JUNE 2009 AMENDMENT TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT
EXHIBIT
10.7.5.1
JUNE
2009 AMENDMENT TO
AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
This JUNE 2009 AMENDMENT TO AMENDED AND
RESTATED EMPLOYMENT AGREEMENT (this “Amendment”) is made and entered into as of
June 23, 2009 (the “Effective Date”) by and between NewAlliance Bank, a
Connecticut savings bank (the “Bank”), and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ (the
“Executive”).
WHEREAS, the Executive is currently
employed as the Executive Vice President, Consumer & Business Banking
Services of the Bank pursuant to an Employment Agreement between the Bank and
the Executive originally entered into as of April 1, 2004 and amended and
restated effective June 27, 2006 and September 25, 2007 (the “Employment
Agreement”);
WHEREAS, the parties desire to amend
certain provisions of the Employment Agreement in light of the Executive’s
decision to retire, which will be effective on January 4, 2010 (the “Retirement
Date”); and
WHEREAS, the Executive is willing to
continue to serve the Bank and to agree to the additional covenants related to
her retirement on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the
promises and the mutual covenants and conditions hereinafter set forth, the Bank
and the Executive hereby agree to the following amendments to the Employment
Agreement, which amendments shall be effective from on and after the Effective
Date. Those sections of the Employment Agreement not addressed in
this Amendment shall remain in full force and effect.
SECTION
2. EMPLOYMENT
PERIOD.
Section 2(a) and 2(b) are hereby
amended as follows:
(a) The Employment Period shall
terminate on the Retirement Date. All benefits of the Employment Agreement
available to Executive for the Term of employment shall terminate on the
Retirement Date, unless and only to the extent otherwise provided in this
Amendment (provided any benefits that have vested in Executive as of the
Retirement Date shall be payable in accordance with the terms of the
applicable plans or programs).
Section 2(b) is deleted and replaced by
“Intentionally Omitted”.
SECTION
3. DUTIES.
Section 3 is hereby deleted and
replaced in its entirety with the following:
“Commencing on the date hereof and
continuing through the Retirement Date, the Executive shall serve as Executive
Vice President, Business Development of the Bank. Her duties will include
working closely with all executive and other officers of the Bank to (1)
effectively transition her duties to others as of the Retirement Date; and (2)
to continue to develop business from existing and new customers for the
Bank. In this regard, it is expected that the Executive will, without
limitation, do the following: (a) identify key client relationships,
and prioritize those that require i) in-person meetings, ii) phone calls; and/or
iii) other forms of contact; (b) suggest any changes to the Bank’s relationship
team; (c) schedule and conduct with other Bank officers transition meetings with
key clients; (d) work with executive officers of the Bank to assist in an
orderly transition; and (e) continue to attend the Bank’s Board of Directors
meetings, and such committees as the Bank’s Chief Executive Officer shall
determine. Executive shall report directly to the Chief Executive Officer of the
Bank with a dotted line reporting to the Bank's President (i.e., the Chief
Executive Officer may direct Executive to report to the President on specific
matters). The Executive shall devote her full business time,
attention, skills and efforts (other than during weekends, holidays, vacation
periods and periods of illness or leaves of absence other than as permitted or
contemplated by Section 7 hereof) to the business and affairs of the Bank and
shall use her best efforts to advance the interests of the Bank.”
SECTION
4. CASH
AND OTHER COMPENSATION.
Section 4(a) is hereby deleted and
replaced in its entirety with the following:
(a) In consideration for the services
to be rendered by the Executive as an employee hereunder, the Bank shall
continue to pay to her a salary of two hundred eighty-eight thousand four
hundred dollars ($288, 400) annualized (“Base Salary”), until the Retirement
Date. The Executive’s Base Salary shall be payable in approximately
equal installments in accordance with the Bank’s customary payroll practices for
senior officers.
For 2009, Executive agrees that she
will no longer be eligible to receive a cash payment under the Bank’s Executive
Incentive Plan (“EIP”) or any other cash bonus for services in
2009. However, in lieu thereof, provided she remains employed at the
Bank through her Retirement Date, the Executive shall receive a cash bonus
payable no later than March 15, 2010 equal to Executive’s projected 2009 EIP
“Target” bonus, or One Hundred Forty-Four Thousand Two Hundred Dollars
($144,200). This bonus payment shall be subject to the claw-back
provisions of the EIP.
The Executive has participated in
awards made to her under the Bank’s 2005 Long-Term Incentive Plan. In
the interests of clarity, the parties agree that the status of the following
awards outstanding to Executive under the LTIP, pursuant to the terms of the
LTIP, are as follows:
2
(i) 25,800 shares of restricted stock
awarded on June 17, 2005 scheduled to vest on January 1, 2010 shall vest as
scheduled if Executive remains employed by the Bank until January 1,
2010;
(ii) 25,800 shares and 17,200 shares of
restricted stock awarded
on , June 17, 2005
scheduled to vest on January 1,2011 and January 1, 2012, respectively, shall be
forfeited;
(iii) 555 option shares awarded on June
26, 2006 scheduled to vest on June 26, 2009 shall vest as scheduled if Executive
remains employed by the Bank until then;
(iv) 583 shares of restricted stock
awarded on June 26, 2006 scheduled to vest on June 26, 2009 shall vest as
scheduled if Executive remains employed by the Bank until then; and
(v) 4,086 shares of restricted stock,
18,573 option shares and 4,086 performance shares (at target) awarded on May 29,
2009 scheduled to vest in the year 2010 and later shall be
forfeited.
In the event that the Executive does
not remain employed by the Bank until the Retirement Date due to termination by
the Bank for other than cause or by the Executive for Good Reason, then the
Executive shall be entitled to the payments and benefits provided in the
Agreement in such circumstances. In addition, the Bank shall provide the
post-employment payments and benefits to the Executive described in Section 14
below.
SECTION
7. OUTSIDE
ACTIVITIES.
The following is hereby added to
Section 7: The Executive currently serves on the Board of Directors
of the NewAlliance Foundation. Following the Retirement Date, the
Bank agrees (i) to support Executive for a “non-executive” membership on that
Board through 2011, provided she remains employed by the Bank through the
Retirement Date and is in compliance with the Employment Agreement as amended by
this Amendment, and absent any good faith fiduciary duty concerns, (ii) the
Executive will be compensated in the same manner as other non-executive Board
members, and (iii) the Executive’s failure to serve on said Board will not
affect any of the Executive’s entitlements hereunder.
SECTION
8. WORKING
FACILITIES AND EXPENSES.
Section 8 is hereby amended by deleting
same and substituting the following in place thereof:
“It is understood by the parties that
the Executive’s principal place of employment shall be at the Bank’s principal
executive office located in New Haven,
3
Connecticut,
or at such other location as the Executive and the Chief Executive Officer may
mutually agree upon. The Employer shall provide the Executive at her principal
place of employment with a private office, secretarial services and other
support services and facilities suitable to her position with the Employer and
necessary or appropriate in connection with the performance of her assigned
duties under this Agreement. The Employer shall reimburse the Executive for her
ordinary and necessary business expenses attributable to the Employer’s
business, including, without limitation, the Executive’s travel and
entertainment expenses incurred in connection with the performance of her duties
for the Employer under this Agreement, in each case upon presentation to the
Employer of an itemized account of such expenses in such form as the Employer
may reasonably require, and such reimbursement shall be paid promptly by the
Employer and in any event no later than March 15 of the year immediately
following the year in which the expenses were incurred.”
SECTION
9. TERMINATION
WITH BENEFITS.
The current provisions of Section 9
remain unchanged; however, the Executive expressly acknowledges and agrees that
the execution of this Amendment and the changes effected to the Employment
Agreement thereby, or the actions to be taken pursuant to this Amendment by the
Employer, shall not trigger any termination rights in the Executive pursuant to
Section 9 of the Employment Agreement for Good Reason.
SECTION
14. COVENANT
NOT TO COMPETE.
Section 14 is hereby deleted and
replaced in its entirety with the following:
The Executive hereby covenants and
agrees that for a period of two years following the date of her termination of
employment with the Employer (the “Non-Compete Period”), she shall not, without
the written consent of the Employer, 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
Employer may avail itself of such remedies that may be available to it as a
result of such breach by the Executive, with such remedies to be cumulative and
not mutually exclusive.
During the Non-Compete Period, provided
the Executive is and continues to be as of each payment date in material
compliance with the Agreement as amended by this Amendment, and provided further
that no amounts are payable to the Executive
4
pursuant
to either Section 9 or Section 11 of the Agreement, the Bank shall pay to the
Executive a total of Eight Hundred Sixty-Five Thousand Two Hundred Dollars
($865,200) in installments, representing 2x Executive’s Base Salary and 2x her
2009 EIP at Target. The foregoing amount shall be made in equal
monthly installments of Thirty-Six Thousand Fifty Dollars during the Non-Compete
Period on or about the first business day of each month; provided, however, that
the monthly installments that would otherwise have been paid during the first
six months following the Retirement Date shall be delayed and paid in a lump sum
in the amount of Two Hundred Fifty-Two Thousand Three Hundred Fifty Dollars
together with interest thereon to the date of payment at a rate equal to 120% of
the Applicable Federal Rate in effect at the Retirement Date (the “Rate”), on
August 2, 2010 if the Executive is and continues to be in material
compliance with the Agreement as amended by this
Amendment. Commencing September 1, 2010, each monthly installment for
the remainder of the Non-Compete Period shall be Thirty-Six Thousand Fifty
Dollars.
Provided that the Executive remains
employed by the Bank through the Retirement Date and is in material compliance
with the Agreement as amended by this Amendment then, no later than January 31,
2010, the Bank shall pay Executive a lump sum cash payment equal to the
insurance premium cost (Bank’s and Employee’s) at that time of twenty four
months’ continuation of health and dental insurance coverage for Executive and
her family under the Bank’s group health insurance
coverage. Executive may use such funds at her discretion, and will
have the right to continue to participate in the Bank’s employee medical plan,
the Bank’s retiree medical coverage, COBRA or other as she desires at the time
of retirement; provided she is eligible under the terms of such plans at the
Retirement Date.
In the event that the Bank shall fail
to timely make any such payment, which failure shall continue for more than 10
days after written notice thereof from the Executive to the Bank, then the Bank
shall pay to the Executive interest thereon (at the Rate) from the date of any
such nonpayment or payments when due, until paid, and shall be responsible for
all costs and expenses, including, without limitation, reasonable attorneys’
fees, that the Executive incurs in order to collect said payments or enforce the
terms hereof. The Bank acknowledges and agrees that any employment of
the Executive during the Non-Compete Period which does not otherwise violate the
terms hereof shall not affect the Bank’s obligation to make (or the Executive’s
right to receive) the payments and benefits hereunder.
SECTION
29. NON-DISPARAGEMENT.
The following is added as a new Section
29.
“In addition to actively and positively
supporting the Bank as one of its senior executives up through her Retirement
Date, the Executive agrees not to willfully disparage the business or personal
reputation of the Bank, New Alliance Bancshares, Inc. (the “Company”), or any of
their Directors, officers, employees or agents. The
5
obligations
contained in the preceding sentence shall include, but not be limited to, a
promise by the Executive that she will not publicly disparage the services,
business, integrity, veracity or personal or professional reputation of the
Bank, the Company, or their directors, officers, employees and
agents.
The Bank and the Company agree that
they and their Directors, officers, employees or agents will not willfully
disparage the integrity, veracity, or personal or professional reputation of the
Executive.
These covenants of non-disparagement
shall continue during the Non-Compete Period and shall be additional
covenants.”
SECTION
30. COMPLIANCE
WITH 409A.
The following is added as a new Section
30:
“This Amendment is intended to comply
with Section 409A of the Code and will be interpreted in a manner intended to
comply with Section 409A of the Code. The Company shall consult
with Executive in good faith regarding the implementation of the provisions of
this Section 30. Notwithstanding anything herein to the contrary, in the event
any payments or benefits required to be provided pursuant to Sections 9 or 11
under the Agreement are deemed to constitute payments of “nonqualified deferred
compensation” that is subject to the requirements of Section 409A of the Code,
then the time and manner in which such payment or benefit is provided shall be
adjusted, to the extent reasonably possible, so that payment or distribution is
made at a time and in a manner that is consistent with the requirements of such
Section 409A (and applicable proposed or final Treasury regulations or other
guidance issued or to be issued by the Internal Revenue
Service). This Section 30 may, for example, require that certain
payments to Executive following her termination of employment be delayed until
the date that is six (6) months after the date of her separation from service
with the Company (the “Delay Period”) if, at the time of Executive’s
termination of employment with the Company, Executive is a “specified employee”
(as that term is used for purposes of Section 409A(2)(B)(i)). Upon
the expiration of the Delay Period, all payments and benefits delayed pursuant
to this Section 30 (whether they would have otherwise been payable in a single
sum or in installments in the absence of such delay) shall be paid or reimbursed
to the Executive in a lump sum plus interest to the date of payment or benefits
delayed pursuant to the preceding sentence, plus interest to the date of payment
at a rate equal to 120% of the applicable Federal rate in effect on the first
day of the Delay Period and any remaining payments and benefits due
under this Agreement shall be paid or provided in accordance with the normal
payment dates specified for them herein.
To the extent any reimbursements or
in-kind benefits due to Executive under this Agreement constitutes “deferred
compensation” under Section 409A of the Code, any such reimbursements or in-kind
benefits shall be paid to Executive in a manner consistent with Treas. Reg.
Section 1.409A-3(i)(1)(iv). Each payment made under this Agreement
shall be designated as a “separate payment” within the meaning of Section 409A
of the
6
Code. The
Executive shall be deemed to have a “termination of employment” under this
Agreement for purposes of entitling her to any “nonqualified deferred
compensation” that is subject to the requirements of Section 409A only to the
extent the Executive has a “separation from service,” as that term is defined in
Section 409A and the applicable Treasury regulations applying all of the default
rules thereunder. The Company shall consult with Executive in good
faith regarding the implementation of the provisions of this Section
30.”
Except as amended hereby, the
Employment Agreement is hereby ratified and confirmed in all
respects.
[signatures
on the following page]
7
IN WITNESS WHEREOF, the Bank has caused
this Amendment to be executed by its duly authorized officer and the Executive
has hereunto set her hand, all as of the Effective Date of this
Amendment.
|
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
|
Date: June
23, 2009
|
|
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇, Executive
|
|
|
Witness: /s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇▇
|
|
|
NEWALLIANCE
BANK
|
|
|
By:
/s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
|
Date:
June 23, 2009
|
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
|
|
Chairman
and Chief Executive Officer
|
|
|
Witness: /s/ ▇▇▇▇ ▇. ▇.
▇▇▇▇▇▇▇▇▇▇
|
|
|
NEWALLIANCE
BANCSHARES, INC.
|
|
|
(as
to Section 29)
|
|
|
By:
/s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
|
Date:
June 23, 2009
|
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
|
|
Chairman,
President and Chief Executive Officer
|
|
|
Witness: /s/ ▇▇▇▇ ▇. ▇.
▇▇▇▇▇▇▇▇▇▇
|
8