Exhibit 10.2
ENFIELD FEDERAL SAVINGS AND LOAN ASSOCIATION
CHANGE IN CONTROL AGREEMENT
This AGREEMENT ("Agreement") is hereby entered into as of May 10, 2004, by
and between Enfield Federal Savings and Loan Association (the "Association"), a
federally chartered financial institution, with its principal offices at 000
Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxx 00000, Xxxxx X. Xxxxxx ("Executive") and
New England Bancshares, Inc. (the "Company"), a federally-chartered corporation
and the holding company of the Association, as guarantor.
WHEREAS, the Association recognizes the importance of Executive to the
Association's operations and wishes to protect his position with the Association
in the event of a change in control of the Association or the Company for the
period provided for in this Agreement; and
WHEREAS, Executive and the Board of Directors of the Association desire to
enter into an agreement setting forth the terms and conditions of payments due
to Executive in the event of a change in control and the related rights and
obligations of each of the parties.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, it is hereby agreed as follows:
1. Term of Agreement.
(a) The term of this Agreement shall be (i) the initial term, consisting
of the period commencing on the date of this Agreement (the "Effective
Date") and ending on the second anniversary of the Effective Date, plus
(ii) any and all extensions of the initial term made pursuant to this
Section 1.
(b) Commencing on the first anniversary of the Effective Date and
continuing each anniversary date thereafter, the Board of Directors of the
Association (the "Board of Directors") may extend the term of this
Agreement for an additional one (1) year period beyond the then effective
expiration date, provided that Executive shall not have given at least
sixty (60) days' written notice of his desire that the term not be
extended.
(c) Notwithstanding anything in this Section to the contrary, this
Agreement shall terminate if Executive or the Association terminates
Executive's employment prior to a Change in Control.
2. Change in Control.
Upon the occurrence of a Change in Control of the Association or the
Company followed at any time during the term of this Agreement by the
termination of Executive's employment in accordance with the terms of this
Agreement, other than for Just Cause, as defined in Section 2(c) of this
Agreement, the provisions of Section 3 of this Agreement shall apply. Upon the
occurrence of a Change in Control, Executive shall have the right to elect to
voluntarily
terminate his employment at any time during the term of this Agreement following
an event constituting "Good Reason."
"Good Reason" means, unless Executive has consented in writing thereto,
the occurrence following a Change in Control, of any of the following:
(i) the assignment to Executive of any duties materially
inconsistent with Executive's position, including any material
change in status, title, authority, duties or responsibilities
or any other action that results in a material diminution in
such status, title, authority, duties or responsibilities,
excluding for this purpose an isolated, insubstantial and
inadvertent action not taken in bad faith and that is remedied
by the Association or Executive's employer reasonably promptly
after receipt of notice thereof given by the Executive;
(ii) a reduction by the Association or Executive's employer of the
Executive's base salary in effect immediately prior to the
Change in Control;
(iii) the relocation of the Executive's office to a location more
than fifty (50) miles from its location as of the date of this
Agreement;
(iv) the taking of any action by the Association or any of its
affiliates or successors that would materially adversely
affect the Executive's overall compensation and benefits
package, unless such changes to the compensation and benefits
package are made on a non-discriminatory basis to all
employees; or
(v) the failure of the Association or the affiliate of the
Association by which Executive is employed, or any affiliate
that directly or indirectly owns or controls any affiliate by
which Executive is employed, to obtain the assumption in
writing of the Association's obligation to perform this
Agreement by any successor to all or substantially all of the
assets of the Association or such affiliate within thirty (30)
days after a reorganization, merger, consolidation, sale or
other disposition of assets of the Association or such
affiliate.
(b) For purposes of this Agreement, a "Change in Control" shall be deemed
to occur on the earliest of:
(i) such time as any "person" (as the term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of voting securities of the Company
representing 20% or more of the Company's outstanding voting
securities or the right to acquire such securities, except for
shares acquired by Enfield Mutual Holding Company and any
voting securities purchased
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by any employee benefit plan of the Company or the
Association;
(ii) such time as individuals who constitute the Board of Directors
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 constituting the Incumbent
Board (or members who were nominated by the Incumbent Board),
or whose nomination for election by the Company's stockholders
was approved by a Nominating Committee solely composed of
members that are Incumbent Board members (or members nominated
by the Incumbent Board), shall be, for purposes of this clause
(iii), considered as though he or she were a member of the
Incumbent Board;
(iii) such time as a reorganization, merger, consolidation, or
similar transaction occurs or is effectuated as a result of
which 60% of shares of the common stock of the resulting
entity are owned by persons who were not stockholders of the
Company immediately prior to the consummation of the
transaction;
(iv) such time as substantially all of the assets of the Company
are sold or otherwise transferred to another corporation or
other entity that is not controlled by the Company.
Notwithstanding anything in this Agreement to the contrary, in no event
shall the conversion of Enfield Mutual Holding Company from mutual to stock form
(including without limitation, through the formation of a stock holding company)
constitute a "Change in Control" for purposes of this Agreement.
(c) Executive shall not have the right to receive termination benefits
pursuant to Section 3 hereof upon termination for Just Cause. The term "Just
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, regulation (other than traffic violations or similar
offenses), final cease and desist order, or any material breach of any provision
of this Agreement. Notwithstanding the foregoing, Executive shall not be deemed
to have been terminated for Just Cause unless and until there shall have been
delivered to him a copy of a resolution duly adopted by the affirmative vote of
a majority of the entire membership of the Board of Directors at a meeting of
the Board of Directors 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 of Directors), finding that in the good faith opinion of the
Board of Directors, Executive was guilty of conduct justifying termination for
Just 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 Just Cause. During the period beginning on the date of the
Notice of Termination for Just Cause pursuant to Section 4 hereof through the
Date of Termination, stock options granted to Executive under any stock option
plan shall not be exercisable nor shall any unvested stock
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awards granted to Executive under any stock benefit plan of the Association, the
Company or any subsidiary or affiliate thereof, vest. At the Date of
Termination, such stock options and any such unvested stock awards shall become
null and void and shall not be exercisable by or delivered to Executive at any
time subsequent to such termination for Just Cause.
3. Termination Benefits.
(a) If Executive's employment is voluntarily (in accordance with Section 2
of this Agreement) or involuntarily terminated within two (2) years of a Change
in Control, Executive shall receive:
(i) a lump sum cash payment equal to two (2) times the Executive's
"base amount," within the meaning of Section 280G(b)(3) of the
Internal Revenue Code of 1986, as amended (the "Code"). Such
payment shall be made not later than five (5) days following
Executive's termination of employment under this Section 3.
(ii) Continued benefit coverage under all Association health and
welfare plans which Executive participated in as of the date
of the Change in Control (collectively, the "Employee Benefit
Plans") for a period of twenty-four (24) months following
Executive's termination of employment. Said coverage shall be
provided under the same terms and conditions in effect on the
date of Executive's termination of employment. Solely for
purposes of benefits continuation under the Employee Benefit
Plans, Executive shall be deemed to be an active employee. To
the extent that benefits required under this Section 3(b)
cannot be provided under the terms of any Employee Benefit
Plan, the Association shall enter into alternative
arrangements that will provide Executive with comparable
benefits.
(b) Notwithstanding the preceding provisions of this Section 3, in no
event shall the aggregate payments or benefits to be made or afforded to
Executive under said paragraphs (the "Termination Benefits") constitute an
"excess parachute payment" under Section 280G of the Code or any successor
thereto, and to avoid such a result, Termination Benefits will be reduced, if
necessary, to an amount (the "Non-Triggering Amount"), the value of which is one
dollar ($1.00) less than an amount equal to three (3) times Executive's "base
amount," as determined in accordance with said Section 280G. The allocation of
the reduction required hereby among the Termination Benefits provided by this
Section 3 shall be determined by Executive.
4. Notice of Termination.
(a) Any purported termination by the Association 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 detail the facts
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and circumstances claimed to provide a basis for termination of Executive's
employment under the provision so indicated.
(b) "Date of Termination" shall mean the date specified in the Notice of
Termination (which, in the case of a termination for Just Cause, shall not be
less than thirty (30) days from the date such Notice of Termination is given).
5. Source of Payments.
All payments provided in this Agreement shall be timely paid in cash or
check from the general funds of the Association. The Company, however,
unconditionally guarantees payment and provision of all amounts and benefits due
hereunder to Executive and, if such amounts and benefits due from the
Association are not timely paid or provided by the Association, such amounts and
benefits shall be paid or provided by the Company.
6. Effect on Prior Agreements and Existing Benefit Plans.
This Agreement contains the entire understanding between the parties
hereto and supersedes any prior agreement between the Association and Executive,
except that this Agreement shall not affect or operate to reduce any benefit or
compensation inuring to Executive of a kind elsewhere provided. No provision of
this Agreement shall be interpreted to mean that Executive is subject to
receiving fewer benefits than those available to him without reference to this
Agreement. Nothing in this Agreement shall confer upon Executive the right to
continue in the employ of the Association or shall impose on the Association any
obligation to employ or retain Executive in its employ for any period.
7. 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 Association and their respective successors and assigns.
8. Modification and Waiver.
(a) This Agreement may not be modified or amended except by an instrument
in writing signed by the parties hereto.
(b) 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
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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 or as to any act
other than that specifically waived.
9. 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.
10. 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. In addition, references herein to the
masculine shall apply to both the masculine and the feminine.
11. Governing Law.
Except to the extent preempted by federal law, the validity,
interpretation, performance, and enforcement of this Agreement shall be governed
by the laws of the State of Connecticut, without regard to principles of
conflicts of law of that State.
12. Arbitration.
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration, conducted before a panel
of three arbitrators sitting in a location selected by Executive within fifty
(50) miles from the location of the Association, in accordance with the rules of
the American Arbitration Association then in effect. Judgment may be entered on
the arbitrator's award in any court having jurisdiction; provided, however, that
Executive shall be entitled to seek specific performance of his right to be paid
until the Date of Termination during the pendency of any dispute or controversy
arising under or in connection with this Agreement.
13. 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 Association, only if Executive is successful pursuant to a
legal judgment, arbitration or settlement.
14. Indemnification.
The Company or the Association shall provide Executive (including his
heirs, executors and administrators) with coverage under a standard directors'
and officers' liability insurance policy at its expense and shall indemnify
Executive (and his heirs, executors and administrators)
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to the fullest extent permitted under applicable 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 Company or the Association (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, attorneys' fees and the cost of reasonable settlements.
15. Successors to the Association and the Company.
The Association and the Company shall require any successor or assignee,
whether direct or indirect, by purchase, merger, consolidation or otherwise, to
all or substantially all of the business or assets of the Association or the
Company, expressly and unconditionally to assume and agree to perform the
Association's and the Company's obligations under this Agreement, in the same
manner and to the same extent that the Association and the Company would be
required to perform if no such succession or assignment had taken place.
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SIGNATURES
IN WITNESS WHEREOF, Enfield Federal Savings and Loan Association and New
England Bancshares, Inc. have caused this Agreement to be executed and their
seals to be affixed hereunto by their duly authorized officers, and Executive
has signed this Agreement, on the 26th day of May, 2004.
ATTEST: ENFIELD FEDERAL SAVINGS AND
LOAN ASSOCIAITON
/s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. X'Xxxxxx
---------------------------- -----------------------------------
Corporate Secretary For the Entire Board of Directors
ATTEST: NEW ENGLAND BANCSHARES, INC.
(Guarantor)
/s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. X'Xxxxxx
---------------------------- -----------------------------------
Corporate Secretary For the Entire Board of Directors
[SEAL]
WITNESS: EXECUTIVE
/s/ Xxxxx X. Xxxxx /s/ Xxxxx X. Xxxxxx
---------------------------- ---------------------------------------
Corporate Secretary Xxxxx X. Xxxxxx
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