AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit
10.7.2
AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
This
AMENDED AND
RESTATED EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered into as of
September 25, 2007 by and between NewAlliance Bancshares, Inc., a business
corporation organized under the laws of the State of Delaware (the “Company”),
NewAlliance Bank, a Connecticut savings bank (the “Bank”), and Xxxxxxx X.
Xxxxxxxxxx (the “Executive”).
W
I T N E
S S E T H :
WHEREAS,
the
Executive is currently employed as the Executive Vice President, Treasurer
and
Chief Financial Officer of the Company and the Bank pursuant to an employment
agreement between the Company, the Bank and the Executive originally entered
into as of April 1, 2004 and amended and restated effective January 3, 2006
(the
“Employment Agreement”);
WHEREAS,
the Company
and the Bank desire to amend and restate the Employment Agreement in order
to
make changes to comply with Section 409A of the Internal Revenue Code of
1986,
as amended (the “Code”), as well as certain other changes;
WHEREAS,
the Company
and the Bank desire to ensure that the Company and the Bank are assured of
the
continued availability of the Executive’s services as provided in this
Agreement, with the Company and the Bank collectively referred to herein
as the
“Employers”; and
WHEREAS,
the
Executive is willing to serve the Company and the Bank on the terms and
conditions hereinafter set forth;
NOW,
THEREFORE, in
consideration of the premises and the mutual covenants and conditions
hereinafter set forth, the Employers and the Executive hereby agree as
follows:
SECTION
1. EFFECTIVE
DATE; EMPLOYMENT.
This
Agreement shall
be effective on the date first written above (the AEffective
Date”), provided that all changes intended to comply with Section 409A of the
Code, including without limitation changes to Sections 9, 10, 11 and 12 of
the
Agreement, shall be retroactively effective to January 1, 2005; and provided
further that no retroactive change shall affect the compensation or benefits
previously paid to the Executive. Each of the Employers agrees to
employ the Executive, and the Executive hereby agrees to such employment,
during
the period and upon the terms and conditions set forth in this
Agreement.
SECTION
2. EMPLOYMENT
PERIOD.
(a)
The terms and
conditions of this Agreement shall be and remain in effect during the
period of three years beginning on April 1, 2007 (the “Commencement Date”) and
ending on the third anniversary of the Commencement Date (the “Initial Term”),
plus such extensions, if any, as are provided pursuant to Section 2(b) hereof
(the “Employment Period”).
(b)
Except as
provided in Section 2(c), prior to the first annual anniversary of the
Commencement Date and each annual anniversary thereafter, the Boards of
Directors of the Employers shall consider and review (after taking into account
all relevant factors, including the Executive’s performance and any
recommendation of the Chief Executive Officer) a one-year extension of the
term
of this Agreement, and the term shall continue to extend each year (beginning
with the first annual anniversary date) if the Boards of Directors so approve
such extension unless the Executive gives written notice to the Employers
of the
Executive’s election not to extend the term, with such notice to be given not
less than ninety (90) days prior to any such anniversary date. If the
Board of Directors elects not to extend the term, it shall give written notice
of such decision to the Executive not less than ninety (90) days prior to
any
such anniversary date. If the Executive does not receive such notice, he
may, by
written notice given at any time during the ninety (90) days prior to the
relevant anniversary date, request from the Board of Directors written
confirmation that the term has been extended and, if such confirmation is
not
received by the Executive within thirty (30) days after the request therefor
is
made, the Executive may treat the term as having not been extended. Upon
termination of the Executive’s employment with either of the Employers for any
reason whatsoever, any annual extensions provided pursuant to this Section
2(b),
if not theretofore discontinued, shall automatically cease. In addition,
no
annual renewals shall extend beyond the Executive’s 65th birthday,
and in
no event shall the Employment Period extend beyond the Executive’s 65th
birthday.
(c)
Nothing in this
Agreement shall be deemed to prohibit the Employers at any time from terminating
the Executive’s employment during the Employment Period with or without notice
for any reason, provided, however, that the relative rights and
obligations of the Employers and the Executive in the event of any such
termination, including any requirements with respect to prior notice of such
termination, shall be determined under this Agreement.
SECTION
3. DUTIES.
Throughout
the
Employment Period, the Executive shall serve as the Executive Vice President,
Treasurer and Chief Financial Officer of each of the Employers, having such
power, authority and responsibility and performing such duties as are prescribed
by or under the Bylaws of each of the Employers and as are customarily
associated with such positions. The Executive shall report directly
to the Chief Executive Officer of the Company and/or the Bank. The Executive
shall devote his full business time, attention, skills and efforts (other
than
during weekends, holidays, vacation periods, and periods of illness or leaves
of
absence and other than as permitted or contemplated by Section 7 hereof)
to the
business and affairs of the Employers and shall use his best efforts to advance
the interests of the Employers.
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Section
4. CASH
AND OTHER COMPENSATION.
(a)
In consideration
for the services to be rendered by the Executive hereunder, the Employers
shall
pay to him a salary of three hundred seventy thousand dollars ($370,000)
annually (“Base Salary”) as of the date of restatement of this
Agreement. The Executive’s Base Salary shall be payable in
approximately equal installments in accordance with the Company’s and the Bank’s
customary payroll practices for senior officers. Base Salary shall
include any amounts of compensation deferred by the Executive under any
tax-qualified retirement or welfare benefit plan or any other deferred
compensation arrangement. The Compensation Committees of the Board of
Directors of the Company (the “Company Board”) and the Board of Directors of the
Bank (the “Bank Board”) (collectively the “Boards”) shall review the Executive’s
annual rate of salary at such times during the Employment Period as they
deem
appropriate, but not less frequently than once every twelve months, and may,
in
their respective discretion, approve an increase therein. Such review
of Executive’s Base Salary shall take into account not only the Executive’s
performance as well as the Employers’ performance since the date of the last
review conducted pursuant to this Section 4(a) but also shall take into
consideration the salaries of similar situated officers at comparably situated
financial institutions as determined by the Boards or the Compensation
Committees thereof as well as any recommendation of the Chief Executive
Officer. In addition to salary, the Executive may receive other cash
compensation from the Employers for services hereunder at such times, in
such
amounts and on such terms and conditions as the Company Board or the Bank
Board
may determine from time to time. Any increase in the Executive’s
annual salary shall become the Base Salary of the Executive for purposes
hereof. The Executive’s Base Salary as in effect from time to time
cannot be decreased by the Employers without the Executive’s express prior
written consent.
(b)
The Executive
shall be entitled to participate in an equitable manner with all other executive
officers of the Employers in discretionary bonuses to executive officers
as
authorized by the Company Board and/or the Bank Board. No other
compensation provided for in this Agreement shall be deemed a substitute
for the
Executive’s right to participate in such bonuses when and as declared by the
Company Board and/or the Bank Board. In connection with the
foregoing, under the terms of the Bank’s Executive Short Term Incentive Plan
(the “ESTIP”), annual cash bonuses can be awarded to the Executive in an amount
equal to up to 200% of the Executive’s Base Salary as in effect at the start of
the ESTIP’s plan year to which the bonus relates. The Compensation
Committee of the Board of Directors of the Company shall make an annual
determination of the exact percentage of Base Salary to be used with respect
to
the possible bonus, if any, to be paid to the Executive for the relevant
plan
year and shall notify the Executive by the end of January of the ESTIP’s plan
year to which such percentage shall be applicable, commencing January
2005.
SECTION
5. EMPLOYEE
BENEFIT PLANS AND PROGRAMS.
(a) During
the Employment Period, the Executive shall be treated as an employee of the
Company and the Bank and shall be entitled to participate in and receive
benefits under any and all qualified or non-qualified retirement, pension,
savings or profit-sharing plans (including, but not limited to Company’s
Employee Stock Ownership Plan (the “ESOP”), the
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Bank’s
defined benefit Pension Plan, the Bank’s 401(k) Profit Sharing Plan, the Bank’s
Supplemental Executive Retirement Plan and the Bank’s 2004 Supplemental
Executive Retirement Plan and any other similar plans that may be adopted
in the
future), any and all group life, health (including hospitalization, medical
and
major medical), dental, accident and long-term disability insurance plans,
and
any other employee benefit and compensation plans (including, but not limited
to, the ESTIP and any incentive compensation plans or programs or any stock
benefit plans) as may from time to time be maintained by, or cover employees
of,
the Company and the Bank, in accordance with the terms and conditions of
such
employee benefit plans and programs and compensation plans and programs and
consistent with the Company’s and the Bank’s customary practices. Nothing paid
to the Executive under any such plan or program will be deemed to be in lieu
of
other compensation to which the Executive is entitled under this
Agreement.
(b) During
the Employment Period, the Employers shall provide the Executive with an
expense
allowance (“Expense Allowance”) payable monthly equal to $600 per month to pay
for the costs of an automobile. Such Expense Allowance shall take
into account the federal and state income tax effect on the Executive of
receipt
of such allowance. In the event that with respect to a given
calendar year occurring during the term of this Agreement, the Executive
believes that he drove during such year Business Miles (as hereinafter defined)
in excess of the Covered Business Miles (as hereinafter defined) in connection
with the business of the Bank and/or the Company and wishes to seek
reimbursement as provided herein for such excess, within 40 days after the
end
of such calendar year, the Executive shall provide information to the Company
and the Bank (as well as any additional information as the Employers may
reasonably request in order to review the Executive’s claim) with respect to the
number of miles driven in the such calendar year in connection with the business
of the Bank and/or the Company (“Business Miles”). In the event the
number of Business Miles driven during such calendar year is determined by
the
Employers to be more than 5,000 (“Covered Business Miles”), the Bank or the
Company will provide the Executive an additional reimbursement for the Business
Miles in excess of the Covered Business Miles at a rate equal to the standard
mileage rate as published by the Internal Revenue Service for the period
in
which the excess Business Miles were incurred (“Reimbursement Rate”), with such
reimbursement to be provided no later than March 15 of the year immediately
following the year in which the excess Business Miles were
incurred. The Expense Allowance, the Covered Business Miles and the
Reimbursement Rate shall be reviewed annually by the Compensation Committee
of
the Company Board and, if increased, shall be reflected in an addendum
hereto. Notwithstanding the foregoing, nothing herein shall be deemed
to impose upon the Employers or obviate the Executive’s obligation, legal or
otherwise, to maintain liability insurance with respect to the Executive’s
personal use of an automobile.
(c) The
Employers shall provide and pay for a parking space for the Executive in
the
Bank’s main office parking garage or, if such space shall become unavailable due
to tenant commitments or otherwise, in an alternative convenient closed parking
garage.
(d) The
Executive shall be entitled to paid holidays and paid vacation consistent
with
the Employers’ policy for executive officers.
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(e)
The Employers
shall provide during the term of this Agreement, subject to the limitations
set
forth herein, for the Executive to receive, at the Employers’ expense, the
services of a tax professional and a personal financial planning professional
(which may be the same person or entity for both services) (the “Tax Service
Professional”) selected by the Employers and reasonably satisfactory to the
Executive. Subject to the limitations set forth herein, if the
Employers do not specify a Tax Services Professional reasonably acceptable
to
the Executive, the Executive will be entitled to use the services of a Tax
Services Professional of his choosing and seek reimbursement by the Employers
for the reasonable cost of such Tax Service Professional actually incurred
by
the Executive. The services to be provided shall include (i) the
preparation of all required federal, state and local personal income tax
returns, (ii) advice with respect to federal, state and local income tax
treatment of cash and other forms of compensation paid to the Executive by
the
Employers and (iii) investment and retirement counseling and estate
planning. Notwithstanding the foregoing, the annual cost to the
Employers of providing the services to the Executive of such Tax Service
Professional, whether such Tax Service Professional is selected by the Employers
or the Executive, shall not exceed $2,500 (the “Annual Cost”), prior to any
adjustment for income tax effects of reimbursement for such
expense. Reimbursement of the Executive for the Annual Cost shall
take into account the federal and state income tax effect on the Executive
of
receipt of such Annual Cost, and such reimbursement shall be paid promptly
by
the Employers and in any event no later than March 15 of the year immediately
following the year in which the Annual Cost was incurred. The Annual
Cost shall be reviewed annually by the Compensation Committee of the Company
and, if increased, shall be reflected in an addendum hereto.
(f)
During the
Employment Period, the Employers will reimburse and/or pay for the Executive’s
cost of membership in the Graduate Club (or such other club reasonably agreed
to
by the Employers and the Executive), including all membership bonds or surety,
initiation or membership fees, annual dues, capital assessments, and all
business-related expenses incurred at the club (“Club Expenses”). The
Executive shall be reimbursed for the cost of Club Expenses expended by
Executive no later than March 15 of the year immediately following the year
in
which the Club Expenses were incurred, and any such reimbursement and/or
payment
of the Club Expenses by the Employers shall take into account the federal
and
state income tax effect or the Executive of receipt of reimbursement for
the
Club Expenses.
SECTION
6. INDEMNIFICATION
AND INSURANCE.
(a)
During the
Employment Period and for a period of six years thereafter, the Employers
shall
cause the Executive to be covered by and named as an insured under any policy
or
contract of insurance obtained by them to insure their directors and officers
against personal liability for acts or omissions in connection with service
as
an officer or director of the Employers or service in other capacities at
the
request of the Employers. The coverage provided to the Executive
pursuant to this Section 6 shall be of the same scope and on the same terms
and
conditions as the coverage (if any) provided to other officers or directors
of
the Employers or any successors.
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(b)
To the maximum
extent permitted under applicable law, the Employers shall indemnify the
Executive against and hold him harmless from any costs, liabilities, losses
and
exposures that may be incurred by the Executive in his capacity as a director
or
officer of the Employers or any subsidiary or affiliate.
SECTION
7. OUTSIDE
ACTIVITIES.
The
Executive may (a)
serve as a member of the boards of directors of such business, community
and
charitable organizations as he may disclose to and as may be approved by
the
Employers (which approval shall not be unreasonably withheld), and (b) perform
duties as a trustee or personal representative or in any other fiduciary
capacity, provided that in each case such service shall not materially
interfere with the performance of his duties under this Agreement or present
any
conflict of interest. The Executive may also engage in personal
business and investment activities which do not materially interfere with
the
performance of his duties hereunder, provided that such activities are
not prohibited under any code of conduct or investment or securities trading
policy established by the Employers and generally applicable to all similarly
situated executives. If the Executive is discharged or suspended, or is subject
to any regulatory prohibition or restriction with respect to participation
in
the affairs of the Bank, he shall continue to perform services for the Company
in accordance with this Agreement but shall not directly or indirectly provide
services to or participate in the affairs of the Bank in a manner inconsistent
with the terms of such discharge or suspension or any applicable regulatory
order.
SECTION
8. WORKING
FACILITIES AND EXPENSES.
It
is understood by
the parties that the Executive’s principal place of employment shall be at the
Employers’ principal executive office located in New Haven, Connecticut, or at
such other Board approved location within 50 miles of the address of such
principal executive office, or at such other location as the Employers and
the
Executive may mutually agree upon. The Employers shall provide the
Executive at his principal place of employment with a private office,
secretarial services and other support services and facilities suitable to
his
position with the Employers and necessary or appropriate in connection with
the
performance of his assigned duties under this Agreement. The
Employers shall reimburse the Executive for his ordinary and necessary business
expenses attributable to the Employers’ business, including, without limitation,
the Executive’s travel and entertainment expenses incurred in connection with
the performance of his duties for the Employers under this Agreement, in
each
case upon presentation to the Employers of an itemized account of such expenses
in such form as the Employers may reasonably require. Such
reimbursement shall be paid promptly by the Employers and in any event no
later
than March 15 of the year immediately following the year in which such expenses
were incurred.
SECTION
9. TERMINATION
OF EMPLOYMENT WITH BENEFITS.
(a)
Subject to
Sections 9(b) and 9(c), the Executive shall be entitled to the benefits
described in Section 9(b) in the event that:
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(i)
his
employment with both of the Employers terminates during the Employment
Period as
a result of the Executive’s termination for Good Reason (as defined in Section
9(a)(i)(A) and (B) of this Agreement), which shall mean a termination based
on
the following:
(A)
any material
breach of this Agreement by the Employers, including without limitation any
of
the following: (1) a material diminution in the Executive’s base compensation,
(2) a material diminution in the Executive’s authority, duties or
responsibilities as prescribed in Section 3, or (3) a material diminution
in the
authority, duties or responsibilities of the officer to whom the Executive
is
required to report, or
(B)
any material
change in the geographic location at which the Executive must perform his
services under this Agreement;
provided,
however, that prior to any termination of employment for Good Reason, the
Executive must first provide written notice to the Employers within ninety
(90)
days of the initial existence of the condition, describing the existence
of such
condition, and the Employers shall thereafter have the right to remedy the
condition within thirty (30) days of the date the Employers received the
written
notice from the Executive. If the Employers remedy the condition
within such thirty (30) day cure period, then no Good Reason shall be deemed
to
exist with respect to such condition. If the Employers do not remedy
the condition within such thirty (30) day cure period, then the Executive
may
deliver a notice of termination for Good Reason at any time within sixty
(60)
days following the expiration of such cure period; or
(ii)
the
Executive’s employment with the Employers is terminated by the
Employers during the Employment Period for any reason other than for
“cause,” death or “Disability,” as provided in Section 10(a).
(b)
Subject to
Section 9(c), and provided that no Change in Control (as defined in Section
11(a) hereof) has occurred, the Employers shall pay and provide to the Executive
(or, in the event of his subsequent death, to his estate) the following
severance benefits for the period beginning on the date that his employment
terminates and ending on either (i) the last day of the Employment Period
or
(ii) 24 months subsequent to the date of termination, whichever period is
greater (the “Severance Benefits Period”):
(i)
his
earned but unpaid Base Salary (including, without limitation, all items which
constitute wages under applicable law and the payment of which is not otherwise
provided for in this Section 9(b)) as of the date of the termination of his
employment, with such payment to be made at the time and in the manner
prescribed by law applicable to the payment of wages but in no event later
than
30 days after termination of employment;
(ii)
the
benefits, if any, to which he is entitled under the employee benefit plans
and
programs and compensation plans and programs maintained for the benefit of
the
Company’s and the Bank’s officers and employees (such benefits not to include
the expense allowance provided by Section 5(b)) through the date of the
termination of his employment;
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(iii)
continued group life, health, dental and accident insurance benefits, in
addition to that provided pursuant to Section 9(b)(ii), and after taking
into
account the coverage provided by any subsequent employer, if and to the extent
necessary to provide for the Executive, for the Severance Benefits Period,
coverage equivalent to the coverage to which he would have been entitled
under
such plans if he had continued to be employed during such period; provided
that
any insurance premiums payable by the Employers or any successors pursuant
to
this Section 9(b)(iii) shall be payable at such times and in such amounts
as if
the Executive was still an employee of the Employers, subject to any increases
in such amounts imposed by the insurance company or COBRA, and the amount
of
insurance premiums required to be paid by the Employers in any taxable year
shall not affect the amount of insurance premiums required to be paid by
the
Employers in any other taxable year;
(iv)
a lump
sum cash amount equal to the projected cost to the Employers of providing
group
long-term disability insurance benefits to the Executive for the Severance
Benefits Period, with the projected cost to the Employers to be based on
the
costs incurred as of the date of termination as determined on an annualized
basis;
(v)
a lump
sum cash amount, payable within 30 days following termination of employment,
equal to the present value of (A) the Executive’s Annual Compensation (as
hereinafter defined) multiplied by (B) a fraction which is either (1) the
number
of days left in the Employment Period if the Executive had not been terminated
or (2) 730, whichever is greater, divided by 365, using a discount
rate equal to the short-term applicable federal rate (determined under Section
1274(d) of the Code) as published by the Internal Revenue Service (the “IRS”)
for the month in which the termination of employment occurs, compounded
monthly;
(vi)
a lump
sum cash amount equal to the present value, determined by using a discount
rate
equal to the short-term applicable federal rate (determined under Section
1274(d) of the Code) as published by the IRS for the month in which the
termination of employment occurs, of the pro rata portion of any target bonus
awarded to the Executive under the Bank’s Executive Incentive Plan (the “EIP”)
(or such other short-term incentive compensation plan(s) that the Employers
may
adopt subsequent to the date hereof as a replacement therefor) which relates
to
the calendar year in which such termination occurs; provided that such
pro rata portion will be calculated by multiplying the amount of the target
bonus by a fraction the numerator of which is the number of days elapsed
in the
calendar year as of the date of termination and the denominator is 365;
provided, further, that such pro rated target bonus shall be paid
within 30 days following termination of employment;
(vii)
a lump
sum cash amount, payable within 30 days following termination of employment,
equal to the present value, determined by using a discount rate equal to
the
short-term applicable federal rate (determined under Section 1274(d) of the
Code) as published by the IRS for the month in which the termination of
employment occurs, of the excess, if any, of:
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(A)
the value of the
aggregate benefits to which he would be entitled under any and all qualified
defined benefit pension plans and non-qualified plans related thereto maintained
by, or covering employees of, the Company and the Bank if he were 100% vested
thereunder and had continued to be employed during the Severance Benefits
Period
at the highest annual rate of Base Salary achieved during the Employment
Period;
over
(B)
the value of the
benefits to which he is actually entitled under such defined benefit pension
plans as of the date on which his employment terminates, with such values
to be
determined using the mortality tables prescribed under Section 415(b)(2)(E)(v)
of the Code;
(viii)
a lump
sum cash amount, payable within 30 days following termination of employment,
equal to the present value, determined by using a discount rate equal to
the
short-term applicable federal rate (determined under Section 1274(d) of the
Code) as published by the IRS for the month in which the termination of
employment occurs, of the additional employer contributions to which he would
have been entitled under any and all qualified defined contribution plans
and
non-qualified plans related thereto maintained by, or covering employees
of, the
Company and the Bank as if he were 100% vested thereunder and had continued
to
be employed during the Severance Benefits Period at the highest annual rate
of
Base Salary achieved during the Employment Period and making the maximum
amount
of employee contributions, if any, required or permitted under such plan
or
plans, provided that no payments shall be made pursuant to this subsection
(viii) with respect to the Company’s ESOP if the ESOP is terminated effective as
of a date within one year of the date of the termination of the Executive’s
employment, with the Executive to reimburse the Employers for any such payments
previously made within 30 days of the Executive’s receipt of a request for
reimbursement from the Employers; and
(ix)
within
30 days following the occurrence of an event described in Section 9(a), upon
the
surrender of any shares previously awarded to the Executive under any restricted
stock plan maintained by, or covering employees of, the Employers, which
are
then subject to restrictions, a lump sum payment in an amount equal to the
product of:
(A)
the fair market
value of a share of stock of the same class of stock granted under such plan,
determined as of the date of the Executive’s termination of employment;
multiplied by
(B)
the number of
shares which are being surrendered; provided that in the event of a breach
of
Section 14 of this Agreement by the Executive, the Executive acknowledges
that
the Employers will be entitled to recoup any and all amounts paid by the
Employers to the Executive pursuant to this Section 9(b)(ix), as set forth
in
Section 14 hereof.
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The
Executive’s
“Annual Compensation” for purposes of this Agreement shall be deemed to mean the
sum of (i) the Executive’s Base Salary in effect as of the date of termination
of his employment and (ii) the greater of (A) the average of the cash incentive
compensation earned by the Executive from the Employers or any subsidiary
thereof during any one of the three calendar years immediately preceding
the
calendar year in which the date of termination occurs or (B) the amount of
the
Executive’s target bonus under the EIP (or such other short-term incentive
compensation plan(s) that the Employers may adopt subsequent to the date
hereof
as a replacement therefor) for the calendar year in which the termination
occurs; provided, however, for purposes of clause (ii) bonuses earned under
the
Bank’s Performance Unit Plan will not be included in cash incentive compensation
for purposes of determining average cash incentive compensation (or with
respect
to Section 11(b), the highest level of cash incentive
compensation).
The
Employers and the
Executive further agree that the Employers may condition the payments and
benefits (if any) due under Sections 9(b)(iii), (iv), (v), (vi), (vii) and
(viii) on the receipt of the Executive’s resignation from any and all positions
which he holds as an officer, director or committee member with respect to
the
Employers or any of their subsidiaries or affiliates and to the execution
of a
general release by the Executive.
(c) The
Executive shall not be required to mitigate the amount of any benefits provided
pursuant to the provisions of Section 9(b) by seeking other employment or
otherwise. However, if the Executive becomes or is employed by another employer
subsequent to the first year following termination, any compensation received
by
the Executive subsequent to the first year following termination through
the end
of the Severance Benefits Period shall be offset dollar for dollar against
the
Employers’ obligations set forth in Section 9(b) except with respect to Section
9(b)(iii), with the Executive to reimburse the Employers the amount of the
offset with respect to amounts previously paid by the Employers within 30
days
of the Executive’s receipt of a request for reimbursement from the
Employers. In addition, if the Executive becomes employed by another
entity subsequent to termination hereunder, and under the terms of such
employment is entitled to benefits substantially similar to those provided
in
Section 9(b)(iii), the Employers will not be required to continue provision
of
the benefits set forth in said Section 9(b)(iii) for the remainder of the
Severance Benefits Period.
SECTION
10. TERMINATION
WITHOUT ADDITIONAL EMPLOYER LIABILITY.
(a) In
the
event that the Executive’s employment with the Employers shall terminate during
the Employment Period on account of:
(i) the
discharge of the Executive for “cause,” which, for purposes of this Agreement,
shall mean a discharge because either the Company Board or the Bank Board
determines that the Executive has: (A) willfully failed to perform his
assigned duties under this Agreement, other than any failure resulting from
the
Executive’s incapacity due to physical or mental injury or illness; (B)
committed an act involving moral turpitude in the course of his employment
with
the Employers and their subsidiaries or affiliates; (C)
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engaged
in willful misconduct; (D) breached his fiduciary duties for personal profit;
(E) willfully violated, in any material respect, any law, rule or regulation
(other than traffic violations or similar offenses), written agreement or
final
cease-and-desist order with respect to his performance of services for the
Company or the Bank, as determined by the Company Board or the Bank Board;
or
(F) materially breached the terms of this Agreement and failed to cure such
material breach during a 15-day period following the date on which the Company
Board or the Bank Board gives written notice to the Executive of the material
breach;
(ii) the
Executive’s voluntary resignation from employment (including voluntary
retirement) with the Company and the Bank for reasons other than Good Reason
as
specified in Section 9(a)(i); or
(iii) the
death of the Executive while employed by the Employers, or the termination
of
the Executive’s employment because of “Disability” as defined in Section 10(c)
below;
then
in
any of the foregoing events, the Employers shall have no further obligations
under this Agreement, other than (A) the payment to the Executive of his
earned
but unpaid compensation as of the date of the termination of his employment,
(B)
the payment to the Executive of the benefits to which he is entitled under
all
applicable employee benefit plans and programs and compensation plans and
programs as of the date of termination of his employment, and (C) the provision
of such other benefits, if any, to which he is entitled as a former employee
under the Company’s or the Bank’s employee benefit plans and programs and
compensation plans and programs.
(b) For
purposes of this Section 10, no act or failure to act, on the part of the
Executive, shall be considered willful” unless it is done, or omitted to be
done, by the Executive in bad faith or without reasonable belief that the
Executive’s action or omission was in the best interests of the
Employers. Any act, or failure to act, based upon authority given
pursuant to a resolution duly adopted by the Company Board, the Bank Board
or
based upon the written advice of counsel for the Employers shall be conclusively
presumed to be done, or omitted to be done, by the Executive in good faith
and
in the best interests of the Employers. The cessation of employment
of the Executive shall not be deemed to be for “cause” within the meaning of
Section 10(a)(i) unless and until there shall have been delivered to the
Executive a copy of a resolution duly adopted by the affirmative vote of
three-fourths of the members of the Company Board or the Bank Board at a
meeting
of such Board called and held for such purpose (after reasonable notice is
provided to the Executive and the Executive is given an opportunity, together
with counsel, to be heard before such Board), finding that, in the good faith
opinion of such Board, the Executive is guilty of the conduct described in
Section 10(a)(i) above, and specifying the particulars thereof in
detail.
(c) “Disability”
shall be deemed to have occurred if the Executive: (i) is unable to engage
in
any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or
can be
expected to last for a continuous period of not less than 12 months, or (ii)
is,
by reason of any medically determinable physical or mental impairment which
can
be expected to result in death or can be expected to last for a continuous
period of not less than 12 months, receiving income replacement benefits
for a
period of not less than three months under an accident and health plan covering
employees of the Employers.
11
(d) During
any period in which the Executive is absent due to physical or mental
impairment, the Employers may, without breaching this Agreement, appoint
another
person or persons to act as interim Executive Vice President and Chief Financial
Officer pending the Executive’s return to his duties on a full-time basis
hereunder or his termination as a result of such Disability. Prior to
the Executive’s employment being terminated due to Disability under Section
10(e) hereof, the Executive shall continue to receive his full Base Salary,
bonuses and other benefits to which he is entitled under this Agreement,
including continued participation in all employee benefit plans and
programs.
(e) The
Employers may provide notice to the Executive in writing that they intend
to
terminate the Executive’s employment under this Agreement, with the termination
date to be on or after the date that the Executive is deemed to have a
Disability. At the time his employment hereunder is terminated due to
Disability, (i) the Executive shall not be entitled to any payments or benefits
pursuant to Sections 4 and 5 hereof for periods subsequent to such date of
termination, and (ii) the Executive shall become entitled to receive the
Disability payments that may be available under any applicable long-term
disability plan or other benefit plan.
SECTION
11. PAYMENTS
UPON A CHANGE IN CONTROL.
(a) The
term “Change in Control” shall mean a change in the ownership of the Company or
the Bank, a change in the effective control of the Company or the Bank or
a
change in the ownership of a substantial portion of the assets of the Company
or
the Bank, in each case as provided under Section 409A of the Code and the
regulations thereunder. In no event, however, shall a Change in
Control be deemed to have occurred as a result of any acquisition of securities
or assets of the Company, the Bank, or a subsidiary of either of them, by
the
Company, the Bank, or any subsidiary of either of them, or by any employee
benefit plan maintained by any of them.
(b) If
the
Executive’s employment by the Employers shall be terminated subsequent to a
Change in Control and during the term of this Agreement by (i) the Employers
for
other than Cause, Disability, Retirement or the Executive’s death or (ii) the
Executive for Good Reason as defined in Section 9(a)(i) hereof, then the
Employers shall pay to the Executive a severance benefit in a lump sum payment,
within five (5) days after the effective time of such termination of employment
equal to the sum of (i) three times his Base Salary as of the date of
termination of his employment, (ii) three times the highest level of cash
incentive compensation earned by the Executive from the Employers or any
subsidiary thereof in any one of the three calendar years immediately preceding
the year in which the termination occurs and (iii) the amounts specified
in
Sections 9(b)(i), (ii), (iv), (vi), (vii) and (viii) (notwithstanding any
contrary language contained therein with respect to payment being over a
longer
time period) except in calculating the amount of such benefits, to the extent
applicable, the Severance Benefits Period will be for a period of three years
commencing on the date of the termination of the Executive’s employment. In
addition, for purposes of calculating the amount due pursuant to clause (ii)
above, bonuses earned under the Bank’s Performance Unit Plan will not be
included in calculating the highest level of cash incentive
compensation. In calculating the benefits due to the Executive under
Section 9(b)(vii) with respect to the Bank’s 2004 Supplemental Executive
Retirement Plan related to its pension plan, in accordance with the terms
thereof, the Executive will be treated as having attained the age equal to
the
greater of (x) his actual age as of the date of termination plus three years
or
(y) age 55. In addition, the Employers shall provide the
Executive with the benefits provided for in Section 9(b)(iii) for the Severance
Benefits Period, as adjusted above to be for a period of three years subsequent
to termination of employment, subject to compliance with the last proviso
clause
contained in such subsection. In the event that the Employers are
unable to provide the benefits set forth in said Section 9(b)(iii) due to
the
change in the Executive’s status to that of a non-employee, the Employers shall
include in the lump sum payment due pursuant to the terms of this Section
11(b)
the value of the benefits required to be provided by said Section 9(b)(iii)
for
the Severance Benefits Period as amended by this Section 11(b). The
severance and other benefits payable pursuant to this Section 11(b) shall
not be
subject to reduction pursuant to the provisions of Section
9(c).
12
SECTION
12. TAX
INDEMNIFICATION.
(a) If
the
payments and benefits pursuant to this Agreement, either alone or together
with
other payments and benefits which the Executive has the right to receive
from
the Employers and their subsidiaries, would constitute a “parachute payment” as
defined in Section 280G(b)(2) of the Code (the “Initial Parachute Payment”),
then the Company shall pay to the Executive, within ten (10) business days
after
the date of termination and subject to applicable withholding requirements,
a
cash amount equal to the sum of the following:
(i) twenty
(20) percent (or such other percentage equal to the tax rate imposed by Section
4999 of the Code) of the amount by which the Initial Parachute Payment exceeds
the Executive’s “base amount” from the Employers and their subsidiaries
(including their predecessors), as defined in Section 280G(b)(3) of the Code,
with the difference between the Initial Parachute Payment and the Executive’s
base amount being hereinafter referred to as the “Initial Excess Parachute
Payment”;
(ii) such
additional amount (tax allowance) as may be necessary to compensate the
Executive for the payment by the Executive of state, local and federal income
and excise taxes on the payment provided under clause (i) above and on any
payments under this clause (ii). In computing such tax allowance, the
payment to be made under clause (i) above shall be multiplied by the “gross up
percentage” (“GUP”). The GUP shall be determined as
follows:
Tax
Rate
GUP = _________
1-
Tax
Rate
The
Tax Rate for
purposes of computing the GUP shall be the highest marginal federal, state
and
local income and employment-related tax rate (including Social Security and
Medicare taxes), including any applicable excise tax rate, applicable to
the
Executive in the year in which the payment under clause (i) above is made,
and
shall also reflect the phase-out of deductions and the ability to deduct
certain
of such taxes.
13
(c) In
each calendar year that the Executive receives payments of benefits that
constitute a parachute payment, the Executive shall report on his state,
local
and federal income tax returns such information as is consistent with the
determination made by the independent tax counsel or accountants of the Company
as described above. The Company shall indemnify and hold the
Executive harmless from any and all losses, costs and expenses (including
without limitation, reasonable attorneys’ fees, interest, fines and penalties)
which the Executive incurs as a result of so reporting such information,
with
such indemnification to be paid by the Company to the Executive as soon as
practicable and in any event no later than March 15 of the year immediately
following the year in which the amount subject to indemnification was
determined. The Executive shall promptly notify the Company in writing whenever
the Executive receives notice of the institution of a judicial or administrative
proceeding, formal or informal, in which the federal tax treatment under
Section
4999 of the Code of any amount paid or payable under this Section 12 is being
reviewed or is in dispute. The Company shall assume control at its
expense over all legal and accounting matters pertaining to such federal
tax
treatment (except to the extent necessary or appropriate for the Executive
to
resolve any such proceeding with respect to any matter unrelated to amounts
paid
or payable pursuant to this Section 12) and the Executive shall cooperate
fully
with the Company in any such proceeding. The Executive shall not
enter into any compromise or settlement or otherwise prejudice any rights
the
Company may have in connection therewith without the prior consent of the
Company.
(d) The
Executive hereby agrees with the Employers and any successor thereto to in
good
faith consider and take steps commonly used to minimize or eliminate any
tax
liability or costs that would otherwise be created by the tax indemnification
provisions set forth in Section 12 of this Agreement if requested to do so
by
the Employers or any successor thereto; provided, however, that the
foregoing language shall neither require the Executive to take or not take
any
specific action in furtherance thereof nor contravene, limit or remove any
right
or privilege provided thereto under this Agreement.
14
SECTION
13. SOURCE
OF PAYMENTS; NO DUPLICATION OF PAYMENTS.
All
payments provided
in this Agreement shall be timely paid in cash or check from the general
funds
of the Company or the Bank. Payments pursuant to this Agreement shall
be allocated between the Company and the Bank in proportion to the level
of
activity and the time expended on such activities by the Executive as determined
by the Company and the Bank on a quarterly basis, unless the applicable
provision of this Agreement specifies that the payment shall be made by either
the Company or the Bank. In no event shall the Executive receive
duplicate payments or benefits from the Company and the Bank.
SECTION
14. COVENANT
NOT TO COMPETE.
In
the event the
Executive’s employment with the Employers is terminated for any reason prior to
the expiration of the Employment Period (except as set forth below), the
Executive hereby covenants and agrees that for a period of two years following
the date of his termination of employment with the Employers (or, if less,
for
the Severance Benefits Period), he shall not, without the written consent
of the
Employers, become an officer, employee, consultant, director or trustee of
any
savings bank, savings and loan association, savings and loan holding company,
bank or bank holding company, or any direct or indirect subsidiary or affiliate
of any such entity, that entails working within any county in which the Company
or the Bank maintains an office as of the date of termination of the Executive’s
employment. In addition, in the event of a breach by the Executive of
any of the provisions of this Section 14, the Executive acknowledges that
the
Employers will seek to recoup the amounts paid to the Executive pursuant
to
Section 9(b)(ix) of this Agreement, up to the full value reasonably assigned
to
the breach of the non-competition provisions of this Section 14 by the
Employers, provided that no such action may be taken without the Employers
providing the Executive not less than twenty (20) days written notice of
their
intent to take such action and giving the Executive the right to cure such
breach within ten (10) days of the Executive’s receipt of such notice. In
addition, the Employers may avail themselves of such other remedies that
may be
available to them as a result of any breach of this Section 14 by the Executive,
with such remedies to be cumulative and not mutually exclusive. This
section shall not be applicable if the Executive is terminated upon or within
one year subsequent to a Change in Control, provided that such termination
is
for reasons other than Cause as defined in Section 10(a)(i) hereof.
SECTION
15. CONFIDENTIALITY.
Unless
he obtains the
prior written consent of the Employers, the Executive shall at all times
keep
confidential and shall refrain from using for the benefit of himself, or
any
person or entity other than the Employers or their subsidiaries or affiliates,
any material document or information obtained from the Employers or their
subsidiaries or affiliates, in the course of his employment with any of them
concerning their properties, operations or business (unless such document
or
information is readily ascertainable from public or published information
or
trade sources or has otherwise been made available to the public through
no
fault of his own) until the same ceases to be material (or becomes so
ascertainable or available); provided, however, that nothing in this
Section 15 shall prevent the Executive, with or without the Employers’ consent,
from participating in or disclosing documents or information in connection
with
any judicial or administrative investigation, inquiry or proceeding or the
Company’s public reporting requirements to the extent that such participation or
disclosure is required under applicable law.
15
SECTION
16. SOLICITATION.
The
Executive hereby
covenants and agrees that, for a period of two years following his termination
of employment with the Employers for any reason, he shall not, without the
written consent of the Employers, either directly or indirectly:
(a) solicit,
offer employment to, or take any other action intended, or that a reasonable
person acting in like circumstances would expect, to have the effect of causing
any officer or employee of the Employers or any of their subsidiaries or
affiliates to terminate his or her employment and accept employment or become
affiliated with, or provide services for compensation in any capacity whatsoever
to, any savings bank, savings and loan association, bank, bank holding company,
savings and loan holding company, or other institution engaged in the business
of accepting deposits, making loans or doing business within the counties
specified in Section 14;
(b) provide
any information, advice or recommendation with respect to any such officer
or
employee to any savings bank, savings and loan association, bank, bank holding
company, savings and loan holding company, or other institution engaged in
the
business of accepting deposits, making loans or doing business within the
counties specified in Section 14, that is intended, or that a reasonable
person
acting in like circumstances would expect, to have the effect of causing
any
officer or employee of the Employers or any of their subsidiaries or affiliates
to terminate his or her employment and accept employment or become affiliated
with, or provide services for compensation in any capacity whatsoever to,
any
savings bank, savings and loan association, bank, bank holding company, savings
and loan holding company, or other institution engaged in the business of
accepting deposits, making loans or doing business within the counties specified
in Section 14; or
(c) solicit,
provide any information, advice or recommendation or take any other action
intended, or that a reasonable person acting in like circumstances would
expect,
to have the effect of causing any customer of the Company or the Bank to
terminate an existing business or commercial relationship with the Company
or
the Bank.
SECTION
17. NO
EFFECT ON EMPLOYEE BENEFIT PLANS OR PROGRAMS.
The
termination of
the Executive’s employment during the Employment Period or thereafter, whether
by the Employers or by the Executive, shall have no effect on the vested
rights
of the Executive under the Company’s or the Bank’s qualified or non-qualified
retirement, pension, savings, thrift, profit-sharing or stock bonus plans,
group
life, health (including hospitalization, medical and major medical), dental,
accident and long term disability insurance plans, or other employee benefit
plans or programs, or compensation plans or programs in which the Executive
was
a participant.
16
SECTION
18. SUCCESSORS
AND ASSIGNS.
(a) This
Agreement is personal to each of the parties hereto, and no party may assign
or
delegate any of its rights or obligations hereunder without first obtaining
the
written consent of the other parties; provided, however, that the Employers
will
require any successor or assign (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of the Employers, by an assumption agreement in form and substance
satisfactory to the Executive, to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Employers would
be
required to perform it if no such succession or assignment had taken
place. Failure of the Employers to obtain such an assumption
agreement prior to the effectiveness of any such succession or assignment
shall
be a breach of this Agreement and shall entitle the Executive to compensation
from the Employers in the same amount and on the same terms as the compensation
pursuant to Section 9 or 11 hereof. For purposes of implementing the
provisions of this Section 18(a), the date which any such succession without
an
assumption agreement becomes effective shall be deemed the date of termination
of the Executive’s employment.
(b) This
Agreement and all rights of the Executive hereunder shall inure to the benefit
of and be enforceable by the Executive’s personal and legal representatives,
executors, administrators, successors, heirs, distributees, devises and
legatees.
SECTION
19. NOTICES.
Any
communication
required or permitted to be given under this Agreement, including any notice,
direction, designation, consent, instruction, objection or waiver, shall
be in
writing and shall be deemed to have been given at such time as it is delivered
personally, or five days after mailing if mailed, postage prepaid, by registered
or certified mail, return receipt requested, addressed to such party at the
address listed below or at such other address as one such party may by written
notice specify to the other party:
17
If
to the
Executive:
Xxxxxxx
X. Xxxxxxxxxx
At
the
address last appearing
on
the
personnel records of
the
Employers
If
to the
Employers:
NewAlliance
Bancshares, Inc.
NewAlliance
Bank
000
Xxxxxx Xxxxxx
Xxx
Xxxxx, XX 00000
(or
the
address of the Company’s or the Bank’s principal executive office, if
different)
Attention:
Chairman of the Board
with
a
copy, in the case of a notice to the Employers, to:
Elias,
Matz, Xxxxxxx & Xxxxxxx L.L.P.
000
00xx Xxxxxx,
X.X.
Xxxxxxxxxx,
X.X. 00000
Attention:
Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxx
X.
Xxxxx, Esq.
SECTION
20. INDEMNIFICATION
FOR ATTORNEYS’ FEES.
(a) The
Employers shall indemnify, hold harmless and defend the Executive against
reasonable costs, including legal fees and expenses, incurred by him in
connection with or arising out of any action, suit or proceeding in which
he may
be involved, as a result of his efforts, in good faith, to defend or enforce
the
terms of this Agreement. For purposes of this Agreement, any
settlement agreement which provides for payment of any amounts in settlement
of
the Employers’ obligations hereunder shall be conclusive evidence of the
Executive’s entitlement to indemnification hereunder, and any such
indemnification payments shall be in addition to amounts payable pursuant
to
such settlement agreement, unless such settlement agreement expressly provides
otherwise.
(b) The
Employers’ obligation to make the payments provided for in this Agreement and
otherwise to perform their obligations hereunder shall not be affected by
any
set-off, counterclaim, recoupment, defense or other claim, right or action
which
the Employers may have against the Executive or others. Unless it is
determined that a claim made by the Executive was either frivolous or made
in
bad faith, the Employers agree to pay as incurred (and in any event no later
than March 15 of the year immediately following the year in which incurred),
to
the full extent permitted by law, all legal fees and expenses which the
Executive may reasonably incur as a result of or in connection with his
consultation with legal counsel or arising out of any action, suit, proceeding
or contest (regardless of the outcome thereof) by the Employers, the Executive
or others regarding the validity or enforceability of, or liability under,
any
provision of this Agreement or any guarantee of performance thereof (including
as a result of any contest by the Executive about the amount of any payment
pursuant to this Agreement), plus in each case interest on any delayed payment
at the applicable federal rate provided for in Section 7872(f)(2)(A) of the
Code. This Section 20(b) shall apply whether such consultation,
action, suit, proceeding or contest arises before, on, after or as a result
of a
Change in Control.
18
SECTION
21. SEVERABILITY.
A
determination that
any provision of this Agreement is invalid or unenforceable shall not affect
the
validity or enforceability of any other provision hereof.
SECTION
22. WAIVER.
Failure
to insist
upon strict compliance with any of the terms, covenants or conditions hereof
shall not be deemed a waiver of such term, covenant or condition. A
waiver of any provision of this Agreement must be made in writing, designated
as
a waiver, and signed by the party against whom its enforcement is
sought. Any waiver or relinquishment of any right or power hereunder
at any one or more times shall not be deemed a waiver or relinquishment of
such
right or power at any other time or times.
SECTION
23. COUNTERPARTS.
This
Agreement may be
executed in two or more counterparts, each of which shall be deemed an original,
and all of which shall constitute one and the same Agreement.
SECTION
24. GOVERNING
LAW.
This
Agreement shall
be governed by and construed and enforced in accordance with the laws of
the
State of Connecticut applicable to contracts entered into and to be performed
entirely within the State of Connecticut, except to the extent that federal
law
controls.
SECTION
25. HEADINGS
AND CONSTRUCTION.
The
headings of
sections in this Agreement are for convenience of reference only and are
not
intended to qualify the meaning of any section. Any reference to a
section number shall refer to a section of this Agreement, unless otherwise
stated.
19
SECTION
26. ENTIRE
AGREEMENT; MODIFICATIONS.
This
instrument
contains the entire agreement of the parties relating to the subject matter
hereof, and supersedes in its entirety any and all prior agreements,
understandings or representations relating to the subject matter hereof,
including that certain employment agreement dated as of April 1, 2002 between
the Bank and the Executive and the amended and restated employment agreement
effective as of January 3, 2006 between the Employers and the
Executive. No modifications of this Agreement shall be valid unless
made in writing and signed by the parties hereto; provided, however, that
if the
Employers determine, after a review of the final regulations issued under
Section 409A of the Code and all applicable IRS guidance, that this Agreement
should be further amended to avoid triggering the tax and interest penalties
imposed by Section 409A of the Code, the Employers may amend this Agreement
to
the extent necessary to avoid triggering the tax and interest penalties imposed
by Section 409A of the Code.
SECTION
27. REQUIRED
REGULATORY PROVISIONS.
Notwithstanding
anything herein contained to the contrary, any payments to the Executive
by the
Employers, whether pursuant to this Agreement or otherwise, are subject to
and
conditioned upon their compliance with Section 18(k) of the Federal Deposit
Insurance Act, 12 U.S.C. Section 1828(k), and the regulations promulgated
thereunder in 12 C.F.R. Part 359.
SECTION
28. DISPUTE RESOLUTION.
(a) In
the
event of any dispute, claim, question or disagreement arising out of or relating
to this Agreement or the breach hereof, the parties hereto shall use their
best
efforts to settle such dispute, claim, question or disagreement. To
this effect, they shall consult and negotiate with each other, in good faith,
and, recognizing their mutual interests, attempt to reach a just and equitable
solution satisfactory to both parties.
(b) If
they do not reach such a solution within a period of thirty (30) days, then
the
parties agree first to endeavor in good faith to amicably settle their dispute
by mediation under the Commercial Mediation Rules of the American Arbitration
Association (the AAAA”),
before resorting to arbitration.
(c) Thereafter,
any unresolved controversy or claim arising out of or relating to this Agreement
or the breach thereof, upon notice by any party to the other, shall be submitted
to and finally settled by arbitration in accordance with the Commercial
Arbitration Rules (the ARules”)
of
the AAA in effect at the time demand for arbitration is made by any such
party. The parties shall mutually agree upon a single arbitrator
within thirty (30) days of such demand. In the event that the parties
are unable to so agree within such thirty (30) day period, then within the
following thirty (30) day period, one arbitrator shall be named by each
party. A third arbitrator shall be named by the two arbitrators so
chosen within ten (10) days after the appointment of the first two
arbitrators. In the event that the third arbitrator is not agreed
upon, he or she shall be named by the AAA. Arbitration shall occur in
New Haven, Connecticut or such other location as may be mutually agreed to
by
the parties.
20
(d) The
award made by all or a majority of the panel of arbitrators shall be final
and
binding, and judgment may be entered based upon such award in any court of
law
having competent jurisdiction. The award is subject to confirmation,
modification, correction or vacation only as explicitly provided in Title
9 of
the United States Code. The prevailing party shall be entitled to
receive any award of pre- and post-award interest as well as attorney’s fees
incurred in connection with the arbitration and any judicial proceedings
related
thereto. The parties acknowledge that this Agreement evidences a
transaction involving interstate commerce. The United States
Arbitration Act and the Rules shall govern the interpretation, enforcement,
and
proceedings pursuant to this Section. Any provisional remedy which
would be available from a court of law shall be available from the arbitrators
to the parties to this Agreement pending arbitration. Either party
may make an application to the arbitrators seeking injunctive relief to maintain
the status quo, or may seek from a court of competent jurisdiction any interim
or provisional relief that may be necessary to protect the rights and property
of that party, until such times as the arbitration award is rendered or the
controversy otherwise resolved.
21
IN
WITNESS WHEREOF,
the Company and the Bank have caused this Agreement to be executed by their
duly
authorized officers and the Executive has hereunto set his hand, all as of
the
date of the restatement of this Agreement.
THIS
AGREEMENT
CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE
PARTIES.
|
_________________________________
|
|
|
Xxxxxxx
X. Xxxxxxxxxx, Executive
|
|
|
ATTEST:
|
NEWALLIANCE
BANCSHARES, INC.
|
|
By:_____________________________
|
By:____________________________________
|
|
Name:__________________________
|
Name:_________________________________
|
|
Title:___________________________
|
Title:__________________________________
|
|
[Seal]
|
|
|
ATTEST:
|
NEWALLIANCE
BANK
|
|
By:_____________________________
|
By:____________________________________
|
|
Name:__________________________
|
Name:_________________________________
|
|
Title:___________________________
|
Title:__________________________________
|
|
[Seal]
|
22
