EXHIBIT 10.10A
NewMil Bank
Amended And Restated Salary Continuation Agreement
THIS SALARY CONTINUATION AGREEMENT is entered into as of this day of
--------
January, 2002, by and between NewMil Bank, a Connecticut-chartered, FDIC-insured
savings bank with its main office in New Milford, Connecticut (the "Bank"), and
Xxxxxxx X. Xxxxx, President and Chief Executive Officer of NewMil Bancorp, Inc.
and the Bank (the "Executive").
WHEREAS, the Executive has contributed substantially to the success of the
Bank and its parent corporation, NewMil Bancorp, Inc., and the Bank desires that
the Executive continue in its employ,
WHEREAS, to encourage the Executive to remain an employee of the Bank, the
Bank is willing to provide salary continuation benefits to the Executive,
payable out of the Bank's general assets,
WHEREAS, the Executive and the Bank are parties to a Supplemental
Retirement Plan Agreement dated December 31, 1996,
WHEREAS, the parties to this Agreement intend that this Agreement supersede
and replace in its entirety the December 31, 1996 Supplemental Retirement Plan
Agreement, which shall become void and of no further force or effect on the date
that this Agreement becomes effective, and
WHEREAS, none of the conditions or events included in the definition of the
term "golden parachute payment" that is set forth in '18(k)(4)(A)(ii) of the
Federal Deposit Insurance Act [12 U.S.C. '1828(k)(4)(A)(ii)] and in Federal
Deposit Insurance Corporation Rule 359.1(f)(1)(ii) [12 CFR 359.1(f)(1)(ii)]
exists or, to the best knowledge of the Bank, is contemplated insofar as the
Bank is concerned.
NOW THEREFORE, in consideration of the foregoing premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Article 1
Definitions
Whenever used in this Agreement, the following terms shall have the
meanings specified:
1.1 "Accrual Balance" means the amount reflected in Schedule A, which is
the amount required to be accrued by the Bank as required under generally
accepted accounting principles to account for benefits that may become payable
to the Executive under this Agreement.
1.2 "Change in Control" means if any one of the following events occurs:
(a) Merger: NewMil Bancorp, Inc. merges into or consolidates with
another corporation, or merges another corporation into NewMil Bancorp,
Inc., and as a result less than a majority of the combined voting power of
the resulting corporation immediately after the merger or consolidation is
held by persons who were stockholders of NewMil Bancorp, Inc. immediately
before the merger or consolidation,
(b) Acquisition of Significant Share Ownership: a report on Schedule
13D or another form or schedule (other than Schedule 13G) is filed or is
required to be filed under Sections 13(d) or 14(d) of the Securities
Exchange Act of 1934, if the schedule discloses that the filing person or
persons acting in concert has or have become the beneficial owner of 25% or
more of a class of NewMil Bancorp, Inc.'s voting securities, but this
clause (b) shall not apply to beneficial ownership of NewMil Bancorp, Inc.
voting shares held in a fiduciary capacity by an entity of which NewMil
Bancorp, Inc. directly or indirectly beneficially owns 50% or more of its
outstanding voting securities,
(c) Change in Board Composition: during any period of two consecutive
years, individuals who constitute NewMil Bancorp, Inc.'s Board of Directors
at the beginning of the two-year period cease for any reason to constitute
at least a majority of NewMil Bancorp, Inc.'s Board of Directors; provided,
however,
that C for purposes of this clause (c) C each director who is first elected
by the board (or first nominated by the board for election by stockholders)
by a vote of at least two-thirds (b) of the directors who were directors at
the beginning of the period shall be deemed to have been a director at the
beginning of the two-year period, or
(d) Sale of Assets: NewMil Bancorp, Inc. sells to a third party all or
substantially all of NewMil Bancorp, Inc.'s assets. For purposes of this
Agreement, sale of substantially all of NewMil Bancorp, Inc.'s assets
includes sale of the shares or assets of NewMil Bank.
1.3 "Disability" means the Executive suffers a sickness, accident or injury
which has been determined by the carrier of any individual or group disability
insurance policy covering the Executive, or by the Social Security
Administration, to be a disability rendering the Executive totally and
permanently disabled. The Executive must submit proof to the Bank of the
carrier's or Social Security Administration's determination upon the request of
the Bank.
1.4 "Early Retirement Age" [Intentionally Left Blank]
1.5 "Early Termination" means the Executive's Termination of Employment
with the Bank before Normal Retirement Age for reasons other than death,
Disability, Termination for Cause or following a Change in Control.
1.6 "Early Termination Date" means the month, day and year in which Early
Termination occurs.
1.7 "Effective Date" means as of January 1, 2002.
1.8 "Normal Retirement Age" means the Executive's 65th birthday.
1.9 "Normal Retirement Date means the later of the Normal Retirement Age or
the Executive's Termination of Employment with the Bank.
1.10 "Person" means an individual, corporation, partnership, trust,
association, joint venture, pool, syndicate, sole proprietorship, unincorporated
organization or other entity.
1.11 "Plan Year" means a twelve-month period commencing on January 1, and
ending on the last day of December of each year. The initial Plan Year shall
commence on the Effective Date of this Agreement.
1.12 "Termination for Cause" means the definition of termination for cause
specified in any employment agreement existing on the date hereof or hereafter
entered into between the Executive and NewMil Bancorp, Inc. If the Executive is
not a party to an employment agreement containing a definition of termination
for cause, Termination for Cause means the Bank has terminated the Executive's
employment for any of the following reasons:
(1) Gross negligence or gross neglect of duties;
(2) Commission of a felony or of a gross misdemeanor involving moral
turpitude; or
(3) Fraud, disloyalty or willful violation of any law or significant
Bank policy committed in connection with the Executive's
employment and resulting in an adverse effect on the Bank. No
act, or failure to act, with an absence of good faith and without
a reasonable belief that his action or failure to act was in the
best interest of the Bank.
2
1.13 "Termination of Employment" with the Bank means that the Executive
shall have ceased to be employed by the Bank for any reason whatsoever,
excepting a leave of absence approved by the Bank. For purposes of this
Agreement, if there is a dispute over the employment status of the Executive or
the date of termination of the Executive's employment, the Bank shall have the
sole and absolute right to decide the dispute, unless a Change in Control shall
have occurred.
Article 2
Lifetime Benefits
2.1 Normal Retirement Benefit. Upon the Executive's Termination of
Employment on or after the Normal Retirement Age for reasons other than death,
the Bank shall pay to the Executive the benefit described in this Section 2.1
instead of any other benefit under this Agreement.
2.1.1 Amount of Benefit. The annual benefit under this Section 2.1 is
$158,000. The Bank's Board of Directors may, in its sole discretion,
increase the annual benefit under this Section 2.1.1, but any
increase shall require recalculation of Schedule A. The benefits
reflected in Schedule A are based on the assumption that the
Executive retires at age 65. If the Executive instead continues to
serve as an officer of the Bank after the Normal Retirement Age, the
benefits reflected in Schedule A shall be recalculated annually until
the Executive's Normal Retirement Date, using the same discount rate
reflected in Schedule A.
2.1.2 Payment of Benefit. Beginning with the month after the Executive's
Normal Retirement Date, the Bank shall pay the annual benefit to the
Executive in 12 equal monthly installments on the first day of each
month. The annual benefit shall be paid to the Executive for 15
years.
2.2 Early Termination Benefit. Upon Early Termination, the Bank shall pay
to the Executive the benefit described in this Section 2.2 instead of any other
benefit under this Agreement.
2.2.1 Amount of Benefit. The benefit under this Section 2.2 is the Early
Termination Annual Benefit amount set forth in Schedule A for the
Plan Year ending immediately before the Early Termination Date. The
Bank's Board of Directors may, in its sole discretion, increase the
annual benefit under this Section 2.2.1, but any increase shall
require recalculation of Schedule A.
2.2.2 Payment of Benefit. Beginning with the month after the Normal
Retirement Age, the Bank shall pay the Early Termination Annual
Benefit to the Executive in 12 equal monthly installments on the
first day of each month. The annual benefit shall be paid to the
Executive for 15 years.
3
2.3 Disability Benefit. If the Executive terminates employment because of
Disability before the Normal Retirement Age, the Bank shall pay to the Executive
the benefit described in this Section 2.3 instead of any other benefit under
this Agreement.
2.3.1 Amount of Benefit. The benefit under this Section 2.3 is the
Disability Annual Benefit amount set forth in Schedule A for the Plan
Year ending immediately before the date on which termination of the
Executive's employment occurs. The Bank's Board of Directors may, in
its sole discretion, increase the annual benefit under this Section
2.3.1, but any increase shall require recalculation of Schedule A.
2.3.2 Payment of Benefit. Beginning with the month after the Normal
Retirement Age, the Bank shall pay the Disability Annual Benefit
amount to the Executive in 12 equal monthly installments on the first
day of each month. The annual benefit shall be paid to the Executive
for 15 years.
2.4 Change-in-Control Benefit. If a Change in Control occurs during the
term of this Agreement, the Bank shall pay to the Executive the benefit
described in this Section 2.4 instead of any other benefit under this Agreement.
2.4.1 Amount of Benefit. For a Change in Control occurring from the
Effective Date of this Agreement through April 30, 2006, the
Change-in-Control Benefit is determined by taking the Executive's
Normal Retirement Age Accrual Balance ($1,429,211) and discounting
that sum back to the Executive's current age as if the Executive had
an additional 108 months of service and 108 additional months of age
on the date of the Change in Control at a 4% discount rate. For
example, assume that a Change in Control occurs on January 30, 2003.
The Executive's Change-in-Control Benefit would be determined by
taking the $1,429,211 Accrual Balance that would exist at the
Executive's Normal Retirement Age and discounting that figure as if
the Executive had 39 months left to retirement at a 4% discount rate,
which produces a Change-in-Control Benefit of $1,255,255 payable no
later than February 2, 2003. For a Change in Control occurring from
May 1, 2006 through the Executive's Normal Retirement Age, the
Change-in-Control Benefit is $1,429,211.
2.4.2 Payment of Benefit: The Bank shall pay the Change-in-Control benefit
under Section 2.4 of this Agreement to the Executive in one lump sum
within three days after the Executive's Termination of Employment.
2.5 Petition for Payment of Vested Normal Retirement Benefit, Vested
Early Termination Benefit or
Vested Disability Benefit. To the extent the Executive is entitled to the normal
retirement benefit provided by Section 2.1, the Early Termination benefit
provided by Section 2.2, or the Disability benefit provided by Section 2.3, the
Executive may petition the Board of Directors to have the
4
Accrual Balance amount corresponding to that particular benefit paid to the
Executive in a single lump sum after (i) deduction of any normal retirement
benefits, Early Termination benefits or Disability benefits already paid and
(ii) addition of interest at the rate of 7.5% on the Accrual Balance not yet
paid for the period from Termination of Employment to payment of the lump sum
amount. The Board of Directors shall have sole and absolute discretion about
whether to pay the remaining Accrual Balance in a lump sum. If payment of the
remaining Accrual Balance is paid in a single lump sum, the Bank shall have no
further obligations under this Agreement.
2.6 Change-in-Control Payout of Vested Normal Retirement Benefit, Vested
Early Termination Benefit or Vested Disability Benefit Being Paid to the
Executive at the Time of a Change in Control. If a Change in Control occurs at
any time during the entire 15-year salary continuation benefit payment period
and if at the time of that Change in Control the Executive is receiving the
benefit provided by Section 2.1.2, Section 2.2.2 or Section 2.3.2, the Bank
shall pay the remaining salary continuation benefits to the Executive, his
beneficiaries, or estate in a lump sum within three days after the Change in
Control. The lump-sum payment due to the Executive, his beneficiaries or estate
as a result of a Change in Control shall be an amount equal to the Accrual
Balance amount corresponding to that particular benefit then being paid to the
Executive, his estate or beneficiaries pursuant to Section 2.1.2, Section 2.2.2
or Section 2.3.2 after (i) deduction of any normal retirement benefits, Early
Termination benefits or Disability benefits already paid and (ii) addition of
interest at the rate of 7.5% on the Accrual Balance not yet paid for the period
from Termination of Employment to payment of the lump sum amount.
2.7 Contradiction in Terms of Agreement and Schedule A. If there is a
contradiction in the terms of this Agreement and the Schedule A attached hereto
with the actual amount of a particular benefit amount due the Executive pursuant
to Section 2.2, 2.3, or 2.4 hereof, then the actual amount of said benefit set
forth in the Agreement shall control.
Article 3
Death Benefits
3.1 Death During Active Service. Except as provided in Section 5.2, if the
Executive dies in active service to the Bank before Normal Retirement Age,
instead of any benefit payable under this Agreement the Bank shall pay to the
Executive's beneficiary(ies) the benefit described in the Split Dollar Agreement
and Endorsement attached to this Agreement as Addendum A.
3.2 Death During Benefit Period. If the Executive dies after benefit
payments under Article 2 of this Agreement have commenced but before receiving
all such payments, the Bank shall pay the remaining benefits to the Executive's
beneficiary at the same time and in the same amounts they would have been paid
to the Executive had the Executive survived. In that case, no death benefit
shall be payable under this Article 3.
3.3 Death After Termination of Employment But Before Benefit Payments
Commence. If the Executive is entitled to benefit payments under Article 2 but
dies before payments commence, the benefits shall be payable to the Executive's
beneficiary(ies), but payments shall commence on the first day of the month
after the date of the Executive's death. Payments shall be made in the same
amounts they would have been paid to the Executive had the Executive survived.
3.4 Petition for Benefit Payments. To the extent that the Executive dies
before receiving any or all benefit payments to which he is entitled under
Section 2.1, Section 2.2, or Section 2.3, respectively, the Executive's
beneficiary(ies) or estate may petition the Board of Directors to have the
Accrual Balance corresponding to that particular benefit paid to the Executive's
beneficiary(ies) or estate in a single lump sum after (i) deduction of any
normal retirement benefits, Early Termination benefits or Disability benefits
already paid and (ii) addition of interest at the rate of 7.5% on the Accrual
Balance not yet paid for the period from the Executive's Termination of
Employment to payment of the lump sum amount. The Board of Directors shall have
sole and absolute discretion
5
about whether to pay the remaining Accrual Balance in a lump sum. If payment of
the remaining Accrual Balance is paid in a single lump sum, the Bank shall have
no further obligations under this Agreement.
3.5 Change-in-Control Payout of Vested Normal Retirement Benefit, Vested
Early Termination Benefit or Vested Disability Benefit Being Paid to the
Executive's Estate or Beneficiaries at the Time of a Change in Control. If a
Change in Control occurs at any time during the entire 15-year salary
continuation benefit payment period and if at the time of that Change in Control
the Executive's estate or beneficiaries is receiving the benefit provided by
Section 2.1.2, Section 2.2.2 or Section 2.3.2, the Bank shall pay the remaining
salary continuation benefits to the Executive's beneficiaries or estate in a
lump sum within three days after the Change in Control. The lump-sum payment due
to the Executive's beneficiaries or estate as a result of a Change in Control
shall be an amount equal to the Accrual Balance amount corresponding to that
particular benefit then being paid to the Executive's estate or beneficiaries
pursuant to Section 2.1.2, Section 2.2.2 or Section 2.3.2 after (i) deduction of
any normal retirement benefits, Early Termination benefits or Disability
benefits already paid and (ii) addition of interest at the rate of 7.5% on the
Accrual Balance not yet paid for the period from Termination of Employment to
payment of the lump sum amount.
Article 4
Beneficiaries
4.1 Beneficiary Designations. The Executive shall designate a beneficiary
or beneficiaries by filing a written designation with the Bank. The Executive
may revoke or modify the designation at any time by filing a new designation.
However, designations will be effective only if signed by the Executive and
accepted by the Bank during the Executive's lifetime. The Executive's
beneficiary designation shall be deemed automatically revoked if the beneficiary
predeceases the Executive, or if the Executive names a spouse as beneficiary and
the marriage is subsequently dissolved. If the Executive dies without a valid
beneficiary designation, all payments shall be made to the Executive's estate.
4.2 Facility of Payment. If a benefit is payable to a minor, to a person
declared incapacitated, or to a person incapable of handling the disposition of
his or her property, the Bank may pay such benefit to the guardian, legal
representative or person having the care or custody of such minor, incapacitated
person or incapable person. The Bank may require such proof of incapacity,
minority or guardianship as the Bank deems appropriate before distribution of
the benefit. Distribution shall completely discharge the Bank from all liability
for such benefit.
Article 5
General Limitations
5.1 Termination for Cause. Notwithstanding any provision of this Agreement
to the contrary, the Bank shall not pay any benefit under this Agreement if
Termination of Employment is due to the Executive's actions resulting in
Termination for Cause. The Executive shall not be deemed to have been terminated
for Cause under this Agreement unless and until there shall have been delivered
to the Executive a copy of a resolution duly adopted by the affirmative vote of
at least three-fourths (:) of the directors of the Bank then in office at a
meeting of the Board of Directors called and held for such purpose, which
resolution (a) contains findings that, in the good faith opinion of the Board,
the Executive has committed an act constituting Termination for Cause and (b)
specifies the particulars thereof in detail. Notice of that meeting and the
proposed Termination for Cause shall be given to the Executive a reasonable
amount of time before the Board's meeting. The Executive and his counsel (if the
Executive chooses to have counsel present) shall have a reasonable opportunity
to be heard by the Board at the meeting. Nothing in this Agreement limits the
Executive's or his beneficiaries' right to contest the validity or propriety of
the Board's determination of Termination for Cause, and they shall have the
right under Article 6 of this Agreement to contest the validity or propriety of
the Board's determination of Termination for Cause even if that right does not
exist under any employment agreement of the Executive.
6
5.2 Suicide or Misstatement. The Bank shall not pay any benefit under this
Agreement if the Executive commits suicide within three years after the date of
this Agreement. In addition, the Bank shall not pay any benefit under this
Agreement if the Executive has made any material misstatement of fact on any
application or resume provided to the Bank, or on any application for any
benefits provided by the Bank to the Executive.
5.3 Removal. If the Executive is removed from office or permanently
prohibited from participating in the conduct of the Bank's affairs by an order
issued under Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act, 12
U.S.C. '1818(e)(4) or (g)(1), all obligations of the Bank under this Agreement
shall terminate as of the effective date of the order.
5.4 Insolvency. If the Commissioner of the Connecticut Department of
Banking appoints the Federal Deposit Insurance Corporation as receiver for the
Bank under General Statutes of Connecticut '36a-220, all obligations under this
Agreement shall terminate as of the date of the Bank's declared insolvency.
Article 6
Claims And Review Procedures
6.1 Claims Procedure. A person or beneficiary ("claimant") who has not
received benefits under the Agreement that he or she believes should be paid
shall make a claim for such benefits as follows:
6.1.1 Initiation B Written Claim. The claimant initiates a claim by
submitting to the Bank a written claim for the benefits.
6.1.2 Timing of Bank Response. The Bank shall respond to such claimant
within 90 days after receiving the claim. If the Bank determines that
special circumstances require additional time for processing the
claim, the Bank can extend the response period by an additional 90
days by notifying the claimant in writing, prior to the end of the
initial 90-day period, that an additional period is required. The
notice of extension must set forth the special circumstances and the
date by which the Bank expects to render its decision.
6.1.3 Notice of Decision. If the Bank denies part or all of the claim, the
Bank shall notify the claimant in writing of such denial. The Bank
shall write the notification in a manner calculated to be understood
by the claimant. The notification shall set forth:
6.1.3.1 The specific reasons for the denial,
6.1.3.2 A reference to the specific provisions of the Agreement on
which the denial is based,
6.1.3.3 A description of any additional information or material
necessary for the claimant to perfect the claim and an
explanation of why it is needed,
6.1.3.4 An explanation of the Agreement's review procedures and the
time limits applicable to such procedures, and
6.1.3.5 A statement of the claimant's right to bring a civil action
under ERISA (Employees Retirement Income Security Act) Section
502(a) following an adverse benefit determination on review.
6.2 Review Procedure. If the Bank denies part or all of the claim, the
claimant shall have the opportunity for a full and fair review by the Bank of
the denial, as follows:
6.2.1 Initiation B Written Request. To initiate the review, the claimant,
within 60 days after receiving the Bank's notice of denial, must file
with the Bank a written request for review.
6.2.2 Additional Submissions B Information Access. The claimant shall then
have the opportunity to submit written comments, documents, records
and other information relating to the claim. The
7
Bank shall also provide the claimant, upon request and free of
charge, reasonable access to, and copies of, all documents, records
and other information relevant (as defined in applicable ERISA
regulations) to the claimant's claim for benefits.
6.2.3 Considerations on Review. In considering the review, the Bank shall
take into account all materials and information the claimant submits
relating to the claim, without regard to whether such information was
submitted or considered in the initial benefit determination.
6.2.4 Timing of Bank Response. The Bank shall respond in writing to such
claimant within 60 days after receiving the request for review. If
the Bank determines that special circumstances require additional
time for processing the claim, the Bank can extend the response
period by an additional 60 days by notifying the claimant in writing,
prior to the end of the initial 60-day period, that an additional
period is required. The notice of extension must set forth the
special circumstances and the date by which the Bank expects to
render its decision.
6.2.5 Notice of Decision. The Bank shall notify the claimant in writing of
its decision on review. The Bank shall write the notification in a
manner calculated to be understood by the claimant. The notification
shall set forth:
6.2.5.1 The specific reason for the denial,
6.2.5.2 A reference to the specific provisions of the Agreement on
which the denial is based,
6.2.5.3 A statement that the claimant is entitled to receive, upon
request and free of charge, reasonable access to, and copies
of, all documents, records and other information relevant
(as defined in applicable ERISA regulations) to the claimant's
claim for benefits, and
6.2.5.4 A statement of the claimant's right to bring a civil action
under ERISA Section 502(a).
ARTICLE 7
MISCELLANEOUS
7.1 Amendments and Termination. This Agreement may be amended or terminated
only by a written agreement signed by the Bank and the Executive.
7.2 Binding Effect. This Agreement shall bind the Executive and the Bank,
and their beneficiaries, survivors, executors, successors, administrators and
transferees.
7.3 No Guarantee of Employment. This Agreement is not an employment policy
or contract. It does not give the Executive the right to remain an employee of
the Bank, nor does it interfere with the Bank's right to discharge the
Executive. It also does not require the Executive to remain an employee nor
interfere with the Executive's right to terminate employment at any time.
7.4 Non-Transferability. Benefits under this Agreement cannot be sold,
transferred, assigned, pledged, attached, or encumbered in any manner.
7.5 Successors; Binding Agreement. By an assumption agreement in form and
substance satisfactory to the Executive, the Bank will require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business or assets of the Bank to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Bank would be required to perform this Agreement if no such
succession had occurred. The Bank's failure to obtain such an assumption
agreement before the succession becomes effective shall be considered a breach
of this Agreement and shall entitle the Executive to the Change-in-Control
benefit provided in Section 2.4.
7.6 Tax Withholding. The Bank shall withhold any taxes that are required to
be withheld from the benefits provided under this Agreement.
8
7.7 Applicable Law. Except to the extent preempted by the laws of the
United States of America, the validity, interpretation, construction, and
performance of this Agreement shall be governed by and construed in accordance
with the laws of the State of Connecticut, without giving effect to the
principles of conflict of laws of such state.
7.8 Unfunded Arrangement. The Executive and his beneficiary(ies) are
general unsecured creditors of the Bank for the payment of benefits under this
Agreement. The benefits represent the mere promise by the Bank to pay such
benefits. The rights to benefits are not subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, attachment, or
garnishment by creditors. Any insurance on the Executive's life is a general
asset of the Bank to which the Executive and beneficiary have no preferred or
secured claim.
7.9 Entire Agreement. This Agreement constitutes the entire agreement
between the Bank and the Executive as to the subject matter hereof. No rights
are granted to the Executive by virtue of this Agreement other than those
specifically set forth herein. Without limiting the generality of the foregoing,
this Agreement supersedes and replaces in its entirety the December 31, 1996
Supplemental Retirement Plan Agreement between the Executive and the Bank. The
December 31, 1996 Supplemental Retirement Plan Agreement shall be void and of no
further force or effect on the date that this Agreement becomes effective.
7.10 Administration. The Bank shall have the powers that are necessary to
administer this Agreement, including but not limited to the power to:
(a) interpret the provisions of the Agreement,
(b) establish and revise the method of accounting for the Agreement,
(c) maintain a record of benefit payments, and
(d) establish rules and prescribe forms necessary or desirable to
administer the Agreement.
7.11 Named Fiduciary. The Bank shall be the named fiduciary and plan
administrator under this Agreement. The named fiduciary may delegate to others
certain aspects of the management and operation responsibilities of the plan,
including the employment of advisors and the delegation of ministerial duties to
qualified individuals.
7.12 Severability. If for any reason any provision of this Agreement is
held invalid, such invalidity shall not affect any other provision of this
Agreement not held so invalid, and each such other provision shall, to the full
extent consistent with the law, continue in full force and effect. If any
provision of this Agreement shall be held invalid in part, such invalidity shall
in no way affect the remainder of such provision, not held so invalid, and the
remainder of such provision, together with all other provisions of this
Agreement shall, to the full extent consistent with the law, continue in full
force and effect.
7.13 Headings. The headings of Sections herein are included solely for
convenience of reference and shall not affect the meaning or interpretation of
any provision of this Agreement.
7.14 Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered by hand or mailed, certified or registered mail, return receipt
requested, with postage prepaid, to the following addresses or to such other
address as either party may designate by like notice.
(a) If to the Bank, to:
Board of Directors
NewMil Bank
00 Xxxx Xxxxxx
X.X. Xxx 000
9
New Milford, Connecticut 06776-0600
(b) If to the Executive, to:
---------------------------------
---------------------------------
----------------------------------
and to such other or additional person or persons as either party
shall have designated to the other party in writing by like notice.
7.15 Payment of Legal Fees. The Bank is aware that upon the occurrence of a
Change in Control, then current management of the Bank could cause or attempt to
cause the Bank to refuse to comply with its obligations under this Agreement, or
could institute or cause or attempt to cause the Bank to institute litigation
seeking to have this Agreement declared unenforceable, or could take or attempt
to take other action to deny Executive the benefits intended under this
Agreement. In these circumstances, the purpose of this Agreement would be
frustrated. It is the intention of the Bank that the Executive not be required
to incur the expenses associated with the enforcement of his rights under this
Agreement, whether by litigation or other legal action, because the cost and
expense thereof would substantially detract from the benefits intended to be
granted to the Executive hereunder, and it is the intention of the Bank that the
Executive not be forced to negotiate settlement of his rights under this
Agreement under threat of incurring such expenses. Accordingly, if after a
Change in Control occurs it should appear to the Executive that (a) the Bank has
failed to comply with any of its obligations under this Agreement, or (b) the
Bank or any other person has taken any action to declare this Agreement void or
unenforceable, or instituted any litigation or other legal action designed to
deny, diminish or to recover from the Executive the benefits intended to be
provided to the Executive hereunder, the Bank irrevocably authorizes the
Executive from time to time to retain counsel of his choice at the expense of
the Bank as provided in this Section 7.15, to represent the Executive in
connection with the initiation or defense of any litigation or other legal
action, whether by or against the Bank or any director, officer, stockholder or
other person affiliated with the Bank, in any jurisdiction. Notwithstanding any
existing or previous attorney-client relationship between the Bank or NewMil
Bancorp, Inc. and any counsel chosen by the Executive under this Section 7.15,
the Bank irrevocably consents to the Executive's entering into an
attorney-client relationship with that counsel, and the Bank and the Executive
agree that a confidential relationship shall exist between the Executive and
that counsel. The fees and expenses of counsel selected from time to time by the
Executive as provided in this section shall be paid or reimbursed to the
Executive by the Bank on a regular, periodic basis upon presentation by the
Executive of a statement or statements prepared by such counsel in accordance
with such counsel's customary practices, up to a maximum aggregate amount of
$500,000. The Bank's obligation to pay the Executive's legal fees provided by
this Section 7.15 operates separately from, and in addition to, any legal fee
reimbursement obligation the Bank or the Bank's parent NewMil Bancorp, Inc. may
have with the Executive by virtue of any separate employment, severance, or
other agreement between the Executive and the Bank or NewMil Bancorp, Inc.
7.16 Internal Revenue Code Section 280G Gross Up. (a) If as a result of a
Change in Control the Executive becomes entitled to acceleration of benefits
under this Salary Continuation Agreement or under any other plan or agreement of
or with the Bank or NewMil Bancorp, Inc. (together, the "Total Benefits"), and
if any of the Total Benefits will be subject to the Excise Tax as set forth in
Sections 280G and 4999 of the Internal Revenue Code of 1986 (the "Excise Tax"),
the Bank shall pay to the Executive the following additional amounts, consisting
of (1) a payment equal to the Excise Tax payable by the Executive on the Total
Benefits under Section 4999 of the Internal Revenue Code (the "Excise Tax
Payment"), and (2) a payment equal to the amount necessary to provide the Excise
Tax Payment net of all income, payroll and excise taxes. Together, the
additional amounts described in clauses (1) and (2) are referred to in this
Agreement as the "Gross-Up Payment Amount." Payment of the Gross-Up Payment
Amount shall be made in addition to the amount set forth in Section 2.4 hereof.
(b) For purposes of determining whether any of the Total Benefits will be
subject to the Excise Tax and the amount of such Excise Tax,
(1) any other payments or benefits received or to be received by the
Executive (whether under the terms of this Agreement or any other
agreement, or other plan or arrangement with the Bank or NewMil Bancorp,
Inc., any person whose actions result in a Change in Control
10
or any person affiliated with NewMil Bancorp, Inc. or such person) in
connection with a Change in Control or the Executive's termination of
employment shall be treated as "parachute payments" within the meaning of
Section 280G(b)(2) of the Internal Revenue Code, and all "excess parachute
payments," within the meaning of Section 280G(b)(1), shall be treated as
subject to the Excise Tax, unless in the opinion of the certified public
accounting firm that is retained by NewMil Bancorp, Inc. as of the date
immediately before the Change in Control (the "Accounting Firm"), such
other payments or benefits (in whole or in part) represent reasonable
compensation for services actually rendered, within the meaning of Section
280G(b)(4) of the Internal Revenue Code, or are otherwise not subject to
the Excise Tax,
(2) the amount of the Total Benefits which shall be treated as subject
to the Excise Tax shall be equal to the lesser of (A) the total amount of
the Total Benefits reduced by the amount of such Total Benefits that in the
opinion of the Accounting Firm are not parachute payments, or (B) the
amount of excess parachute payments within the meaning of Section
280G(b)(1) (after applying clause (1) above), and
(3) the value of any noncash benefits or any deferred payment or
benefit shall be determined by NewMil Bancorp, Inc.'s Accounting Firm in
accordance with the principles of Sections 280G(d)(3) and (4) of the
Internal Revenue Code.
(c) For purposes of determining the Gross-Up Payment Amount, the Executive
shall be deemed to pay federal income taxes at the highest marginal rate of
federal income taxation in the calendar year in which the Gross-Up Payment
Amount is to be made, and state and local income taxes at the highest marginal
rate of taxation in the state and locality of the Executive's residence on the
date of termination of employment, net of the reduction in federal income taxes
that could be obtained from deduction of state and local taxes (calculated by
assuming that any reduction under Section 68 of the Internal Revenue Code in the
amount of itemized deductions allowable to the Executive applies first to reduce
the amount of state and local income taxes that would otherwise be deductible by
the Executive, and applicable federal FICA and Medicare withholding taxes).
(d) If the Excise Tax is later determined to be less than the amount taken
into account hereunder at the time of termination of the Executive's employment,
the Executive shall, when the amount of such reduction in Excise Tax is finally
determined, repay to the Bank the portion of the Gross-Up Payment Amount
attributable to the reduction (plus that portion of the Gross-Up Payment Amount
attributable to the Excise Tax, federal, state and local income taxes and FICA
and Medicare withholding taxes imposed on the Gross-Up Payment Amount being
repaid by the Executive to the extent that such repayment results in a reduction
in Excise Tax, FICA and Medicare withholding taxes and/or a federal, state or
local income tax deduction). If the Excise Tax is later determined to be more
than the amount taken in account hereunder at the time of termination of the
Executive's employment (including any payment the existence or amount of which
cannot be determined at the time the Gross-Up Payment Amount is paid), the Bank
shall make an additional Gross-Up Payment Amount to the Executive of the excess
(plus any interest, penalties or additions payable by the Executive on the
excess) when the amount of the excess is finally determined.
7.17 Accounting Firm Gross-Up Determination. (a) Subject to the provisions
of Section 7.16, all determinations required to be made under this Section 7.17,
including whether and when a Gross-Up Payment Amount is required, the Gross-Up
Payment Amount and the assumptions used to arrive at such determination shall be
made by the Accounting Firm, which shall provide detailed supporting
calculations both to the Bank and the Executive within 15 business days after
receipt of notice from the Bank or the Executive that there has been a Gross-Up
Payment Amount, or such earlier time as is requested by the Bank (the
"Determination").
(b) If the Accounting Firm is serving as accountant or auditor for the
individual, entity or group effecting the Change in Control, the Executive may
appoint another nationally recognized public accounting firm to make the
determinations required hereunder (which accounting firm shall then be referred
to as the Accounting Firm hereunder).
11
(c) All fees and expenses of the Accounting Firm shall be borne solely by
NewMil Bancorp, Inc. or the Bank and NewMil Bancorp, Inc. or the Bank shall
enter into any agreement requested by the Accounting Firm in connection with the
performance of its services hereunder.
(d) If the Accounting Firm determines that no Excise Tax is payable by the
Executive, it shall furnish the Executive with a written opinion to such effect,
and to the effect that failure to report Excise Tax, if any, on the Executive's
applicable federal income tax return will not result in the imposition of a
negligence or similar penalty.
(e) Determinations by the Accounting Firm shall be binding upon the Bank
and the Executive.
(f) As a result of the uncertainty in determining whether any of the Total
Benefits will be subject to the Excise Tax at the time of the Determination, it
is possible that a Gross-Up Payment Amount will not have been made by the Bank
that should have been made (an "Underpayment"), or that a Gross-Up Payment
Amount will have been made that should not have been made (an "Overpayment"). If
the Executive is required to make payment of any additional Excise Tax, the
Accounting Firm shall determine the amount of the Underpayment that has
occurred, and the Underpayment (together with interest at the rate provided in
Section 1274(d)(2)(B) of the Internal Revenue Code) shall be promptly paid by
the Bank to or for the benefit of the Executive. If the Gross-Up Payment Amount
exceeds the amount necessary to reimburse the Executive for his Excise Tax, the
Accounting Firm shall determine the amount of the Overpayment that has been
made, and the Overpayment (together with interest at the rate provided in
Section 1274(d)(2)(B) of the Internal Revenue Code) shall be promptly paid by
the Executive to or for the benefit of the Bank. If his expenses are reimbursed
by the Bank, the Executive shall cooperate with any reasonable requests by the
Bank in any contests or disputes with the Internal Revenue Service concerning
the Excise Tax.
7.18 Automatic Review Procedure. Upon the third year anniversary of the
execution of this Agreement, and continuing on each subsequent third year
anniversary, the Bank will automatically review this Agreement for
reasonableness of benefits with the intent that the Executive's target benefit
shall be 70 percent of compensation less Bank-provided benefits. For purposes of
this Agreement, Bank-provided benefits shall include, but are not limited to,
the Bank 401(k) match, and the Bank portion of Social Security benefits. The
term "compensation" as used in this Section 7.18 means the base annual salary of
the Executive projected at the Executive's Normal Retirement Age. Base annual
salary refers to compensation of the type that would be required to be reported
by Securities and Exchange Commission Rule 228.402(b) (17 C.F.R. '228.402(b)),
specifically column (c) of that rule's Summary Compensation Table (or any
successor provision), excluding director fees but including elective deferred
compensation.
12
IN WITNESS WHEREOF, the Executive and a duly authorized Bank officer have
signed this Agreement as of the day and year first written above.
THE EXECUTIVE: THE BANK:
NEWMIL BANK
Xxxxxxx X. Xxxxx
By:
----------------------------
Xxxxx X. Xxxxxxx
Its: Secretary
By:
---------------------------
Xxxx X. Xxxxxxxx
Its: Chairwoman, Salary and Benefits
Committee of the Board of Directors
NewMil Bancorp, Inc., by its undersigned officer hereunto duly authorized,
hereby (1) agrees to and adopts such of the terms, conditions and obligations of
this Salary Continuation Agreement between NewMil Bank and Xxxxxxx X. Xxxxx as
apply by their terms to NewMil Bancorp, Inc., specifically the obligations
stated in Section 7.16 and Section 7.17 concerning Gross-Up Payments, and (2)
notwithstanding any existing or previous attorney-client relationship between
NewMil Bancorp, Inc., and any counsel chosen by the Executive under Section
7.15, irrevocably consents to the Executive's entering into an attorney-client
relationship with that counsel, and NewMil Bancorp, Inc., agrees that a
confidential relationship shall exist between the Executive and that counsel.
NewMil Bancorp, Inc.
By:
-----------------------------------------
Xxxxx X. Xxxxxxx
Its: Secretary
By:
-----------------------------------------
Xxxx X. Xxxxxxxx
Its: Chairwoman, Salary and Benefits
Committee of the Board of Directors
13
Beneficiary Designation
NewMil Bank
Salary Continuation Agreement
Xxxxxxx X. Xxxxx
I designate the following as beneficiary of any death benefits under this
Salary Continuation Agreement:
Primary:
Contingent:
Note: To name a trust as beneficiary, please provide the name of the trustee(s)
and the exact name and date of the trust agreement.
I understand that I may change these beneficiary designations by filing a
new written designation with the Bank. I further understand that the
designations will be automatically revoked if the beneficiary predeceases me, or
if I have named my spouse as beneficiary and our marriage is subsequently
dissolved.
Signature:
-----------------------------
Xxxxxxx X. Xxxxx
Date:
-------------------
Accepted by the Bank this day of January, 2002.
---------------------
By:
------------------------------
Title:
-----------------------------
14
Schedule A
NewMil Bank
Salary Continuation Agreement
Xxxxxxx X. Xxxxx
Early
Termination Disability
Annual Annual
Benefit Benefit Change-in-
Early payable at payable at Control
Executive's Accrual Termination Vested Normal Normal Benefit
Plan Plan year ending Age at Plan balance @ vesting accrual Retirement Retirement payable in a
year December 31 Year End 7.5%/(1)/ schedule /(2)/ balance Age /(3)/ Age /(3)/ lump sum /(4)/
---- ---------------- ----------- ---------- -------------- ---------- ----------- ---------- --------------
5 2001 51 $ 79,735 100% $ 79,735 $ 23,887 $ 23,887 $1,202,109
6 2002 52 $ 141,208 100% $ 141,208 $ 39,255 $ 39,255 $1,251,085
7 2003 53 $ 207,453 100% $ 207,453 $ 53,516 $ 53,516 $1,302,056
8 2004 54 $ 278,842 100% $ 278,842 $ 66,750 $ 66,750 $1,355,104
8 2005 55 $ 355,772 100% $ 355,772 $ 79,030 $ 79,030 $1,410,313
10 2006 56 $ 438,674 100% $ 438,674 $ 90,426 $ 90,426 $1,429,211
11 2007 57 $ 528,013 100% $ 528,013 $101,001 $101,001 $1,429,211
12 2008 58 $ 624,287 100% $ 624,287 $110,814 $110,814 $1,429,211
13 2009 59 $ 728,035 100% $ 728,035 $119,920 $119,920 $1,429,211
14 2010 60 $ 839,837 100% $ 839,837 $128,370 $128,370 $1,429,211
15 2011 61 $ 960,319 100% $ 960,319 $136,211 $136,211 $1,429,211
16 2012 62 $1,090,154 100% $1,090,154 $143,487 $143,487 $1,429,211
17 2013 63 $1,230,068 100% $1,230,068 $150,240 $150,240 $1,429,211
18 2014 64 $1,380,845 100% $1,380,845 $156,505 $156,505 $1,429,211
19 2015 65 $1,393,915/(5)/ 100% $1,393,915 $158,000 $158,000 /(5)/
20 2016 66 $1,337,560 N/A $1,337,560 N/A N/A
21 2017 67 $1,276,830 N/A $1,276,830 N/A N/A
22 2018 68 $1,211,385 N/A $1,211,385 N/A N/A
23 2019 69 $1,140,860 N/A $1,140,860 N/A N/A
24 2020 70 $1,064,860 N/A $1,064,860 N/A N/A
25 2021 71 $ 982,959 N/A $ 982,959 N/A N/A
26 2022 72 $ 894,701 N/A $ 894,701 N/A N/A
27 2023 73 $ 799,590 N/A $ 799,590 N/A N/A
28 2024 74 $ 697,097 N/A $ 697,097 N/A N/A
29 2025 75 $ 586,646 N/A $ 586,646 N/A N/A
30 2026 76 $ 467,621 N/A $ 467,621 N/A N/A
31 2027 77 $ 339,355 N/A $ 339,355 N/A N/A
15
32 2028 78 $ 201,132 N/A $ 201,132 N/A N/A
Early
Termination Disability
Annual Annual
Benefit Benefit Change-in-
Early payable at payable at Control
Executive's Accrual Termination Vested Normal Normal Benefit
Plan Plan year ending Age at Plan balance @ vesting accrual Retirement Retirement payable in a
year December 31 Year End 7.5%/(1)/ schedule /(2)/ balance Age /(3)/ Age /(3)/ lump sum
---- ---------------- ----------- ---------- -------------- ---------- ----------- ---------- -------------
33 2029 79 $52,178 $52,178
34 2030 80 $ 0 $ 0
/(1)/ The Accrual balance reflects payment at the beginning of each month during
retirement.
/(2/ Participant is 100 percent vested in the accrued liability balance.
/(3/ Benefit is based on present value of the annual payment stream beginning at
age 65 of the current vested accrual balance using a standard discount rate
(7.5%).
/(4)/ The "Change-in-Control Benefit" is determined pursuant to Section 2.4.1 of
the Salary Continuation Agreement. The numbers shown in this column reflect the
Change-in-Control Benefit due the Executive if the Change in Control occurred at
the Plan Year end indicated. The numbers shown as of the Plan Year end indicated
are derived pursuant to the calculation methodology specified in Section 2.4.1
of the Salary Continuation Agreement. For calculation of the Change-in-Control
Benefit due the Executive at any time other than Plan Year end, this benefit
would be determined pursuant to Section 2.4 and Section 2.4.1 as of the date of
a Change in Control.
/(5)/ Projected retirement occurs April 30, 2015, with the first normal monthly
retirement benefit commencing May 2015. The accrual balance at the end of April,
2015 will be $1,429,211.
N/A means not applicable.
16
EXHIBIT 10.10B
Addendum A
NewMil Bank
Split Dollar Agreement
This Split Dollar Agreement is entered into as of this 1st day of January,
2002, by and between NewMil Bank, a Connecticut-chartered, FDIC-insured savings
bank with its main office in New Milford, Connecticut (the "Bank") and Xxxxxxx
X. Xxxxx, its President and Chief Executive Officer of NewMil Bancorp, Inc. and
the Bank (the "Executive"). This Split Dollar Agreement shall append the Split
Dollar Endorsement entered into on even date herewith, or as subsequently
amended, by and between the aforementioned parties.
To encourage the Executive to remain an employee of the Bank, the Bank is
willing to divide the death proceeds of a life insurance policy on the
Executive's life to be effective until the Executive's Normal Retirement Age of
65. The Bank will pay life insurance premiums from its general assets.
Article 1
General Definitions
Capitalized terms not otherwise defined in this Split Dollar Agreement are
used herein as defined in the Salary Continuation Agreement of even date
herewith. The following terms shall have the meanings specified:
"Insurer" means Massachusetts Mutual Life Insurance Company.
"Policy" means insurance policy no. 0046725 issued by the Insurer.
"Insured" means the Executive.
Article 2
Policy Ownership/Interests
2.1 Bank Ownership. The Bank is the sole owner of the Policy and shall have
the right to exercise all incidents of ownership. The Bank shall be the
beneficiary of any death proceeds remaining after the Executive's interest has
been paid under Section 2.2 of this Split Dollar Agreement.
2.2 Executive's Interest. The Executive shall have the right to designate
the beneficiary(ies) of death proceeds in the amount of $1,429,211. The
Executive shall also have the right to elect and change settlement options
specified in the Policy that may be permitted. However, the Executive, the
Executive's transferee or the Executive's beneficiary(ies) shall have no rights
or interests in the Policy for that portion of the death proceeds designated in
this Section 2.2 if the Executive is not in the full-time employment of the Bank
at the time of death, except for reason of a leave of absence approved by the
Bank.
2.3 Option to Purchase. The Bank shall not sell, surrender or transfer
ownership of the Policy while this Split Dollar Agreement is in effect without
first giving the Executive or the Executive's transferee a right of first
refusal to purchase the Policy for the Policy's interpolated terminal reserve
value. The right of first refusal to purchase the Policy must be exercised
within 60 days from the date the Bank gives written notice of the Bank's
intention to sell, surrender or transfer ownership of the Policy. This provision
shall not impair the right of the Bank to terminate this Split Dollar Agreement.
2.4 Comparable Coverage. Upon execution of this Agreement, the Bank shall
maintain the Policy in full force and effect, and the Bank shall not amend,
terminate or otherwise abrogate the Executive's interest in the Policy unless
the Bank (a) replaces the Policy with a comparable insurance policy to cover the
benefit provided under this Split Dollar Agreement and (b) executes a new Split
Dollar Agreement and Endorsement for the comparable insurance policy. The Policy
or any comparable policy shall be subject to the claims of the Bank's creditors.
Article 3
Premiums
3.1 Premium Payment. The Bank shall pay any premiums due on the Policy.
3.2 Imputed Income. The Bank shall impute income to the Executive in an
amount equal to (a) the current term rate for the Executive's age, multiplied by
(b) the net death benefit payable to the Executive's beneficiary(ies). The
"current term rate" is the minimum amount required to be imputed under Revenue
Rulings 64-328 and 66-110, or any subsequent applicable authority.
Article 4
Assignment
The Executive may assign without consideration all interests in the Policy
and in this Split Dollar Agreement to any person, entity or trust. If the
Executive transfers all of the Executive's interest in the Policy, then all of
the Executive's interest in the Policy and in the Split Dollar Agreement shall
be vested in the Executive's transferee, who shall be substituted as a party
hereunder, and the Executive shall have no further interest in the Policy or in
this Split Dollar Agreement.
Article 5
Insurer
The Insurer shall be bound only by the terms of the Policy. Any payments
the Insurer makes or actions it takes in accordance with the Policy shall fully
discharge it from all claims, suits and demands of all entities or persons. The
Insurer shall not be bound by or be deemed to have notice of the provisions of
this Split Dollar Agreement.
Article 6
Claims Procedure
6.1 Claims Procedure. A person or beneficiary ("claimant") who has not
received benefits under the Agreement that he or she believes should be paid
shall make a claim for such benefits as follows:
6.1.1 Initiation B Written Claim. The claimant initiates a claim by
submitting to the Bank a written claim for the benefits.
6.1.2 Timing of Bank Response. The Bank shall respond to such claimant
within 90 days after receiving the claim. If the Bank determines that
special circumstances require additional time for processing the
claim, the Bank can extend the response period by an additional 90
days by notifying the claimant in writing, prior to the end of the
initial 90-day period, that an additional period is required. The
notice of extension must set forth the special circumstances and the
date by which the Bank expects to render its decision.
6.1.3 Notice of Decision. If the Bank denies part or all of the claim, the
Bank shall notify the claimant in writing of such denial. The Bank
shall write the notification in a manner calculated to be understood
by the claimant. The notification shall set forth:
6.1.3.1 The specific reasons for the denial,
6.1.3.2 A reference to the specific provisions of the Agreement on
which the denial is based,
6.1.3.3 A description of any additional information or material
necessary for the claimant to perfect the claim and an
explanation of why it is needed,
2
6.1.3.4 An explanation of the Agreement's review procedures and the
time limits applicable to such procedures, and
6.1.3.5 A statement of the claimant's right to bring a civil action
under ERISA (Employees Retirement Income Security Act) Section
502(a) following an adverse benefit determination on review.
6.2 Review Procedure. If the Bank denies part or all of the claim, the
claimant shall have the opportunity for a full and fair review by the Bank of
the denial, as follows:
6.2.1 Initiation B Written Request. To initiate the review, the claimant,
within 60 days after receiving the Bank's notice of denial, must file
with the Bank a written request for review.
6.2.2 Additional Submissions B Information Access. The claimant shall then
have the opportunity to submit written comments, documents, records
and other information relating to the claim. The Bank shall also
provide the claimant, upon request and free of charge, reasonable
access to, and copies of, all documents, records and other
relevant (as defined in applicable ERISA regulations) to the
information claimant's claim for benefits.
6.2.3 Considerations on Review. In considering the review, the Bank shall
take into account all materials and information the claimant submits
relating to the claim, without regard to whether such information was
submitted or considered in the initial benefit determination.
6.2.4 Timing of Bank Response. The Bank shall respond in writing to such
claimant within 60 days after receiving the request for review. If
the Bank determines that special circumstances require additional
time for processing the claim, the Bank can extend the response
period by an additional 60 days by notifying the claimant in writing,
prior to the end of the initial 60-day period, that an additional
period is required. The notice of extension must set forth the
special circumstances and the date by which the Bank expects to
render its decision.
6.2.5 Notice of Decision. The Bank shall notify the claimant in writing of
its decision on review. The Bank shall write the notification in a
manner calculated to be understood by the claimant. The notification
shall set forth:
6.2.5.1 The specific reason for the denial,
6.2.5.2 A reference to the specific provisions of the Agreement on
which the denial is based,
6.2.5.3 A statement that the claimant is entitled to receive, upon
request and free of charge, reasonable access to, and copies
of, all documents, records and other information relevant (as
defined in applicable ERISA regulations) to the claimant's
claim for benefits, and
6.2.5.4 A statement of the claimant's right to bring a civil action
under ERISA Section 502(a).
Article 7
Amendments And Termination
This Split Dollar Agreement may be amended or terminated only by a writing
signed by the Bank and the Executive. However, unless otherwise agreed to by the
Bank and the Executive, this Split Dollar Agreement will automatically terminate
upon the Executive's 65th birthday.
3
Article 8
Miscellaneous
8.1 Binding Effect. This Split Dollar Agreement shall bind the Executive
and the Bank and their beneficiaries, survivors, executors, administrators and
transferees, and any Policy beneficiary.
8.2 No Guarantee of Employment. This Split Dollar Agreement is not an
employment policy or contract. It does not give the Executive the right to
remain an employee of the Bank, nor does it interfere with the Bank's right to
discharge the Executive. It also does not require the Executive to remain an
employee nor interfere with the Executive's right to terminate employment at any
time.
8.3 Successors; Binding Agreement. By an assumption agreement in form and
substance satisfactory to the Executive, the Bank shall require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business or assets of the Bank to expressly
assume and agree to perform this Split Dollar Agreement in the same manner and
to the same extent that the Bank would be required to perform this Split Dollar
Agreement if no succession had occurred. The Bank's failure to obtain such an
assumption agreement before succession becomes effective shall be considered a
breach of the Split Dollar Agreement and shall entitle the Executive to the
Change-in-Control Benefits payable under Section 2.4 of the Salary Continuation
Agreement between the Bank and the Executive of even date herewith.
8.4 Applicable Law. The Split Dollar Agreement and all rights hereunder
shall be governed by and construed according to the laws of the State of
Connecticut, except to the extent preempted by the laws of the United States of
America.
8.5 Entire Agreement. This Split Dollar Agreement constitutes the entire
agreement between the Bank and the Executive concerning the subject matter
hereof. No rights are granted to the Executive under this Split Dollar Agreement
other than those specifically set forth herein.
8.6 Administration. The Bank shall have powers which are necessary to
administer this Split Dollar Agreement, including but not limited to the power
to:
(a) interpret the provisions of the Split Dollar Agreement,
(b) establish and revise the method of accounting for the Split Dollar
Agreement,
(c) maintain a record of benefit payments, and
(d) establish rules and prescribe forms necessary or desirable to
administer the Split Dollar Agreement.
8.7 Named Fiduciary. The Bank shall be the named fiduciary and plan
administrator under this Split Dollar Agreement. The Bank may delegate to others
certain aspects of management and operational responsibilities, including the
employment of advisors and the delegation of ministerial duties to qualified
individuals.
8.8 Severability. If for any reason any provision of this Split Dollar
Agreement is held invalid, such invalidity shall not affect any other provision
of this Split Dollar Agreement not held so invalid, and each such other
provision shall, to the full extent consistent with the law, continue in full
force and effect. If any provision of this Split Dollar Agreement shall be held
invalid in part, such invalidity shall in no way affect the remainder of such
provision, not held so invalid, and the remainder of such provision, together
with all other provisions of this Split Dollar Agreement shall, to the full
extent consistent with the law, continue in full force and effect.
8.9 Headings. The headings of Sections herein are included solely for
convenience of reference and shall not affect the meaning or interpretation of
any provision of this Split Dollar Agreement.
4
8.10 Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered by hand or mailed, certified or registered mail, return receipt
requested, with postage prepaid, to the following addresses or to such other
address as either party may designate by like notice.
(a) If to the Bank, to:
Board of Directors
NewMil Bank
00 Xxxx Xxxxxx
X.X. Xxx 000
New Milford, Connecticut 06776-0600
(b) If to the Executive, to:
Xxxxxxx X. Xxxxx
and to such other or additional person or persons as either party shall have
designated to the other party in writing by like notice.
In Witness Whereof, the Bank and the Executive have signed this Split
Dollar Agreement as of the date and year first written above.
The Executive: The Bank:
NewMil Bank
Xxxxxxx X. Xxxxx By:
--------------------
Its:
-------------------
5
Split Dollar Policy Endorsement
NewMil Bank
Split Dollar Agreement
Policy No. 0046725 Insured: Xxxxxxx X. Xxxxx
------- ----------------
Supplementing and amending the application for insurance to Massachusetts
Mutual Life Insurance Company ("Insurer") on December 27, 2001 (the application
date), the applicant requests and directs that:
Beneficiaries
1. NewMil Bank, located in New Milford, Connecticut (the "Bank"), shall be
the beneficiary of any death proceeds remaining after the Insured's interest has
been paid under paragraph (2) below.
2. The Insured or the Insured's transferee shall designate the
beneficiary(ies) of death proceeds in the amount of $1,429,211, subject to the
provisions of paragraph (5) below.
Ownership
3. The Owner of the Policy shall be the Bank. The Owner shall have all
ownership rights in the Policy except as may be specifically granted to the
Insured or the Insured's transferee in paragraph (4) of this endorsement.
4. The Insured or the Insured's transferee shall have the right to assign
his or her rights and interests in the Policy with respect to that portion of
the death proceeds designated in paragraph (2) of this endorsement, and to
exercise all settlement options with respect to such death proceeds.
5. Notwithstanding the provisions of paragraph (4) above, the Insured, the
Insured's transferee or the Insured's beneficiary(ies) shall have no rights or
interests in the Policy with respect to that portion of the death proceeds
designated in paragraph (2) of this endorsement if the Insured is not in the
full-time employment of the Bank at the time of death, except for reason of a
leave of absence approved by the Bank.
Modification of Assignment Provisions of the Policy
6. Upon the death of the Insured, the interest of any collateral assignee
of the Owner of the Policy designated in (3) above shall be limited to the
portion of the proceeds described in paragraph (1) above.
Owner's Authority
7. The Insurer is hereby authorized to recognize the Owner's claim to
rights hereunder without investigating the reason for any action taken by the
Owner, including the Owner's statement of the amount of premiums the Owner has
paid on the Policy. The signature of the Owner shall be sufficient for the
exercise of any rights under this Endorsement and the receipt of the Owner for
any sums received by it shall be a full discharge and release therefore to the
Insurer. The Insurer may rely on a sworn statement in form satisfactory to it
furnished by the Owner, its successors or assigns, as to their interest and any
payments made pursuant to such statement shall discharge the Bank accordingly.
8. Any transferee's rights shall be subject to this Endorsement.
9. The Owner accepts and agrees to this split dollar endorsement.
10. The undersigned is signing in a representative capacity and warrants
that he or she has the authority to bind the entity on whose behalf this
document is being executed.
6
Signed at New Milford, Connecticut, this day of January, 2002.
----
NewMil Bank
By:
--------------------------------------------
Its:
--------------------------------------------
The Insured accepts and agrees to the foregoing and, subject to the rights
of the Owner as stated above, designates , (relationship:
-----------------------
) as primary beneficiary(s) and ,
---------------------- -----------------------
(relationship: ) as secondary beneficiary of the portion
------------------------
of the proceeds described in (2) above.
Signed at New Milford, Connecticut, this day of January, 2002.
----
The Insured
Xxxxxxx X. Xxxxx
7
