Exhibit 10.13
EXECUTIVE 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 key employee and an executive
officer of the Bank, hereinafter referred to as "the Executive".
WHEREAS, the Executive has been in the employ 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 Executive'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 Executive to enter
into this Agreement under which the Bank will agree to make certain payments to
the Executive upon the Executive's retirement and, alternatively, to the
Executive's beneficiary(ies) in the event of the Executive'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 Executive, as a member of a select group of
management or highly compensated employees of the Bank for purposes of the
Employee Retirement Security Act of 1974 (ERISA). The Executive is fully advised
of the Bank's financial status.
THEREFORE, in consideration of the Executive'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 Executive, agree as
follows:
1. DEFINITIONS
A. Effective Date:
--------------
The Effective Date of this Agreement shall be _______,_______.
B. Plan Year:
---------
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:
----------
Retirement shall mean retirement from service with the Bank
which becomes effective when the Executive reaches the
Executive's sixty-fifth (65th) birthday or such later date as
the Executive may actually retire.
D. Termination of Service:
----------------------
Termination of Service shall mean voluntary resignation of
service by the Executive or the Bank's discharge of the
Executive 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:
-----------------
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;
(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
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(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:
---------------------
Normal Retirement Age shall mean the date on which the
Executive attains age sixty-five (65).
G. Benefit Accounting:
------------------
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 Executive into which
appropriate reserves shall be accrued.
H. Single Life Annuitized Value:
----------------------------
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:
------------------
Final Compensation means as of any date the Executive's annual
base salary actually paid during the period of twelve (12)
consecutive calendar months in which the Executive's base
salary was at the highest annual rate achieved during or prior
to such date.
J. Social Security Benefit:
-----------------------
Social Security Benefit means the Executive's primary old-age
insurance benefit payable to the Executive 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 Executive's Social Security Benefit
before the Executive has attained the age at which such
benefit may be paid without reduction, the Executive'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 employ the Executive in such capacity as the Bank
may from time to time determine. The Executive will continue in the
employ 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 employment agreement by and between the Bank and the
Executive, nor shall any conditions herein create specific employment
rights to the Executive nor limit the right of the Employer to
discharge the Executive with or without cause. In a similar fashion, no
provision shall limit the Executive's rights to voluntarily sever his
employment at any time.
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III. BENEFITS
A. Retirement Benefits:
-------------------
Should the Executive continue to be employed by the Bank until
"Normal Retirement Age" defined in Subparagraph I (F), the
Executive shall be entitled to receive the benefits set forth
in this Subparagraph III (A).
An annual benefit equal to 75% of Final Compensation at
retirement, less 50% of the Social Security Benefit and the
Single Life Annuitized Value of the Executive's account
balances derived from employer provided contributions under
all qualified and non-qualified defined contribution plans
maintained by the Bank. The payment of this annual benefit
shall commence within thirty (30) days of the Executive's
retirement.
B. Termination of Service:
----------------------
Subject to Subparagraph III (D), should the Executive suffer a
Termination of Service [Subparagraph I (D)], the Executive
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:
-----
Upon the death of the Executive, the Executive 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 Executive's death to be paid
within thirty (30) days of the date of the Executive's death.
D. Discharge for Cause:
-------------------
Should the Executive be discharged 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:
-------------
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 Executive, the Executive's beneficiary(ies) or any successor in
interest to the Executive 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 Executive agree otherwise in a separate
written instrument. At no time shall the Executive 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.
V. CHANGE OF CONTROL
Upon the Executive's Termination of Service after a Change of Control (as
defined in Subparagraph I (E) herein), the Executive 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 Executive, 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 Executive'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 Executive's
Termination of Service. If no election is made the benefit will be payable
pursuant to clause (i) of the previous sentence. The Executive will also remain
eligible for all promised death benefits in this Agreement. An Executive who
continues employment 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 Executive and shall be binding upon the Bank and any successor thereto.
This Agreement may only be modified by the mutual written assent of the
Executive and the Bank or any successor thereto.
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VI. MISCELLANEOUS
A. Alienability and Assignment Prohibition:
---------------------------------------
Neither the Executive, 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 Executive or the
Executive's beneficiary(ies), nor be transferable by operation
of law in the event of bankruptcy, insolvency or otherwise. In
the event the Executive 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:
--------------------------------------------------------
This Agreement shall be binding upon the parties hereto, their
successors, beneficiary(ies), heirs and personal
representatives.
C. Revocation:
----------
It is agreed by and between the parties hereto that, during
the lifetime of the Executive, this Agreement may be amended
or revoked at any time or times, in whole or in part, by the
mutual written assent of the Executive and the Bank.
D. Gender:
------
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:
----------------------------------
Nothing contained in this Agreement shall affect the right of
the Executive 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 Executive 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 Executive expressly
agree otherwise in writing.
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F. Headings:
--------
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:
--------------
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:
---------------
The benefits provided by this Agreement are granted by the
Bank as a fringe benefit to the Executive and are not part of
any salary reduction plan or an arrangement deferring a bonus
or a salary increase, and shall in no event be construed to
effect nor limit the Executive's current or prospective salary
increases, cash bonuses, or profit-sharing distribution or
credits. The Executive has no option to take any current
payment or bonus in lieu of these benefits except as may be
set forth hereinafter.
VII. ERISA PROVISION
A. Named Fiduciary and Plan Administrator:
--------------------------------------
The "Named Fiduciary and Plan Administrator" of this Executive
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 Executive Plan.
The Named Fiduciary may delegate to others certain aspects of
the management and operation responsibilities of the Executive
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 Executive (or to
his beneficiary in the case of the Executive'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.
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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 discharge of the
Executive "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 Executive
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