Exhibit 10.10
AMENDED AND RESTATED DEFERRED COMPENSATION AGREEMENT
This Agreement (as amended and restated) entered into this 20th day
of December 2005 by and between Westfield Bank, a banking corporation duly
organized and existing under the laws of the Commonwealth of Massachusetts
with its principal place of business at 000 Xxx Xxxxxx, Xxxxxxxxx, Xxxxxxx
Xxxxxx, Xxxxxxxxxxxxx, its successors and assigns (hereinafter called the
"Corporation") and Xxxxxx X. Xxxxxxxx (hereinafter called the "Employee").
W I T N E S S E T H :
WHEREAS, the Employee has been employed by the Corporation for a
substantial period of time; and
WHEREAS, the Employee has performed his duties as President and Chief
Executive Officer in a capable and efficient manner, resulting in
substantial growth and profits to the Corporation; and
WHEREAS, the experience of the Employee is such that assurance of his
continued service is important to continued growth and profits of the
Corporation; and
WHEREAS, the Corporation desires to retain the continued loyalties
and services of the Employee; and
WHEREAS, the Corporation hereby agrees to pay to him or to his
designated beneficiary or beneficiaries, certain benefits in accordance
with the provisions and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the sum of One ($1.00) Dollar
paid to each of the parties hereto by the other, the receipt of which is
hereby acknowledged, and in consideration of the mutual covenants contained
herein, the parties covenant and agree as follows;
1. ANNUAL BENEFITS. For purposes of this Agreement the term "annual
benefits" shall be defined as being that sum which is equal to seventy
percent (70%) of the annual salary being paid to the Employee during the
last year the Employee has been in the Corporation's employ prior to his
retirement date as hereinafter set forth, or prior to his death or
disability as hereinafter set forth, reduced by a sum equal to the total
amount otherwise being received by the Employee each year from the Savings
Bank Employees Retirement Association and the portion of Social Security
related solely to contributions made by the Corporation, and the term
"salary" shall not include any total disability payments under the
Corporation's long term disability program. The adjustment is to be made
annually by reducing the following year's annual benefits by the total sums
received by the Employee during the previous twelve (12) months from both
the Savings Bank Employees Retirement Association and the portion of Social
security related solely to contributions made by the Corporation. The
period of employment that shall, be utilized to determine the aforegoing is
the continuous period of employment of the Employee with the Corporation as
it is presently constituted and subsequent to any merger with another
banking institution or take-over of any type of the Corporation.
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2. DEATH PRIOR TO RETIREMENT OR DISABILITY. In the event that the
Employee shall die before the first day of the month following his sixty-
fifth (65th) birthday, hereinafter sometimes called the "Retirement Date",
while in the employ of the Corporation, the Corporation beginning at a date
to be determined by the Corporation but within six (6) months from the date
of death, time being of the essence, will commence to pay the annual
benefits as hereinbefore defined, in equal monthly installments for a
continuous period of one hundred and twenty (120) months to such
beneficiary or beneficiaries as the Employee may designate by filing with
the Corporation a notice in writing in a form as set forth in Exhibit A
attached hereto. In the absence of any such designation, such amounts shall
be so paid to the executors or administrators of the estate of the
Employee. The beneficiaries named as aforesaid may be changed any time by
the Employee by such fort as set forth in Exhibit A being forwarded to the
Corporation.
3. RETIREMENT. Notwithstanding anything to the contrary herein
contained, the Employee may, while in the employ of the Corporation, at any
time after his sixty-second (62nd) birthday, terminate his employment with
the Corporation. This termination date for all purposes of this Agreement
shall then be deemed to be his "Retirement Date".
In the event that the Employee is continuously employed by the
Corporation from the date of this Agreement until his sixty-fifth (65th)
birthday, his employment by the Corporation shall then terminate, this
being his "Retirement Date". Upon the Employee's Retirement Date, the
Corporation shall be obligated to pay to the Executive an amount that would
be sufficient to fund (utilizing reasonable actuarial assumptions) a
payment stream to the to the Employee in equal monthly installments the
annual benefits as hereinbefore defined commencing upon the fifteenth
(15th) day of the month following the month in which such Retirement Date
occurs and paid thereafter on the fifteenth (15th) day of each month for
the remainder of his life, but for not less than two hundred and forty
(240) months (such amount the "Accrued Benefit"). The Accrued Benefit
amount shall be paid to the Employee in a single lump sum as soon as
practicable after the Retirement Date.
Upon the Employee's death, subsequent to his Retirement Date, and
after the Employee has commenced receiving the Accrued Benefit hereunder,
but prior to his having received the entirety of the Accrued Benefit, the
payments as hereinbefore set forth will be continued to be paid to his
designated beneficiary or beneficiaries, or in the absence thereof to the
executors or administrators of his estate, as the case may be until the
full Accrued Benefit has been paid in the aggregate to the Employee and
such beneficiary, beneficiaries, executors, or administrators.
4. DISABILITY. A. In the event the Employee, prior to his
retirement date as set forth in Paragraph 3. hereinbefore, while in the
employ of the Corporation, becomes totally and permanently disabled as
defined by, and entitling the Employee for payment of total disability
payments under, the Corporation's long-term disability program, and then
subsequently dies prior to his retirement date as set forth in Paragraph 3
herein before while still receiving said total, disability payments, the
Corporation will commence to pay the annual benefits referred to in, and in
the manner provided for by, Paragraph 2 hereinbefore.
B. In the event the Employee, prior to his retirement date as set
forth in Paragraph 3. hereinbefore, while in the employ of the Corporation,
becomes totally and permanently disabled
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as defined by, and entitling the Employee for payment of total disability
payments under, the Corporation's long-term disability program, and then,
subsequently, having reached a certain age, becomes ineligible to receive
further benefits under the Corporation's long-term disability program, the
Corporation will commence to pay the annual benefits referred to in, and in
the manner provided for by, Paragraph 3 hereinbefore.
5. NON-ASSIGNABILITY. Except as may otherwise be provided herein,
neither the Employee, his beneficiary or beneficiaries nor his executors
and administrators will have any right to commute, sell, assign, transfer
or otherwise convey the right to receive any payments hereunder, which
payments and the right thereto are expressly declared to be non-assignable
and non-transferable.
6. INDEPENDENT EXISTENCE. The benefits payable under this Agreement
are independent of, and in addition to, any other employment Agreement that
may exist from time to time between the parties hereto, any other
compensation payable by the Corporation to the Employee whether it is
salary or bonus, or otherwise. This Agreement will not be deemed to
constitute a contract of employment between the parties hereto, nor will
any revision hereof restrict the right of the Corporation to discharge the
Employee or restrict the right of the Employee to terminate his employment.
7. UNSECURED OBLIGATION. The rights of the Employee and any
beneficiary or beneficiaries under this Agreement will be solely those of
any unsecured creditor of the Corporation. If the Corporation acquires
insurance policy or policies or any other asset in connection with the
obligations assumed by it hereunder, such policy or other asset will not be
deemed to be held under any trust for the benefit of the Employee or his
beneficiary or beneficiaries or to be collateral security for the
performance of the obligations of the Corporation hereunder, and will be,
and remain, the general, unpledged, unrestricted asset of the Corporation.
8. NON-COMPETITION. While the Employee is receiving any annual
benefits from the Corporation hereunder, the Employee shall not directly or
indirectly, for any reason or in any way or in any capacity whatsoever,
either on his own account or through or for any other person, firm,
corporation, association, or other entity, enter into, accept employment
from, become affiliated or connected with, or in any manner take part in,
any business, profession, or other endeavor either as an Employee, agent,
independent contractor, owner, or otherwise, which shall be in the same or
similar competitive business with that of the Corporation, In the event
that the Employee shall enter into any such competitive activity as
hereinbefore described and shall continue therein for a period of fifteen
(15) days after the Corporation shall have notified him in writing that the
Trustees of the Corporation have decided that such activity is in
competition with the Corporation, then no further payments under this
Agreement shall be due or payable by the Corporation hereunder, and the
Corporation shall have no further liability hereunder.
9. TERMINATION OF EMPLOYMENT. In the event that the Employee
voluntarily terminates his employment with the Corporation prior to his
sixty-second (62nd) birthday or the employment of the Employee is
terminated by the Corporation for serious misconduct by the Employee on the
job, this Agreement, upon such termination, shall immediately terminate and
the Employee shall from that date forth have no rights to any benefits
hereunder whatsoever. In the event that the Employee's employment, with
the Corporation is
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terminated by the Corporation for reasons other than serious misconduct by
the Employee on the job, this Agreement shall still be effective according
to its terms, regardless of the fact that the Employee shall engage in any
such competitive act as hereinbefore set forth in Paragraph 7 hereof,
payment not to commence until the earlier of the Employee reaching age 62
or his death.
10. DUTY TO SEEK BENEFITS. As a condition for the payment of the
annual benefits as hereinbefore defined, the Employee or his beneficiary,
beneficiaries, executors, or administrators, as the case may be, must apply
for, and take all actions and execute all documents necessary and
appropriate to obtain, all the monies from the Savings Bank Employees
Retirement Association and Social Security referred to in Paragraph 1
hereinbefore.
11. BINDING EFFECT. This Agreement shall be binding upon the
parties hereto, their heirs, executors, administrators, or successors,
including, but not limited to, any successor resulting from a merger with
another banking institution or take-over, of any type, of the Corporation.
12. SEPARABILITY. The invalidity and unenforceability of any part
of this Agreement shall in no way affect the validity of any other
provisions.
13. ENTIRE AGREEMENT. This instrument contains the entire agreement
of the parties hereto and the same shall not be changed except by written
instrument executed by the parties hereto.
14. STATUS OF AGREEMENT UNDER ERISA. This Agreement is intended to
be an unfunded, non-qualified plan maintained primarily for the purpose of
providing deferred compensation for a highly compensated employee, as
contemplated by sections 201(2), 301(a)(3) and 401(a)(1) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"). This
Agreement is not intended to comply with the requirements of section 401(a)
of the Code or to be subject to Parts 2, 3 and 4 of Title I of ERISA. This
Agreement shall be administered and construed so as to effectuate this
intent.
15. RESTRICTIONS ON PAYMENTS TO KEY EMPLOYEES. Notwithstanding
anything in this Agreement to the contrary, to the extent required under
section 409A of the Internal Revenue Code of 1986 ("Code"), no payment to
be made to a key employee (within the meaning of section 409A of the Code)
on or after the date of his termination of service shall be made sooner
than six (6) after such termination of service.
16. COMPLIANCE WITH SECTION 409A OF THE CODE. This Agreement is
intended to be a non-qualified deferred compensation plan described in
section 409A of the Code. This Agreement shall be operated, administered
and construed to give effect to such intent. In addition, this Agreement
shall be subject to amendment, with or without advance notice to the
Employee and other interested parties, and on a prospective or retroactive
basis, including but not limited amendment in a manner that adversely
affects the rights of participants and other interested parties, to the
extent necessary to effect such compliance.
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IN WITNESS WHEREOF, said Corporation has caused this Agreement to be
signed in its corporate name and by its duly authorized officer and
impressed with its corporate seal, attested by its Clerk and the said
Employee has hereunto set his hand and seal, all on the day and year first
above written.
WESTFIELD SAVINGS BANK
By: ____________________________
Xxxxx X. Xxxx
____________________________
Xxxxxx X. Xxxxxxxx, Employee
ATTEST:
____________________
Its Clerk
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