EMPLOYMENT AGREEMENT
This Agreement is made effective as of the 1st day of May, 2007, by and
between United Bank (the "Bank"), a federally chartered stock savings bank, with
its principal administrative office at 00 Xxx Xxxxxx, Xxxx Xxxxxxxxxxx,
Xxxxxxxxxxxxx 00000, and Xxxxxxx X. Xxxxxxx ("Executive"). Any reference to the
"Company" herein shall mean United Financial Bancorp, Inc., a federal mid-tier
stock holding company with its principal administrative office at 00 Xxx Xxxxxx,
Xxxx Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000. The Company has executed this Agreement
solely for purposes of guaranteeing the obligations of the Bank hereunder.
WHEREAS, Executive is currently employed as the President and Chief
Executive Officer of the Bank and will be employed as the President and Chief
Executive Officer of the Company; and
WHEREAS, the Bank has converted from the mutual to the stock form of
organization and has become a wholly-owned subsidiary of the Company, in
connection with the Bank's mutual holding company reorganization; and
WHEREAS, the Bank desires to assure itself of the continued services of
Executive pursuant to the terms of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
and upon the other terms and conditions hereinafter provided, the parties hereby
agree as follows:
1. POSITION AND RESPONSIBILITIES
During the period of his employment hereunder, Executive agrees to serve as
President and Chief Executive Officer of the Bank and President and Chief
Executive Officer of the Company. During said period, Executive also agrees to
serve, if elected, as an officer and director of any subsidiary or affiliate of
the Bank or the Company. Executive shall be responsible for establishing the
business objectives, policies and strategic plans of the Bank and the Company,
in conjunction with the Board of Directors (the "Board"). Executive also shall
be responsible for providing leadership and direction to all departments or
divisions of the Bank, and shall be the primary contact between the Board and
officers and employees of the Bank.
2. TERM
(a) The term of this Agreement and the period of Executive's employment
hereunder shall begin as of the date first above written and shall continue for
thirty-six (36) full calendar months thereafter. Commencing May 1, 2008, and
continuing on the first day of May of each year thereafter (the "Anniversary
Date"), this Agreement shall renew for an additional year such that the
remaining term shall be three (3) years, unless written notice of non-renewal
("Non-Renewal Notice") is provided to Executive at least thirty (30) days and
not more than sixty (60) days prior to any such Anniversary Date that this
Agreement shall terminate at the end of thirty-six (36) months following such
Anniversary Date. Prior to each notice period for non-renewal, the disinterested
members of the Board of Directors of the Bank (the "Board") will conduct a
comprehensive performance evaluation and review of Executive for purposes of
determining whether to extend the Agreement, and the results thereof shall be
included in the minutes of the Board's meeting.
(b) During the period of his employment hereunder, except for periods of
absence occasioned by illness, reasonable vacation periods, and reasonable
leaves of absence, Executive shall faithfully perform his duties hereunder
including activities and services related to the organization, operation and
management of the Bank.
3. COMPENSATION AND REIMBURSEMENT
(a) The compensation specified under this Agreement shall constitute the
salary and benefits paid for the duties described in Section 1. The Bank shall
pay Executive as compensation a salary of not less than $360,700.00 per year
("Base Salary"). Such Base Salary shall be payable in accordance with the
customary payroll practices of the Bank. During the period of this Agreement,
Executive's Base Salary shall be reviewed at least annually; the first such
review will be made no later than March 31 of each year during the term of this
Agreement and shall be effective from the first day of said month through the
end of the next succeeding February. Such review shall be conducted by a
Committee designated by the Board, and the Board may increase, but not decrease
(except for a decrease that is not in excess of any decrease that is generally
applicable to all employees of the Bank), Executive's Base Salary, and any
increase in Base Salary shall become the "Base Salary" for purposes of this
Agreement. Executive shall be entitled to participate in any incentive
compensation and bonus plans or arrangements of the Bank or the Company. Nothing
paid to Executive under any such plans or arrangements will be deemed to be in
lieu of other compensation which Executive is entitled under this Agreement. In
addition to the Base Salary provided in this Section 3(a), the Bank shall
provide Executive at no cost to Executive with all such other benefits as are
provided uniformly to permanent full-time employees of the Bank.
(b) The Bank will provide Executive with employee benefit plans,
arrangements and perquisites substantially equivalent to those in which
Executive was participating or otherwise deriving benefit from immediately prior
to the beginning of the term of this Agreement, and the Bank will not, without
Executive's prior written consent, make any changes in such plans, arrangements
or perquisites which would adversely affect Executive's rights or benefits
thereunder. Without limiting the generality of the foregoing provisions of this
Section 3(b), Executive will be entitled to participate in or receive benefits
under any employee benefit plans including but not limited to, stock benefit
plans, retirement plans, supplemental retirement plans, pension plans,
profit-sharing plans, health-and-accident plans, medical coverage or any other
employee benefit plan or arrangement made available by the Bank in the future to
its senior executives and key management employees, subject to and on a basis
consistent with the terms, conditions and overall administration of such plans
and arrangements. Executive will be entitled to incentive compensation and
bonuses as provided in any plan of the Bank in which Executive is eligible to
participate (and he shall be entitled to a pro rata distribution under any
incentive compensation or bonus plan as to any year in which a termination of
employment occurs, other than Termination for Cause). Nothing paid to Executive
under any such plan or arrangement will be deemed to be in lieu of other
compensation to which Executive is entitled under this Agreement.
(c) The Bank shall provide Executive with an automobile allowance of
$12,000.00 per annum for the cost of maintenance, use and servicing of an
automobile which Executive shall use in the performance of his duties and for
personal use.. The Bank shall also reimburse Executive for his ordinary and
necessary business expenses incurred in connection with the performance of his
duties under this Agreement, including, without limitation, fees for memberships
in such clubs and organizations that Executive and the Board mutually agree are
necessary and appropriate to further the business of the Bank, and travel and
reasonable entertainment expenses. Reimbursement of such expenses shall be made
upon presentation to the Bank of an itemized account of the expenses in such
form as the Bank may reasonably require.
(d) Executive shall be entitled to paid vacation time each year during the
term of this Agreement (measured on a fiscal or calendar year basis, in
accordance with the Bank's usual practices), as well as sick leave, holidays and
other paid absences in accordance with the Bank's policies and procedures for
senior executives. Any unused paid time off during an annual period shall be
treated in accordance with the Bank's personnel policies as in effect from time
to time.
4. OUTSIDE ACTIVITIES
Executive may serve as a member of the board of directors of business,
community and charitable organizations subject to the approval of the Board,
provided that in each case such service shall not materially interfere with the
performance of his duties under this Agreement or present any conflict of
interest. Such service to and participation in outside organizations shall be
presumed for these purposes to be for the benefit of the Bank, and the Bank
shall reimburse Executive his reasonable expenses associated therewith.
5. WORKING FACILITIES
Executive's principal place of employment shall be at the Bank's principal
executive offices. The Bank shall provide Executive, at his principal place of
employment, with a private office, stenographic services and other support
services and facilities suitable to his position with the Bank and necessary or
appropriate in connection with the performance of his duties under this
Agreement.
6. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION
(a) The provisions of this Section 6 shall apply upon the occurrence of an
Event of Termination (as herein defined) during Executive's term of employment
under this Agreement. As used in this Agreement, an "Event of Termination" shall
mean and include any one or more of the following:
(i) the termination by the Bank or the Company of Executive's full-time
employment hereunder for any reason other than (A) Disability or Retirement, as
defined in Section 7 below, or (B) Termination for Cause as defined in Section 8
hereof; or
(ii) Executive's resignation from the Bank's employ, upon any
(A) failure to elect or reelect or to appoint or reappoint Executive
as President and Chief Executive Officer,
(B) material change in Executive's function, duties, or
responsibilities, which change would cause Executive's position to
become one of lesser responsibility, importance, or scope from the
position and attributes thereof described in Section 1, above,
(C) liquidation or dissolution of the Bank or Company other than
liquidations or dissolutions that are caused by reorganizations that
do not affect the status of Executive,
(D) reduction in Executive's annual compensation or benefits (other
than a reduction authorized under Section 3(a), hereof) or relocation
of Executive's principal place of employment by more than 25 miles
from its location as of the date of this Agreement, or
(E) material breach of this Agreement by the Bank.
Upon the occurrence of any event described in clauses (ii) (A), (B), (C), (D) or
(E), above, Executive shall have the right to elect to terminate his employment
under this Agreement by resignation upon not less than thirty (30) prior written
notice given within a reasonable period of time (not to exceed ninety (90)
calendar days) after the initial event giving rise to said right to elect.
Notwithstanding the preceding sentence, in the event of a continuing breach of
this Agreement by the Bank, Executive, after giving due notice within the
prescribed time frame of an initial event specified above, shall not waive any
of his rights solely under this Agreement and this Section 6 by virtue of the
fact that Executive has submitted his resignation but has remained in the
employment of the Bank and is engaged in good faith discussions to resolve any
occurrence of an event described in clauses (A), (B), (C), (D) or (E) above. The
Bank shall have thirty (30) days to cure the condition giving rise to the Event
of Termination, provided, however, that the Bank may elect to waive said 30-day
period.
(iii) (A) Executive's involuntary termination by the Bank or the Company on
the effective date of, or at any time following, a Change in Control, or (B)
Executive's resignation from employment with the Bank or the Company following a
Change in Control as a result of the Bank's or the Company's (or any successor
thereto) failure to renew or extend this Agreement, or (C) Executive's
resignation from employment with the Bank or the Company (or any successor
thereto) following a Change in Control as a result of any event described in
Section 6(a)(ii)(A), (B), (C), (D) or (E) above. For these purposes, a Change in
Control of the Bank or the Company shall mean a change in control of a nature
that: (i) would be required to be reported in response to Item 5.01 of the
current report on Form 8-K, as in effect on the date hereof, pursuant to Section
13 or 15(d) of the Securities Exchange Act of 0000 (xxx "Xxxxxxxx Xxx"); or (ii)
results in a Change in Control of the Bank or the Company within the meaning of
the Home Owners' Loan Act, as amended, and applicable rules and regulations
promulgated thereunder (collectively, the "HOLA") as in effect at the time of
the Change in Control; or (iii) without limitation such a Change in Control
shall be deemed to have occurred at such time as (a) any "person" (as the term
is used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Company representing 25% or more of the
combined voting power of Company's outstanding securities, except for any
securities purchased by the Bank's employee stock ownership plan or trust; or
(b) individuals who constitute the Board on the date hereof (the "Incumbent
Board") cease for any reason to constitute at least a majority thereof, provided
that any person becoming a director subsequent to the date hereof whose election
was approved by a vote of at least three-quarters of the directors comprising
the Incumbent Board, or whose nomination for election by the Company's
stockholders was approved by the same Nominating Committee serving under an
Incumbent Board, shall be, for purposes of this clause (b), considered as though
he were a member of the Incumbent Board; or (c) a plan of reorganization,
merger, consolidation, sale of all or substantially all the assets of the Bank
or the Company or similar transaction in which the Bank or Company is not the
surviving institution occurs or is effected; or (d) a proxy statement soliciting
proxies from stockholders of the Company, by someone other than the current
management of the Company is distributed, seeking stockholder approval of a plan
of reorganization, merger or consolidation of the Company or similar transaction
with one or more corporations as a result of which the outstanding shares of the
class of securities then subject to the plan are exchanged for or converted into
cash or property or securities not issued by the Company; or (e) a tender offer
is made for 25% or more of the voting securities of the Company and the
shareholders owning beneficially or of record 25% or more of the outstanding
securities of the Company have tendered or offered to sell their shares pursuant
to such tender offer and such tendered shares have been accepted by the tender
offeror. Notwithstanding anything in this subsection to the contrary, a Change
in Control shall not be deemed to have occurred upon the conversion of the
Company's mutual holding company parent to stock form, or in connection with any
reorganization used to effect such a conversion.
(iv) The Executive shall not be deemed to have had an Event of Termination
unless and until the Executive has a Separation from Service within the meaning
of Code Section 409A. For purposes of this Agreement, a "Separation from
Service" shall have occurred if the Bank and Executive reasonably anticipate
that either no further services will be performed by the Executive after the
date of the Event of Termination (whether as an employee or as an independent
contractor) or the level of further services performed will not exceed 49% of
the average level of bona fide services in the twelve (12) months immediately
preceding the Event of Termination. For all purposes hereunder, the definition
of Separation from Service shall be interpreted consistent with Treasury
Regulation Section 1.409A-1(h)(ii). If Executive is a "Specified Employee," as
defined in Code Section 409A and any payment to be made under sub-paragraph (b),
(c) or (d) of this Section 6 shall be determined to be subject to Code Section
409A, then if required by Code Section 409A, such payment or a portion of such
payment (to the minimum extent possible) shall be delayed and shall be paid on
the first day of the seventh month following Executive's Separation from
Service.
(b) Upon the occurrence of an Event of Termination, as defined in Section
6(a)(i), (ii) or (iii), on the Date of Termination, as defined in Section 9(b),
the Bank shall pay Executive, or, in the event of his subsequent death, his
beneficiary or beneficiaries, or his estate, as the case may be, as severance
pay or liquidated damages, or both, a sum equal to three (3) times the sum of
(i) Base Salary and (ii) the highest rate of bonus awarded to Executive during
the prior three years. Upon the occurrence of an Event of Termination followed
by Executive's termination of employment hereunder, the payments required by
this Section 6(b) shall be made in a lump sum within thirty (30) days (or if
Executive is a Specified Employee and Section 409A of the Internal Revenue Code
("Code") requires, on the first day of the seventh month following Executive's
termination of employment). Such payment shall not be reduced in the event
Executive obtains other employment following termination of employment.
(c) Upon the occurrence of an Event of Termination, the Bank will cause to
be continued life insurance and non-taxable medical and dental coverage
substantially identical to the coverage maintained by the Bank for Executive
prior to his termination, provided, however, such medical coverage shall cease
upon the earlier of (i) thirty-six (36) months from the Date of Termination or
(ii) the date Executive becomes eligible for Medicare coverage, provided
further, that if Executive is covered by family coverage or coverage for self
and a spouse, then the Executive's family or spouse shall continue to be covered
for the remainder of the thirty-six month period or, in the case of the spouse,
until the spouse becomes eligible for Medicare coverage or obtains healthcare
coverage elsewhere, whichever period is less.
(d) Within thirty (30) days of Executive's termination of employment in
connection with an Event of Termination (or if Executive is a Specified Employee
and Code Section 409A requires, on the first day of the seventh month following
Executive's termination of employment), the Bank shall pay Executive a lump sum
payment in an amount equal to the present value of the Bank's contributions that
would have been made on his behalf under each of the Bank's 401(k) Plan and
employee stock ownership plan (and any other defined contribution plan
maintained by the Bank in which Executive participates) if he had continued
working for the Bank for a thirty-six (36) month period following his
termination earning the Base Salary that would have been achieved during the
remaining unexpired term of this Agreement and making the maximum amount of
employee contributions permitted, if any, under such plan or plans, where such
present values are to be determined using a discount rate of 6%.
(e) Notwithstanding the preceding paragraphs of this Section, in the event
that the aggregate payments or benefits to be made or afforded to Executive
under said paragraphs (the "Termination Benefits") would be deemed to include an
"excess parachute payment" under Section 280G of the Code or any successor
thereto, then such Termination Benefits will be reduced to an amount (the
"Non-Triggering Amount"), the value of which is one dollar ($1.00) less than an
amount equal to the total amount of payments permissible under Section 280G of
the Code or any successor thereto. In the event that a reduction in the
Termination Benefits is necessary, then the Executive shall be entitled to
determine which benefits shall be reduced or eliminated so the total parachute
payments do not exceed the Non-Triggering Amount. If the Executive does not make
his determination within ten (10) business days after receiving a written
request from the Bank, the Bank may make such determination, and shall notify
the Executive promptly thereof. Notwithstanding anything to the contrary herein,
if it is determined that having the Executive or the Bank make the determination
would violate Code Section 409A, then the reduction shall be made pro rata.
(f) Notwithstanding anything to the contrary herein, Executive's
resignation for any reason other than those set forth in clauses 6(a)(ii)(A),
(B), (C), (D) or (E), whether prior to or following a Change in Control, shall
not entitle Executive to any payments under Section 6 of this agreement.
7. TERMINATION UPON RETIREMENT, DISABILITY OR DEATH
For purposes of this Agreement, termination by the Bank of Executive's
employment based on "Retirement" shall mean termination of Executive's
employment by the Board of the Bank or the Company upon Executive's attainment
of age sixty-nine (69), or such later date as determined by the Board of
Directors of the Bank. Upon termination of Executive's employment because of
Retirement, Executive shall be entitled to all benefits under any retirement
plan of the Bank and other plans to which Executive is a party, but Executive
shall not be entitled to the Termination Benefits specified in Section 6(b)
through 6(d) hereof.
Termination of Executive's employment based on "Disability" shall be
construed to comply with Code Section 409A and shall be deemed to have occurred
if: (i) Executive is unable to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment that can be
expected to result in death, or last for a continuous period of not less than
twelve (12) months; (ii) by reason of any medically determinable physical or
mental impairment that can be expected to result in death, or last for a
continuous period of not less than twelve (12) months, Executive is receiving
income replacement benefits for a period of not less than three (3) months under
an accident and health plan covering employees of the Bank or the Company; or
(iii) Executive is determined to be totally disabled by the Social Security
Administration. In the event Executive is unable to perform his duties under
this Agreement on a full-time basis for a period of six (6) consecutive months
by reason of Disability, the Bank may terminate this Agreement, provided that
the Bank shall continue to be obligated to pay Executive his Base Salary for the
remaining term of the Agreement, or one year, whichever is the longer period of
time, and provided further that any amounts actually paid to Executive pursuant
to any disability insurance or other similar such program which the Bank has
provided or may provide on behalf of its employees or pursuant to any xxxxxxx'x
or social security disability program shall reduce the compensation to be paid
to Executive pursuant to this paragraph. The Bank or the Company may require a
physician's written confirmation that Executive cannot perform his duties
because of Executive's disability.
In the event of Executive's death during the term of the Agreement, his
estate, legal representatives or named beneficiaries (as directed by Executive
in writing) shall be paid Executive's Base Salary as defined in Paragraph 3(a)
at the rate in effect at the time Executive's death for a period of one (1) year
from the date of Executive's death, and the Bank will continue to provide
medical, dental, and other benefits normally provided for an Executive's family
for one (1) year after Executive's death.
8. TERMINATION FOR CAUSE
The term "Termination for Cause" shall mean termination because of
Executive's personal dishonesty, incompetence, willful misconduct, any breach of
fiduciary duty involving personal profit, intentional failure to perform stated
duties, willful violation of any law, rule, or regulation (other than minor
traffic violations or similar offenses) or final cease-and-desist order, or
material breach of any provision of this Agreement. In determining incompetence,
the acts or omissions shall be measured against standards generally prevailing
in the savings institutions industry. Executive shall not have the right to
receive compensation or other benefits for any period after Termination for
Cause. For purposes of this paragraph, no act or failure to act on the part of
the Executive shall be considered "willful" unless done, or omitted to be done,
by Executive not in good faith and without reasonable belief that Executives
action or omission was in the best interest of the Bank. Any act, or failure to
act, based upon authority given pursuant to a resolution duly adopted by the
Board or based upon the advice of counsel for the Bank shall be conclusively
presumed to be done, or omitted to be done, by Executive in good faith and in
the best interests of the Bank. Notwithstanding the foregoing, Executive shall
not be deemed to have been terminated for Cause unless and until there shall
have been delivered to him a copy of a resolution duly adopted by the
affirmative vote of not less than three-fourths of the entire membership of the
Board of the Bank at a meeting of the Board called and held for that purpose
(after reasonable notice to Executive and an opportunity for him, together with
counsel, to be heard before the Board), finding that in the good faith opinion
of the Board, Executive was guilty of conduct justifying Termination for Cause
and specifying the particulars thereof in detail. Executive shall not have the
right to receive compensation or other benefits for any period after Termination
for Cause. Any stock options granted to Executive under any stock option plan of
the Bank, the Company or any subsidiary or affiliate thereof, shall become null
and void effective upon Executive's receipt of Notice of Termination for Cause
pursuant to Section 9 hereof, and shall not be exercisable by Executive at any
time subsequent to such Termination for Cause. Any unvested stock awards granted
to Executive under any stock incentive plan of the Bank or the Company shall be
forfeited.
9. NOTICE
(a) Any purported termination by the Bank or by Executive shall be
communicated by Notice of Termination to the other party hereto. For purposes of
this Agreement, a "Notice of Termination" shall mean a written notice which
shall indicate the specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive's employment under the provision so
indicated.
(b) "Date of Termination" shall mean (A) if Executive's employment is
terminated for Disability, thirty (30) days after a Notice of Termination is
given (provided that he shall not have returned to the performance of his duties
on a full-time basis during such thirty (30) day period), and (B) if his
employment is terminated for any other reason, the date specified in the Notice
of Termination.
(c) If the party receiving a Notice of Termination desires to dispute or
contest the basis or reasons for termination, the party receiving the Notice of
Termination must notify the other party within thirty (30) days after receiving
the Notice of Termination that such a dispute exists, and shall pursue the
resolution of such dispute in good faith and with reasonable diligence pursuant
to Section 19 of this Agreement. During the pendency of any such dispute,
neither the Company nor the Bank shall be obligated to pay Executive
compensation or other payments beyond the Date of Termination. Any amounts paid
to Executive upon resolution of such dispute under this Section shall be offset
against or reduce any other amounts due under this Agreement.
10. POST-TERMINATION OBLIGATIONS/NON-COMPETE.
(a) Executive hereby covenants and agrees that, for a period of one (1)
year following his termination of employment with the Bank, he shall not,
without the written consent of the Bank, either directly or indirectly:
(i) solicit, offer employment to, or take any other action
intended (or that a reasonable person acting in like circumstances
would expect) to have the effect of causing any officer or employee of
the Bank or of any holding company of the Bank, or any of their
respective subsidiaries or affiliates, to terminate his or her
employment and accept employment or become affiliated with, or provide
services for compensation in any capacity whatsoever to, any business
whatsoever that competes with the business of the Bank or of any
holding company of the Bank, or any of their direct or indirect
subsidiaries or affiliates, that has headquarters or offices within
twenty-five (25) miles of the locations in which the Bank of any
holding company of the Bank has business operations or has filed an
application for regulatory approval to establish an office;
(ii) become an officer, employee, consultant, director,
independent contractor, agent, joint venturer, partner or trustee of
any savings bank, savings and loan association, savings and loan
holding company, credit union, bank or bank holding company, insurance
company or agency, any mortgage or loan broker or any other entity
that competes with the business of the Bank or any holding company of
the Bank or any of their direct or indirect subsidiaries or
affiliates, that has headquarters or offices within twenty-five (25)
miles of the locations in which the Bank of any holding company of the
Bank has business operations or has filed an application for
regulatory approval to establish an office; provided, however, that
this restriction shall not apply if Executive's employment is
terminated following a Change in Control; or
(iii) solicit, provide any information, advice or recommendation
or take any other action intended (or that a reasonable person acting
in like circumstances would expect) to have the effect of causing any
customer of the Bank to terminate an existing business or commercial
relationship with the Bank.
(b) Executive recognizes and acknowledges that the knowledge of the
business activities, plans for business activities, and all other proprietary
information of the Bank or any holding company of the Bank as it may exist from
time to time, are valuable, special and unique assets of the business of the
Bank or any holding company of the Bank. Executive will not, during or after the
term of his employment, disclose any knowledge of the past, present, planned or
considered business activities or any other similar proprietary information of
the Bank or any holding company of the Bank to any person, firm, corporation, or
other entity for any reason or purpose whatsoever unless expressly authorized by
the Board of Directors or required by law. Notwithstanding the foregoing,
Executive may disclose any knowledge of banking, financial and/or economic
principles, concepts or ideas which are not solely and exclusively derived from
the business plans and activities of the Bank or any holding company of the
Bank. Further, Executive may disclose information regarding the business
activities of the Bank or any holding company of the Bank to any bank regulator
having regulatory jurisdiction over the activities of the Bank or any holding
company of the Bank, pursuant to a formal regulatory request. In the event of a
breach or threatened breach by Executive of the provisions of this Section, the
Bank or any holding company of the Bank will be entitled to an injunction
restraining Executive from disclosing, in whole or in part, the knowledge of the
past, present, planned or considered business activities of the Bank or any
holding company of the Bank, or any other similar proprietary information, or
from rendering any services to any person, firm, corporation, or other entity to
whom such knowledge, in whole or in part, has been disclosed or is threatened to
be disclosed. Nothing herein will be construed as prohibiting the Bank any
holding company of the Bank from pursuing any other remedies available to the
Bank any holding company of the Bank for such breach or threatened breach,
including the recovery of damages from Executive.
(c) Executive shall, upon reasonable notice, furnish such information and
assistance to the Bank as may reasonably be required by the Bank, in connection
with any litigation in which it or any of its subsidiaries or affiliates is, or
may become, a party; provided, however, that Executive shall not be required to
provide information or assistance with respect to any litigation between the
Executive and the Bank or any of its subsidiaries or affiliates.
(d) All payments and benefits to Executive under this Agreement shall be
subject to Executive's compliance with this Section 10, to the extent
applicable. The parties hereto, recognizing that irreparable injury will result
to the Bank, its business and property in the event of Executive's breach of
this Section 10, agree that, in the event of any such breach by Executive, the
Bank will be entitled, in addition to any other remedies and damages available,
to an injunction to restrain the violation hereof by Executive and all persons
acting for or with Executive. Executive represents and admits that Executive's
experience and capabilities are such that Executive can obtain employment in a
business engaged in other lines of business than the Bank, and that the
enforcement of a remedy by way of injunction will not prevent Executive from
earning a livelihood. Nothing herein will be construed as prohibiting the Bank
or any holding company of the Bank from pursuing any other remedies available to
them for such breach or threatened breach, including the recovery of damages
from Executive.
11. SOURCE OF PAYMENTS
All payments provided in this Agreement shall be timely paid in cash or
check from the general funds of the Bank. The Company, however, guarantees
payment and provision of all amounts and benefits due hereunder to Executive
and, if such amounts and benefits due from the Bank are not timely paid or
provided by the Bank, such amounts and benefits shall be paid or provided by the
Company.
12. NO EFFECT ON EMPLOYEE BENEFITS PLANS OR PROGRAMS
The Bank's or the Company's Board of Directors may terminate Executive's
employment at any time, but, any termination of Executive's employment, other
than Termination for Cause shall have no effect on or prejudice the vested
rights of Executive under the Company's or the Bank's qualified or non-qualified
retirement, pension, savings, thrift, profit-sharing or stock bonus plans, group
life, health (including hospitalization, medical and major medical), dental,
accident and long term disability insurance plans or other employee benefit
plans or programs, or compensation plans or programs in which Executive was a
participant. Executive shall not have the right to receive any compensation or
other benefits for any period after Termination for Cause as defined in Section
8 hereinabove, except as otherwise required by applicable law.
13. REQUIRED REGULATORY PROVISIONS
(a) If Executive is suspended from office and/or temporarily prohibited
from participating in the conduct of the Bank's affairs by a notice served under
Section 8(e)(3) (12 USC ss.1818(e)(3)) or 8(g)(1) (12 USC ss.1818(g)(1)) of the
Federal Deposit Insurance Act ("FDIA"), the Bank's obligations under this
Agreement shall be suspended as of the date of service, unless stayed by
appropriate proceedings. If the charges in the notice are dismissed, the Bank
may in its discretion (i) pay Executive all or part of the compensation withheld
while its contract obligations were suspended and (ii) reinstate (in whole or in
part) any of its obligations which were suspended.
(b) If Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued under
Section 8(e)(4) (12 U.S.C. ss.1818(e)(4)) or 8(g)(1) (12 U.S.C. ss.1818(g)(1))
of FDIA, all obligations of the Bank under this Agreement shall terminate as of
the effective date of the order, but vested rights of the contracting parties
shall not be affected.
(c) If the Bank is in default as defined in Section 3(x)(1) (12 U.S.C.
ss.1813(x)(1)) of FDIA, all obligations under this Agreement shall terminate as
of the date of default, but this paragraph shall not affect any vested rights of
the contracting parties.
(d) All obligations under this Agreement shall be terminated, except to the
extent determined that continuation of this Agreement is necessary for the
continued operation of the Bank, (i) by the Director of OTS or his or her
designee, at the time the FDIC enters into an agreement to provide assistance to
or on behalf of the Bank under the authority contained in Section 13(c) (12
U.S.C. ss.1823(c)) of FDIA; or (ii) by the Director of OTS or his or her
designee at the time the Director of OTS or his or her designee approves a
supervisory merger to resolve problems related to operations of the Bank or when
the Bank is determined by the Director of OTS or his or her designee to be in an
unsafe or unsound condition. Any rights of the parties that have already vested,
however, shall not be affected by such action.
(e) Notwithstanding anything herein contained to the contrary, any payments
to Executive by the Company, whether pursuant to this Agreement or otherwise,
are subject to and conditioned upon their compliance with Section 18(k) of FDIA,
12 U.S.C. Section 1828(k), and the regulations promulgated thereunder in 12
C.F.R. Part 359.
14. NO ATTACHMENT
(a) Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation, or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to affect any such action shall be null,
void, and of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit of,
Executive, the Bank and the Company and their respective successors and assigns.
15. ENTIRE AGREEMENT; MODIFICATION AND WAIVER
(a) This instrument contains the entire agreement of the parties relating
to the subject matter hereof, and supercedes in its entirety any and all prior
agreements, understandings or representations relating to the subject matter
hereof, except that the parties acknowledge that this Agreement shall not affect
any of the rights and obligations of the parties under any agreement or plan
entered into with or by the Company pursuant to which the Executive may receive
compensation or benefits except as set forth in Section 10 hereof. No
modifications of this Agreement shall be valid unless made in writing and signed
by the parties hereto.
(b) This Agreement may not be modified or amended except by an instrument
in writing signed by the parties hereto.
(c) No term or condition of this Agreement shall be deemed to have been
waived, nor shall there be any estoppel against the enforcement of any provision
of this Agreement, except by written instrument of the party charged with such
waiver or estoppel. No such written waiver shall be deemed a continuing waiver
unless specifically stated therein, and each such waiver shall operate only as
to the specific term or condition waived and shall not constitute a waiver of
such term or condition for the future as to any act other than that specifically
waived.
16. SEVERABILITY
If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other provision
of this Agreement or any part of such provision not held so invalid, and each
such other provision and part thereof shall to the full extent consistent with
law continue in full force and effect.
17. HEADINGS FOR REFERENCE ONLY
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
18. GOVERNING LAW
This Agreement shall be governed by the laws of the Commonwealth of
Massachusetts but only to the extent not superseded by federal law.
19. ARBITRATION
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by binding arbitration, as an alternative
to civil litigation and without any trial by jury to resolve such claims,
conducted by a single arbitrator, mutually acceptable to the Bank and Executive
sitting in a location selected by Bank within fifty (50) miles from the main
office of the Bank, in accordance with the rules of the American Arbitration
Association's National Rules for the Resolution of Employment Disputes
("National Rules") then in effect. Judgment may be entered on the arbitrator's
award in any court having jurisdiction.
20. PAYMENT OF LEGAL FEES
All reasonable legal fees paid or incurred by Executive pursuant to any
dispute or question of interpretation relating to this Agreement shall be paid
or reimbursed by the Bank, provided that the dispute or interpretation has been
settled by Executive and the Bank or resolved in Executive's favor, and such
reimbursement shall occur no later than sixty (60) days after the end of the
year in which the dispute is settled or resolved in Executive's favor.
21. INDEMNIFICATION
The Bank shall provide Executive (including his heirs, executors and
administrators) with coverage under a standard directors and officers liability
insurance policy at its expense. Subject to 12 C.F.R. Section 545.121, the Bank
or the Company, indemnify Executive (and his heirs, executors and
administrators) to the fullest extent permitted under federal law against all
expenses and liabilities reasonably incurred by him in connection with or
arising out of any action, suit or proceeding in which he may be involved by
reason of his having been a director or officer of the Bank or the Company
(whether or not he continues to be a director or officer at the time of
incurring such expenses or liabilities), such expenses and liabilities to
include, but not be limited to, judgments, court costs and attorneys fees and
the cost of reasonable settlements (such settlements must be approved by the
Board of Directors of the Bank or the Company). If such action, suit or
proceeding is brought against Executive in his capacity as an officer or
director of the Bank, however, such indemnification shall not extend to matters
as to which Executive is finally adjudged to be liable for willful misconduct in
the performance of his duties.
22. SUCCESSORS AND ASSIGNS
The Bank and/or the Company shall require any successor or assignee,
whether direct or indirect, by purchase, merger, consolidation or otherwise, to
all or substantially all the business or assets of the Bank or the Company,
expressly and unconditionally to assume and agree to perform the Bank's and the
Company's obligations under this Agreement, in the same manner and to the same
extent that the Bank and/or the Company would be required to perform if no such
succession or assignment had taken place.
[Remainder of Page Intentionally Blank]
SIGNATURES
IN WITNESS WHEREOF, the Bank and the Company have caused this Agreement to
be executed by their duly authorized officers, and Executive has signed this
Agreement, on this 27th day of November, 2007.
ATTEST: UNITED BANK
/s/ Xxxxx Xxxxxx By: /s/ Xxxx X. Xxxxxxx
-------------------- ------------------------------
Xxxx X. Xxxxxxx
Executive Vice President & CFO
ATTEST: UNITED FINANCIAL BANCORP, INC.
/s/ Xxxxx Xxxxxx By: /s/ Xxxx X. Xxxxxxx
-------------------- ------------------------------
Xxxx X. Xxxxxxx
Executive Vice President & CFO
WITNESS: EXECUTIVE
/s/ Xxxxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
-------------------- ------------------------------
Xxxxxxx X. Xxxxxxx
