AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit
10.7.1
AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
This
AMENDED AND
RESTATED EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered into as of
September 25, 2007 by and between NewAlliance Bancshares, Inc., a business
corporation organized under the laws of the State of Delaware (the “Company”),
NewAlliance Bank, a Connecticut savings bank (the “Bank”), and Xxxxxx X.
Xxxxxxxxx (the “Executive”).
W
I T N E
S S E T H :
WHEREAS,
the
Executive is currently employed as the Chairman, President and Chief Executive
Officer of the Company and the Bank pursuant to an employment agreement between
the Company, the Bank and the Executive originally entered into as of April
1,
2004 and amended and restated effective January 3, 2006 (the “Employment
Agreement”);
WHEREAS, the
Company and the Bank desire to amend and restate the Employment Agreement
in
order to make changes to comply with Section 409A of the Internal Revenue
Code
of 1986, as amended (the “Code”), as well as certain other changes;
WHEREAS,
the Company
and the Bank desire to ensure that the Company and the Bank are assured of
the
continued availability of the Executive's services as provided in this
Agreement, with the Company and the Bank collectively referred to herein
as the
“Employers”; and
WHEREAS,
the
Executive is willing to serve the Company and the Bank on the terms and
conditions hereinafter set forth;
NOW,
THEREFORE, in
consideration of the premises and the mutual covenants and conditions
hereinafter set forth, the Employers and the Executive hereby agree as
follows:
SECTION
1. EFFECTIVE
DATE; EMPLOYMENT.
This
Agreement shall
be effective on the date first written above (the “Effective Date”), provided
that all changes intended to comply with Section 409A of the Code, including
without limitation changes to Sections 9, 10, 11 and 12 of the Agreement,
shall
be retroactively effective to January 1, 2005; and provided further that
no
retroactive change shall affect the compensation or benefits previously paid
to
the Executive. Each of the Employers agrees to employ the Executive, and
the Executive hereby agrees to such employment, during the period and upon
the
terms and conditions set forth in this Agreement.
SECTION
2. EMPLOYMENT
PERIOD.
(a)
The
terms
and conditions of this Agreement shall be and remain in effect during the
period of three years beginning on April 1, 2007 (the “Commencement Date”) and
ending on the third anniversary of the Commencement Date, plus such extensions,
if any, as are provided pursuant to Section 2(b) hereof (the “Employment
Period”).
(b)
Except as provided in Section 2(c), prior to the first annual anniversary
of the
Commencement Date and each annual anniversary thereafter, the Boards of
Directors of the Employers shall consider and review (after taking into account
all relevant factors, including the Executive's performance) a one-year
extension of the term of this Agreement, and the term shall continue to extend
each year (beginning with the first annual anniversary date) if the Boards
of
Directors so approve such extension unless the Executive gives written notice
to
the Employers of the Executive's election not to extend the term, with such
notice to be given not less than ninety (90) days prior to any such anniversary
date. If the Board of Directors elects not to extend the term, it shall
give written notice of such decision to the Executive not less than ninety
(90)
days prior to any such anniversary date. If the Executive does not receive
such
notice, she may, by written notice given at any time during the ninety (90)
days
prior to the relevant anniversary date, request from the Board of Directors
written confirmation that the term has been extended and, if such confirmation
is not received by the Executive within thirty (30) days after the request
therefor is made, the Executive may treat the term as having not been
extended. Upon termination of the Executive's employment with either of
the Employers for any reason whatsoever, any annual extensions provided pursuant
to this Section 2(b), if not theretofore discontinued, shall automatically
cease. In addition, no annual renewals shall extend beyond the Executive's
65th birthday, and in no event shall the Employment Period extend beyond
the
Executive's 65th birthday.
(c)
Nothing
in
this Agreement shall be deemed to prohibit the Employers at any time from
terminating the Executive's employment during the Employment Period with
or
without notice for any reason, provided, however, that the relative
rights and obligations of the Employers and the Executive in the event of
any
such termination, including any requirements with respect to prior notice
of
such termination, shall be determined under this Agreement.
SECTION
3.
DUTIES.
(a)
Throughout
the Employment Period, the Executive shall serve as the Chairman, President
and
Chief Executive Officer of each of the Employers, having such power, authority
and responsibility and performing such duties as are prescribed by or under
the
Bylaws of each of the Employers and as are customarily associated with such
positions. The Executive shall devote her full business time, attention,
skills and efforts (other than during weekends, holidays, vacation periods,
and
periods of illness or leaves of absence and other than as permitted or
contemplated by Section 7 hereof) to the business and affairs of the Employers
and shall use her best efforts to advance the interests of the
Employers.
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(b)
Throughout
the Employment Period, the Board of Directors of the Bank (the “Bank Board”)
(or, if applicable, its nominating committee) shall nominate the Executive
to be
a director of the Bank when her term expires, subject to the fiduciary duties
of
the Bank Board, and the Company agrees to approve her election as a director
of
the Bank. Throughout the Employment Period, the Board of Directors of the
Company (the “Company Board”) (or, if applicable, its nominating committee)
shall nominate the Executive to be a director of the Company when her term
expires and recommend her election to the shareholders of the Company, subject
to the fiduciary duties of the Company Board.
SECTION
4. CASH AND
OTHER COMPENSATION.
(a)
In
consideration for the services to be rendered by the Executive hereunder,
the
Employers shall pay to her a salary of seven hundred fifteen thousand dollars
($715,000) annually (“Base Salary”) as of the date of restatement of this
Agreement. The Executive's Base Salary shall be payable in approximately
equal installments in accordance with the Company's and the Bank's customary
payroll practices for senior officers. Base Salary shall include any
amounts of compensation deferred by the Executive under any tax‑qualified
retirement or welfare benefit plan or any other deferred compensation
arrangement. The Compensation Committees of the Company Board and the Board
of
Directors of the Bank (the “Bank Board”) (collectively the “Boards”) shall
review the Executive's annual rate of salary at such times during the Employment
Period as they deem appropriate, but not less frequently than once every
twelve
months, and may, in their respective discretion, approve an increase
therein. Such review of the Executive's Base Salary shall take into
account not only the Executive's performance as well as the Employers'
performance since the date of the last review conducted pursuant to this
Section
4(a) but also shall take into consideration the salaries of similar situated
officers at comparably situated financial institutions as determined by the
Compensation Committees of the Employers. In addition to salary, the
Executive may receive other cash compensation from the Employers for services
hereunder at such times, in such amounts and on such terms and conditions
as the
Company Board or the Bank Board may determine from time to time. Any
increase in the Executive's annual salary shall become the Base Salary of
the
Executive for purposes hereof. The Executive's Base Salary as in effect
from time to time cannot be decreased by the Employers without the Executive's
express prior written consent.
(b)
The
Executive shall be entitled to participate in an equitable manner with all
other
executive officers of the Employers in discretionary bonuses to executive
officers as authorized by the Company Board and/or the Bank Board. No
other compensation provided for in this Agreement shall be deemed a substitute
for the Executive's right to participate in such bonuses when and as declared
by
the Company Board and/or the Bank Board. In connection with the foregoing,
under the terms of the Bank's Executive Short Term Incentive Plan (the “ESTIP”),
annual cash bonuses can be awarded to the Executive in an amount equal to
up to
200% of the Executive's Base Salary as in effect at the start of the ESTIP's
plan year to which the bonus relates. The Compensation Committee of the
Board of Directors of the Company shall make an annual determination of the
exact percentage of Base Salary to be used with respect to the possible bonus,
if any, to be paid to the Executive for the relevant plan year and shall
notify
the Executive by the end of January of the ESTIP's plan year to which such
percentage shall be applicable, commencing January 2005.
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SECTION
5. EMPLOYEE
BENEFIT PLANS AND PROGRAMS.
(a) During the Employment Period, the Executive shall be treated as an
employee of the Company and the Bank and shall be entitled to participate
in and
receive benefits under any and all qualified or non‑qualified retirement,
pension, savings or profit‑sharing plans (including, but not limited to the
Company's Employee Stock Ownership Plan (the “ESOP”), the Bank's defined benefit
pension plan, the Bank's 401(k) Profit Sharing Plan, the Bank's Supplemental
Executive Retirement Plan and the Bank's 2004 Supplemental Executive Retirement
Plan and any other similar plans that may be adopted in the future), any
and all
group life, health (including hospitalization, medical and major medical),
dental, accident and long-term disability insurance plans, and any other
employee benefit and compensation plans (including, but not limited to, the
ESTIP and any incentive compensation plans or programs or any stock benefit
plans) as may from time to time be maintained by, or cover employees of,
the
Company and the Bank, in accordance with the terms and conditions of such
employee benefit plans and programs and compensation plans and programs and
consistent with the Company's and the Bank's customary practices. Nothing
paid
to the Executive under any such plan or program will be deemed to be in lieu
of
other compensation to which the Executive is entitled under this
Agreement.
(b)
During
the
Employment Period, the Employers shall provide the Executive with an expense
allowance (“Expense Allowance”) payable monthly equal to $800 per month to pay
for the costs of an automobile. Such Expense Allowance shall take into
account the federal and state income tax effect on the Executive of receipt
of
such allowance. In the event that with respect to a given calendar
year occurring during the term of this Agreement, the Executive believes
that
she drove during such year Business Miles (as hereinafter defined) in excess
of
the Covered Business Miles (as hereinafter defined) in connection with the
business of the Bank and/or the Company and wishes to seek reimbursement
as
provided herein for such excess, within 40 days after the end of such calendar
year, the Executive shall provide information to the Company and the Bank
(as
well as any additional information as the Employers may reasonably request
in
order to review the Executive’s claim) with respect to the number of miles
driven in the such calendar year in connection with the business of the Bank
and/or the Company (“Business Miles”). In the event the number of Business
Miles driven during such calendar year is determined by the Employers to
be more
than 7,500 (“Covered Business Miles”), the Bank or the Company will provide the
Executive an additional reimbursement for the Business Miles in excess of
the
Covered Business Miles at a rate equal to the standard mileage rate as published
by the Internal Revenue Service for the period in which the excess Business
Miles were incurred (“Reimbursement Rate”), with such reimbursement to be
provided no later than March 15 of the year immediately following the year
in
which the excess Business Miles were incurred. The Expense Allowance, the
Covered Business Miles and the Reimbursement Rate shall be reviewed annually
by
the Compensation Committee of the Company Board and, if increased, shall
be
reflected in an addendum hereto. Notwithstanding the foregoing, nothing
herein shall be deemed to impose upon the Employers or obviate the Executive's
obligation, legal or otherwise, to maintain liability insurance with respect
to
the Executive's personal use of an automobile.
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(c)
The
Employers shall provide and pay for a parking space for the Executive in
the
Bank's main office parking garage or, if such space shall become unavailable
due
to tenant commitments or otherwise, in an alternative convenient closed parking
garage.
(d)
The
Executive shall be entitled to paid holidays consistent with the Employers'
policy for executive officers. The Executive shall be entitled to five
weeks paid vacation in each fiscal year, with such vacations to be taken
consistent with the Employers' need for Executive's on-site leadership
responsibilities. The Executive may not carry over vacation days from
fiscal year to year, or be paid extra for unused vacation days, except with
the
approval of the Bank Board.
(e) The Employers shall provide during the term of this Agreement, subject
to the limitations set forth herein, for the Executive to receive, at the
Employers' expense, the services of a tax professional and a personal financial
planning professional (which may be the same person or entity for both services)
(the “Tax Service Professional”) selected by the Employers and reasonably
satisfactory to the Executive. Subject to the limitations set forth
herein, if the Employers do not specify a Tax Services Professional reasonably
acceptable to the Executive, the Executive will be entitled to use the services
of a Tax Services Professional of her choosing and seek reimbursement by
the
Employers for the reasonable cost of such Tax Service Professional actually
incurred by the Executive. The services to be provided shall include (i)
the preparation of all required federal, state and local personal income
tax
returns, (ii) advice with respect to federal, state and local income tax
treatment of cash and other forms of compensation paid to the Executive by
the
Employers and (iii) investment and retirement counseling and estate
planning. Notwithstanding the foregoing, the annual cost to the Employers
of providing the services to the Executive of such Tax Service Professional,
whether such Tax Service Professional is selected by the Employers or the
Executive, shall not exceed $3,000 (the “Annual Cost”), prior to any adjustment
for income tax effects of reimbursement for such expense. Reimbursement of
the Executive for the Annual Cost shall take into account the federal and
state
income tax effect on the Executive of receipt of such Annual Cost, and such
reimbursement shall be paid promptly by the Employers and in any event no
later
than March 15 of the year immediately following the year in which the Annual
Cost was incurred. The Annual Cost shall be reviewed annually by the
Compensation Committee of the Company and, if increased, shall be reflected
in
an addendum hereto.
(f)
During the Employment Period, the Employers will reimburse and/or pay for
the
Executive's costs of membership in a New Haven luncheon club and the New
Haven
Country Club (or such other country club as reasonably agreed to by the
Employers and the Executive), including all membership bonds or surety,
initiation or membership fees, annual dues, capital assessments, and all
business-related expenses incurred at the clubs (“Club Expenses”). The
Executive shall be reimbursed for the cost of Club Expenses expended by the
Executive no later than March 15 of the year immediately following the year
in
which the Club Expenses were incurred, and any such reimbursement and/or
payment
of the Club Expenses by the Employers shall take into account the federal
and
state income tax effect on the Executive of receipt of or reimbursement for
the
Club Expenses.
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SECTION
6.
INDEMNIFICATION AND INSURANCE.
(a)
During
the
Employment Period and for a period of six years thereafter, the Employers
shall
cause the Executive to be covered by and named as an insured under any policy
or
contract of insurance obtained by them to insure their directors and officers
against personal liability for acts or omissions in connection with service
as
an officer or director of the Employers or service in other capacities at
the
request of the Employers. The coverage provided to the Executive pursuant
to this Section 6 shall be of the same scope and on the same terms and
conditions as the coverage (if any) provided to other officers or directors
of
the Employers or any successors.
(b)
To
the
maximum extent permitted under applicable law, the Employers shall indemnify
the
Executive against and hold her harmless from any costs, liabilities, losses
and
exposures that may be incurred by the Executive in her capacity as a director
or
officer of the Employers or any subsidiary or affiliate.
SECTION
7. OUTSIDE
ACTIVITIES.
The
Executive may (a)
serve as a member of the boards of directors of such business, community
and
charitable organizations as she may disclose to and as may be approved by
the
Employers (which approval shall not be unreasonably withheld), and (b) perform
duties as a trustee or personal representative or in any other fiduciary
capacity, provided that in each case such service shall not materially
interfere with the performance of her duties under this Agreement or present
any
conflict of interest. The Executive may also engage in personal business
and investment activities which do not materially interfere with the performance
of her duties hereunder, provided that such activities are not prohibited
under any code of conduct or investment or securities trading policy established
by the Employers and generally applicable to all similarly situated executives.
If the Executive is discharged or suspended, or is subject to any regulatory
prohibition or restriction with respect to participation in the affairs of
the
Bank, she shall continue to perform services for the Company in accordance
with
this Agreement but shall not directly or indirectly provide services to or
participate in the affairs of the Bank in a manner inconsistent with the
terms
of such discharge or suspension or any applicable regulatory order.
SECTION
8. WORKING
FACILITIES AND EXPENSES.
It
is understood by
the parties that the Executive's principal place of employment shall be at
the
Employers' principal executive office located in New Haven, Connecticut,
or at
such other Board approved location within 50miles of the address of such
principal executive office, or at such other location as the Employers and
the
Executive may mutually agree upon. The Employers shall provide the
Executive at her principal place of employment with a private office,
secretarial services and other support services and facilities suitable to
her
position with the Employers and necessary or appropriate in connection with
the
performance of her assigned duties under this Agreement. The Employers
shall reimburse the Executive for her ordinary and necessary business expenses
attributable to the Employers' business, including, without limitation, the
Executive's travel and entertainment expenses incurred in connection with
the
performance of her duties for the Employers under this Agreement, in each
case
upon presentation to the Employers of an itemized account of such expenses
in
such form as the Employers may reasonably require. Such reimbursement
shall be paid promptly by the Employers and in any event no later than March
15
of the year immediately following the year in which such expenses were
incurred.
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SECTION
9. TERMINATION
OF EMPLOYMENT WITH BENEFITS.
(a)
Subject
to
Sections 9(b) and 9(c), the Executive shall be entitled to the benefits
described in Section 9(b) in the event that:
(i)
her
employment with both of the Employers terminates during the Employment Period
as
a result of the Executive's termination for Good Reason (as defined in Section
9(a)(i)(A) and (B) of this Agreement), which shall mean a termination based
on
the following:
(A)
any
material breach of this Agreement by the Employers, including without limitation
any of the following: (1) a material diminution in the Executive’s base
compensation, (2) a material diminution in the Executive’s authority, duties or
responsibilities as prescribed in Section 3, or (3) any requirement that
the
Executive report to a corporate officer or employee of the Employers instead
of
reporting directly to the Boards of Directors of the Employers, or
(B)
any
material change in the geographic location at which the Executive must perform
her services under this Agreement;
provided,
however, that prior to any termination of employment for Good Reason, the
Executive must first provide written notice to the Employers within ninety
(90)
days of the initial existence of the condition, describing the existence
of such
condition, and the Employers shall thereafter have the right to remedy the
condition within thirty (30) days of the date the Employers received the
written
notice from the Executive. If the Employers remedy the condition within
such thirty (30) day cure period, then no Good Reason shall be deemed to
exist
with respect to such condition. If the Employers do not remedy the
condition within such thirty (30) day cure period, then the Executive may
deliver a notice of termination for Good Reason at any time within sixty
(60)
days following the expiration of such cure period; or
(ii)
the Executive's employment with the Employers is terminated by the
Employers during the Employment Period for any reason other than for
“cause,” death or “Disability,” as provided in Section 10(a).
(b)
Subject
to
Section 9(c), and provided that no Change in Control (as defined in Section
11(a) hereof) has occurred, the Employers shall pay and provide to the Executive
(or, in the event of her subsequent death, to her estate), the following
severance benefits for the three year period beginning on the date that her
employment terminates (the “Severance Benefits Period”):
7
(i)
her
earned but unpaid Base Salary (including, without limitation, all items which
constitute wages under applicable law and the payment of which is not otherwise
provided for in this Section 9(b)) as of the date of the termination of her
employment, with 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
30 days after termination of employment;
(ii)
the benefits, if any, to which she is entitled 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 (such benefits not to
include the expense allowance provided by Section 5(b)) through the date
of the
termination of her employment;
(iii)
continued group life, health, dental and accident insurance benefits, in
addition to that provided pursuant to 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 Executive, for the Severance Benefits Period,
coverage equivalent to the coverage to which she would have been entitled
under
such plans if she had continued to be employed during such period; provided
that
any insurance premiums payable by the Employers or any successors pursuant
to
this Section 9(b)(iii) shall be payable at such times and in such amounts
as if
the Executive was still an employee of the Employers, subject to any increases
in such amounts imposed by the insurance company or COBRA, and the amount
of
insurance premiums required to be paid by the Employers in any taxable year
shall not affect the amount of insurance premiums required to be paid by
the
Employers in any other taxable year;
(iv)
a lump
sum cash amount equal to the projected cost to the Employers of providing
group
long-term disability insurance benefits to the Executive for the Severance
Benefits Period, with the projected cost to the Employers to be based on
the
costs incurred as of the date of termination as determined on an annualized
basis;
(v)
a
lump sum cash amount equal to the present value of three times the Executive's
Annual Compensation, as hereinafter defined, using a discount rate equal
to the
short-term applicable federal rate (determined under Section 1274(d) of the
Code) as published by the Internal Revenue Service (the “IRS”) for the month in
which the termination of employment occurs, compounded monthly, payable within
30 days following termination of employment;
(vi)
a
lump sum cash amount equal to the present value, determined by using a discount
rate equal to the short-term applicable federal rate (determined under Section
1274(d) of the Code) as published by the IRS for the month in which the
termination of employment occurs, of the pro rata portion of any target bonus
awarded to the Executive under the Bank's Executive Incentive Plan (the “EIP”)
(or such other short-term incentive compensation plan(s) that the Employers
may
adopt subsequent to the date hereof as a replacement therefor) which relates
to
the calendar year in which such termination occurs; provided, that such
pro rata portion will be calculated by multiplying the amount of the target
bonus by a fraction the numerator of which is the number of days elapsed
in the
calendar year as of the date of termination and the denominator is 365;
provided, further, that such pro rated target bonus shall be paid within
30 days following termination of employment;
8
(vii)
a
lump sum cash amount, payable within 30 days following termination of
employment, equal to the present value, determined by using a discount rate
equal to the short-term applicable federal rate (determined under Section
1274(d) of the Code) as published by the IRS for the month in which the
termination of employment occurs, of the excess, if any, of:
(A)
the
value
of the aggregate benefits to which she would be entitled under any and all
qualified defined benefit pension plans and non-qualified plans related thereto
maintained by, or covering employees of, the Company and the Bank if she
were
100% vested thereunder and had continued to be employed during the Severance
Benefits Period at the highest annual rate of Base Salary achieved during
the
Employment Period; over
(B)
the
value
of the benefits to which she is actually entitled under such defined benefit
pension plans as of the date on which her employment terminates, with such
values to be determined using the mortality tables prescribed under Section
415(b)(2)(E)(v) of the Code;
(viii)
a lump sum cash amount, payable within 30 days following termination of
employment, equal to the present value, determined by using a discount
rate equal to the short-term applicable federal rate (determined under Section
1274(d) of the Code) as published by the IRS for the month in which the
termination of employment occurs, of the additional employer contributions
to
which she would have been entitled under any and all qualified defined
contribution plans and non-qualified plans related thereto maintained by,
or
covering employees of, the Company and the Bank as if she were 100% vested
thereunder and had continued to be employed during the Severance Benefits
Period
at the highest annual rate of Base Salary achieved during the Employment
Period
and making the maximum amount of employee contributions, if any, required
or
permitted under such plan or plans, provided that no payments shall be made
pursuant to this subsection (viii) with respect to the Company's ESOP if
the
ESOP is terminated effective as of a date within one year of the date of
the termination of the Executive's employment, with the Executive to reimburse
the Employers for any such payments previously made within 30 days of the
Executive’s receipt of a request for reimbursement from the Employers;
and
(ix)
within 30 days following the occurrence of an event described in Section
9(a),
upon the surrender of any shares previously awarded to the Executive under
any
restricted stock plan maintained by, or covering employees of, the Employers,
which are then subject to restrictions, a lump sum payment in an amount equal
to
the product of:
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(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; provided that in the event of a breach
of
Section 14 of this Agreement by the Executive, the Executive acknowledges
that
the Employers will be entitled to recoup any and all amounts paid by the
Employers to the Executive pursuant to this Section 9(b)(ix), as set forth
in
Section 14 hereof.
The
Executive's
“Annual Compensation” for purposes of this Agreement shall be deemed to mean the
sum of (i) the Executive's Base Salary in effect as of the date of termination
of her employment and (ii) the greater of (A) the average of the cash incentive
compensation earned by the Executive from the Employers or any subsidiary
thereof during the three calendar years immediately preceding the calendar
year
in which the date of termination occurs or (B) the amount of the Executive's
target bonus under the EIP (or such other short-term incentive compensation
plan(s) that the Employers may adopt subsequent to the date hereof as a
replacement therefor) for the calendar year in which the termination occurs;
provided, however, for purposes of clause (ii) bonuses earned under the
Bank's Performance Unit Plan will not be included in cash incentive compensation
for purposes of determining average cash incentive compensation (or with
respect
to Section 11(b), the highest level of cash incentive compensation).
The
Employers and the
Executive further agree that the Employers may condition the payments and
benefits (if any) due under Sections 9(b)(iii), (iv), (v), (vi), (vii) and
(viii) on the receipt of the Executive's resignation from any and all positions
which she holds as an officer, director or committee member with respect
to the
Employers or any of their subsidiaries or affiliates and to the execution
of a
general release by the Executive.
(c) The Executive shall not be required to mitigate the amount of any
benefits provided pursuant to the provisions of Section 9(b) by seeking other
employment or otherwise. However, if the Executive becomes or is employed
by another employer subsequent to the first year following termination, any
compensation received by the Executive subsequent to the first year following
termination through the end of the Severance Benefits Period shall be offset
dollar for dollar against the Employers' obligations set forth in Section
9(b)
except with respect to Section 9(b)(iii), with the Executive to reimburse
the
Employers the amount of the offset with respect to amounts previously paid
by
the Employers within 30 days of the Executive’s receipt of a request for
reimbursement from the Employers. In addition, if the Executive becomes
employed by another entity subsequent to termination hereunder, and under
the
terms of such employment is entitled to benefits substantially similar to
those
provided in Section 9(b)(iii), the Employers will not be required to continue
provision of the benefits set forth in said Section 9(b)(iii) for the remainder
of the Severance Benefits Period.
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SECTION
10.
TERMINATION WITHOUT ADDITIONAL EMPLOYER LIABILITY.
(a)
In
the
event that the Executive's employment with the Employers shall terminate
during
the Employment Period on account of:
(i)
the
discharge of the Executive for “cause,” which, for purposes of this Agreement,
shall mean a discharge because either the Company Board or the Bank Board
determines that the Executive has: (A) willfully failed to perform her
assigned duties under this Agreement, other than any failure resulting from
the
Executive's incapacity due to physical or mental injury or illness; (B)
committed an act involving moral turpitude in the course of her employment
with
the Employers and their subsidiaries or affiliates; (C) engaged in willful
misconduct; (D) breached her fiduciary duties for personal profit; (E) willfully
violated, in any material respect, any law, rule or regulation (other than
traffic violations or similar offenses), written agreement or final
cease‑and‑desist order with respect to her performance of services for the
Company or the Bank, as determined by the Company Board or the Bank Board;
or
(F) materially breached the terms of this Agreement and failed to cure such
material breach during a 15-day period following the date on which the Company
Board or the Bank Board gives written notice to the Executive of the material
breach;
(ii)
the Executive's voluntary resignation from employment (including voluntary
retirement) with the Company and the Bank for reasons other than Good Reason
as
specified in Section 9(a)(i); or
(iii)
the death of the Executive while employed by the Employers, or the termination
of the Executive's employment because of “Disability” as defined in Section
10(c) below;
then
in
any of the foregoing events, the Employers shall have no further obligations
under this Agreement, other than (A) the payment to the Executive of her
earned
but unpaid compensation as of the date of the termination of her employment,
(B)
the payment to the Executive of the benefits to which she is entitled under
all
applicable employee benefit plans and programs and compensation plans and
programs as of the date of termination of her employment, and (C) the provision
of such other benefits, if any, to which she is entitled as a former employee
under the Company's or the Bank's employee benefit plans and programs and
compensation plans and programs.
(b)
For
purposes of this Section 10, no act or failure to act, on the part of the
Executive, shall be considered “willful” unless it is done, or omitted to be
done, by the Executive in bad faith or without reasonable belief that the
Executive's action or omission was in the best interests of the Employers.
Any act, or failure to act, based upon authority given pursuant to a resolution
duly adopted by the Company Board, the Bank Board or based upon the written
advice of counsel for the Employers shall be conclusively presumed to be
done,
or omitted to be done, by the Executive in good faith and in the best interests
of the Employers. The cessation of employment of the Executive shall not
be deemed to be for “cause” within the meaning of Section 10(a)(i) unless and
until there shall have been delivered to the Executive a copy of a resolution
duly adopted by the affirmative vote of three-fourths of the members of the
Company Board or the Bank Board at a meeting of such Board called and held
for
such purpose (after reasonable notice is provided to the Executive and the
Executive is given an opportunity, together with counsel, to be heard before
such Board), finding that, in the good faith opinion of such Board, the
Executive is guilty of the conduct described in Section 10(a)(i) above, and
specifying the particulars thereof in detail.
11
(c)
“Disability” shall be deemed to have occurred if the Executive: (i) is unable to
engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result
in
death or can be expected to last for a continuous period of not less than
12
months, or (ii) is, by reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be expected to
last
for a continuous period of not less than 12 months, receiving income replacement
benefits for a period of not less than three months under an accident and
health
plan covering employees of the Employers.
(d)
During
any
period in which the Executive is absent due to physical or mental impairment,
the Employers may, without breaching this Agreement, appoint another person
or
persons to act as interim President and interim Chief Executive Officer pending
the Executive's return to her duties on a full‑time basis hereunder or her
termination as a result of such Disability. Prior to the Executive's
employment being terminated due to Disability under Section 10(e) hereof,
the
Executive shall continue to receive her full Base Salary, bonuses and other
benefits to which she is entitled under this Agreement, including continued
participation in all employee benefit plans and programs.
(e)
The
Employers may provide notice to the Executive in writing that they intend
to
terminate the Executive's employment under this Agreement, with the termination
date to be on or after the date that the Executive is deemed to have a
Disability. At the time her employment hereunder is terminated due to
Disability, (i) the Executive shall not be entitled to any payments or benefits
pursuant to Sections 4 and 5 hereof for periods subsequent to such date of
termination, and (ii) the Executive shall become entitled to receive the
Disability payments that may be available under any applicable long‑term
disability plan or other benefit plan.
SECTION
11. PAYMENTS
UPON A CHANGE IN CONTROL.
(a)
The
term
“Change in Control” shall mean a change in the ownership of the Company or the
Bank, a change in the effective control of the Company or the Bank or a change
in the ownership of a substantial portion of the assets of the Company or
the
Bank, in each case as provided under Section 409A of the Code and the
regulations thereunder. In no event, however, shall a Change in Control be
deemed to have occurred as a result of any acquisition of securities or assets
of the Company, the Bank, or a subsidiary of either of them, by the Company,
the
Bank, or any subsidiary of either of them, or by any employee benefit plan
maintained by any of them.
12
(b)
If
the
Executive's employment by the Employers shall be terminated subsequent to
a
Change in Control and during the term of this Agreement by (i) the Employers
for
other than Cause, Disability, Retirement or the Executive's death or (ii)
the
Executive for Good Reason as defined in Section 9(a)(i) hereof, then the
Employers shall pay to the Executive a severance benefit in a lump sum payment,
within five (5) days after the effective time of such termination of employment,
equal to the sum of (i) three times her Base Salary as of the date of
termination of her employment, (ii) three times the highest level of cash
incentive compensation earned by the Executive from the Employer or any
subsidiary thereof in any one of the three calendar years immediately preceding
the year in which the termination occurs and (iii) the amounts specified
in
Sections 9(b)(i), (ii), (iv), (vi), (vii) and (viii) (notwithstanding any
contrary language contained therein with respect to payment being over a
longer
time period); provided, however, for purposes of calculating the
amount due pursuant to clause (ii) above, bonuses earned under the Bank's
Performance Unit Plan will not be included in calculating the highest level
of
cash incentive compensation. In calculating the benefits due to the
Executive under Section 9(b)(vii) with respect to the Bank's 2004 Supplemental
Executive Retirement Plan related to its pension plan, in accordance with
the
terms thereof, the Executive will be treated as having attained the age equal
to
the greater of (x) her actual age as of the date of termination plus three
years
or (y) age 55. In addition, the Employers shall provide the Executive with
the benefits provided for in Section 9(b)(iii) for the Severance Benefits
Period, subject to compliance with the last proviso clause contained in such
subsection. In the event that the Employers are unable to provide the
benefits set forth in said Section 9(b)(iii) due to the change in the
Executive's status to that of a non-employee, the Employers shall include
in the
lump sum payment due under this Section 11(b) the value of the benefits required
to be provided by said Section 9(b)(iii) for the Severance Benefits Period.
The
severance and other benefits payable pursuant to this Section 11(b) shall
not be
subject to reduction pursuant to the provisions of Section 9(c).
SECTION
12. TAX
INDEMNIFICATION.
(a)
If
the
payments and benefits pursuant to this Agreement, either alone or together
with
other payments and benefits which the Executive has the right to receive
from
the Employers and their subsidiaries, would constitute a “parachute payment” as
defined in Section 280G(b)(2) of the Code (the “Initial Parachute Payment”),
then the Company shall pay to the Executive, within ten (10) business days
after
the date of termination and subject to applicable withholding requirements,
a
lump sum cash amount equal to the sum of the following:
(i)
twenty (20) percent (or such other percentage equal to the tax rate imposed
by
Section 4999 of the Code) of the amount by which the Initial Parachute Payment
exceeds the Executive's “base amount” from the Employers and their subsidiaries
(including their predecessors), as defined in Section 280G(b)(3) of the Code,
with the difference between the Initial Parachute Payment and the Executive's
base amount being hereinafter referred to as the “Initial Excess Parachute
Payment”;
(ii)
such additional amount (tax allowance) as may be necessary to compensate
the
Executive for the payment by the Executive of state, local and federal income
and excise taxes on the payment provided under clause (i) above and on any
payments under this clause (ii). In computing such tax allowance, the
payment to be made under clause (i) above shall be multiplied by the “gross up
percentage” (“GUP”). The GUP shall be determined as follows:
13
Tax
Rate
GUP
=
1-
Tax
Rate
The
Tax Rate for
purposes of computing the GUP shall be the highest marginal federal, state
and
local income and employment-related tax rate (including Social Security and
Medicare taxes), including any applicable excise tax rate, applicable to
the
Executive in the year in which the payment under clause (i) above is made,
and
shall also reflect the phase‑out of deductions and the ability to deduct certain
of such taxes.
(b)
Notwithstanding the foregoing, if it shall subsequently be determined in
a
final judicial determination or a final administrative settlement to which
the
Executive is a party that the actual excess parachute payment as defined
in
Section 280G(b)(1) of the Code (before giving effect to the payments under
Sections 12(a)(i) and (ii) above) is different from the Initial Excess Parachute
Payment (such different amount being hereafter referred to as the “Determinative
Excess Parachute Payment”), then the Company's independent tax counsel or
accountants shall determine the amount (the “Adjustment Amount”) which either
the Executive must pay to the Company or the Company must pay to the Executive
in order to put the Executive (or the Company, as the case may be) in the
same
position the Executive (or the Company, as the case may be) would have been
if
the Initial Excess Parachute Payment had been equal to the Determinative
Excess
Parachute Payment. In determining the Adjustment Amount, the independent
tax
counsel or accountants shall take into account any and all taxes (including
any
penalties and interest) paid by or for the Executive or refunded to the
Executive or for the Executive's benefit. As soon as practicable after the
Adjustment Amount has been so determined, and in no event more than thirty
(30)
days after the Adjustment Amount has been so determined, the Company shall
pay
the Adjustment Amount to the Executive or the Executive shall repay the
Adjustment Amount to the Company, as the case may be.
(c)
In
each
calendar year that the Executive receives payments of benefits that constitute
a
parachute payment, the Executive shall report on her state, local and federal
income tax returns such information as is consistent with the determination
made
by the independent tax counsel or accountants of the Company as described
above. The Company shall indemnify and hold the Executive harmless from
any and all losses, costs and expenses (including without limitation, reasonable
attorneys' fees, interest, fines and penalties) which the Executive incurs
as a
result of so reporting such information, with such indemnification to be
paid by
the Company to the Executive as soon as practicable and in any event no later
than March 15 of the year immediately following the year in which the amount
subject to indemnification was determined. The Executive shall promptly
notify the Company in writing whenever the Executive receives notice of the
institution of a judicial or administrative proceeding, formal or informal,
in
which the federal tax treatment under Section 4999 of the Code of any amount
paid or payable under this Section 12 is being reviewed or is in dispute.
The Company shall assume control at its expense over all legal and accounting
matters pertaining to such federal tax treatment (except to the extent necessary
or appropriate for the Executive to resolve any such proceeding with respect
to
any matter unrelated to amounts paid or payable pursuant to this Section
12) and
the Executive shall cooperate fully with the Company in any such
proceeding. The Executive shall not enter into any compromise or
settlement or otherwise prejudice any rights the Company may have in connection
therewith without the prior consent of the Company.
14
(d)
The
Executive hereby agrees with the Employers and any successor thereto to in
good
faith consider and take steps commonly used to minimize or eliminate any
tax
liability or costs that would otherwise be created by the tax indemnification
provisions set forth in Section 12 of this Agreement if requested to do so
by
the Employers or any successor thereto; provided, however, that the
foregoing language shall neither require the Executive to take or not take
any
specific action in furtherance thereof nor contravene, limit or remove any
right
or privilege provided thereto under this Agreement.
SECTION
13. SOURCE OF
PAYMENTS; NO DUPLICATION OF PAYMENTS.
All
payments provided
in this Agreement shall be timely paid in cash or check from the general
funds
of the Company or the Bank. Payments pursuant to this Agreement shall be
allocated between the Company and the Bank in proportion to the level of
activity and the time expended on such activities by the Executive as determined
by the Company and the Bank on a quarterly basis, unless the applicable
provision of this Agreement specifies that the payment shall be made by either
the Company or the Bank. In no event shall the Executive receive duplicate
payments or benefits from the Company and the Bank.
SECTION
14. COVENANT
NOT TO COMPETE.
In
the event the
Executive's employment with the Employers is terminated for any reason prior
to
the expiration of the Employment Period (except as set forth below), the
Executive hereby covenants and agrees that for a period of two years following
the date of her termination of employment with the Employers (or, if less,
for
the period beginning with the date of her termination and ending on the last
day
of the Employment Period), she shall not, without the written consent of
the
Employers, become an officer, employee, consultant, director or trustee of
any
savings bank, savings and loan association, savings and loan holding company,
bank or bank holding company, or any direct or indirect subsidiary or affiliate
of any such entity, that entails working within any county in which the Company
or the Bank maintains an office as of the date of termination of the Executive's
employment. In addition, in the event of a breach by the Executive of any
of the provisions of this Section 14, the Executive acknowledges that the
Employers will seek to recoup the amounts paid to the Executive pursuant
to
Section 9(b)(ix) of this Agreement, up to the full value reasonably assigned
to
the breach of the non-competition provisions of this Section 14 by the
Employers, provided that no such action may be taken without the Employers
providing the Executive not less than twenty (20) days written notice of
their
intent to take such action and giving the Executive the right to cure such
breach within ten (10) days of the Executive’s receipt of such notice. In
addition, the Employers may avail themselves of such other remedies that
may be
available to them as a result of any breach of this Section 14 by the Executive,
with such remedies to be cumulative and not mutually exclusive. This
section shall not be applicable if the Executive's employment is terminated
upon
or within one year subsequent to a Change in Control, provided that such
termination is for reasons other than Cause as defined in Section 10(a)(i)
hereof.
15
SECTION
15.
CONFIDENTIALITY.
Unless
she obtains
the prior written consent of the Employers, the Executive shall at all times
keep confidential and shall refrain from using for the benefit of herself,
or
any person or entity other than the Employers or their subsidiaries or
affiliates, any material document or information obtained from the Employers
or
their subsidiaries or affiliates, in the course of her employment with any
of
them concerning their properties, operations or business (unless such document
or information is readily ascertainable from public or published information
or
trade sources or has otherwise been made available to the public through
no
fault of her own) until the same ceases to be material (or becomes so
ascertainable or available); provided, however, that nothing in this
Section 15 shall prevent the Executive, with or without the Employers' consent,
from participating in or disclosing documents or information in connection
with
any judicial or administrative investigation, inquiry or proceeding or the
Company's public reporting requirements to the extent that such participation
or
disclosure is required under applicable law.
SECTION
16.
SOLICITATION.
The
Executive hereby
covenants and agrees that, for a period of two years following her termination
of employment with the Employers for any reason, she shall not, without the
written consent of the Employers, either directly or indirectly:
(a)
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 Employers or any of their 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 savings bank, savings and loan association, bank, bank holding company,
savings and loan holding company, or other institution engaged in the business
of accepting deposits, making loans or doing business within the counties
specified in Section 14;
(b) provide any information, advice or recommendation with respect to any
such officer or employee to any savings bank, savings and loan association,
bank, bank holding company, savings and loan holding company, or other
institution engaged in the business of accepting deposits, making loans or
doing
business within the counties specified in Section 14, that is intended, or
that
a reasonable person acting in like circumstances would expect, to have the
effect of causing any officer or employee of the Employers or any of their
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 savings bank, savings and loan association,
bank, bank holding company, savings and loan holding company, or other
institution engaged in the business of accepting deposits, making loans or
doing
business within the counties specified in Section 14; or
16
(c) 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 Company or
the
Bank to terminate an existing business or commercial relationship with the
Company or the Bank.
SECTION
17. NO EFFECT
ON EMPLOYEE BENEFIT PLANS OR PROGRAMS.
The
termination of
the Executive's employment during the Employment Period or thereafter, whether
by the Employers or by the Executive, shall have no effect on the vested
rights
of the 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 the Executive
was
a participant.
SECTION
18. SUCCESSORS
AND ASSIGNS.
(a)
This
Agreement is personal to each of the parties hereto, and no party may assign
or
delegate any of its rights or obligations hereunder without first obtaining
the
written consent of the other parties; provided, however, that the Employers
will
require any successor or assign (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of the Employers, by an assumption agreement in form and
substance satisfactory to the Executive, to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that the
Employers would be required to perform it if no such succession or assignment
had taken place. Failure of the Employers to obtain such an assumption
agreement prior to the effectiveness of any such succession or assignment
shall
be a breach of this Agreement and shall entitle the Executive to compensation
from the Employers in the same amount and on the same terms as the compensation
pursuant to Section 9 or 11 hereof. For purposes of implementing the
provisions of this Section 18(a), the date which any such succession without
an
assumption agreement becomes effective shall be deemed the date of termination
of the Executive's employment.
(b)
This
Agreement and all rights of the Executive hereunder shall inure to the benefit
of and be enforceable by the Executive's personal and legal representatives,
executors, administrators, successors, heirs, distributees, devises and
legatees.
SECTION
19.
NOTICES.
Any
communication
required or permitted to be given under this Agreement, including any notice,
direction, designation, consent, instruction, objection or waiver, shall
be in
writing and shall be deemed to have been given at such time as it is delivered
personally, or five days after mailing if mailed, postage prepaid, by registered
or certified mail, return receipt requested, addressed to such party at the
address listed below or at such other address as one such party may by written
notice specify to the other party:
17
If
to the
Executive:
Xxxxxx
X.
Xxxxxxxxx
At
the
address last appearing
on
the
personnel records of
the
Employers
If
to the
Employers:
NewAlliance
Bancshares, Inc.
NewAlliance
Bank
000
Xxxxxx Xxxxxx
Xxx
Xxxxx, XX 00000
(or
the
address of the Company's or the Bank's principal executive office, if
different)
Attention:
Chairman of the Compensation Committee of the Board
with
a
copy, in the case of a notice to the Employers, to:
Elias,
Matz, Xxxxxxx & Xxxxxxx L.L.P.
000
00xx Xxxxxx, X.X.
Xxxxxxxxxx,
X.X. 00000
Attention:
Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxx
X.
Xxxxx, Esq.
SECTION
20.
INDEMNIFICATION FOR ATTORNEYS' FEES.
(a)
The
Employers shall indemnify, hold harmless and defend the Executive against
reasonable costs, including legal fees and expenses, incurred by her in
connection with or arising out of any action, suit or proceeding in which
she
may be involved, as a result of her efforts, in good faith, to defend or
enforce
the terms of this Agreement. For purposes of this Agreement, any
settlement agreement which provides for payment of any amounts in settlement
of
the Employers' obligations hereunder shall be conclusive evidence of the
Executive's entitlement to indemnification hereunder, and any such
indemnification payments shall be in addition to amounts payable pursuant
to
such settlement agreement, unless such settlement agreement expressly provides
otherwise.
(b)
The
Employers' obligation to make the payments provided for in this Agreement
and
otherwise to perform their obligations hereunder shall not be affected by
any
set‑off, counterclaim, recoupment, defense or other claim, right or action which
the Employers may have against the Executive or others. Unless it is
determined that a claim made by the Executive was either frivolous or made
in
bad faith, the Employers agree to pay as incurred (and in any event no later
than March 15 of the year immediately following the year in which incurred),
to
the full extent permitted by law, all legal fees and expenses which the
Executive may reasonably incur as a result of or in connection with her
consultation with legal counsel or arising out of any action, suit, proceeding
or contest (regardless of the outcome thereof) by the Employers, the Executive
or others regarding the validity or enforceability of, or liability under,
any
provision of this Agreement or any guarantee of performance thereof (including
as a result of any contest by the Executive about the amount of any payment
pursuant to this Agreement), plus in each case interest on any delayed payment
at the applicable federal rate provided for in Section 7872(f)(2)(A) of the
Code. This Section 20(b) shall apply whether such consultation, action,
suit, proceeding or contest arises before, on, after or as a result of a
Change
in Control.
18
SECTION
21.
SEVERABILITY.
A
determination that
any provision of this Agreement is invalid or unenforceable shall not affect
the
validity or enforceability of any other provision hereof.
SECTION
22.
WAIVER.
Failure
to insist
upon strict compliance with any of the terms, covenants or conditions hereof
shall not be deemed a waiver of such term, covenant or condition. A waiver
of any provision of this Agreement must be made in writing, designated as
a
waiver, and signed by the party against whom its enforcement is sought.
Any waiver or relinquishment of any right or power hereunder at any one or
more
times shall not be deemed a waiver or relinquishment of such right or power
at
any other time or times.
SECTION
23.
COUNTERPARTS.
This
Agreement may be
executed in two or more counterparts, each of which shall be deemed an original,
and all of which shall constitute one and the same Agreement.
SECTION
24. GOVERNING
LAW.
This
Agreement shall
be governed by and construed and enforced in accordance with the laws of
the
State of Connecticut applicable to contracts entered into and to be performed
entirely within the State of Connecticut, except to the extent that federal
law
controls.
SECTION
25. HEADINGS
AND CONSTRUCTION.
The
headings of
sections in this Agreement are for convenience of reference only and are
not
intended to qualify the meaning of any section. Any reference to a section
number shall refer to a section of this Agreement, unless otherwise
stated.
SECTION
26. ENTIRE
AGREEMENT; MODIFICATIONS.
This
instrument
contains the entire agreement of the parties relating to the subject matter
hereof, and supersedes in its entirety any and all prior agreements,
understandings or representations relating to the subject matter hereof,
including that certain employment agreement dated as of November 27, 2001
between the Bank and the Executive and the amended and restated employment
agreement effective as of January 3, 2006 between the Employers and the
Executive. No modifications of this Agreement shall be valid unless made
in writing and signed by the parties hereto; provided, however, that if the
Employers determine, after a review of the final regulations issued under
Section 409A of the Code and all applicable IRS guidance, that this Agreement
should be further amended to avoid triggering the tax and interest penalties
imposed by Section 409A of the Code, the Employers may amend this Agreement
to
the extent necessary to avoid triggering the tax and interest penalties imposed
by Section 409A of the Code.
19
SECTION
27. REQUIRED
REGULATORY PROVISIONS.
Notwithstanding
anything herein contained to the contrary, any payments to the Executive
by the
Employers, whether pursuant to this Agreement or otherwise, are subject to
and
conditioned upon their compliance with Section 18(k) of the Federal Deposit
Insurance Act, 12 U.S.C. Section 1828(k), and the regulations promulgated
thereunder in 12 C.F.R. Part 359.
SECTION
28. DISPUTE RESOLUTION.
(a)
In
the
event of any dispute, claim, question or disagreement arising out of or relating
to this Agreement or the breach hereof, the parties hereto shall use their
best
efforts to settle such dispute, claim, question or disagreement. To this
effect, they shall consult and negotiate with each other, in good faith,
and,
recognizing their mutual interests, attempt to reach a just and equitable
solution satisfactory to both parties.
(b)
If
they do
not reach such a solution within a period of thirty (30) days, then the parties
agree first to endeavor in good faith to amicably settle their dispute by
mediation under the Commercial Mediation Rules of the American Arbitration
Association (the “AAA”), before resorting to arbitration.
(c)
Thereafter,
any unresolved controversy or claim arising out of or relating to this Agreement
or the breach thereof, upon notice by any party to the other, shall be submitted
to and finally settled by arbitration in accordance with the Commercial
Arbitration Rules (the “Rules”) of the AAA in effect at the time demand for
arbitration is made by any such party. The parties shall mutually agree
upon a single arbitrator within thirty (30) days of such demand. In the
event that the parties are unable to so agree within such thirty (30) day
period, then within the following thirty (30) day period, one arbitrator
shall
be named by each party. A third arbitrator shall be named by the two
arbitrators so chosen within ten (10) days after the appointment of the first
two arbitrators. In the event that the third arbitrator is not agreed
upon, he or she shall be named by the AAA. Arbitration shall occur in New
Haven, Connecticut or such other location as may be mutually agreed to by
the
parties.
20
(d)
The
award
made by all or a majority of the panel of arbitrators shall be final and
binding, and judgment may be entered based upon such award in any court of
law
having competent jurisdiction. The award is subject to confirmation,
modification, correction or vacation only as explicitly provided in Title
9 of
the United States Code. The prevailing party shall be entitled to receive
any award of pre- and post-award interest as well as attorney's fees incurred
in
connection with the arbitration and any judicial proceedings related
thereto. The parties acknowledge that this Agreement evidences a
transaction involving interstate commerce. The United States Arbitration
Act and the Rules shall govern the interpretation, enforcement, and proceedings
pursuant to this Section. Any provisional remedy which would be available
from a court of law shall be available from the arbitrators to the parties
to
this Agreement pending arbitration. Either party may make an application
to the arbitrators seeking injunctive relief to maintain the status quo,
or may
seek from a court of competent jurisdiction any interim or provisional relief
that may be necessary to protect the rights and property of that party, until
such times as the arbitration award is rendered or the controversy otherwise
resolved.
IN
WITNESS WHEREOF,
the Company and the Bank have caused this Agreement to be executed by their
duly
authorized officers and the Executive has hereunto set her hand, all as of
the
date of the restatement of this Agreement.
THIS
AGREEMENT
CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE
PARTIES.
|
________________________________
Xxxxxx X. Xxxxxxxxx, Executive
|
|
|
|
|
| ATTEST: | NEWALLIANCE BANCSHARES, INC. |
|
By:
Name:
Title:
|
By:
Name:
Title:
|
| [Seal] | |
| ATTEST: | NEWALLIANCE BANCSHARES, INC. |
|
By:
Name:
Title: |
By:
Name:
Title:
|
| [Seal] |
|
|
|
21
