any time on or prior to their original expiration date.
(d) The parties shall take all steps necessary (including with regard to any post-termination services by the Executive) to ensure that the date of any termination of employment hereunder constitutes a “Separation from Service” (as defined in the SERP).
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his employment with the Company and the Bank shall terminate terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The OfficerExecutive’s voluntary resignation from employment with the Company and the Bank within ninety (90) days following:
(A) the The failure of the Bank’s Board of Directors of either the Company or the Bank to appoint or re-appoint or elect or re-elect the Executive to the office of Chief Executive Officer to serve in of the same position in which Company and Chief Executive Officer and President of the Officer was serving, on the day before the Assurance Period commenced Bank (or a more senior office, if any);
(B) the The failure of the stockholders of the Holding Company or Bank to elect or re-elect the Officer as a member Executive to the Board of Directors of the BoardCompany or the Bank, if he was a member respectively, or the failure of the Board on of Directors of the day before Company or the Assurance Period commencedBank (or the nominating committees thereof) to nominate the Executive for such election or re-election;
(C) the The expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Company or the Bank (i) of its or their material failure, whether by amendment of the Company’s or the Bank’s Organization Certificate Articles of Incorporation or By-lawsBylaws, action of the Board Company’s or the Holding Bank’s Board of Directors or the Company’s or the Bank’s stockholders or otherwise, to vest in the Officer the functions, duties, or responsibilities vested in the Officer on the day before the Assurance Period commenced (or Executive the functions, duties and or responsibilities prescribed in Section 3 of a more senior office this Agreement as of the date hereof, or (ii) that the Company or the Bank has or have prohibited, prevented or otherwise made it reasonably impracticable for the Executive to which the Officer may be appointed)perform his functions, unless duties or responsibilities as prescribed in Section 3 of this Agreement, unless, in either event, during such thirty (30) day period, the Company or the Bank fully cures such failurefailure in a manner determined by the Executive, in his discretion, to be satisfactory;
(D) the failure The expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which the Executive gives written notice to the Company or the Bank of its material breach of any term, condition or covenant contained in this Agreement (including, without limitation, any reduction of the Executive’s rate of base salary in effect from time to time and any adverse change in the Officer terms and conditions to the Executive of any Employee Pension Benefit Plan or Employee Welfare Benefit Plan or as to any other compensation or benefit program in which the Executive participates which, either individually or together with other changes, has or could have a material adverse effect on the aggregate value of his total compensation package), unless, during such material breach;thirty (30) day period, the Company or the Bank cures such failure in a manner determined by the Executive, in his discretion, to be satisfactory; or
(E) a reduction in The relocation of the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the OfficerExecutive’s principal place of employment that would result employment, without his written consent (which may be withheld in a one-way commuting time in excess the sole discretion of the greater Executive), to a location outside of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; orPalm Beach County, Florida.
(ii) the discharge The termination of the Officer Executive’s employment with the Company or the Bank by the Company or the Bank for any other reason other than for “cause” as provided not described in section 9(aSection 10(a); then. In such event, subject to section 21, the Company or the Bank shall provide the benefits and pay to the Officer Executive the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained described in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commencedSection 9(b).
(b) Upon the termination of the OfficerExecutive’s employment with the Company and/or the Bank prior to a Change of Control under circumstances described any of the events set forth in section 8(aSections 9(a)(i) or (ii) during the Employment Period; or upon a Change of this AgreementControl (as hereinafter defined), the Company and/or the Bank (jointly and/or severally) shall pay and provide to the Officer Executive (or, in the event of the Officer’s death, upon death then to the OfficerExecutive’s estate) on his termination of employment, subject to section 24 the following Severance Benefits:
(i) the OfficerThe Executive’s earned but unpaid compensation Cash Compensation (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(b)as determined pursuant to Section 4) in effect as of the date of the termination of the Officer’s employment with the Bankapplicable Triggering Event Date (as defined below), 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 thirty (30) days after termination the applicable Triggering Event Date (provided that if the Executive has made an irrevocable election under any deferred compensation arrangement subject to Section 409A of employment;the Code to defer any portion of such Cash Compensation, the terms of the applicable arrangement shall apply to distribution of such portion); and
(ii) If the benefitsTriggering Event Date is a termination of employment, if anythe Executive’s vested, accrued benefits in all Employee Benefit Plans to which the Officer is Executive was entitled pursuant to this Agreement as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s officers and employees;date of termination, payable in accordance with the terms of the applicable Employee Benefit Plan; and
(iii) continued group life, health Within thirty (including hospitalization, medical and major medical30) days following the effective date of any of the triggering events referred to in the first sentence in this Section 9(b) (the “Triggering Event Date”), accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) and after taking into account the coverage provided by any subsequent employer, if and payment of a lump sum amount equal to the extent necessary to provide for Cash Compensation that the Officer, for the remaining unexpired Assurance Period, coverage equivalent to the coverage to which the Officer Executive would have been entitled under such plans (as in effect on the date of his termination of employment, or, earned if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer he had continued working for the Company and the Bank during for a period of 1,095 days after the remaining unexpired Assurance Period Triggering Event Date and at the highest annual or annualized, rate of compensation Cash Compensation achieved during that portion of the Officer’s period of actual employment with Employment Period prior to the Bank;Triggering Event Date. Such lump sum shall not be reduced to a present value and shall be paid in addition to any other Compensation payments otherwise provided hereunder; and
(iv) Within thirty (30) days following the Triggering Event Date, payment of a lump sum payment, in an amount equal to the present value of the salary that the Officer would have earned if the Officer had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of salary achieved during the Officer’s period of actual employment with the Bank, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) a lump sum payment in an amount equal to the excess, if any, of:
(A) the The present value of both the aggregate current and future accrued benefits in each Employee Pension Benefit Plan that is a defined benefit plan to which the Officer Executive would have been entitled (which shall be entitled under any computed at the highest annual or annualized rate of Cash Compensation in effect during the Employment Period and all qualified and non-qualified defined at the same rate of Employee Pension Benefit Plan funding and/or benefit pension plans maintained byaccrual, determined separately for each such Employee Pension Benefit Plan or covering employees ofas historically had been contributed, whichever is greater, for an Employment Period concluding on the Bank third anniversary of the Triggering Event Date as if the Officer were 100% vested thereunder and Executive had continued working for the Company and the Bank during for the remaining unexpired Assurance Period, Employment Period consisting of such three additional plan years. Such benefits to shall be determined separately for each such Employee Pension Benefit Plan in effect as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);date; over
(B) The present value of the accrued benefits to which the Executive is actually entitled under each such Employee Pension Benefit Plan that is a defined benefit plan as of the Triggering Event Date using comparable actuarial assumptions (where applicable) as then being utilized by such respective plan. In computing the present value of such lump sum payment, the benefits to which annualized rate of interest prescribed by the Officer is actually entitled Pension Benefit Guaranty Corporation for the computation of the value of lump sum payments otherwise payable under such terminating single employer defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his the Executive’s termination of employment terminates; provided, however, that if payments are made under this section 8(b)(voccurs (“Applicable PBGC Rate”) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;utilized; and
(viv) Within thirty (30) days following the Triggering Event Date, a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Company or the Bank, as if he were 100% vested thereunder and had continued working for the Company and the Bank during for a period of three years after the remaining unexpired Assurance Period Triggering Event Date at the highest annual rate of compensation achieved during that portion of the Officer’s period of actual employment with Employment Period which is prior to the BankTriggering Event Date, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the a discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant planEmployee Pension Benefit Plan; and
(vi) Subject to Section 26 of this Agreement, equal for fifteen years following the date of termination of employment (the “Benefits Period”), the Bank and/or Company shall provide the Executive and his spouse and eligible dependents with medical and dental insurance coverage (the “Health Care Benefits”) and life insurance benefits no less favorable than those which the Executive and his spouse and eligible dependents were receiving immediately prior to the Applicable Short-Term Ratedate of termination of employment; provided, however, that the Health Care Benefits shall be provided during the Benefits Period in such a manner that such benefits are excluded from the Executive’s income for federal income tax purposes; provided, further, however, that if payments are made the Executive becomes re-employed with another employer and is eligible to receive health care benefits under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts another employer-provided plan, the health care benefits provided hereunder shall be secondary to those provided under such defined contribution plans other plan during such applicable period of eligibility. The receipt of the Health Care Benefits shall be conditioned upon the Executive continuing to be vestedpay the monthly premium as in effect at the Company from time to time for coverage provided to former employees under Section 4980B of the Code in respect of the level of coverage in effect for the Executive and his spouse and dependents (i.e., single, single plus one, or family) (the “Applicable COBRA Premium”). During the portion of the Benefits Period in which the Executive and his eligible dependents continue to receive coverage under the Company’s Health Care Benefits plans, the paymentsCompany shall pay to the Executive a monthly amount equal to the Applicable COBRA Premium in respect of the maximum level of coverage that the Executive could otherwise elect to receive for the Executive and the Executive’s spouse and eligible dependents if the Executive were still an employee of the Company during the Benefits Period regardless of what level of coverage is actually elected, if any, attributable to such deemed vesting which payment shall be paid in advance on the same formfirst payroll day of each month, commencing with the month immediately following the Executive’s date of termination of employment. Notwithstanding the foregoing provisions of this Section 9(b), (x) in the event that the Executive is a Specified Employee (as defined in the SERP) as of the date of termination of employment, amounts payable under Sections 9(b)(iii-v) due to a qualifying termination of employment that constitute a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code that would otherwise be payable during the six-month period immediately following the date of termination of employment shall instead be paid, with interest on any delayed payment at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code determined as of the date of termination of employment, on the first business day after the date that is six months following the Executive’s date of termination of employment (the “Delayed Payment Date”), and paid at the same time, and (y) in the same manner, as benefits event that amounts are payable under Sections 9(b)(iii)-(v) due to a Change of Control but such Change of Control does not constitute a change in the corresponding non-qualified plan;
(vii) ownership or effective control of the payments that would have been made to the Officer under any cash bonus Company or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for or in the ownership of a substantial portion of the assets of the Company or the Bank during (as defined in Section 409A of the remaining unexpired Assurance Period Code and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Periodregulations thereunder), such payments to amounts shall instead be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year paid, with interest at the highest annual applicable federal rate provided for in Section 7872(f)(2)(A) of salary achieved during the remaining unexpired Assurance PeriodCode determined as of the date of the Change of Control, on the first to occur of the Executive’s termination of employment (or, if the Executive is a Specified Employee on such payments to be made without discounting for early payment .. date, the Delayed Payment Date) or a change in the ownership or effective control of the Company or the Bank, or in the ownership of a substantial portion of the assets of the Company or the Bank (each as defined in Section 409A of the Code and regulations thereunder). The Company, the Bank and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(bSection 9(b) constitute a reasonable estimate liquidated damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the OfficerExecutive’s efforts, if any, to mitigate damages. The Company, the Bank and the Officer Executive further agree that the Company and the Bank may condition the payments and benefits (if any) due under sections 8(b)(iiiSections 9(b)(iii), (iv), (v), (vi) and (viivi) on the receipt of the OfficerExecutive’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the BankCompany, the Company Bank or any subsidiary or affiliate of either either.
(c) Upon the termination of themthe Executive’s employment with the Company and/or the Bank under any of the events set forth in Sections 9(a)(i), 9(a)(ii), 10(a)(iii) or 10(a)(iv) during the Employment Period, or upon a Change of Control (as hereinafter defined) (including under terminations referred to in Section 11(c) hereof), any options to purchase the Company’s stock granted to the Executive by the Company shall immediately vest, and may be exercised in accordance with the terms of such option grants at any time on or prior to their original expiration date.
(d) The parties shall take all steps necessary (including with regard to any post-termination services by the Executive) to ensure that the date of any termination of employment hereunder constitutes a “Separation from Service” (as defined in the SERP).
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s her employment with the Bank shall terminate Association terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officer’s Executive's voluntary resignation from employment with the Bank Association within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect reelect the Executive to the office of President and Chief Executive Officer to serve in the same position in which the Officer was serving, on the day before the Assurance Period commenced (or a more senior office) of the Association;
(B) the failure of the stockholders of the Holding Company Association to elect or re-elect reelect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or reelection; provided, however, that such failure is not the result of vote cast by the Executive;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank Association of its material failure, whether by amendment of the Bank’s Association's Organization Certificate or By-laws, action of the Board or the Holding Company’s Association's stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in section 3 of this Agreement as of the Officer on the day before the Assurance Period commenced (or the functionsdate hereof, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Bank Association fully cures such failure;
(D) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which the Executive gives written notice from the Officer of such material breach;
(E) a reduction in the compensation provided to the OfficerAssociation of its material breach of any term, condition or a material covenant contained in this Agreement (including, without limitation any reduction of the Executive's rate of base salary in the benefits provided effect from time to the Officer under the Bank’s program of employee benefits, compared with the compensation time and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a any change in the Officer’s principal place terms and conditions of employment that would result any compensation or benefit program in which the Executive participates which, either individually or together with other changes, has a one-way commuting time in excess material adverse effect on the aggregate value of her total compensation package), unless, during such thirty (30) day period, the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to Association fully cures such changefailure; or
(ii) the discharge termination of the Officer by Executive's employment with the Bank Association for any other reason other than for “cause” as provided not described in section 9(a10(a)- (Termination for "Cause"); then. In such event, subject to section 2125, the Bank Association shall provide the benefits and pay to the Officer Executive in the amounts provided for under described in section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced9(b).
(b) Upon upon the termination of the Officer’s Executive's employment with the Bank Association under circumstances described in section 8(a9(a) of this Agreement, the Bank Association shall pay and provide to the Officer Executive (or, in the event of the Officer’s her death, to the Officer’s her estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s her earned but unpaid compensation (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(b)) as of the date of the termination of the Officer’s her employment with the BankAssociation, 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 thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer she is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s Association's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive, for the remaining unexpired Assurance Perioda period of three (3) years, coverage equivalent to the coverage to which the Officer she would have been entitled under such plans (as in effect on the date of his her termination of employment, or, if his her termination of employment occurs after a Change of in Control, on the date of such Change of in Control, whichever benefits are greater) if the Officer she had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank;Association.
(iv) with thirty (30) days following her termination of employment with the Association, a lump sum payment, in an amount equal to three (3) times the present value of the salary that the Officer would have earned if the Officer had continued working for the Bank during the remaining unexpired Assurance Period at the Executive's highest annual rate of salary salary, including bonuses and stock awards included as W-2 wages, achieved during the Officer’s period of actual employment with the Bank, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;Employment Period.
(v) within thirty (30) days following her termination of employment with the Association, a lump sum payment in an amount equal to the excess, if any, ofto:
(A) the present value of the aggregate benefits to which the Officer she would be entitled under any and all qualified and non-qualified defined benefit pension plans retirement plans, maintained by, or covering employees of, of the Bank Association as if the Officer she were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits at date of termination. Present value is to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in accordance with IRC Section 280G. In the case of a the Association's leveraged employee stock ownership plan or similar arrangementEmployee Stock Ownership Plan, the additional assets allocable to him through debt service, her will be computed based on upon:
(1) the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he assuming she were 100% vested thereunder in the Plan, and (2) the Association made the maximum amount of employee contributions required under the Plan during the remaining debt service period, and (3) the Executive had continued working for the Bank during the remaining unexpired Assurance Period Association at the highest annual rate of compensation achieved pay during the Officer’s period Employment Period.
(vi) at the election of actual the Association's Board of Directors made within thirty (30) days following her termination of employment with the BankAssociation, and making the maximum amount upon surrender of employee contributions, if any, required stock options or appreciation rights granted such Executive under such any stock option or appreciation rights plan or plans, such present value to be determined on the basis covering employees of the discount rateAssociation, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be lump sum payment equal to the product of:
(A) the maximum percentage rate at which an award was ever available excess of (1) the fair market value of a share of stock of the same class as the stock subject to the Officer option or appreciation right, determined as of the date of termination of employment, over (2) the exercise price per share for such option or appreciation right, as specified in or under such incentive compensation planthe relevant plan or program; multiplied by
(B) the salary that would have been paid number of shares with respect to which options or appreciation rights are being surrendered. For purposes of this section 9(b)(vi), the Executive shall be deemed fully vested in all options and appreciation rights under any stock option or appreciation rights plan or program maintained by, or covering employees of the Association, even if she is not vested under such plan or program.
(vii) at the election of the Association's Board of Directors made with thirty (30) days following the Executive's termination of employment with the Association, upon surrender of any shares awarded to the Officer during each Executive under any restricted stock plan maintained by, or covering employees of the Association, a lump sum payment in an amount equal to the product of:
(A) the fair market value of a share of stock of the same class of stock granted under such calendar year at plan, determined as of the highest annual rate date of salary achieved during the remaining unexpired Assurance PeriodExecutive's termination of employment; multiplied by
(B) the number of shares which are being surrendered. For purposes of this section 9(b)(vii), the Executive shall be deemed fully vested in all shares awarded under any restricted stock plan maintained by, or covering employees of, the Association, even if she is not vested under such payments to be made without discounting for early payment .. plan or program. The Bank Association and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b9(b) constitute a reasonable estimate damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s Executive's efforts, if any, to mitigate damages. The Bank Association and the Officer Executive further agree that the Bank Association may condition the payments and benefits (if any) due described under sections 8(b)(iii), (iv), (v), (vi) and (viisection 9(b) on the receipt of the Officer’s Executive's resignation from any and all positions which he she holds as an officer, director officer or committee member with respect to employee of the BankAssociation, the Company Mutual Holding Company, or any subsidiary or affiliate of either of themthe Stock Holding Company.
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In the event that the Officer’s 's employment with the Bank shall terminate during the Assurance Period, or prior to the commencement of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account of:
(i) The Officer’s 's voluntary resignation from employment with the Bank within ninety (90) days following:
(A) the failure of the Bank’s 's Board to appoint or re-appoint or elect or re-elect the Officer to serve in the same position in which the Officer was serving, on the day before the Assurance Period commenced or a more senior office;
(B) the failure of the stockholders of the Holding Company to elect or re-elect the Officer as a member of the Board, if he was a member of the Board on the day before the Assurance Period commenced;
(C) the expiration of a thirty (30) day period following the date on which the Officer gives written notice to the Bank of its material failure, whether by amendment of the Bank’s 's Organization Certificate or By-laws, action of the Board or the Holding Company’s 's stockholders or otherwise, to vest in the Officer the functions, duties, or responsibilities vested in the Officer on the day before the Assurance Period commenced (or the functions, duties and responsibilities of a more senior office to which the Officer may be appointed), unless during such thirty (30) day period, the Bank fully cures such failure;
(D) the failure of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days following written notice from the Officer of such material breach;
(E) a reduction in the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s 's program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s 's principal place of employment that would result in a one-way commuting time in excess of the greater of (I) 30 minutes or (II) the Officer’s 's commuting time immediately prior to such change; or
(ii) the discharge of the Officer by the Bank for any reason other than for “"cause” " as provided in section 9(a); then, subject to section 21, the Bank shall provide the benefits and pay to the Officer the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s 's termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s 's Assurance Period would have commenced.
(b) Upon the termination of the Officer’s 's employment with the Bank under circumstances described in section 8(a) of this Agreement, the Bank shall pay and provide to the Officer (or, in the event of the Officer’s 's death, to the Officer’s 's estate) on his termination of employment, subject to section 24 25:
(i) the Officer’s 's earned but unpaid compensation (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(b)) as of the date of the termination of the Officer’s 's employment with the Bank, 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 thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s 's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) and after taking into account the coverage provided by any subsequent employer, if and to the extent necessary to provide for the Officer, for the remaining unexpired Assurance Period, coverage equivalent to the coverage to which the Officer would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s 's period of actual employment with the Bank, provided, however, that, to the extent that the promise or provision of any continued group health benefit pursuant to this section 8(b)(iii) would cause a group health plan maintained for the officers or employees of the Company or the Bank to fail to comply with section 2716 of the Public Health Service Act, the Officer shall be provided with distributions of cash in lieu of such benefit, at the same times and in the same forms as the premium payments which would have been made to provide such benefit, in amounts adequate for the Officer to purchase a comparable health benefit;
(iv) a lump sum payment, in an amount equal to the present present value of the salary that the Officer would have earned if the Officer had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of salary achieved during the Officer’s 's period of actual employment with the Bank, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“"Code”") (“Applicable Short-Term Rate”), compounded using the compounding periods corresponding to the Bank’s 's regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) a lump sum payment in an amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits to which the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii)Period;
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; terminates ("Applicable Long-Term Rate"), provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s 's period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; , provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;; and
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum target incentive award (expressed as a percentage rate at of compensation) for the year in which an award was ever available to termination occurs, or, if higher, the average of the actual incentive awards earned (expressed as a percentage of compensation) for the most recent three (3) years, for the Officer under such incentive compensation plan; multiplied by
(B) the salary present value of the compensation that would have been paid to the Officer during each such calendar year at the highest annual rate of salary compensation achieved during the remaining unexpired Assurance PeriodOfficer’s period of actual employment with the Bank, such payments to be made without discounting for early payment .. payment, where such present value is to be determined using the Applicable Short-Term Rate, compounded with the frequency corresponding to the Bank’s regular payroll periods with respect to its officers; such payments to be made at the same time and in the same manner as payments are made to other officers of the Bank pursuant to the terms of such incentive compensation plan. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s 's efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s 's resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.
Appears in 1 contract
Samples: Employee Retention Agreement (Dime Community Bancshares Inc)
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his or her employment with the Bank shall terminate Company terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officer’s the Executive's voluntary resignation from employment with the Bank Company within ninety six (906) days months following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve in the same position in which the Officer was servingoffice of Executive Vice President, on the day before the Assurance Period commenced Secretary and General Counsel (or a more senior office) of the Company;
(B) if the Executive is or becomes a member of the Board, the failure of the stockholders of the Holding Company to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank Company of its material failure, whether by amendment of the Bank’s Organization Company's Certificate of Incorporation or By-laws, action of the Board or the Holding Company’s 's stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in Section 3 of this Agreement as of the Officer on the day before the Assurance Period commenced (or the functionsdate hereof, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Bank fully Company cures such failurefailure in a manner determined by the Executive, in his or her discretion, to be satisfactory;
(D) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which the Executive gives written notice to the Company of its material breach of any term, condition or covenant contained in this Agreement (including, without limitation, any reduction of the Executive's rate of base salary in effect from time to time and any change in the Officer terms and conditions of any compensation or benefit program in which the Executive participates which, either individually or together with other changes, has a material adverse effect on the aggregate value of his or her total compensation package), unless, during such material breach;thirty (30) day period, the Company cures such failure in a manner determined by the Executive, in his or her discretion, to be satisfactory; or
(E) a reduction in the compensation provided to relocation of the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s Executive's principal place of employment that would result in employment, without his or her written consent, to a one-way commuting time in excess location outside of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; orNassau County and Queens County, New York;
(ii) the discharge termination of the Officer by Executive's employment with the Bank Company for any other reason other than for “cause” as provided not described in section 9(aSection 10(a); then, subject to section 21. In such event, the Bank Company shall provide the benefits and pay to the Officer Executive the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained described in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commencedSection 9(b).
(b) Upon the termination of the Officer’s Executive's employment with the Bank Company under circumstances described in section 8(aSection 9(a) of this Agreement, the Bank Company shall pay and provide to the Officer Executive (or, in the event of the Officer’s death, to Executive's death following the Officer’s estate) on his Executive's termination of employment, subject to section 24 :his or her estate):
(i) the Officer’s his or her earned but unpaid compensation (including, without limitation, all items which constitute wages under section Section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(bSection 9(b)) as of the date of the termination of the Officer’s his or her employment with the BankCompany, such payment to be made at the time and in the manner prescribed by law applicable to the payment of wages but in no any event not later than thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer he or she is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s Company's officers and employees, including the annual bonus (if any) to which he or she is entitled under any cash-based annual bonus or performance compensation plan in effect for the year in which his or her termination occurs, to be paid at the same time and on the terms and conditions (including but not limited to achievement of performance goals) applicable under the relevant plan;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage (including any co-payments and deductibles, but excluding any premium sharing arrangements, it being the intention of the parties to this Agreement that the premiums for such insurance benefits shall be the sole cost and expense of the Company) equivalent to the coverage to which the Officer he or she would have been entitled under such plans (as in effect on the date of his or her termination of employment, or, if his or her termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) ), if the Officer he or she had continued working for the Bank Company during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation salary or compensation, as applicable, achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the BankCompany;
(iv) thirty (30) days following the Executive's termination of employment with the Company, a lump sum payment, payment in an amount equal to the present value representing an estimate of the salary that the Officer Executive would have earned if the Officer he or she had continued working for the Bank Company during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the Bank, where such present value is to be determined using a discount rate equal to Company (the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term RateSalary Severance Payment”), compounded . The Salary Severance Payment shall be computed using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) a lump sum payment in an amount equal to the excess, if any, offormula: SSP = BS x NY where:
(A) the present value of the aggregate benefits to which the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In Executive shall be entitled to the severance benefits described in section 9(b) herein in the event that the Officer’s her employment with the Bank shall terminate terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officer’s Executive's voluntary resignation from employment with the Bank within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect Executive to the Officer to serve position stated in the same position in which the Officer was serving, on the day before the Assurance Period commenced section 3 of this Agreement (or a more senior officeoffice of the Bank);
(B) in the event that the Executive is a member of the Board, the failure of the stockholders of the Holding Company Bank to elect or re-elect Executive to the Officer as a member of Board or the Board, if he was a member failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank of its material failure, whether by amendment of the Bank’s 's Organization Certificate or By-lawsLaws, action of the Board or the Holding Company’s Bank's stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in the Officer on the day before the Assurance Period commenced (or the functionssection 3 of this Agreement, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Bank fully cures such failure;failure is cured in a manner determined by Executive, in her discretion, to be satisfactory; or
(D) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which Executive gives written notice from the Officer of such material breach;
(E) a reduction in the compensation provided to the OfficerBank of its material breach of any term, condition or a material covenant contained in this Agreement (including, without limitation any reduction of Executive's rate of base salary in the benefits provided effect from time to the Officer under the Bank’s program of employee benefits, compared with the compensation time and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a any change in the Officer’s principal place terms and conditions of employment that would result any compensation or benefit program in which Executive participates which, either individually or together with other changes, has a material adverse effect on the aggregate value of her total compensation package), unless, during such thirty (30) day period, such failure is cured in a one-way commuting time manner determined by Executive, in excess of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior her discretion, to such changebe satisfactory; or
(ii) subject to the discharge provisions of section 10, the Officer by termination of Executive's employment with the Bank for any other reason other than for “cause” as provided not described in section 9(a); ) other than a termination of the Executive's employment for "cause;" then, subject to section 21, the Bank shall provide the benefits and pay to the Officer Executive the amounts provided for under described in section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced9(b).
(b) Upon the termination of the Officer’s Executive's employment with the Bank under circumstances described in section 8(a9(a) of this Agreement, the Bank shall pay and provide to the Officer Executive (or, in the event of the Officer’s her death, to the Officer’s her estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s earned but unpaid portion, if any, of the compensation (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law applicable law and the payment of which is not otherwise provided for under this section 8(b9(b)) as of earned by the Executive through the date of the termination of the Officer’s her employment with the BankBank which remains unpaid as of such date, 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 thirty (30) days after the Executive's termination of employment;
(ii) the benefits, if any, to which the Officer she is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s 's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long long-term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage equivalent to the coverage to which the Officer she would have been entitled under such plans (as in effect on the date of his her termination of employment, or, if his her termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) ), if the Officer she had continued working work ing for the Bank Company during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation achieved during that portion of the Officer’s period Employment Period which is prior to Executive's termination of actual employment with the Bank;; and
(iv) within thirty (30) days following her termination of employment with the Bank, a lump sum payment, in an amount equal to the present present value of the salary that the Officer Executive would have earned if the Officer she had continued working for the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during that portion of the Officer’s period Employment Period which is prior to Executive's termination of actual employment with the Bank, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“"Code”) (“Applicable Short-Term Rate”"), compounded using the compounding periods period corresponding to the Bank’s 's regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) a lump sum payment in an amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits to which the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. . The Bank and the Officer Executive each hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b9(b) constitute a reasonable estimate damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s Executive's efforts, if any, to mitigate damages. The Bank and the Officer Executive further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi9(b)(iii) and (viiiv) on the receipt of the Officer’s Executive's resignation from any and all positions which he she holds as an officer, director or committee member with respect to the Bank, the Company RFS Bancorp, Revere Bancorp, M.H.C., or any subsidiary or affiliate of either any of them.
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his employment with the Bank shall terminate terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officerthe Executive’s voluntary resignation from employment with the Bank within ninety forty-five (9045) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve the office stated in the same position in which the Officer was serving, on the day before the Assurance Period commenced section 3 of this Agreement (or a more senior office) of the Bank;
(B) the failure of the stockholders of the Holding Company to elect or re-elect the Officer as a member of the Board, if he was a member of the Board on the day before the Assurance Period commenced;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank of its material failure, whether by amendment of the Bank’s Organization Certificate or By-laws, action of the Board or the Holding CompanyBank’s stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in section 3 of this Agreement as of the Officer on the day before the Assurance Period commenced (or the functionsdate hereof, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Bank fully cures such failure;
(DC) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which the Executive gives written notice from the Officer of such material breach;
(E) a reduction in the compensation provided to the OfficerBank of its material breach of any term, condition or a material covenant contained in this Agreement (including, without limitation any reduction of the Executive’s rate of base salary in the benefits provided effect from time to the Officer under the Bank’s program of employee benefits, compared with the compensation time and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a any change in the Officer’s principal place terms and conditions of employment that would result any compensation or benefit program in which the Executive participates which, either individually or together with other changes, has a one-way commuting time in excess material adverse effect on the aggregate value of his total compensation package), unless, during such thirty (30) day period, the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to Bank fully cures such changefailure; or
(ii) the discharge termination of the Officer by Executive’s employment with the Bank for any other reason other than for “cause” as provided not described in section 9(a10(a); thenor
(iii) the Executive’s mandatory resignation from employment with the bank within 45 days following the failure of the stockholders of the Bank to elect or re-elect the Executive to the Board of the failure of the Board (or the nominating committee thereof) to nominate the Executive for such election or reelection; provided, however, that such failure is not the result of a vote cast by the Executive. In such event, subject to section 2125, the Bank shall provide the benefits and pay to the Officer Executive the amounts provided for under described in section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced9(b).
(b) Upon the termination of the OfficerExecutive’s employment with the Bank under circumstances described in section 8(a9(a) of this Agreement, the Bank shall pay and provide to the Officer Executive (or, in the event of the Officer’s his death, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s his earned but unpaid compensation (includingcompensation, without limitationincluding bonuses awarded and not yet received, all items which constitute wages under section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(b)) as of the date of the termination of the Officer’s his employment with the Bank, 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 thirty (30) days after termination of employment;
(ii) the The benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs program maintained for the benefit of the Bank’s officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage equivalent to the coverage to which the Officer he would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of in Control, on the date of such Change of in Control, whichever benefits are greater) if the Officer he had continued working for the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation achieved during that portion of the OfficerEmployment Period which is prior to the Executive’s period termination of actual employment with the Bank;; and
(iv) within thirty (30) days following his termination of employment with the Bank, a lump sum payment, in an amount equal to the present value Executive’s Remaining Unexpired Employment Period expressed as a number of years carried to two decimal places multiplied by the salary that Executive’s average annual compensation received from the Officer would have earned if the Officer had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of salary achieved during the Officer’s period of actual employment with the Bank, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) a lump sum payment in an amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits to which the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees ofCompany, the Bank if and any subsidiary thereof. For purposes of this section, the Officer were 100% vested thereunder and had continued working Executive’s average annual compensation shall be the average of the Executive’s compensation for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of five calendar years preceding his termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all as reported on IRS Form W-2 less amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. option exercises. The Bank and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b9(b) constitute a reasonable estimate damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the OfficerExecutive’s efforts, if any, to mitigate damages. The Bank and the Officer Executive further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi9(b)(iii) and (viiiv) on the receipt of the OfficerExecutive’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described in section 9(b) in the event that the Officer’s employment with the Bank shall terminate during the Assurance Period, or prior to the commencement of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account ofthat:
(i) The Officerher employment with the Company terminates during the Employment Period as a result of the Executive’s voluntary resignation from employment with the Bank within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve the position with the Company stated in the same position in which the Officer was serving, on the day before the Assurance Period commenced or a more senior officesection 3 of this Agreement;
(B) if the Executive is a member of the Board, the failure of the stockholders shareholders of the Holding Company to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) day 30)-day period following the date on which the Officer Executive gives written notice to the Bank Company of its material failure, whether by amendment of the BankCompany’s Organization Certificate or of Incorporation, the Company’s By-lawsLaws, action of the Board or the Holding Company’s stockholders shareholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in the Officer on the day before the Assurance Period commenced (or the functionssection 3 of this Agreement, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day 30)-day period, the Bank fully Company cures such failure;
(D) the failure expiration of a thirty (30)-day period following the Bank date on which the Executive gives written notice to cure a the Company of its material breach of any term, condition or covenant contained in this Agreement by (including, without limitation any reduction of the Executive’s rate of base salary in effect from time to time and any change in the terms and conditions of any compensation or benefit program in which the Executive participates which, either individually or together with other changes, has a material adverse effect on the aggregate value of her total compensation package), unless, during such thirty (30)-day period, the Company cures such failure;
(E) a change in the Executive’s principal place of employment to a place that is not the principal executive office of the Bank, or a relocation of the Bank’s principal executive office to a location that is both more than twenty-five (25) miles away from the Executive’s principal residence and more than twenty-five (25) miles away from the location of the Bank’s principal executive office on the date of this Agreement; or
(F) any material breach by the Company of any material term, condition or covenant contained in this Agreement; provided, however, that the Executive shall have given notice of such material adverse effect to the Company, and the Company has not fully cured such failure within thirty (30) days following written after such notice from the Officer of such material breachis deemed given;
(E) a reduction in the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s principal place of employment that would result in a one-way commuting time in excess of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; or
(ii) the discharge of Executive’s employment with the Officer Company is terminated by the Bank Company for any reason other than for “cause” as provided in section 9(a11(a); then, subject to section 21, the Bank shall provide the benefits and pay to the Officer the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced.
(b) Upon the termination occurrence of any of the Officer’s employment with the Bank under circumstances events described in section 8(a9(a) of this Agreement, the Bank Company shall pay and provide to the Officer Executive (or, in the event of the Officer’s deathher death thereafter and prior to payment, to the Officer’s her estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s her earned but unpaid compensation salary (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law applicable law and the payment of which is not otherwise provided for under in this section 8(b9(b)) as of the date of the termination of the Officer’s her employment with the Company and the Bank, 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 thirty (30) days after termination of employmentemployment as defined in Treasury Regulation Section 1.409A-1(h)(1)(ii);
(ii) the benefits, if any, to which the Officer she is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Company’s and the Bank’s officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long long-term disability insurance benefitsbenefits on substantially the same terms and conditions (including any required premium-sharing arrangements, co-payments and deductibles) in addition effect for them immediately prior to that the Executive’s termination for the Remaining Unexpired Employment Period for the Executive and her dependents. The coverage provided under this section 9(b)(iii) may, at the election of the Company, be secondary to the coverage provided pursuant to section 8(b)(ii9(b)(ii) and after taking into account the to any employer-paid coverage provided by any a subsequent employeremployer or through Medicare, if and to with the extent necessary to provide for result that benefits under the Officer, for the remaining unexpired Assurance Period, coverage equivalent to other coverages will offset the coverage to which required by this section 9(b)(iii). The Executive, the Officer would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer had continued working for Company and the Bank during agree that the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Banktermination benefits described in this Section 9(b)(iii) are intended to be exempt from Section 409A pursuant to Treasury Regulation Section 1.409A-1(b) (1) as non-taxable benefits;
(iv) a lump sum payment, payment in an amount equal to the present estimated present value of the salary that the Officer Executive would have earned if the Officer she had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the Officer’s period of actual employment with the Bank, where such present value is to be determined using a discount rate equal three (3) years ending immediately prior to the date of termination (the “Salary Severance Payment”). The Salary Severance Payment shall be computed using the following formula: where “SSP” is the amount of the Salary Severance Payment (before the deduction of applicable short-federal, state and local withholding taxes); “BS” is the highest annual rate of salary achieved by the Executive during the period of three (3) years ending immediately prior to the date of termination; “PR” is the number of payroll periods that occur during a year under the Company’s normal payroll practices; “I” equals the applicable federal short term federal rate prescribed established under section 1274(d) 1274 of the Internal Revenue Code of 1986 (the “Code”) for the month in which the Executive’s termination of employment occurs (the “Applicable Short-Short Term RateAFR”), compounded using ) and “n” equals the compounding product of the Remaining Unexpired Employment Period at the Executive’s termination of employment (expressed in years and fractions of years) multiplied by the number of payroll periods corresponding to that occur during a year under the Company’s and the Bank’s regular normal payroll periods for its officers, such lump sum to practices. The Salary Severance Payment shall be paid made within five (5) business days after the Executive’s termination of employment and shall be in lieu of all other payments any claim to a continuation of base salary provided which the Executive might otherwise have and in lieu of cash severance benefits under any severance benefits program which may be in effect for under this Agreement in respect officers or employees of the period following any such terminationBank or the Company;
(v) a lump sum payment in an amount equal to the excess, if any, of:
(A) the estimated present value of the aggregate benefits to which annual bonuses that the Officer Executive would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank have earned if the Officer were 100% vested thereunder and she had continued working for the Company and the Bank during the remaining unexpired Assurance Period, such benefits Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the period of three (3) years ending immediately prior to be determined as of the date of termination (the “Bonus Severance Payment”). The Bonus Severance Payment shall be computed using the following formula: where “BSP” is the amount of employment by adding the Bonus Severance Payment (before the deduction of applicable federal, state and local withholding taxes); “SSP” is the amount of the Salary Severance Payment (before the deduction of applicable federal, state and local withholding taxes); “BP” is the aggregate of the annual bonuses paid or declared (whether or not paid) for the most recent period of three (3) calendar years to end on or before the Executive’s termination of employment; and “SP” is the aggregate base salary actually paid to the service actually recognized under Executive during such plans an additional period equal to of three (3) calendar years (excluding any year for which no bonus was declared or paid). The Bonus Severance Payment shall be made within five (5) business days after the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which Executive’s termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value shall be in lieu of any claim to a continuation of participation in annual bonus plans of the benefits to Bank or the Company which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming Executive might otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified planhave;
(vi) a lump sum payment in an amount equal to the estimated present value of the additional employer contributions long-term incentive bonuses that the Executive would have earned if she had continued working for the Company and the Bank during the Remaining Unexpired Employment Period (the “Incentive Severance Payment”). The Incentive Severance Payment shall be computed using the following formula: where “ISP” is the amount of the Incentive Severance Payment (before the deduction of applicable federal, state and local withholding taxes); “SSP” is the amount of the Salary Severance Payment (before the deduction of applicable federal, state and local withholding taxes); “ALTIP” is the aggregate of the most recently paid or if greater in declared (whether or not paid) long-term incentive compensation payments (but not more than three (3) such payments) for performance periods that end on or before the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at Executive’s termination of employment; “ALTSP” is the aggregate base salary actually paid to the Executive during the performance periods covered by the payments included in “ALTIP” and excluding base salary paid for any period for which no long-term incentive compensation payment was declared or paid; “RUP” is the Remaining Unexpired Employment Period, expressed in years and fractions of years; and “Y” is the aggregate (expressed in years and fractions of years) of the Remaining Unexpired Employment Period plus the number of years and fraction of years that have elapsed since the end of the last performance period for which a long-term incentive payment has been declared and paid. In the event that the Executive’s employment terminates prior to the payment date under any long-term incentive compensation plan, then for purposes of computing the Incentive Severance Payment, the “ALTSP” shall be deemed to be the average of the target and maximum award level under such plan and the “ALTSP” shall be deemed to be the Executive’s annual base salary as in effect on the Executive’s termination of employment. The Incentive Severance Payment shall be made within five (5) business days after the Executive’s termination of employment and shall be in lieu of any claim to a continuation of participation in cash long-term incentive compensation plans of the Bank or the Company which the Executive might otherwise have;
(vii) a lump sum payment in an amount equal to the excess (if any) of (A) the present value of the aggregate benefits to which he she would have been be entitled under any and all tax-qualified and non-tax-qualified defined contribution benefit plans maintained by, or covering employees of, the Bank, Company or the Bank (the “Pension Plans”) if he were 100% vested thereunder and she had continued working for the Company and the. Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term RateRemaining Unexpired Employment Period; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
over (B) the salary that would have been paid present value of the benefits to which the Executive and her spouse and/or designated beneficiaries are actually entitled under such plans (the “Pension Severance Payment”). The Pension Severance Payment shall be computed according to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.formula:
Appears in 1 contract
Samples: Employment Agreement (Western New England Bancorp, Inc.)
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described in section 9(b) in the event that the Officer’s employment with the Bank shall terminate during the Assurance Period, or prior to the commencement of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account ofthat:
(i) The Officerhis employment with the Company terminates during the Employment Period as a result of the Executive’s voluntary resignation from employment with the Bank within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve the position with the Company stated in the same position in which the Officer was serving, on the day before the Assurance Period commenced or a more senior officesection 3 of this Agreement;
(B) if the Executive is a member of the Board, the failure of the stockholders shareholders of the Holding Company to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) day 30)-day period following the date on which the Officer Executive gives written notice to the Bank Company of its material failure, whether by amendment of the BankCompany’s Organization Certificate or of Incorporation, the Company’s By-lawsLaws, action of the Board or the Holding Company’s stockholders shareholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in the Officer on the day before the Assurance Period commenced (or the functionssection 3 of this Agreement, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day 30)-day period, the Bank fully Company cures such failure;
(D) the failure expiration of a thirty (30)-day period following the Bank date on which the Executive gives written notice to cure a the Company of its material breach of any term, condition or covenant contained in this Agreement by (including, without limitation any reduction of the Executive’s rate of base salary in effect from time to time and any change in the terms and conditions of any compensation or benefit program in which the Executive participates which, either individually or together with other changes, has a material adverse effect on the aggregate value of his total compensation package), unless, during such thirty (30)-day period, the Company cures such failure;
(E) a change in the Executive’s principal place of employment to a place that is not the principal executive office of the Bank, or a relocation of the Bank’s principal executive office to a location that is both more than twenty-five (25) miles away from the Executive’s principal residence and more than twenty-five (25) miles away from the location of the Bank’s principal executive office on the date of this Agreement; or
(F) any material breach by the Company of any material term, condition or covenant contained in this Agreement; provided, however, that the Executive shall have given notice of such materials adverse effect to the Company, and the Company has not fully cured such failure within thirty (30) days following written after such notice from the Officer of such material breach;
(E) a reduction in the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s principal place of employment that would result in a one-way commuting time in excess of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such changeis deemed given; or
(ii) the discharge of Executive’s employment with the Officer Company is terminated by the Bank Company for any reason other than for “cause” as provided in section 9(a11(a); then, subject to section 21, the Bank shall provide the benefits and pay to the Officer the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced.
(b) Upon the termination occurrence of any of the Officer’s employment with the Bank under circumstances events described in section 8(a9(a) of this Agreement, the Bank Company shall pay and provide to the Officer Executive (or, in the event of the Officer’s deathhis death thereafter and prior to payment, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s his earned but unpaid compensation salary (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law applicable law and the payment of which is not otherwise provided for under in this section 8(b9(b)) as of the date of the termination of the Officer’s his employment with the Company and the Bank, 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 thirty (30) days after termination of employmentemployment as defined in Treasury Regulation Section 1.409A-1(h)(1)(ii);
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Company’s and the Bank’s officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long long-term disability insurance benefitsbenefits on substantially the same terms and conditions (including any required premium-sharing arrangements, co-payments and deductibles) in addition effect for them immediately prior to that the Executive’s termination for the Remaining Unexpired Employment Period for the Executive and his dependents. The coverage provided under this section 9(b)(iii) may, at the election of the Company, be secondary to the coverage provided pursuant to section 8(b)(ii9(b)(ii) and after taking into account the to any employer-paid coverage provided by any a subsequent employeremployer or through Medicare, if and to with the extent necessary to provide for result that benefits under the Officer, for the remaining unexpired Assurance Period, coverage equivalent to other coverages will offset the coverage to which required by this section 9(b)(iii). The Executive, the Officer would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer had continued working for Company and the Bank during agree that the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Banktermination benefits described in this Section 9(b)(iii) are intended to be exempt from Section 409A pursuant to Treasury Regulation Section 1.409A-1(b) (1) as non-taxable benefits;
(iv) a lump sum payment, payment in an amount equal to the present estimated present value of the salary that the Officer Executive would have earned if the Officer he had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the Officer’s period of actual employment with the Bank, where such present value is to be determined using a discount rate equal three (3) years ending immediately prior to the date of termination (the “Salary Severance Payment”). The Salary Severance Payment shall be computed using the following formula: where “SSP” is the amount of the Salary Severance Payment (before the deduction of applicable short-federal, state and local withholding taxes); “BS” is the highest annual rate of salary achieved by the Executive during the period of three (3) years ending immediately prior to the date of termination; “PR” is the number of payroll periods that occur during a year under the Company’s normal payroll practices; “I” equals the applicable federal short term federal rate prescribed established under section 1274(d) 1274 of the Internal Revenue Code of 1986 (the “Code”) for the month in which the Executive’s termination of employment occurs (the “Applicable Short-Short Term RateAFR”), compounded using ) and “n” equals the compounding product of the Remaining Unexpired Employment Period at the Executive’s termination of employment (expressed in years and fractions of years) multiplied by the number of payroll periods corresponding to that occur during a year under the Company’s and the Bank’s regular normal payroll periods for its officers, such lump sum to practices. The Salary Severance Payment shall be paid made within five (5) business days after the Executive’s termination of employment and shall be in lieu of all other payments any claim to a continuation of base salary provided which the Executive might otherwise have and in lieu of cash severance benefits under any severance benefits program which may be in effect for under this Agreement in respect officers or employees of the period following any such terminationBank or the Company;
(v) a lump sum payment in an amount equal to the excess, if any, of:
(A) the estimated present value of the aggregate benefits to which annual bonuses that the Officer Executive would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank have earned if the Officer were 100% vested thereunder and he had continued working for the Company and the Bank during the remaining unexpired Assurance Period, such benefits Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the period of three (3) years ending immediately prior to be determined as of the date of termination (the “Bonus Severance Payment”). The Bonus Severance Payment shall be computed using the following formula: where “BSP” is the amount of employment by adding the Bonus Severance Payment (before the deduction of applicable federal, state and local withholding taxes); “SSP” is the amount of the Salary Severance Payment (before the deduction of applicable federal, state and local withholding taxes); “BP” is the aggregate of the annual bonuses paid or declared (whether or not paid) for the most recent period of three (3) calendar years to end on or before the Executive’s termination of employment; and “SP” is the aggregate base salary actually paid to the service actually recognized under Executive during such plans an additional period equal to of three (3) calendar years (excluding any year for which no bonus was declared or paid). The Bonus Severance Payment shall be made within five (5) business days after the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which Executive’s termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value shall be in lieu of any claim to a continuation of participation in annual bonus plans of the benefits to Bank or the Company which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming Executive might otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified planhave;
(vi) a lump sum payment in an amount equal to the estimated present value of the additional employer contributions long-term incentive bonuses that the Executive would have earned if he had continued working for the Company and the Bank during the Remaining Unexpired Employment Period (the “Incentive Severance Payment”). The Incentive Severance Payment shall be computed using the following formula: where “ISP” is the amount of the Incentive Severance Payment (before the deduction of applicable federal, state and local withholding taxes); “SSP” is the amount of the Salary Severance Payment (before the deduction of applicable federal, state and local withholding taxes); “ALTIP” is the aggregate of the most recently paid or if greater in declared (whether or not paid) long-term incentive compensation payments (but not more than three (3) such payments) for performance periods that end on or before the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at Executive’s termination of employment; “ALTSP” is the aggregate base salary actually paid to the Executive during the performance periods covered by the payments included in “ALTIP” and excluding base salary paid for any period for which no long-term incentive compensation payment was declared or paid; “RUP” is the Remaining Unexpired Employment Period, expressed in years and fractions of years; and “Y” is the aggregate (expressed in years and fractions of years) of the Remaining Unexpired Employment Period plus the number of years and fraction of years that have elapsed since the end of the last performance period for which a long-term incentive payment has been declared and paid. In the event that the Executive’s employment terminates prior to the payment date under any long-term incentive compensation plan, then for purposes of computing the Incentive Severance Payment, the “ALTSP” shall be deemed to be the average of the target and maximum award level under such plan and the “ALTSP” shall be deemed to be the Executive’s annual base salary as in effect on the Executive’s termination of employment. The Incentive Severance Payment shall be made within five (5) business days after the Executive’s termination of employment and shall be in lieu of any claim to a continuation of participation in cash long-term incentive compensation plans of the Bank or the Company which the Executive might otherwise have;
(vii) a lump sum payment in an amount equal to the excess (if any) of (A) the present value of the aggregate benefits to which he would have been be entitled under any and all tax-qualified and non-tax-qualified defined contribution benefit plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for Company or the Bank during (the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi“Pension Plans”) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Company and the. Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Remaining Unexpired Employment Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
over (B) the salary that would have been paid present value of the benefits to which the Executive and his spouse and/or designated beneficiaries are actually entitled under such plans (the “Pension Severance Payment”). The Pension Severance Payment shall be computed according to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.formula:
Appears in 1 contract
Samples: Employment Agreement (Western New England Bancorp, Inc.)
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described in section 9(b) in the event that the Officer’s employment with the Bank shall terminate during the Assurance Period, or prior to the commencement of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account ofthat:
(i) The Officerhis employment with the Company terminates during the Employment Period as a result of the Executive’s voluntary resignation from employment with the Bank within ninety (90) 90 days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve the position with the Company stated in the same position in which the Officer was serving, on the day before the Assurance Period commenced or a more senior officesection 3 of this Agreement;
(B) if the Executive is a member of the Board, the failure of the stockholders shareholders of the Holding Company to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) -day period following the date on which the Officer Executive gives written notice to the Bank Company of its material failure, whether by amendment of the BankCompany’s Organization Certificate or of Incorporation, the Company’s By-lawsLaws, action of the Board or the Holding Company’s stockholders shareholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in the Officer on the day before the Assurance Period commenced (or the functionssection 3 of this Agreement, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) -day period, the Bank fully Company cures such failure;
(D) the failure expiration of a 30-day period following the Bank date on which the Executive gives written notice to cure a the Company of its material breach of any term, condition or covenant contained in this Agreement by (including, without limitation any reduction of the BankExecutive’s rate of base salary in effect from time to time and any change in the terms and conditions of any compensation or benefit program in which the Executive participates which, within thirty (either individually or together with other changes, has a material adverse effect on the aggregate value of his total compensation package), unless, during such 30) days following written notice from -day period, the Officer of Company cures such material breachfailure;
(E) a reduction in the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the OfficerExecutive’s principal place of employment to a place that would result in a one-way commuting time in excess is not the principal executive office of the greater Bank, or a relocation of the Bank’s principal executive office to a location that is both more than twenty-five miles away from the Executive’s principal residence and more than twenty-five miles away from the location of the Bank’s principal executive office on the date of this Agreement; or
(IF) 30 minutes any material breach by the Company of any material term, condition or (II) covenant contained in this Agreement; provided, however, that the Officer’s commuting time immediately prior Executive shall have given notice of such materials adverse effect to the Company, and the Company has not fully cured such changefailure within thirty days after such notice is deemed given; or
(ii) the discharge of Executive’s employment with the Officer Company is terminated by the Bank Company for any reason other than for “cause” as provided in section 9(a11(a); then, subject to section 21, the Bank shall provide the benefits and pay to the Officer the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced.
(b) Upon the termination occurrence of any of the Officer’s employment with the Bank under circumstances events described in section 8(a9(a) of this Agreement, the Bank Company shall pay and provide to the Officer Executive (or, in the event of the Officer’s deathhis death thereafter and prior to payment, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s his earned but unpaid compensation salary (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law applicable law and the payment of which is not otherwise provided for under in this section 8(b9(b)) as of the date of the termination of the Officer’s his employment with the Company and the Bank, 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 thirty (30) 30 days after termination of employment;
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Company’s and the Bank’s officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long long-term disability insurance benefitsbenefits on substantially the same terms and conditions (including any required premium-sharing arrangements, co-payments and deductibles) in addition effect for them immediately prior to that the Executive’s termination for the Remaining Unexpired Employment Period for the Executive and his dependents. The coverage provided under this section 9(b)(iii) may, at the election of the Company, be secondary to the coverage provided pursuant to section 8(b)(ii9(b)(ii) and after taking into account the to any employer-paid coverage provided by any a subsequent employeremployer or through Medicare, if and to with the extent necessary to provide for result that benefits under the Officer, for the remaining unexpired Assurance Period, coverage equivalent to other coverages will offset the coverage to which the Officer would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bankrequired by this section 9(b)(iii);
(iv) a lump sum payment, payment in an amount equal to the present estimated present value of the salary that the Officer Executive would have earned if the Officer he had continued working for the Company and the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the Officer’s period of actual employment with the Bank, where such present value is to be determined using a discount rate equal three (3) years ending immediately prior to the date of termination (the “Salary Severance Payment”). The Salary Severance Payment shall be computed using the following formula: SSP=Sn1 [ (BS/PR) ] [1 + (I/PR)]n where “SSP” is the amount of the Salary Severance Payment (before the deduction of applicable short-federal, state and local withholding taxes); “BS” is the highest annual rate of salary achieved by the Executive during the period of three (3) years ending immediately prior to the date of termination; “PR” is the number of payroll periods that occur during a year under the Company’s normal payroll practices; “I” equals the applicable federal short term federal rate prescribed established under section 1274(d) 1274 of the Internal Revenue Code of 1986 (the “Code”) for the month in which the Executive’s termination of employment occurs (the “Applicable Short-Short Term RateAFR”), compounded using ) and “n” equals the compounding product of the Remaining Unexpired Employment Period at the Executive’s termination of employment (expressed in years and fractions of years) multiplied by the number of payroll periods corresponding to that occur during a year under the Company’s and the Bank’s regular normal payroll periods for its officers, such lump sum to practices. The Salary Severance Payment shall be paid made within five (5) business days after the Executive’s termination of employment and shall be in lieu of all other payments any claim to a continuation of base salary provided which the Executive might otherwise have and in lieu of cash severance benefits under any severance benefits program which may be in effect for under this Agreement in respect officers or employees of the period following any such terminationBank or the Company;
(v) a lump sum payment in an amount equal to the excess, if any, of:
(A) the estimated present value of the aggregate benefits to which annual bonuses that the Officer Executive would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank have earned if the Officer were 100% vested thereunder and he had continued working for the Company and the Bank during the remaining unexpired Assurance Period, such benefits Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the period of three (3) years ending immediately prior to be determined as of the date of termination (the “Bonus Severance Payment”). The Bonus Severance Payment shall be computed using the following formula: where “BSP” is the amount of employment by adding the Bonus Severance Payment (before the deduction of applicable federal, state and local withholding taxes); “SSP” is the amount of the Salary Severance Payment (before the deduction of applicable federal, state and local withholding taxes); “BP” is the aggregate of the annual bonuses paid or declared (whether or not paid) for the most recent period of three (3) calendar years to end on or before the Executive’s termination of employment; and “SP” is the aggregate base salary actually paid to the service actually recognized under Executive during such plans an additional period equal to of three (3) calendar years (excluding any year for which no bonus was declared or paid). The Bonus Severance Payment shall be made within five (5) business days after the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which Executive’s termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value shall be in lieu of any claim to a continuation of participation in annual bonus plans of the benefits to Bank or the Company which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming Executive might otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified planhave;
(vi) a lump sum payment in an amount equal to the estimated present value of the additional employer contributions long-term incentive bonuses that the Executive would have earned if he had continued working for the Company and the Bank during the Remaining Unexpired Employment Period (the “Incentive Severance Payment”). The Incentive Severance Payment shall be computed using the following formula: where “ISP” is the amount of the Incentive Severance Payment (before the deduction of applicable federal, state and local withholding taxes); “SSP” is the amount of the Salary Severance Payment (before the deduction of applicable federal, state and local withholding taxes); “ALTIP” is the aggregate of the most recently paid or if greater in declared (whether or not paid) long-term incentive compensation payments (but not more than three (3) such payments) for performance periods that end on or before the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at Executive’s termination of employment; “ALTSP” is the aggregate base salary actually paid to the Executive during the performance periods covered by the payments included in “ALTIP” and excluding base salary paid for any period for which no long-term incentive compensation payment was declared or paid; “RUP” is the Remaining Unexpired Employment Period, expressed in years and fractions of years; and “Y” is the aggregate (expressed in years and fractions of years) of the Remaining Unexpired Employment Period plus the number of years and fraction of years that have elapsed since the end of the last performance period for which a long-term incentive payment has been declared and paid. In the event that the Executive’s employment terminates prior to the payment date under any long-term incentive compensation plan, then for purposes of computing the Incentive Severance Payment, the “ALTIP” shall be deemed to be the average of the target and maximum award level under such plan and the “ALTSP” shall be deemed to be the Executive’s annual base salary as in effect on the Executive’s termination of employment. The Incentive Severance Payment shall be made within five (5) business days after the Executive’s termination of employment and shall be in lieu of any claim to a continuation of participation in cash long-term incentive compensation plans of the Bank or the Company which the Executive might otherwise have;
(vii) a lump sum payment in an amount equal to the excess (if any) of: (A) the present value of the aggregate benefits to which he would have been be entitled under any and all tax-qualified and non-tax-qualified defined contribution benefit plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for Company or the Bank during (the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi“Pension Plans”) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Company and the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Remaining Unexpired Employment Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
over (B) the salary that would have been paid present value of the benefits to which the Executive and his spouse and/or designated beneficiaries are actually entitled under such plans (the “Pension Severance Payment”). The Pension Severance Payment shall be computed according to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.formula:
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described in section 9(b) in the event that the Officer’s employment with the Bank shall terminate during the Assurance Period, or prior to the commencement of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account ofthat:
(i) The Officer’s voluntary resignation from his employment with the Company or the Commercial Bank terminates during the Employment Period as a result of the Executive's voluntary resignation within ninety (90) 90 days following:
(A) the failure of the Bank’s Commercial Bank Board to appoint or re-re- appoint or elect or re-elect the Officer Executive to serve the position with the Commercial Bank stated in the same position in which the Officer was serving, on the day before the Assurance Period commenced section 3 of this Agreement (or a more senior office);
(B) the failure expiration of a 30-day period following the date on which the Executive gives written notice to the Company of its or the Commercial Bank's material failure, whether by amendment of the stockholders Company's Certificate of Incorporation, the Commercial Bank's Certificate of Incorporation, the Company's By-Laws or the Commercial Bank's By-Laws, action of the Holding Company Board or the Commercial Bank Board or the Company's shareholders or the Commercial Bank's shareholders or otherwise, to elect vest in the Executive the functions, duties, or reresponsibilities prescribed in section 3 of this Agreement, unless, during such 30-elect day period, the Officer as a member of Company or the Board, if he was a member of the Board on the day before the Assurance Period commenced;Commercial Bank cures such failure; or
(C) the expiration of a thirty (30) -day period following the date on which the Officer Executive gives written notice to the Bank Company of its or the Commercial Bank's material failurebreach of any term, whether by amendment condition or covenant contained in this Agreement (including, without limitation, any reduction of the Bank’s Organization Certificate or By-laws, action Executive's rate of the Board or the Holding Company’s stockholders or otherwise, base salary in effect from time to vest time and any change in the Officer terms and conditions of any compensation or benefit program in which the functionsExecutive participates which, dutieseither individually or together with other changes, or responsibilities vested in the Officer has a material adverse effect on the day before the Assurance Period commenced (or the functions, duties and responsibilities aggregate value of a more senior office to which the Officer may be appointedhis total compensation package), unless unless, during such thirty (30) -day period, the Company or the Commercial Bank fully cures such failure;
(D) the failure of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days following written notice from the Officer of such material breach;
(E) a reduction in the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s principal place of employment that would result in a one-way commuting time in excess of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; or
(ii) the discharge of Executive's employment with the Officer Commercial Bank is terminated by the Company or the Commercial Bank for any reason other than for “"cause” " as provided in section 9(a10(a); then, subject to or
(iii) a Change of Control as defined in section 21, the Bank shall provide the benefits and pay to the Officer the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced11 has occurred.
(b) Upon the termination occurrence of any of the Officer’s employment with the Bank under circumstances events described in section 8(a9(a) of this Agreement, the Company or the Commercial Bank shall pay and provide to the Officer Executive (or, in the event of the Officer’s his death, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s his earned but unpaid compensation salary (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law applicable law and the payment of which is not otherwise provided for under in this section 8(b9(b)) as of the date of the termination of the Officer’s his employment with the Commercial Bank, 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 thirty (30) 30 days after termination of employment;
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Company's and the Commercial Bank’s 's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage equivalent to the coverage to which the Officer he would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) ), if the Officer he had continued working for the Commercial Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation salary achieved during the Officer’s period of actual employment with the BankEmployment Period;
(iv) within 30 days following the Executive's termination of employment with the Commercial Bank, a lump sum payment, in an amount equal to the present present value of the salary (excluding any additional payments made to the Executive in lieu of the use of an automobile) that the Officer Executive would have earned if the Officer he had continued working for the Commercial Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the Officer’s period of actual employment with the BankEmployment Period, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 1986, as amended (“"Code”) (“Applicable Short-Term Rate”"), compounded using the compounding periods corresponding to the Bank’s Company's regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) within 30 days following the Executive's termination of employment with the Commercial Bank, a lump sum payment in an amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits to which the Officer he would be entitled entitled, if any, under The Warwick Savings Bank Defined Benefit Pension Plan (together with the defined benefit portion of the Benefit Restoration Plan of The Warwick Savings Bank and any other supplemental defined benefit plan) and any and all other qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Company, the Commercial Bank or The Warwick Savings Bank, if the Officer he were 100% vested thereunder and had continued working for the Commercial Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during the Employment Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);; over
(B) the present value of the benefits to which the Officer he is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, monthly equal to the applicable longannualized rate of interest prescribed by the Pension Benefit Guaranty Corporation for the valuation of immediate annuities payable under terminating single-term federal rate prescribed under section 1274(d) of the Code employer defined benefit plans for the month in which his the Executive's termination of employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified planoccurs ("Applicable PBGC Rate");
(vi) within 30 days following the Executive's termination of employment with the Commercial Bank, a lump sum payment in an amount equal to the present value of the additional estimated employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled made to his account, if any, under The Warwick Savings Bank 401(k) Savings Plan, and the estimated value of the annual allocations that would have been made to his account in the Employee Stock Ownership Plan of Warwick Community Bancorp, Inc. (together with the defined contribution portion of the Benefit Restoration Plan of The Warwick Savings Bank or any other supplemental defined contribution plan) and any and all other qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Commercial Bank, as if he were 100% vested thereunder and had continued working for the Commercial Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation salary achieved during the Officer’s period of actual employment with the BankEmployment Period, and making the maximum amount of employee contributions, if any, required under any such plan or plans and taking into account his estimated compensation as determined under any such plan or plans, such present value to be determined on the basis of the a discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term PBGC Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made made, if any, to the Officer Executive under any cash or stock bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, Commercial Bank if he had continued working for the Commercial Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Remaining Unexpired Employment Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer Executive under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer Executive during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Employment Period, ; such payments to be made (without discounting for early payment) within 30 days following the Executive's termination of employment;
(viii) at the election of the Company made within 30 days following the occurrence of the event described in section 9(a), upon the surrender of options or appreciation rights issued to the Executive, if any, under any stock option and appreciation rights plan or program maintained by, or covering employees of, the Company or the Commercial Bank, a lump sum payment .. in an amount equal to the product of:
(A) the excess of (I) the fair market value of a share of stock of the same class as the stock subject to the option or appreciation right, determined as of the date of termination of employment, over (II) the exercise price per share for such option or appreciation right, as specified in or under the relevant plan or program; multiplied by
(B) the number of shares with respect to which options or appreciation rights are being surrendered. For purposes of this section 9(b)(viii), the Executive shall be deemed fully vested in all options and appreciation rights under any stock option or appreciation rights plan or program maintained by, or covering employees of, the Company or the Commercial Bank, even if he is not vested under such plan or program; and
(ix) at the election of the Company made within 30 days following the occurrence of the event described in section 9(a), upon the surrender of any shares awarded to the Executive, if any, under any restricted stock plan maintained by, or covering employees of, the Company or the Commercial Bank, a lump sum payment in an amount equal to the product of:
(A) the fair market value of a share of stock of the same class of stock granted under such plan, determined as of the date of the Executive's termination of employment; multiplied by
(B) the number of shares which are being surrendered. For purposes of this section 9(b)(ix), the Executive shall be deemed fully vested in all shares awarded under any restricted stock plan maintained by, or covering employees of, the Company or the Commercial Bank, even if he is not vested under such plan. The Company, the Commercial Bank and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b9(b) constitute a reasonable estimate damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s Executive's efforts, if any, to mitigate damages. The Company, the Commercial Bank and the Officer Executive further agree that the Company or the Commercial Bank may condition the payments and benefits (if any) due under sections 8(b)(iii9(b)(iii), (iv), (v), (vi) and (viivi) on the receipt of the Officer’s Executive's resignation from any and all positions which he holds as an officer, director or committee member with respect to the BankCompany, the Company Commercial Bank or any subsidiary or affiliate of either of them.
Appears in 1 contract
Samples: Employment Agreement (Warwick Community Bancorp Inc)
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his employment with the Bank shall terminate terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officer’s Executive's voluntary resignation from employment with the Bank within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Officer Executive to serve the office described in the same position in which the Officer was serving, on the day before the Assurance Period commenced section 3 of this Agreement (or a more senior office) of the Bank;
(B) if the Executive is a member of the Board as of the date of this agreement, the failure of the stockholders of the Holding Company Bank to elect or re-elect the Officer as a member of Executive or the Board, if he was a member failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank of its material failure, whether by amendment of the Bank’s 's Organization Certificate or By-laws, action of the Board or the Holding Company’s Bank's stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in the Officer on the day before the Assurance Period commenced (or the functionssection 3 of this Agreement, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Bank fully cures such failure;
(D) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which the Executive gives written notice from the Officer of such material breach;
(E) a reduction in the compensation provided to the OfficerBank of its material breach of any term, condition or a material covenant contained in this Agreement (including, without limitation, any reduction of the Executive's rate of base salary in the benefits provided effect from time to the Officer under the Bank’s program of employee benefits, compared with the compensation time and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a any change in the Officer’s principal place terms and conditions of employment that would result any compensation or benefit program in which the Executive participates which, alone or together with other changes, has a one-way commuting time in excess material adverse effect on the aggregate value of his total compensation package), unless, during such thirty (30) day period, the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to Bank fully cures such changefailure; or
(ii) the discharge termination of the Officer by Executive's employment with the Bank for any other reason other than for “cause” as provided not described in section 9(a10(a); then, subject to section 2125, the Bank shall provide the benefits and pay to the Officer Executive the amounts provided for under described in section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced9(b).
(b) Upon the termination of the Officer’s Executive's employment with the Bank under circumstances described in section 8(a9(a) of this Agreement, the Bank shall pay and provide to the Officer Executive (or, in the event of the Officer’s his death, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s his earned but unpaid compensation (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law applicable law and the payment of which is not otherwise provided for under this section 8(b9(b)) as of the date of the termination of the Officer’s his employment with the Bank, 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 thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs pro grams maintained for the benefit of the Bank’s 's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long long-term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage equivalent to the coverage to which the Officer he would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer he had continued working for the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the Bank and if, upon the expiration of such coverage, the Executive has received or is eligible to receive pension benefits under a pension plan of the Holding Company or the Bank, a further continuation of such coverage for the remaining lifetimes of the Executive and his spouse;
(iv) within thirty (30) days following his termination of employment with the Bank, a lump sum payment, in an amount equal to the present present value of the salary that the Officer Executive would have earned if the Officer he had continued working for the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the Bank, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“"Code”) (“Applicable Short-Term Rate”"), compounded using the compounding periods period corresponding to the Bank’s 's regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following fol lowing any such termination;
(v) within thirty (30) days following his termination of employment with the Bank, a lump sum payment in an amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits to which the Officer he would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank Bank, if the Officer he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Remaining Unexpired Employment Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I9(b)(i), (iv) and (vii);; over
(B) the present value of the benefits to which the Officer he is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed prescr ibed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable longannualized rate of interest prescribed by the Pension Benefits Guaranty Corporation for the valuation of immediate annuities payable under terminating single-term federal rate prescribed under section 1274(d) of the Code employer defined benefit plans for the month in which his the Executive's termination of employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified planoccurs ("Applicable PBGC Rate");
(vi) within thirty (30) days following his termination of employment with the Bank, a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the a discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term PBGC Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;and
(vii) the payments that would have been made to the Officer Executive under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, Bank if he had continued working for the Bank during the remaining unexpired Assurance Remaining Unexpired Employment Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be Remaining Unexpired Employment Period a bonus in an amount equal to the product of:
(A) the maximum percentage rate at which an highest annual bonus or incentive award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been actually paid to the Officer during each such him in any calendar year at the highest annual rate of salary achieved ending during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. three-year period ending on the date of termination of employment. The Bank and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b9(b) constitute a reasonable estimate damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s Executive's efforts, if any, to mitigate damages. The Bank and the Officer Executive further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii9(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s Executive's resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Holding Company or any subsidiary or affiliate of either of them.
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his employment with the Bank shall terminate Association terminates during the Assurance Period, or prior to the commencement of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 term of this Agreement on account ofunder any of the following circumstances:
(i) The Officer’s Executive's voluntary resignation from employment with the Bank Association within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect Executive to the Officer to serve office described in the same position in which the Officer was serving, on the day before the Assurance Period commenced section 1 of this Agreement (or a more senior officeoffice of the Association);
(B) if Executive is a member of the Board as of the date of this Agreement, the failure of the stockholders of the Holding Company Association to elect or re-elect Executive or the Officer as a member of the Board, if he was a member failure of the Board on (or the day before the Assurance Period commencednominating committee thereof) to nominate Executive for such election or re-election;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank Association of its material failure, whether by amendment of the Bank’s Association's Organization Certificate or By-laws, action of the Board or the Holding Company’s Association's stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in the Officer on the day before the Assurance Period commenced (or the functionssection 1 of this Agreement, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Bank Association fully cures such failure;; or
(D) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which Executive gives written notice from the Officer of such material breach;
(E) a reduction in the compensation provided to the OfficerAssociation of its material breach of any term, condition or a material covenant contained in this Agreement (including, without limitation any reduction of Executive's rate of Base Salary in the benefits provided effect from time to the Officer under the Bank’s program of employee benefits, compared with the compensation time and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a any change in the Officer’s principal place terms and conditions of employment that would result any compensation or benefit program in which Executive participates which, alone or together with other changes, has a one-way commuting time in excess material adverse effect on the aggregate value of his total compensation package), unless, during such thirty (30) day period, the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to Association fully cures such changefailure; or
(ii) the discharge termination of Executive's employment with the Officer by the Bank Association for any other reason other than for “cause” as provided not described in section 9(a)7; then, subject to section 21sections 15 and 16, the Bank Association shall provide the benefits and pay to the Officer Executive the amounts provided for under described in section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced4(b).
(b) Upon the termination of the Officer’s Executive's employment with the Bank Association under circumstances described in section 8(a4(a) of this Agreement, the Bank Association shall pay and provide to the Officer Executive (or, in the event of the Officer’s his death, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s his earned but unpaid compensation (including, without limitationimitation, all items which constitute wages under section 190.1 of the New York Labor Law applicable law and the payment of which is not otherwise provided for under this section 8(bSection 4(b)) ), as of the date of the termination of the Officer’s his employment with the BankAssociation, 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 thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s Association's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long long-term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 4(b)(ii), and after taking into account the coverage provided by any subsequent employer, if and to the extent necessary to provide for the OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage equivalent to the coverage to which the Officer he would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer he had continued working work ing for the Bank Association during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation achieved during that portion of the Officer’s period term of actual this Agreement which is prior to Executive's termination of employment with the BankAssociation, it being understood that Executive's "qualifying event" for purposes of continuation coverage under the Consolidated Budget Reconciliation Act ("COBRA") shall occur at the expiration of this period;
(iv) within five (5) days following his termination of employment with the Association, a lump sum payment, in an amount equal to the present value of the salary that the Officer Executive would have earned if the Officer he had continued working for the Bank Association during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during that portion of the Officer’s period term of actual this Agreement which is prior to Executive's termination of employment with the Bank, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such Association. Such lump sum is to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) within thirty (30) days following his termination of employment with the Association, a lump sum payment in an amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits to which the Officer he would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank Association, if the Officer he were 100% vested thereunder and had continued working for the Bank Association during the remaining unexpired Assurance Re maining Unexpired Employment Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Remaining Unexpired Employment Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.for
Appears in 1 contract
Samples: Employment Agreement (First Palm Beach Bancorp Inc)
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his employment with the Bank shall terminate Association terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officer’s the Executive's voluntary resignation from employment with the Bank Association within ninety six (906) days months following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Executive to the office of Vice Chairman and Chief Administrative Officer to serve in the same position in which the Officer was serving, on the day before the Assurance Period commenced (or a more senior office) of the Association;
(B) if the Executive is a member of the Board, the failure of the stockholders of the Holding Company Association to elect or re-elect the Officer as a member of Executive to the Board, if he was a member Board or the failure of the Board on (or the day before nominating committee thereof) to nominate the Assurance Period commencedExecutive for such election or re-election;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank Association of its material failure, whether by amendment of the Bank’s Organization Certificate Association's Charter or By-laws, action of the Board or the Holding Company’s Association's stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in Section 3 of this Agreement as of the Officer on the day before the Assurance Period commenced (or the functionsdate hereof, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Bank fully Association cures such failurefailure in a manner determined by the Executive, in his or her discretion, to be satisfactory;
(D) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which the Executive gives written notice to the Association of its material breach of any term, condition or covenant contained in this Agreement (including, without limitation, any reduction of the Executive's rate of base salary in effect from time to time and any change in the Officer terms and conditions of any compensation or benefit program in which the Executive participates which, either individually or together with other changes, has a material adverse effect on the aggregate value of his total compensation package), unless, during such material breach;thirty (30) day period, the Association cures such failure in a manner determined by the Executive, in his or her discretion, to be satisfactory; or
(E) a reduction in the compensation provided to relocation of the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s Executive's principal place of employment that would result in employment, without his or her written consent, to a one-way commuting time in excess location outside of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such change; orNassau County and Queens County, New York;
(ii) the discharge termination of the Officer by Executive's employment with the Bank Association for any other reason other than for “cause” as provided not described in section 9(aSection 10(a); then, . In such event and subject to section 21Section 27 of this Agreement, the Bank Association shall provide the benefits and pay to the Officer Executive the amounts provided for under section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained described in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commencedSection 9(b).
(b) Upon the termination of the Officer’s Executive's employment with the Bank Association under circumstances described in section 8(aSection 9(a) of this Agreement, the Bank Association shall pay and provide to the Officer Executive (or, in the event of the Officer’s death, to Executive's death following the Officer’s estate) on his Executive's termination of employment, subject to section 24 :his or her estate):
(i) the Officer’s his or her earned but unpaid compensation (including, without limitation, all items which constitute wages under section Section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(bSection 9(b)) as of the date of the termination of the Officer’s his or her employment with the BankAssociation, such payment to be made at the time and in the manner prescribed by law applicable to the payment of wages but in no any event not later than thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer he or she is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s Association's officers and employees, including the annual bonus (if any) to which he or she is entitled under any cash-based annual bonus or performance compensation plan in effect for the year in which his or her termination occurs, to be paid at the same time and on the terms and conditions (including but not limited to achievement of performance goals) applicable under the relevant plan;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage (including any co-payments and deductibles, but excluding any premium sharing arrangements, it being the intention of the parties to this Agreement that the premiums for such insurance benefits shall be the sole cost and expense of the Association) equivalent to the coverage to which the Officer he or she would have been entitled under such plans (as in effect on the date of his or her termination of employment, or, if his or her termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) ), if the Officer he or she had continued working for the Bank Association during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation salary or compensation, as applicable, achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the BankAssociation;
(iv) thirty (30) days following the Executive's termination of employment with the Association, a lump sum payment, payment in an amount equal to the present value representing an estimate of the salary that the Officer Executive would have earned if the Officer he or she had continued working for the Bank Association during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the Bank, where such present value is to Association (the "Salary Severance Payment"). The Salary Severance Payment shall be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded computed using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) a lump sum payment in an amount equal to the excess, if any, offormula: SSP = BS x NY where:
(A) the present value of the aggregate benefits to which the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In The Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his employment with the Bank shall terminate Association terminates during the Assurance Period, or prior to the commencement Employment Period under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The Officer’s the Executive's voluntary resignation from employment with the Bank Association within ninety (90) days following:
(A) the failure of the Bank’s Board to appoint or re-appoint or elect or re-elect the Executive to the office of Vice Chairman and Chief Administrative Officer to serve in the same position in which the Officer was serving, on the day before the Assurance Period commenced (or a more senior office) of the Association;
(B) if the Executive is a member of the Board, the failure of the stockholders of the Holding Company Association to elect or re-elect the Officer as a member Executive to the Board or the failure of the Board, Board (or the nominating committee thereof) to nominate the Executive for such election or re-election if he was the Executive is a member of the Board on the day before Effective Date of this Agreement or thereafter becomes a member of the Assurance Period commencedBoard;
(C) the expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank Association of its material failure, whether by amendment of the Bank’s Association's Organization Certificate or By-laws, action of the Board or the Holding Company’s Association's stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in section 3 of this Agreement as of the Officer on the day before the Assurance Period commenced (or the functionsdate hereof, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Bank Association fully cures such failure;
(D) the failure expiration of the Bank to cure a material breach of this Agreement by the Bank, within thirty (30) days day period following the date on which the Executive gives written notice to the Association of its material breach of any term, condition or covenant contained in this Agreement (including, without limitation any reduction of the Executive's rate of base salary in effect from time to time and any change in the Officer terms and conditions of any compensation or benefit program in which the Executive participates which, either individually or together with other changes, has a material adverse effect on the aggregate value of his total compensation package), unless, during such material breachthirty (30) day period, the Association fully cures such failure;
(E) a reduction in the compensation provided to relocation of the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s Executive's principal place of employment that would result in employment, without his written consent, to a one-way commuting time in excess location outside of the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior to such changeNassau County and Queens County, New York; or
(ii) the discharge termination of the Officer by Executive's employment with the Bank Association for any other reason other than for “cause” as provided not described in section 9(a10(a); then. In such event, subject to section 2125, the Bank Association shall provide the benefits and pay to the Officer Executive the amounts provided for under described in section 8(b) of this Agreement; provided, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced9(b).
(b) Upon the termination of the Officer’s Executive's employment with the Bank Association under circumstances described in section 8(a9(a) of this Agreement, the Bank Association shall pay and provide to the Officer Executive (or, in the event of the Officer’s his death, to the Officer’s his estate) on his termination of employment, subject to section 24 :):
(i) the Officer’s his earned but unpaid compensation (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(b9(b)) as of the date of the termination of the Officer’s his employment with the BankAssociation, 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 thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer he is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s Association's officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), dental, accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) 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 OfficerExecutive, for the remaining unexpired Assurance Remaining Unexpired Employment Period, coverage equivalent to the coverage to which the Officer he would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer he had continued working for the Bank Association during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the BankAssociation;
(iv) within thirty (30) days following his termination of employment with the Association, a lump sum payment, in an amount equal to the present present value of the salary that the Officer Executive would have earned if the Officer he had continued working for the Bank Association during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of salary achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the BankAssociation, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“"Code”) (“Applicable Short-Term Rate”"), compounded using the compounding periods period corresponding to the Bank’s Association's regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) within thirty (30) days following his termination of employment with the Association, a lump sum payment in an amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits to which the Officer he would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank Association) if the Officer he were 100% vested thereunder and had continued working for the Bank Association during the remaining unexpired Assurance Period, Remaining Unexpired Employment Period (such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Remaining Unexpired Employment Period and by adding to the compensation recognized under such plans for the most recent year in which termination of employment occurs recognized all amounts payable under sections 8(b)(I9(b)(i), (iv), (vii), (viii) and (viiix);; over
(B) the present value of the benefits to which the Officer he is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable longannualized rate of interest prescribed by the Pension Benefit Guaranty Corporation for the valuation of immediate annuities payable under terminating single-term federal rate prescribed under section 1274(d) of the Code employer defined benefit plans for the month in which his the Executive's termination of employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;occurs ("Applicable PBGC Rate").
(vi) within thirty (30) days following his termination of employment with the Association, a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the BankAssociation, as if he were 100% vested thereunder and had continued working for the Bank Association during the remaining unexpired Assurance Remaining Unexpired Employment Period at the highest annual rate of compensation achieved during that portion of the Officer’s period Employment Period which is prior to the Executive's termination of actual employment with the BankAssociation, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the a discount rate, compounded using the compounding period that corresponds to the frequency with which employer frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term PBGC Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) within thirty (30) days following his termination of employment with the Company, a lump sum payment in an amount equal to the present value of the payments that would have been made to the Officer Executive under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, Association if he had continued working for the Bank Association during the remaining unexpired Assurance Remaining Unexpired Employment Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Remaining Unexpired Employment Period, such payments to be equal to the product of:
(A) the maximum percentage rate of annual salary at which an award was ever available to the Officer Executive under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer Executive during each such calendar year at the highest annual rate of salary achieved during that portion of the remaining unexpired Assurance Period, Employment Period which is prior to the Executive's termination of employment with the Association: Where such payments present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Code, compounded annually;
(viii) at the election of the Association made without discounting within thirty (30) days following his termination of employment with the Association, upon the surrender of options or appreciation rights issued to the Executive under any stock option and appreciation rights plan or program maintained by, or covering employees of, the Association, a lump sum payment in an amount equal to the product of:
(A) the excess of (I) the fair market value of a share of stock of the same class as the stock subject to the option or appreciation right, determined as of the date of termination of employment, over (II) the exercise price per share for early such option or appreciation right, as specified in or under the relevant plan or program; multiplied by
(B) the number of shares with respect to which options or appreciation rights are being surrendered. For purposes of this section 9(b)(viii) and for purposes of determining the Executive's right following his termination of employment with the Association to exercise any options or appreciation rights not surrendered pursuant hereto, the Executive shall be deemed fully vested in all options and appreciation rights under any stock option or appreciation rights plan or program maintained by, or covering employees of, the Association, even if he is not vested under such plan or program;
(ix) at the election of the Association made within thirty (30) days following the Executive's termination of employment with the Association, upon the surrender of any shares awarded to the Executive under any restricted stock plan maintained by, or covering employees of, the Association, a lump sum payment .. in an amount equal to the product of:
(A) the fair market value of a share of stock of the same class of stock granted under such plan, determined as of the date of the Executive's termination of employment; multiplied by
(B) the number of shares which are being surrendered. For purposes of this section 9(b)(ix) and for purposes of determining the Executive's right following his termination of employment with the Association to any stock not surrendered pursuant hereto, the Executive shall be deemed fully vested in all shares awarded under any restricted stock plan maintained by, or covering employees of, the Association, even if he is not vested under such plan. The Bank Association and the Officer Executive hereby stipulate that the damages which may be incurred by the Officer Executive following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b9(b) constitute a reasonable estimate damages under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s Executive's efforts, if any, to mitigate damages. The Bank Association and the Officer Executive further agree that the Bank Association may condition the payments and benefits (if any) due under sections 8(b)(iii9(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s Executive's resignation from any and all positions which he holds as an officer, director or committee member with respect to the BankAssociation, the Company or any subsidiary or affiliate of either of them.
Appears in 1 contract
Termination of Employment with Severance Benefits. (a) In Executive shall be entitled to the severance benefits described herein in the event that the Officer’s his employment with the Bank shall terminate Company terminates during the Assurance Period, or prior to the commencement Term under any of the Assurance Period but within three (3) months of and in connection with a Change of Control as defined in section 10 of this Agreement on account offollowing circumstances:
(i) The OfficerExecutive’s voluntary resignation from employment with the Bank Company within ninety ninety-days (90) days of the following:
(A) the The failure of the Bank’s Board to appoint or re-appoint or elect or re-elect Executive to the Officer to serve in office of the same position in which the Officer was servingChairman, on the day before the Assurance Period commenced President or CEO (or a more senior office) of the Company;
(B) the The failure of the stockholders of the Holding Company to elect or re-elect the Officer Executive as a member of the Board, if he was a member director of the Board on or the day before failure of the Assurance Period commencedBoard (or the nominating committee thereof) to nominate Executive for such election or re-election;
(C) the The expiration of a thirty (30) day period following the date on which the Officer Executive gives written notice to the Bank Company of its material failure, whether by amendment of the BankCompany’s Organization Restated Certificate of Incorporation or Amended and Restated By-laws, action of the Board or the Holding Company’s 's stockholders or otherwise, to vest in the Officer Executive the functions, duties, or responsibilities vested prescribed in the Officer on the day before the Assurance Period commenced (or the functionsSection 3 of this Agreement, duties and responsibilities of a more senior office to which the Officer may be appointed)unless, unless during such thirty (30) day period, the Bank fully Company cures such failure;failure in a manner determined by Executive and the Board to be satisfactory; or
(D) The expiration of a thirty-day (30) period following the failure date on which Executive gives written notice to the Company of the Bank to cure a its material breach of any term, condition or covenant contained in this Agreement by (including, without limitation any reduction of Executive's rate of base salary in effect from time to time and any change in the Bankterms and conditions of any compensation or benefit program in which Executive participates which, within either individually or together with other changes, has a material adverse effect on the aggregate value of his total compensation package), unless, during such thirty (30) days following written notice from day period, the Officer of Company cures such material breach;
(E) a reduction in the compensation provided to the Officer, or a material reduction in the benefits provided to the Officer under the Bank’s program of employee benefits, compared with the compensation and benefits that were provided to the Officer on the day before the Assurance Period commenced;
(F) a change in the Officer’s principal place of employment that would result failure in a one-way commuting time in excess of manner determined by Executive and the greater of (I) 30 minutes or (II) the Officer’s commuting time immediately prior Board to such changebe satisfactory; or
(ii) the discharge of the Officer by the Bank for any reason other than for “cause” as provided in section 9(a)Executive's death; then, subject to section 21, the Bank shall provide the benefits and pay or
(iii) Subject to the Officer the amounts provided for under section 8(b) provisions of this Agreement; providedSection 6, however, that if benefits or payments become due hereunder as a result of the Officer’s termination of employment prior to the commencement of the Assurance Period, the benefits and payments provided for under section 8(b) of this Agreement shall be determined as though the Officer had remained in the service of the Bank (upon the terms and conditions in effect at the time of his actual termination of service) and had not terminated employment with the Bank until the date on which the Officer’s Assurance Period would have commenced.
(b) Upon the termination of the OfficerExecutive’s employment with the Bank under circumstances Company for any other reason not described in section 8(a) of this Agreement, the Bank shall pay and provide to the Officer (or, in the event of the Officer’s death, to the Officer’s estate) on his termination of employment, subject to section 24 :
(i) the Officer’s earned but unpaid compensation (including, without limitation, all items which constitute wages under section 190.1 of the New York Labor Law and the payment of which is not otherwise provided for under this section 8(bSection 5(a)) as of the date of the termination of the Officer’s employment with the Bank, 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 thirty (30) days after termination of employment;
(ii) the benefits, if any, to which the Officer is entitled as a former employee under the employee benefit plans and programs and compensation plans and programs maintained for the benefit of the Bank’s officers and employees;
(iii) continued group life, health (including hospitalization, medical and major medical), accident and long term disability insurance benefits, in addition to that provided pursuant to section 8(b)(ii) and after taking into account the coverage provided by any subsequent employer, if and to the extent necessary to provide for the Officer, for the remaining unexpired Assurance Period, coverage equivalent to the coverage to which the Officer would have been entitled under such plans (as in effect on the date of his termination of employment, or, if his termination of employment occurs after a Change of Control, on the date of such Change of Control, whichever benefits are greater) if the Officer had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank;
(iv) a lump sum payment, in an amount equal to the present value of the salary that the Officer would have earned if the Officer had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of salary achieved during the Officer’s period of actual employment with the Bank, where such present value is to be determined using a discount rate equal to the applicable short-term federal rate prescribed under section 1274(d) of the Internal Revenue Code of 1986 (“Code”) (“Applicable Short-Term Rate”), compounded using the compounding periods corresponding to the Bank’s regular payroll periods for its officers, such lump sum to be paid in lieu of all other payments of salary provided for under this Agreement in respect of the period following any such termination;
(v) a lump sum payment in an amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits to which the Officer would be entitled under any and all qualified and non-qualified defined benefit pension plans maintained by, or covering employees of, the Bank if the Officer were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period, such benefits to be determined as of the date of termination of employment by adding to the service actually recognized under such plans an additional period equal to the remaining unexpired Assurance Period and by adding to the compensation recognized under such plans for the year in which termination of employment occurs all amounts payable under sections 8(b)(I), (iv) and (vii);
(B) the present value of the benefits to which the Officer is actually entitled under such defined benefit pension plans as of the date of his termination; where such present values are to be determined using the mortality tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded monthly, equal to the applicable long-term federal rate prescribed under section 1274(d) of the Code for the month in which his employment terminates; provided, however, that if payments are made under this section 8(b)(v) as a result of this section deeming otherwise unvested amounts under such defined benefit plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vi) a lump sum payment in an amount equal to the present value of the additional employer contributions (or if greater in the case of a leveraged employee stock ownership plan or similar arrangement, the additional assets allocable to him through debt service, based on the fair market value of such assets at termination of employment) to which he would have been entitled under any and all qualified and non-qualified defined contribution plans maintained by, or covering employees of, the Bank, if he were 100% vested thereunder and had continued working for the Bank during the remaining unexpired Assurance Period at the highest annual rate of compensation achieved during the Officer’s period of actual employment with the Bank, and making the maximum amount of employee contributions, if any, required under such plan or plans, such present value to be determined on the basis of the discount rate, compounded using the compounding period that corresponds to the frequency with which employer contributions are made to the relevant plan, equal to the Applicable Short-Term Rate; provided, however, that if payments are made under this section 8(b)(vi) as a result of this section deeming otherwise unvested amounts under such defined contribution plans to be vested, the payments, if any, attributable to such deemed vesting shall be paid in the same form, and paid at the same time, and in the same manner, as benefits under the corresponding non-qualified plan;
(vii) the payments that would have been made to the Officer under any cash bonus or long-term or short-term cash incentive compensation plan maintained by, or covering employees of, the Bank, if he had continued working for the Bank during the remaining unexpired Assurance Period and had earned the maximum bonus or incentive award in each calendar year that ends during the remaining unexpired Assurance Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available to the Officer under such incentive compensation plan; multiplied by
(B) the salary that would have been paid to the Officer during each such calendar year at the highest annual rate of salary achieved during the remaining unexpired Assurance Period, such payments to be made without discounting for early payment .. The Bank and the Officer hereby stipulate that the damages which may be incurred by the Officer following any such termination of employment are not capable of accurate measurement as of the date first above written and that the payments and benefits contemplated by this section 8(b) constitute a reasonable estimate under the circumstances of all damages sustained as a consequence of any such termination of employment, other than damages arising under or out of any stock option, restricted stock or other non-qualified stock acquisition or investment plan or program, it being understood and agreed that this Agreement shall not determine the measurement of damages under any such plan or program in respect of any termination of employment. Such damages shall be payable without any requirement of proof of actual damage and without regard to the Officer’s efforts, if any, to mitigate damages. The Bank and the Officer further agree that the Bank may condition the payments and benefits (if any) due under sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer’s resignation from any and all positions which he holds as an officer, director or committee member with respect to the Bank, the Company or any subsidiary or affiliate of either of them.
Appears in 1 contract
Samples: Executive Employment Agreement (Hemagen Diagnostics Inc)
