EXHIBIT 10.2
WORONOCO BANCORP, INC.
EMPLOYMENT AGREEMENT
This AGREEMENT ("Agreement") originally entered into as of March 19, 1999,
is amended and restated effective as of January 1, 2002, by and between Woronoco
Bancorp, Inc. (the "Holding Company"), a corporation organized under the laws of
Delaware, with its principal offices at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇, and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("Executive"). Any reference to
"Institution" herein shall mean Woronoco Savings Bank or any successor to
Woronoco Savings Bank.
WHEREAS, the Holding Company wishes to continue to assure itself of the
services of Executive for the period provided in this Agreement; and
WHEREAS, Executive is willing to continue to serve in the employ of the
Holding Company on a full-time basis for the term of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
and upon the other terms and conditions hereinafter provided, the parties hereby
agree as follows:
1. POSITION AND RESPONSIBILITIES.
(a) During the period of Executive's employment under this Agreement,
Executive agrees to serve as Executive Vice President and Chief Financial
Officer of the Holding Company. Executive shall render administrative and
management services to the Holding Company such as are customarily performed by
persons in a similar executive capacity. During the term of this Agreement,
Executive also agrees to serve as an officer of any subsidiary of the Holding
Company.
(b) During the period of Executive's employment under this agreement,
except for periods of absence occasioned by illness, vacation, and reasonable
leaves of absence, Executive shall devote substantially all her business time,
attention, skill, and efforts to the faithful performance of her duties under
this Agreement, including activities and services related to the organization,
operation and management of the Holding Company and its subsidiaries, as well as
participation in community, professional and civic organizations; provided,
however, that, with the approval of the Board of Directors of the Holding
Company (the "Board"), as evidenced by a resolution of the Board, from time to
time, Executive may serve, or continue to serve, on the boards of directors of,
and hold any other offices or positions in, companies or organizations, which,
in the Board's judgment, will not present any conflict of interest with the
Holding Company or its subsidiaries, or materially affect the performance of
Executive's duties pursuant to this Agreement.
2. TERM OF EMPLOYMENT.
(a) The period of Executive's employment under this Agreement, as amended
and restated, shall continue for a period of thirty-six (36) full calendar
months from the effective
date. Commencing on the date of the execution of this Agreement, the term of
this Agreement shall be extended for one day each day until such time as the
Board or Executive elects not to extend the term of the Agreement by giving
written notice to the other party in accordance with Section 8 of this
Agreement, in which case the term of this Agreement shall become fixed and shall
end on the third anniversary of the date of such written notice.
(b) Notwithstanding anything herein contained to the contrary, either
Executive or the Holding Company may terminate Executive's employment with the
Holding Company at any time during the term of this Agreement, subject to the
terms and conditions of this Agreement.
3. COMPENSATION, BENEFITS AND REIMBURSEMENT.
(a) Base Salary. The Holding Company shall pay Executive an annual salary
of not less than $150,000 ("Base Salary"). Executive's Base Salary shall be
payable in accordance with the normal payroll practices of the Holding Company
or the Institution. Whenever used in this Agreement, Base Salary shall include
any amounts of compensation deferred by Executive under any tax-qualified
retirement or welfare benefit plan or any other deferred compensation
arrangement maintained by the Holding Company or the Institution. During the
term of this Agreement, the Board or a committee appointed by the Board shall
review Executive's Base Salary at least annually and the Board or the committee
may increase Executive's Base Salary at any time. Any increase in Executive's
Base Salary shall become a term of this Agreement and shall be the new "Base
Salary" for purposes of this Agreement.
(b) Incentive Compensation. In addition to her Base Salary, Executive
shall be entitled to participate in and shall receive payments under any
incentive compensation bonus program sponsored by the Holding Company or the
Institution. Executive's incentive compensation shall be determined by the Board
or a committee appointed by the Board at a level appropriate for executive
officers.
(c) Automobile and Cellular Phone. The Holding Company or the Institution
shall provide Executive with, and Executive shall have the primary use of, an
automobile owned or leased by the Holding Company or the Institution and the
Holding Company or the Institution shall pay (or reimburse Executive) for all
expenses of insurance, registration, operation and maintenance of the
automobile. Executive shall comply with reasonable reporting and expense
limitations on the use of such automobile, as the Board of Directors may
establish from time to time, and the Holding Company or the Institution shall
annually include on Executive's Form W-2 any amount attributable to Executive's
personal use of such automobile. The Holding Company or the Institution shall
also provide Executive with a cellular phone and shall pay (or reimburse
Executive) for all reasonable expenses related to the business use of such
phone.
(d) Vacation; Holidays; Sick Time. Executive shall be entitled to vacation
in accordance with the standard vacation policies of the Holding Company or the
Institution for senior executive officers, but in no event less than five (5)
weeks vacation during each year of employment. Executive shall take vacation at
a time mutually agreed upon by the Holding Company or the Institution and
Executive. Executive shall receive her Base Salary and other benefits during
periods of vacation. Executive shall also be entitled to paid legal holidays in
accordance with the policies of the Holding Company or the Institution.
Executive shall also be
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entitled to sick leave in accordance with the policies of the Holding Company or
the Institution for senior executive officers, but in no event less than the
number of days of sick leave per year to which Executive was entitled at the
effective time of this Agreement.
(e) Other Employee Benefits. In addition to any other compensation or
benefits provided for under this Agreement, Executive shall be entitled to
continue to participate in any employee benefit plans, arrangements and
perquisites of the Holding Company or the Institution in which she participates
or was eligible to participate as of March 19, 1999. Executive shall also be
entitled to participate in any employee benefits or perquisites the Holding
Company or the Institution offers to full-time employees or executive management
in the future. The Holding Company or the Institution will not, without
Executive's prior written consent, make any changes in such plans, arrangements
or perquisites which would adversely affect Executive's rights or benefits
thereunder without separately providing for an arrangement that ensures
Executive receives or will receive the economic value that Executive would
otherwise lose as a result of such adverse effect. Without limiting the
generality of the foregoing provisions of this paragraph, Executive shall be
entitled to participate in or receive benefits under all plans relating to stock
options, restricted stock awards, stock purchases, pension, profit sharing,
employee stock ownership, supplemental retirement, group life insurance, medical
and other health and welfare coverage that are made available by the Holding
Company or the Institution at the effective time of this Agreement or at any
time in the future during the term of this Agreement, subject to and on a basis
consistent with the terms, conditions and overall administration of such plans
and arrangements. Nothing paid to Executive under any such plans or arrangements
will be deemed to be in lieu of other compensation to which Executive is
entitled under this Agreement.
4. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION.
(a) Upon the occurrence of an Event of Termination (as herein defined)
during Executive's term of employment under this Agreement, the provisions of
this Section 4 shall apply. Unless Executive otherwise agrees, as used in this
Agreement, an "Event of Termination" shall mean and include any one or more of
the following: (i) the termination by the Holding Company of Executive's
full-time employment for any reason other than a termination governed by Section
7 of this Agreement; or (ii) Executive's resignation from the Holding Company,
upon, any (A) failure to reappoint Executive as Executive Vice President and
Chief Financial Officer, (B) material change in Executive's function, duties, or
responsibilities with the Holding Company or its subsidiaries, which change
would cause Executive's position(s) to become one of lesser responsibility,
importance, or scope from the position and attributes thereof described in
Section 1 of this Agreement, (C) relocation of Executive's principal place of
employment by more than 25 miles from its location at the effective date of this
Agreement, (D) material reduction in the benefits and perquisites to Executive
from those being provided as of the effective date of this Agreement, (E)
liquidation or dissolution of the Holding Company or the Institution, or (F)
breach of this Agreement by the Holding Company. Upon the occurrence of any
event described in clauses (A), (B), (C), (D), (E) or (F), above, Executive
shall have the right to terminate her employment under this Agreement by
resignation upon not less than sixty (60) days prior written notice given within
six full calendar months after the event giving rise to Executive's right to
elect to terminate her employment.
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(b) Upon Executive's termination from employment in accordance with
paragraph (a) of this Section 4, on the Date of Termination, as defined in
Section 8 of the Agreement, the Holding Company shall be obligated to pay
Executive, or, in the event of her death following the Date of Termination, her
beneficiary or beneficiaries, or her estate, as the case may be, an amount equal
to the sum of: (i) the Base Salary and incentive compensation that would have
been paid to Executive for the remaining term of this Agreement had the Event of
Termination not occurred (based on Executive's then current Base Salary and most
recently paid or accrued bonus at the time of the Event of Termination) plus
(ii) the value, as calculated by a recognized firm customarily performing such
valuation, of any stock options which, as of the Date of Termination, have been
granted to Executive but are not exercisable by Executive and the value of any
restricted stock awards which have been granted to Executive, but in which
Executive does not have a non-forfeitable or fully-vested interest as of the
Date of Termination plus (iii) the value of all employee benefits that would
have been provided to Executive for the remaining term of this Agreement had an
Event of Termination not occurred, based on the most recent level of
contribution, accrual or other participation by or on behalf of Executive. At
the election of Executive, which election is to be made prior to the Date of
Termination, such payments shall be made in a lump sum. In the event that no
election is made, payment to Executive will be made on a monthly basis in
approximately equal installments during the remaining unexpired term of the
Agreement. Such payments shall not be reduced in the event Executive obtains
other employment following termination of employment.
(c) In addition to the payments provided for in paragraph (b) of this
Section 4, upon Executive's termination of employment in accordance with the
provisions of paragraph (a) of this Section 4, to the extent that the Holding
Company or the Institution continues to offer any life, medical, health,
disability or dental insurance plan or arrangement in which Executive
participates on the last day of her employment (each being a "Welfare Plan"),
Executive and her covered dependents shall continue participating in such
Welfare Plans, subject to the same premium contributions on the part of
Executive as were required immediately prior to the Event of Termination until
the earlier of (i) her death (ii) her employment by another employer other than
one of which she is the majority owner or (iii) the end of the remaining term of
this Agreement. If the Holding Company or the Institution does not offer the
Welfare Plans at any time after the Event of Termination, then the Holding
Company shall provide Executive with a payment equal to the premiums for such
benefits for the period which runs until the earlier of (i) her death (ii) her
employment by another employer other than one of which she is the majority owner
or (iii) the end of the remaining term of this Agreement.
5. CHANGE IN CONTROL.
(a) For purposes of this Agreement, a "Change in Control" shall mean an
event of a nature that: (i) would be required to be reported in response to Item
1(a) of the current report on Form 8-K, as in effect on the date hereof,
pursuant to Section 13 or 15(d) of the Securities Exchange Act of ▇▇▇▇ (▇▇▇
"▇▇▇▇▇▇▇▇ ▇▇▇"); or (ii) results in a Change in Control of the Institution or
the Holding Company within the meaning of the Change in Bank Control Act and the
Rules and Regulations promulgated by the Federal Deposit Insurance Corporation
("FDIC") at 12 C.F.R. (S) 303.4(a) with respect to the Institution and the Board
of Governors of the Federal Reserve System ("FRB") at 12 C.F.R. (S) 225.41(b)
with respect to the Holding Company, as in effect on the date hereof; or (iii)
results in a transaction requiring prior FRB approval under the
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Bank Holding Company Act of 1956 and the regulations promulgated thereunder by
the FRB at 12 C.F.R. (S) 225.11, as in effect on the date hereof except for the
Holding Company's acquisition of the Institution; or (iv) without limitation
such a Change in Control shall be deemed to have occurred at such time as (A)
any "person" (as the term is used in Sections 13(d) and 14(d) of the Exchange
Act) is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Institution or the
Holding Company representing 20% or more of the Institution's or the Holding
Company's outstanding securities except for any securities of the Institution
purchased by the Holding Company in connection with the conversion of the
Institution to the stock form and any securities purchased by any tax qualified
employee benefit plan of the Institution; or (B) individuals who constitute the
Board on the date hereof (the "Incumbent Board") cease for any reason to
constitute at least a majority thereof, provided that any person becoming a
director subsequent to the date hereof whose election was approved by a vote of
at least three-quarters of the directors comprising the Incumbent Board, or
whose nomination for election by the Holding Company's stockholders was approved
by the same Nominating Committee serving under an Incumbent Board, shall be, for
purposes of this clause (B), considered as though she were a member of the
Incumbent Board; or (C) a plan of reorganization, merger, consolidation, sale of
all or substantially all the assets of the Institution or the Holding Company or
similar transaction occurs in which the Institution or Holding Company is not
the resulting entity; or (D) solicitations of shareholders of the Holding
Company, by someone other than the current management of the Holding Company,
seeking stockholder approval of a plan of reorganization, merger or
consolidation of the Holding Company or Institution or similar transaction with
one or more corporations as a result of which the outstanding shares of the
class of securities then subject to the plan or transaction are exchanged for or
converted into cash or property or securities not issued by the Institution or
the Holding Company shall be distributed; or (E) a tender offer is made for 20%
or more of the voting securities of the Institution or the Holding Company.
(b) If any of the events described in paragraph (a) of this Section 5,
constituting a Change in Control, have occurred or the Board determines that a
Change in Control has occurred, Executive shall be entitled to the benefits
provided for in paragraphs (c), (d), (e), (f) and (g) of this Section 5 upon her
termination of employment at any time during the term of this Agreement on or
after the date the Change in Control occurs due to (i) Executive's dismissal,
(ii) Executive's resignation following any demotion, loss of title, office or
significant authority or responsibility, reduction in annual compensation or
benefits or relocation of her principal place of employment by more than
twenty-five (25) miles from its location immediately prior to the Change in
Control or (iii) Executive's resignation for any reason within the sixty (60)
day period following the date that is one year from the date the Change in
Control occurred, unless Executive's termination is because of Termination for
Cause; provided, however, that such benefits shall be reduced by any payment
made under Section 4 of this Agreement.
(c) Upon the occurrence of a Change in Control followed by Executive's
termination of employment, as provided for in paragraph (b) of this Section 5,
the Holding Company shall pay Executive, or in the event of her subsequent
death, her beneficiary or beneficiaries, or her estate, as the case may be, as
severance pay or liquidated damages, or both, a sum equal to the greater of: 1)
the payments and benefits due for the remaining term of the Agreement or 2)
greater of (i) three (3) times Executive's average annual compensation for the
five (5) preceding taxable years or (ii) three (3) times Executive's annual
compensation for the most recent taxable
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year. In determining Executive's annual compensation for purposes of this
Section, annual compensation shall include Base Salary and any other taxable
income, including but not limited to amounts related to the granting, vesting or
exercise of restricted stock or stock option awards (including the value
realized on the exercise of incentive stock options whether taxable or not at
the time of exercise), commissions, bonuses (whether paid or accrued for the
applicable period), as well as, severance payments, retirement benefits,
director or committee fees and fringe benefits paid or to be paid to Executive
or paid for Executive's benefit during any such year, profit sharing, employee
stock ownership plan and other retirement contributions or benefits, including
to any tax-qualified or non-tax qualified plan or arrangement (whether or not
taxable) made or accrued on behalf of Executive of such year and the value
(based on the Black-Scholes valuation method) of stock options in the year of
grant (based on the values determined for purposes of the Holding Company's FAS
123 determination in the Holding Company's financial statements for the year
that includes and immediately follows the date of vesting). At the election of
Executive, which election is to be made prior to or within thirty (30) days of
the Date of Termination on or following a Change in Control, such payment may be
made in a lump sum (without discount for early payment) on or immediately
following the Date of Termination (which may be the date a Change in Control
occurs) or paid in equal monthly installments during the thirty-six (36) months
following Executive's termination. In the event that no election is made,
payment to Executive will be made on a monthly basis during the thirty-six (36)
months following Executive's termination.
(d) Upon the occurrence of a Change in Control, Executive will be entitled
to receive benefits due her under or contributed by the Institution or the
Holding Company on her behalf pursuant to any retirement, incentive, profit
sharing or other retirement, bonus, performance, disability or other employee
benefit plan maintained by the Holding Company or the Institution on Executive's
behalf to the extent such benefits are not otherwise paid to Executive under a
separate provision of this Agreement.
(e) Upon the occurrence of a Change in Control and Executive's termination
of employment in connection therewith, the Holding Company will cause to be
continued life, medical and disability coverage substantially identical to the
coverage maintained by the Holding Company or the Institution for Executive and
any of her dependents covered under such plans prior to the Change in Control.
Such coverage and payments shall cease upon the expiration of thirty-six (36)
full calendar months following the Date of Termination. In the event Executive's
participation in any such plan or program is barred, the Holding Company shall
arrange to provide Executive and her dependents with benefits substantially
similar to those of which Executive and her dependents would otherwise have been
entitled to receive under such plans and programs from which their continued
participation is barred or provide their economic equivalent.
(f) The use or provision of any membership, license, automobile use, or
other perquisites shall be continued during the remaining term of the Agreement
on the same financial terms and obligations as were in place immediately prior
to the Change in Control. To the extent that any item referred to in this
paragraph will, at the end of the term of this Agreement, no longer be available
to Executive, Executive will have the option to purchase all rights then held by
the Holding Company or the Institution to such item for a price equal to the
then fair market value of the item.
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(g) In the event that Executive is receiving monthly payments pursuant to
Section 5(c) hereof, on an annual basis, thereafter, between the dates of
January 1 and January 31 of each year, Executive shall elect whether the balance
of the amount payable under the Agreement at that time shall be paid in a lump
sum or on a pro rata basis pursuant to such section. Such election shall be
irrevocable for the year for which such election is made.
6. CHANGE IN CONTROL RELATED PROVISIONS
(a) Notwithstanding the preceding provisions of Section 5 of this
Agreement, for any taxable year in which Executive shall be liable for the
payment of an excise tax under Section 4999 of the Code (or any successor
provision thereto), with respect to any payment in the nature of the
compensation made by the Holding Company or its subsidiaries to (or for the
benefit of) Executive pursuant to this Agreement or otherwise, the Holding
Company (or any successor thereto) shall pay to Executive an amount determined
under the following formula:
An amount equal to: (E x P) + X
WHERE:
X = E x P
-----------------
1 - [(FI x (1 - SLI)) + SLI + E + M + PO]
E = the rate at which the excise tax is assessed under Section
4999 of the Code;
P = the amount with respect to which such excise tax is
assessed, determined without regard to this Section 6;
FI = the highest marginal rate of federal income, employment, and
other taxes (other than taxes imposed under Section 4999 of
the Code) applicable to Executive for the taxable year in
question (including any effective increase in Executive's
tax rate attributable to the disallowance of any deduction);
SLI = the sum of the highest marginal rates of income and payroll
tax applicable to Executive under applicable state and local
laws for the taxable year in question (including any
effective increase in Executive's tax rate attributable to
the disallowance of any deduction);
M = highest marginal rate of Medicare tax; and
PO = adjustment for phase out of or loss of deduction, personal
exemption or other similar items.
With respect to any payment in the nature of compensation that is made to (or
for the benefit of) Executive under the terms of this Agreement or otherwise and
on which an excise tax under
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Section 4999 of the Code may or will be assessed, the payment determined under
this Section 6 shall be made to Executive on the earliest of (i) the date the
Holding Company is required to withhold such tax, (ii) the date the tax is
required to be paid by Executive, or (iii) at the time of the Change in Control.
It is the intention of the parties that the Holding Company provide Executive
with a full tax gross-up under the provisions of this Section 6, so that on a
net after-tax basis, the result to Executive shall be the same as if the excise
tax under Section 4999 (or any successor provisions) of the Code had not been
imposed. The payment may be adjusted, as appropriate, if alternative minimum tax
rules under the Code are applicable to Executive.
(b) Notwithstanding the foregoing, if it is (i) initially determined by
the Holding Company's tax advisors that no excise tax under Section 4999 is due
with respect to any payment or benefit described in the first paragraph of
Section 6(a) and, thereafter, it is determined in a final judicial determination
or a final administrative settlement that the Section 4999 excise tax is due
with respect to such payments or benefits or (ii) subsequently determined in a
final judicial determination or a final administrative settlement to which
Executive is a party that the excise tax under Section 4999 is due or that the
excess parachute payment as defined in Section 4999 of the Code is more than the
amount determined as "P", above (such revised determination under (i) or (ii)
above being thereafter referred to as the "Determinative Excess Parachute
Payment"), then the tax advisors of the Holding Company (or any successor
thereto) shall determine the amount (the "Adjustment Amount"), the Holding
Company (or its successor) must pay to Executive, in order to put Executive in
the same position as Executive would have been if the amount determined as "P"
above had been equal to the Determinative Excess Parachute Payment. In
determining the Adjustment Amount, the tax advisors shall take into account any
and all taxes (including any penalties of any nature and interest) paid or
payable by Executive in connection with such final judicial determination or
final administrative settlement. As soon as practicable after the Adjustment
Amount has been so determined, the Holding Company shall pay the Adjustment
Amount to Executive.
(c) The Holding Company (or its successor) shall indemnify and hold
Executive harmless from any and all losses, costs and expenses (including
without limitation, reasonable attorney's fees, reasonable accountant's fees,
interest, fines and penalties of any kind) which Executive incurs as a result of
any administrative or judicial review of Executive's liability under Section
4999 of the Code by the Internal Revenue Service or any comparable state agency
through and including a final judicial determination or final administrative
settlement of any dispute arising out of Executive's liability for the Section
4999 excise tax or otherwise relating to the classification for purposes of
Section 280G of the Code of any payment or benefit in the nature of compensation
made or provided to Executive by the Holding Company or any successor thereto.
Executive shall promptly notify the Holding Company in writing whenever
Executive receives notice of the commencement of any 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 Supplemental Agreement
is being reviewed or is in dispute (including a notice of audit or other inquiry
concerning the reporting of Executive's liability under Section 4999). The
Holding Company (or its successor) may assume control at its expense over all
legal and accounting matters pertaining to such federal or state tax treatment
(except to the extent necessary or appropriate for Executive to resolve any such
proceeding with respect to any matter unrelated to amounts paid or payable
pursuant to this contract) and Executive shall cooperate fully with the Holding
Company in any such proceeding. Executive shall not enter
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into any compromise or settlement or otherwise prejudice any rights the Holding
Company (or its successor) may have in connection therewith without prior
consent to the Holding Company (or its successor). In the event that the Holding
Company (or any successor thereto) elects not to assume control over such
matters, the Holding Company (or any successor thereto) shall promptly reimburse
Executive for all expenses related thereto as and when incurred upon
presentation of appropriate documentation relating thereto.
7. TERMINATION FOR CAUSE.
The term "Termination for Cause" shall mean termination because of
Executive's personal dishonesty, willful misconduct, any breach of fiduciary
duty involving personal profit, intentional failure to perform stated duties,
willful violation of any law, rule, regulation (other than traffic violations or
similar offenses), final cease and desist order or material breach of any
provision of this Agreement. Notwithstanding the foregoing, Executive shall not
be deemed to have been terminated for cause unless and until there shall have
been delivered to her a Notice of Termination which shall include a copy of a
resolution duly adopted by the affirmative vote of not less than three-fourths
(3/4) of the members of the Board at a meeting of the Board called and held for
that purpose (after reasonable notice to Executive and an opportunity for her,
together with counsel, to be heard before the Board), finding that in the good
faith opinion of the Board, Executive was guilty of conduct justifying
Termination for Cause and specifying the particulars thereof in detail.
Executive shall not have the right to receive compensation or other benefits for
any period after Termination for Cause. During the period beginning on the date
of the Notice of Termination for Cause pursuant to Section 8 hereof through the
Date of Termination, stock options granted to Executive under any stock option
plan shall not be exercisable nor shall any unvested awards granted to Executive
under any stock benefit plan of the Institution, the Holding Company or any
subsidiary or affiliate thereof, vest. At the Date of Termination, such stock
options and any such unvested awards shall become null and void and shall not be
exercisable by or delivered to Executive at any time subsequent to such
Termination for Cause.
8. NOTICE.
(a) Any purported termination by the Holding Company or by Executive shall
be communicated by Notice of Termination to the other party hereto. For purposes
of this Agreement, a "Notice of Termination" shall mean a written notice which
shall indicate the specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive's employment under the provision so
indicated.
(b) "Date of Termination" shall mean the date specified in the Notice of
Termination (which, in the case of a Termination for Cause, shall not be less
than thirty (30) days from the date such Notice of Termination is given).
(c) If, within thirty (30) days after any Notice of Termination is given,
the party receiving such Notice of Termination notifies the other party that a
dispute exists concerning the termination, except upon the occurrence of a
Change in Control and voluntary termination by Executive in which case the Date
of Termination shall be the date specified in the Notice, the Date of
Termination shall be the date on which the dispute is finally determined, either
by
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mutual written agreement of the parties, by a binding arbitration award, or by a
final judgment, order or decree of a court of competent jurisdiction (the time
for appeal therefrom having expired and no appeal having been perfected) and
provided further that the Date of Termination shall be extended by a notice of
dispute only if such notice is given in good faith and the party giving such
notice pursues the resolution of such dispute with reasonable diligence.
Notwithstanding the pendency of any such dispute, the Holding Company will
continue to pay Executive her full compensation in effect when the notice giving
rise to the dispute was given (including, but not limited to, Base Salary) and
continue her as a participant in all compensation, benefit and insurance plans
in which she was participating when the notice of dispute was given, until the
dispute is finally resolved in accordance with this Agreement. Amounts paid
under this Section are in addition to all other amounts due under this Agreement
and shall not be offset against or reduce any other amounts due under this
Agreement.
9. POST-TERMINATION OBLIGATIONS.
All payments and benefits to Executive under this Agreement shall be
subject to Executive's compliance with this Section 9 for one (1) full year
after the earlier of the expiration of this Agreement or termination of
Executive's employment with the Holding Company. Executive shall, upon
reasonable notice, furnish such information and assistance to the Holding
Company as may reasonably be required by the Holding Company in connection with
any litigation in which it or any of its subsidiaries or affiliates is, or may
become, a party.
10. NON-COMPETITION AND NON-DISCLOSURE.
(a) Upon any termination of Executive's employment hereunder pursuant to
Section 4 hereof, Executive agrees not to compete with the Holding Company or
its subsidiaries for a period of one (1) year following such termination in any
city, town or county in which Executive's normal business office is located and
the Holding Company or any of its subsidiaries has an office or has filed an
application for regulatory approval to establish an office, determined as of the
effective date of such termination, except as agreed to pursuant to a resolution
duly adopted by the Board. Executive agrees that during such period and within
said cities, towns and counties, Executive shall not work for or advise, consult
or otherwise serve with, directly or indirectly, any entity whose business
materially competes with the depository, lending or other business activities of
the Holding Company or its subsidiaries. The parties hereto, recognizing that
irreparable injury will result to the Holding Company or its subsidiaries, its
business and property in the event of Executive's breach of this Subsection
10(a) agree that in the event of any such breach by Executive, the Holding
Company or its subsidiaries, will be entitled, in addition to any other remedies
and damages available, to an injunction to restrain the violation hereof by
Executive, Executive's partners, agents, servants, employees and all persons
acting for or under the direction of Executive. Executive represents and admits
that in the event of the termination of her employment pursuant to Section 4
hereof, Executive's experience and capabilities are such that Executive can
obtain employment in a business engaged in other lines and/or of a different
nature than the Holding Company or its subsidiaries, and that the enforcement of
a remedy by way of injunction will not prevent Executive from earning a
livelihood. Nothing herein will be construed as prohibiting the Holding Company
or its subsidiaries from pursuing any other remedies available to the Holding
Company or its subsidiaries for such breach or threatened breach, including the
recovery of damages from Executive.
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(b) Executive recognizes and acknowledges that the knowledge of the
business activities and plans for business activities of the Holding Company and
its subsidiaries as it may exist from time to time, is a valuable, special and
unique asset of the business of the Holding Company and its subsidiaries.
Executive will not, during or after the term of her employment, disclose any
knowledge of the past, present, planned or considered business activities of the
Holding Company and its subsidiaries thereof to any person, firm, corporation,
or other entity for any reason or purpose whatsoever unless expressly authorized
by the Board or required by law. Notwithstanding the foregoing, Executive may
disclose any knowledge of banking, financial and/or economic principles,
concepts or ideas which are not solely and exclusively derived from the business
plans and activities of the Holding Company. In the event of a breach or
threatened breach by Executive of the provisions of this Section, the Holding
Company will be entitled to an injunction restraining Executive from disclosing,
in whole or in part, the knowledge of the past, present, planned or considered
business activities of the Holding Company or its subsidiaries or from rendering
any services to any person, firm, corporation, other entity to whom such
knowledge, in whole or in part, has been disclosed or is threatened to be
disclosed. Nothing herein will be construed as prohibiting the Holding Company
from pursuing any other remedies available to the Holding Company for such
breach or threatened breach, including the recovery of damages from Executive.
11. DEATH AND DISABILITY
(a) Death. Notwithstanding any other provision of this Agreement to the
contrary, in the event of Executive's death during the term of this Agreement,
the Holding Company shall immediately pay her estate any salary and bonus
accrued but unpaid as of the date of her death, and, for a period of six (6)
months after Executive's death, the Holding Company shall continue to provide
medical insurance benefits existing on the date of her death and shall pay
Executive's designated beneficiary all compensation that would otherwise be
payable to him pursuant to Section 3(a) of this Agreement. This provision shall
not negate any rights Executive or her beneficiaries may have to death benefits
under any employee benefit plan of the Holding Company or the Institution.
(b) Disability
(i) The Holding Company or Executive may terminate Executive's
employment after having established Executive's disability. For purposes of this
Agreement, "Disability" means a physical or mental infirmity that impairs
Executive's ability to substantially perform her duties under this Agreement and
that results in Executive's becoming eligible for long-term disability benefits
under the Holding Company's or the Institution's long-term disability plan (or,
if the Holding Company or the Institution has no such plan in effect, that
impairs Executive's ability to substantially perform her duties under this
Agreement for a period of one hundred eighty (180) consecutive days). The Board
shall determine whether or not Executive is and continues to be permanently
disabled for purposes of this Agreement in good faith, based upon competent
medical advice and other factors that they reasonably believe to be relevant. As
a condition to any benefits, the Board may require Executive to submit to such
physical or mental evaluations and tests as it deems reasonably appropriate.
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(ii) In the event of such Disability, Executive's obligation to
perform services under this Agreement will terminate. In the event of such
termination, Executive shall continue to receive (x) one hundred percent (100%)
of her monthly Base Salary (at the annual rate in effect on the Date of
Termination) through the one hundred eightieth (180/th/) day following the Date
of Termination by reason of Disability and (y) sixty-six and two-thirds percent
(66 2/3%) of Executive's monthly base salary from the one hundred eighty-first
(181/st/) day following termination through the earlier of the date of
Executive's death or the date Executive attains age 65. Such payments shall be
reduced by the amount of any short- or long-term disability benefits payable to
Executive under any disability program sponsored by the Holding Company or the
Institution. In addition, during any period of Executive's Disability, Executive
and her dependents shall, to the greatest extent possible, continue to be
covered under all benefit plans (including, without limitation, retirement plans
and medical, dental and life insurance plans) of the Holding Company or the
Institution in which Executive participated prior to the occurrence of
Executive's Disability, on the same terms as if Executive were actively employed
by the Holding Company.
12. SOURCE OF PAYMENTS.
(a) All payments provided for in this Agreement shall be timely paid in
cash or check from the general funds of the Holding Company subject to Section
12(b).
(b) Notwithstanding any provision herein to the contrary, to the extent
that payments and benefits, as provided by this Agreement, are paid to or
received by Executive under the Employment Agreement in effect between Executive
and the Institution, such compensation payments and benefits paid by the
Institution will be subtracted from any amount due simultaneously to Executive
under similar provisions of this Agreement. Payments pursuant to this Agreement
and the Institution Agreement shall be allocated in proportion to the level of
activity and the time expended on such activities by Executive as determined by
the Holding Company and the Institution.
13. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFIT PLANS.
This Agreement contains the entire understanding between the parties hereto
and supersedes any prior employment agreement between the Holding Company or any
predecessor of the Holding Company and Executive, except that this Agreement
shall not affect or operate to reduce any benefit or compensation inuring to
Executive of a kind elsewhere provided. No provision of this Agreement shall be
interpreted to mean that Executive is subject to receiving fewer benefits than
those available to her without reference to this Agreement.
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14. NO ATTACHMENT.
(a) Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation, or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to affect any such action shall be null,
void, and of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit of,
Executive and the Holding Company and their respective successors and assigns.
15. MODIFICATION AND WAIVER.
(a) This Agreement may not be modified or amended except by an instrument
in writing signed by the parties hereto.
(b) No term or condition of this Agreement shall be deemed to have been
waived, nor shall there be any estoppel against the enforcement of any provision
of this Agreement, except by written instrument of the party charged with such
waiver or estoppel. No such written waiver shall be deemed a continuing waiver
unless specifically stated therein, and each such waiver shall operate only as
to the specific term or condition waived and shall not constitute a waiver of
such term or condition for the future as to any act other than that specifically
waived.
16. SEVERABILITY.
If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other provision
of this Agreement or any part of such provision not held so invalid, and each
such other provision and part thereof shall to the full extent consistent with
law continue in full force and effect.
17. HEADINGS FOR REFERENCE ONLY.
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
18. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of Delaware
without regards to principles of conflicts of law of that state.
19. ARBITRATION.
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration, conducted before a panel
of three (3) arbitrators sitting in a location selected by Executive within
fifty (50) miles from the location of the Institution, in
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accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator's award in any court having
jurisdiction; provided, however, that Executive shall be entitled to seek
specific performance of her right to be paid until the Date of Termination
during the pendency of any dispute or controversy arising under or in connection
with this Agreement.
In the event any dispute or controversy arising under or in connection with
Executive's termination is resolved in favor of Executive, whether by judgment,
arbitration or settlement, Executive shall be entitled to the payment of all
back-pay, including salary, bonuses and any other cash compensation, fringe
benefits and any compensation and benefits due Executive under this Agreement.
20. PAYMENT OF LEGAL FEES.
All reasonable legal fees paid or incurred by Executive pursuant to any
dispute or question of interpretation relating to this Agreement shall be paid
or reimbursed by the Holding Company, if Executive is successful pursuant to a
legal judgment, arbitration or settlement.
21. INDEMNIFICATION.
(a) The Holding Company shall provide Executive (including her heirs,
executors and administrators) with coverage under a standard directors' and
officers' liability insurance policy at its expense and shall indemnify
Executive (and her heirs, executors and administrators) to the fullest extent
permitted under Delaware law against all expenses and liabilities reasonably
incurred by her in connection with or arising out of any action, suit or
proceeding in which she may be involved by reason of her having been a director
or officer of the Holding Company (whether or not she continues to be a director
or officer at the time of incurring such expenses or liabilities), such expenses
and liabilities to include, but not be limited to, judgments, court costs and
attorneys' fees and the cost of reasonable settlements.
(b) Any payments made to Executive pursuant to this Section are subject to
and conditioned upon compliance with 12 U.S.C. Section 1828(k) and 12 C.F.R.
Part 359 and any rules or regulations promulgated thereunder.
22. SUCCESSOR TO THE HOLDING COMPANY.
The Holding Company shall require any successor or assignee, whether direct
or indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all the business or assets of the Institution or the Holding
Company, expressly and unconditionally to assume and agree to perform the
Holding Company's obligations under this Agreement, in the same manner and to
the same extent that the Holding Company would be required to perform if no such
succession or assignment had taken place.
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SIGNATURES
IN WITNESS WHEREOF, Woronoco Bancorp, Inc. has caused this Agreement to be
executed and its seal to be affixed hereunto by its duly authorized officer and
its directors, and Executive has signed this Agreement, on the 20th day of
February, 2002.
ATTEST: WORONOCO BANCORP, INC.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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For the Entire Board of Directors
▇▇▇▇▇ ▇▇▇▇▇▇▇
Corporate Secretary
[SEAL]
WITNESS:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------- --------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇ EXECUTIVE, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Corporate Secretary
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