Exhibit 10.14
DIRECTOR SUPPLEMENTAL RETIREMENT PLAN
AGREEMENT
This Agreement, made and entered into this day of , 2001, by and
between Park West Bank and Trust Company, a bank organized and existing under
the laws of the Commonwealth of Massachusetts, hereinafter referred to as "the
Bank", and , a director of the Bank, hereinafter referred to as "the Director".
WHEREAS, the Director has been in the service of the Bank for several
years and has now and for years past faithfully served the Bank. It is the
consensus of the Board of Directors of the Bank (the Board) that the Director's
services have been of exceptional merit, in excess of the compensation paid and
an invaluable contribution to the profits and position of the Bank in its field
of activity.
ACCORDINGLY, it is the desire of the Bank and the Director to enter
into this Agreement under which the Bank will agree to make certain payments to
the Director upon the Director's retirement and, alternatively, to the
Director's beneficiary(ies) in the event of the Director's death.
FURTHERMORE, it is the intent of the parties hereto that this Agreement
be considered an arrangement maintained primarily to provide supplemental
retirement benefits for the Director, as a member of a select group of directors
of the Bank for purposes of the Employee Retirement Security Act of 1974
(ERISA). The Director is fully advised of the Bank's financial status.
THEREFORE, in consideration of the Director's services performed in the
past and those to be performed in the future and based upon the mutual promises
and covenants herein contained, the Bank and the Director, agree as follows:
1. DEFINITIONS
A. Effective Date:
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The Effective Date of this Agreement shall be _______________,
______________
B. Plan Year:
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Any reference to "Plan Year" shall mean a calendar year from
January 1 to December 31. In the year of implementation, the
term "Plan Year" shall mean the period from the effective date
to December 31 of the year of the effective date.
C. Retirement:
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Retirement shall mean retirement from service with the Bank
which becomes effective when the Director reaches the
Director's seventy-second (72nd) birthday or such later date
as the Director may actually retire.
D. Termination of Service:
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Termination of Service shall mean voluntary resignation of
service by the Director or the Bank's termination of the
Director's service without cause ("cause" defined in
Subparagraph III (D) hereinafter), prior to the Normal
Retirement Age (described in Subparagraph I (F) hereinafter).
E. Change of Control:
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For purposes of this Agreement, Change in Control shall mean
and include the following with respect to the Bank or any
successor thereto:
(1) The acquisition of "control" (within the
meaning of Section 2(a)(2) of the Bank
Holding Company Act of 1956, as amended, or
of Section 602 of the Change in Bank Control
Act of 1978) of Westbank Corporation by any
person, company or other entity, or of the
Bank by any person, company or entity other
than Westbank Corporation;
(2) Any "person" (as such term is used in
Sections 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934) is or
becomes the "beneficial owner" (as defined
in Rule 13d-3 thereunder), directly or
indirectly, of securities of Westbank
Corporation representing 20% or more of the
combined voting power of Westbank
Corporation's then-outstanding securities;
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(3) Any such person becomes the beneficial
owner, directly or indirectly, of securities
of Westbank Corporation representing less
than 20% of Westbank Corporation's
then-outstanding securities, but is
determined by a court or regulatory agency
with jurisdiction over the matter to possess
or to have exercised control over Westbank
Corporation; or
(4) During any period of two consecutive years,
individuals who at the beginning of such
period constitute the Board of Directors of
Westbank Corporation cease for any reason to
constitute at least a majority thereof
unless the election or the nomination for
election by Westbank Corporation's
stockholders of each new director was
approved by a vote of at least three-fourths
of the directors of Westbank Corporation
then still in office who were directors at
the beginning of the period.
(5) Any event which would be described in
Subparagraph I (E)(1), (2), (3), or (4) if
the term "Bank" were substituted for the
term "Westbank Corporation" herein.
F. Normal Retirement Age:
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Normal Retirement Age shall mean the date on which the
Director attains age seventy-two (72).
G. Benefit Accounting:
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The Bank shall account for the benefit provided herein using
the regulatory accounting principles of the Bank's primary
federal regulator. The Bank shall establish an accrued
liability retirement account for the Director into which
appropriate reserves shall be accrued.
H. Single Life Annuitized Value:
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Single Life Annuitized Value means the annual benefit, payable
in the form of a single life annuity, that is actuarially
equivalent in value to a specified lump sum amount where
actuarial equivalence is determined on the basis of the
mortality table prescribed by the Internal Revenue Service for
purposes of section 417(e)(3) of the Internal Revenue Code of
1986 at the time of the determination and an interest rate
equal to the bond-equivalent yield on Treasury Securities with
a Constant Maturity of 30 years, as published by the Board of
Governors of the Federal Reserve System in its H-15 Release
for the most recent calendar month to end at least ninety (90)
days prior to the date of determination. If such mortality
table and/or interest rate assumption are not available at the
time of the determination, then the Bank shall in good faith
select another mortality table that purports to reflect
current mortality trends and/or another interest rate that
purports to reflect prevailing market rates for fixed income
securities with a term to maturity of thirty years that
present little or no credit risk.
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I. Final Compensation:
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Final Compensation means as of any date the Director's yearly
fees actually paid during the period of twelve (12)
consecutive calendar months in which the Director's yearly
fees were at the highest annual amount achieved during or
prior to such date.
J. Social Security Benefit:
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Social Security Benefit means the Director's primary old-age
insurance benefit payable to the Director beginning at the age
at which such benefit may be paid without reduction for early
payment or increase for late payment. If it shall be necessary
to determine the Director's Social Security Benefit before the
Director has attained the age at which such benefit may be
paid without reduction, the Director's Social Security Benefit
shall be deemed to be equal to the highest primary old-age
insurance benefit payable to any person who reaches the age at
which such benefit may be paid on an unreduced basis in the
year in which the determination is being made.
II. EMPLOYMENT
The Bank agrees to use the services of the Director in such capacity as
the Bank may from time to time determine. The Director will continue in
the service of the Bank in such capacity and with such duties and
responsibilities as may be assigned to him, and with such compensation
as may be determined from time to time by the Board of Directors of the
Bank.
No provision of this Agreement shall be deemed to restrict or limit any
existing agreement by and between the Bank and the Director, nor shall
any conditions herein create specific rights to the Director nor limit
the right of the Bank to terminate the service of the Director with or
without cause. In a similar fashion, no provision shall limit the
Director's rights to voluntarily discontinue his service to the Bank at
any time.
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III. BENEFITS
A. Retirement Benefits:
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Should the Director continue to provide services to the Bank
until "Normal Retirement Age" defined in Subparagraph I (F),
the Director shall be entitled to receive the benefits set
forth in this Subparagraph III (A).
An annual benefit equal to 75% of Final Compensation at said
Termination of Service. The payment of this annual benefit
shall commence within thirty (30) days of the Director's
Termination of Service.
B. Termination of Service:
----------------------
Subject to Subparagraph III (D), should the Director suffer a
Termination of Service [Subparagraph I (D)], the Director
shall be entitled to receive the benefits set forth in this
Subparagraph III (B).
A benefit equal to the amount of the accrued liability
retirement account maintained pursuant to Subparagraph I(G) at
said Termination of Service to be paid within thirty (30) days
of the Termination of Service.
C. Death:
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Upon the death of the Director, the Director shall be entitled
to receive the benefits set forth in this Subparagraph III(C).
A benefit equal to the amount of the accrued liability
retirement account maintained pursuant to Subparagraph I(G)
existing on the date of the Director's death to be paid within
thirty (30) days of the date of the Director's death.
D. Discharge for Cause:
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Should the Director's service be terminated for cause at any
time, all benefits under this Agreement shall be forfeited.
The term "for cause" shall mean the conviction of a felony
that results in any adverse effect on the Bank. If a dispute
arises as to discharge "for cause", such dispute shall be
resolved by arbitration as set forth in this Agreement.
E. Death Benefit:
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Except as set forth above, there is no death benefit provided
under this Agreement.
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IV. RESTRICTIONS UPON FUNDING
The Bank shall have no obligation to set aside, earmark or entrust any
fund or money with which to pay its obligations under this Agreement.
The Director, the Director's beneficiary(ies) or any successor in
interest to the Director shall have the status of a general unsecured
creditor of the Bank in the same manner as any other unsecured creditor
having a general claim against the Bank. This Agreement constitutes a
mere promise by the Bank to make benefit payments in the future as
described in this Agreement.
The Bank reserves the absolute right, at its sole discretion, to either
fund the obligations undertaken by this Agreement or to refrain from
funding the same and to determine the exact nature and method of such
funding. Should the Bank elect to fund this Agreement, in whole or in
part, through the purchase of life insurance, mutual funds, disability
policies or annuities, the Bank reserves the absolute right, in its
sole discretion, to terminate such funding at any time, in whole or in
part unless the Bank and the Director agree otherwise in a separate
written instrument. At no time shall the Director be deemed to have any
lien or right, title or interest in or to any specific funding
investment or to any assets of the Bank.
It is the intention of the parties to this Agreement that the
arrangements under this Agreement be unfunded for tax purposes and for
purposes of Title I of ERISA.
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V. CHANGE OF CONTROL
Upon the Director's Termination of Service after a Change of Control (as defined
in Subparagraph I (E) herein), the Director shall be entitled to receive one
hundred percent (100%) of the benefits set forth in Subparagraph III (B) of this
Agreement to be paid, at the option of the Director, said option to be exercised
at least one (1) year prior to said Change of Control, either: (i) in a lump sum
paid within thirty (30) days following the Director's Termination of Service
[Subparagraph I (D)] subsequent to said Change of Control or (ii) in monthly
installments beginning within thirty (30) days following the Director's
Termination of Service. If no election is made the benefit will be payable
pursuant to clause (i) of the previous sentence. The Director will also remain
eligible for all promised death benefits in this Agreement. A Director who
continues service with the Bank, or any successor thereto, after a Change of
Control will continue to accrue benefits pursuant to this Agreement until his
Termination of Service or Retirement from the Bank or any successor thereto.
Upon a Change of Control this Agreement shall be irrevocable during the lifetime
of the Director and shall be binding upon the Bank and any successor thereto.
This Agreement may only be modified by the mutual written assent of the Director
and the Bank or any successor thereto.
VI. MISCELLANEOUS
A. Alienability and Assignment Prohibition:
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Neither the Director, his/her surviving spouse nor any other
beneficiary under this Agreement shall have any power or right
to transfer, assign, anticipate, hypothecate, mortgage,
commute, modify or otherwise encumber in advance any of the
benefits payable hereunder nor shall any of said benefits be
subject to seizure for the payment of any debts, judgments,
alimony or separate maintenance owed by the Director or the
Director's beneficiary(ies), nor be transferable by operation
of law in the event of bankruptcy, insolvency or otherwise. In
the event the Director or any beneficiary attempts assignment,
commutation, hypothecation, transfer or disposal of the
benefits hereunder, the Bank's liabilities shall forthwith
cease and terminate.
B. Binding Obligation of Bank and Any Successor in Interest:
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This Agreement shall be binding upon the parties hereto, their
successors, beneficiary(ies), heirs and personal
representatives.
C. Revocation:
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It is agreed by and between the parties hereto that, during
the lifetime of the Director, this Agreement may be amended or
revoked at any time or times, in whole or in part, by the
mutual written assent of the Director and the Bank.
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D. Gender:
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Whenever in this Agreement words are used in the masculine or
neuter gender, they shall be read and construed as in the
masculine, feminine or neuter gender, whenever they should so
apply.
E. Effect on Other Bank Benefit Plans:
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Nothing contained in this Agreement shall affect the right of
the Director to participate in or be covered by any qualified
or non-qualified pension, profit-sharing, group, bonus or
other supplemental compensation or fringe benefit plan
constituting a part of the Bank's existing or future
compensation structure. If, after the date of this Agreement,
the Bank adopts or implements any tax-qualified or
non-qualified defined contribution or defined benefit plan
that provides retirement benefits for the Director in addition
to or in substitution for the plans in effect on the date of
this Agreement, the benefits provided by such new plan or
plans shall be applied to offset the benefits payable under
this Agreement in such manner as the Bank shall determine to
be comparable to the offsets provided for plans in effect on
the date hereof unless the Bank and the Director expressly
agree otherwise in writing.
F. Headings:
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Headings and subheadings in this Agreement are inserted for
reference and convenience only and shall not be deemed a part
of this Agreement.
G. Applicable Law:
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The validity and interpretation of this Agreement shall be
governed by the internal laws of the Commonwealth of
Massachusetts applicable to contracts to be performed wholly
within the Commonwealth of Massachusetts among parties all of
whom are citizens and residents of the Commonwealth of
Massachusetts.
H. Fringe Benefits:
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The benefits provided by this Agreement are granted by the
Bank as a fringe benefit to the Director and are not part of
any compensation reduction plan or an arrangement deferring
any compensation increase, and shall in no event be construed
to effect nor limit the Director's current or prospective
compensation increases, cash bonuses, or profit-sharing
distribution or credits. The Director has no option to take
any current payment or bonus in lieu of these benefits except
as may be set forth hereinafter.
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VII. ERISA PROVISION
A. Named Fiduciary and Plan Administrator:
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The "Named Fiduciary and Plan Administrator" of this Director
Plan shall be Park West Bank and Trust Company until its
resignation or removal by the Board. As Named Fiduciary and
Plan Administrator, the Bank shall be responsible for the
management, control and administration of the Director Plan.
The Named Fiduciary may delegate to others certain aspects of
the management and operation responsibilities of the Director
Plan including the employment of advisors and the delegation
of ministerial duties to qualified individuals.
B. Claims Procedure and Arbitration:
--------------------------------
In the event a dispute arises over benefits under this
Agreement and benefits are not paid to the Director (or to his
beneficiary in the case of the Director's death) and such
claimants feel they are entitled to receive such benefits,
then a written claim must be made to the Plan Administrator
named above within ninety (90) days from the date payments are
refused. The Plan Administrator shall review the written claim
and if the claim is denied, in whole or in part, they shall
provide in writing within ninety (90) days of receipt of such
claim their specific reasons for such denial, reference to the
provisions of this Agreement upon which the denial is based
and any additional material or information necessary to
perfect the claim. Such written notice shall further indicate
the additional steps to be taken by claimants if a further
review of the claim denial is desired. A claim shall be deemed
denied if the Plan Administrator fails to take any action
within the aforesaid ninety-day period.
If claimants desire a second review they shall notify the Plan
Administrator in writing within ninety (90) days of the first
claim denial. Claimants may review this Agreement or any
documents relating thereto and submit any written issues and
comments they may feel appropriate. In its sole discretion,
the Plan Administrator shall then review the second claim and
provide a written decision within ninety (90) days of receipt
of such claim. This decision shall likewise state the specific
reasons for the decision and shall include reference to
specific provisions of this Agreement upon which the decision
is based.
If claimants continue to dispute the benefit denial based upon
completed performance of this Agreement or the meaning and
effect of the terms and conditions thereof, then claimants may
submit the dispute to a Board of Arbitration for final
arbitration. Said Board shall consist of one member selected
by the claimant, one member selected by the Bank, and the
third member selected by the first two members. The Board
shall operate under any generally recognized set of
arbitration rules. The parties hereto agree that they and
their heirs, personal representatives, successors and assigns
shall be bound by the decision of such Board with respect to
any controversy properly submitted to it for determination.
Where a dispute arises as to the Bank's termination of the
Director's service "for cause", such dispute shall likewise be
submitted to arbitration as above described and the parties
hereto agree to be bound by the decision thereunder.
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IN WITNESS WHEREOF, the parties hereto acknowledge that each has
carefully read this Agreement and executed the original thereof on the first day
set forth hereinabove and that, upon execution, each has received a conforming
copy.
PARK WEST BANK AND
TRUST COMPANY
West Springfield, MA
By:
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Witness (Title)
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Witness Director
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