Exhibit 10.3
ENFIELD FEDERAL SAVINGS AND LOAN ASSOCIATION
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement"), by and
among ENFIELD FEDERAL SAVINGS AND LOAN ASSOCIATION, a federally-chartered
financial institution (the "Association"), and DAVID J. O'CONNOR ("Executive"),
is hereby amended and restated effective as of November 12, 2008. References to
the "Company" herein shall mean NEW ENGLAND BANCSHARES, INC., a Maryland
corporation and the Association's holding company.
W I T N E S S E T H
WHEREAS, the Executive is currently employed as the President and Chief
Executive Officer of the Association pursuant to an employment agreement between
the Association and the Executive entered into as of December 28, 2005 (the
"Original Agreement");
WHEREAS, the Association desires to amend and restate the Original
Agreement in order to comply with the final regulations issued under Section
409A of the Internal Revenue Code of 1986, as amended (the "Code") in April
2007; and
WHEREAS, the Executive has agreed to such changes.
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. Employment. Executive is employed as the President and Chief
Executive Officer of the Association. Executive shall perform all duties and
shall have all powers which are commonly incident to the offices of President
and Chief Executive Officer of the Association or which, consistent with those
offices, are delegated to him by the Board of Directors of the Association.
During the term of this Agreement, Executive also agrees to serve, if elected,
as an officer and/or director of any subsidiary of the Association and in such
capacity carry out such duties and responsibilities reasonably appropriate to
that office.
2. Location and Facilities. The Executive will be furnished with the
working facilities and staff customary for executive officers with the title and
duties set forth in Section 1 and as are necessary for him to perform his
duties. The location of such facilities and staff shall be at the principal
administrative offices of the Association, or at such other site or sites
customary for such offices.
3. Term.
a. The term of this Agreement shall be (i) the initial term, consisting
of the period commencing on the date of this Agreement (the
"Effective Date") and ending on the third anniversary of the
Effective Date, plus (ii) any and all extensions of the initial term
made pursuant to this Section 3, provided, however, that all changes
intended to comply with Code Section 409A shall be effective
retroactively to December 28, 2005; and provided further, that no
retroactive changes shall affect the compensation or benefits
previously provided to the Executive.
b. Commencing on the first year anniversary date of this Agreement, and
continuing on each anniversary thereafter, the disinterested members
of the boards of directors of the Association may extend the
Agreement an additional year such that the remaining term of the
Agreement shall be thirty-six (36) months, unless Executive elects
not to extend the term of this Agreement by giving written notice in
accordance with Section 19 of this Agreement. The Board of Directors
of the Association (the "Board") will review the Agreement and
Executive's performance annually for purposes of determining whether
to extend the Agreement and the rationale and results thereof shall
be included in the minutes of the Board's meeting. The Executive
shall receive notice as soon as possible after such review as to
whether the Agreement is to be extended.
4. Base Compensation.
a. The Association agrees to pay the Executive during the term of this
Agreement a base salary at the rate of $300,000 per year, payable in
accordance with customary payroll practices.
b. The Board shall review annually the rate of the Executive's base
salary based upon factors they deem relevant, and may maintain or
increase his salary, provided that no such action shall reduce the
rate of salary below the rate in effect on the Effective Date.
c. In the absence of action by the Board, the Executive shall continue
to receive salary at the annual rate specified on the Effective Date
or, if another rate has been established under the provisions of
this Section 4, the rate last properly established by action of the
Board under the provisions of this Section 4.
5. Bonuses. The Executive shall be entitled to participate in
discretionary bonuses or other incentive compensation programs that the
Association may award from time to time to senior management employees pursuant
to bonus plans or otherwise. Any bonuses or other payments made pursuant to this
Section 5 shall be paid promptly by the Association and in any event no later
than March 15 of the year immediately following the end of the calendar year for
which such amounts were payable.
6. Benefit Plans. The Executive shall be entitled to participate in
such life insurance, medical, dental, pension, profit sharing, retirement and
stock-based compensation plans and other programs and arrangements as may be
approved from time to time by the Company and the Association for the benefit of
their employees.
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7. Vacation and Leave.
a. The Executive shall be entitled to vacation and other leave in
accordance with policy for senior executives, or otherwise as
approved by the Board.
b. In addition to paid vacation and other leave, the Executive shall be
entitled, without loss of pay, to absent himself voluntarily from
the performance of his employment for such additional periods of
time and for such valid and legitimate reasons as the Board may in
its discretion determine. Further, the Board may grant to the
Executive a leave or leaves of absence, with or without pay, at such
time or times and upon such terms and conditions as the Board in its
discretion may determine.
8. Expense Payments and Reimbursements. The Executive shall be
reimbursed for all reasonable out-of-pocket business expenses that he shall
incur in connection with his services under this Agreement upon substantiation
of such expenses in accordance with applicable policies of the Association. Such
reimbursements shall be paid promptly by the Association and in any event not
later than March 15 of the year immediately following the end of the calendar
year in which the Executive incurred such expense.
9. Automobile Allowance. During the term of this Agreement, the
Executive shall be entitled to an automobile allowance on terms no less
favorable that those in effect immediately prior to the execution of this
Agreement. Executive shall comply with reasonable reporting and expense
limitations on the use of such automobile as may be established by the
Association from time to time, and the Association shall annually include on
Executive's Form W-2 any amount of income attributable to Executive's personal
use of such automobile. Payments, if any, made under this Section 9 shall be
paid promptly by the Association and in any event not later than March 15 of the
year immediately following the end of the calendar year in which the expense was
incurred.
10. Loyalty and Confidentiality.
a. During the term of this Agreement Executive: (i) shall devote all
his time, attention, skill, and efforts to the faithful performance
of his duties hereunder; provided, however, that from time to time,
Executive may serve on the boards of directors of, and hold any
other offices or positions in, companies or organizations which will
not present any conflict of interest with the Association or any of
their subsidiaries or affiliates, unfavorably affect the performance
of Executive's duties pursuant to this Agreement, or violate any
applicable statute or regulation and (ii) shall not engage in any
business or activity contrary to the business affairs or interests
of the Association.
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b. Nothing contained in this Agreement shall prevent or limit
Executive's right to invest in the capital stock or other securities
of any business dissimilar from that of the Association, or, solely
as a passive, minority investor, in any business.
c. Executive agrees to maintain the confidentiality of any and all
information concerning the operation or financial status of the
Company and the Association; the names or addresses of any of its
borrowers, depositors and other customers; any information
concerning or obtained from such customers; and any other
information concerning the Company and the Association to which he
may be exposed during the course of his employment. The Executive
further agrees that, unless required by law or specifically
permitted by the Board in writing, he will not disclose to any
person or entity, either during or subsequent to his employment, any
of the above-mentioned information which is not generally known to
the public, nor shall he employ such information in any way other
than for the benefit of the Company and the Association.
11. Termination and Termination Pay. Subject to Section 12 of this
Agreement, Executive's employment under this Agreement may be terminated in the
following circumstances:
a. Death. Executive's employment under this Agreement shall terminate
upon his death during the term of this Agreement, in which event
Executive's estate shall be entitled to receive the compensation due
to the Executive through the last day of the calendar month in which
his death occurred.
b. Retirement. This Agreement shall be terminated upon Executive's
retirement under the retirement benefit plan or plans in which he
participates pursuant to Section 6 of this Agreement or otherwise.
c. Disability.
i. The Board or Executive may terminate Executive's employment
after having determined Executive has a Disability. For these
purposes, the Executive shall be deemed to have a "Disability"
in any case in which it is determined that the Executive (a)
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 last
for a continuous period of not less than 12 months; (b) by
reason of any medically determinable physical or mental
impairment which can be expected to result in death, or last
for a continuous period of not less than 12 months, is
receiving income replacement benefits for a period of not less
than three months under an accident and health plan covering
employees of the Bank; or (c) is totally disabled by the
Social Security Administration.
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ii. In the event of such Disability, Executive's obligation to
perform services under this Agreement will terminate. The
Association will pay Executive, as Disability pay, an amount
equal to 100% of Executive's bi-weekly rate of base salary in
effect as of the date of his termination of employment due to
Disability. Disability payments will be made on a monthly
basis and will commence on the first day of the month
following the effective date of Executive's termination of
employment for Disability and end on the earlier of: (A) the
date he returns to full-time employment at the Association in
the same capacity as he was employed prior to his termination
for Disability; (B) his death; or (C) upon attainment of age
65. Such payments shall be reduced by the amount of any short-
or long-term disability benefits payable to the Executive
under any other disability programs sponsored by the
Association. In addition, during any period of Executive's
Disability, Executive and his dependents shall, to the
greatest extent possible, continue to be covered under all
benefit plans (including, without limitation, non-taxable
medical, dental and life insurance plans) of the Association,
in which Executive participated prior to his Disability on the
same terms as if Executive were actively employed by the
Association.
d. Termination for Cause.
i. The Board may, by written notice to the Executive in the form
and manner specified in this paragraph, terminate his
employment at any time, for "Cause". The Executive shall have
no right to receive compensation or other benefits for any
period after termination for Cause. Termination for "Cause"
shall mean termination because of, in the good faith
determination of the Board, Executive's:
(1) Personal dishonesty;
(2) Incompetence;
(3) Willful misconduct;
(4) Breach of fiduciary duty involving personal profit;
(5) Intentional failure to perform stated duties;
(6) Willful violation of any law, rule or regulation (other
than traffic violations or similar offenses) that
reflects adversely on the reputation of the Company and
the Association, any felony conviction, any violation of
law involving moral turpitude or any violation of a
final cease-and-desist order; or
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(7) Material breach by Executive of any provision of this
Agreement.
ii. Notwithstanding the foregoing, Executive shall not be deemed
to have been terminated for Cause by the Association unless
there shall have been delivered to Executive a copy of a
resolution duly adopted at a meeting of such Board where in
the good faith opinion of the Board, Executive was guilty of
the conduct described above and specifying the particulars
thereof.
e. Voluntary Termination by Executive. In addition to his other rights
to terminate under this Agreement, Executive may voluntarily
terminate employment during the term of this Agreement upon at least
sixty (60) days prior written notice to the Boards, in which case
Executive shall receive only his compensation, vested rights and
employee benefits up to the date of his termination.
f. Without Cause or With Good Reason.
i. In addition to termination pursuant to Sections 11(a) through
11(e) the Boards, may, by written notice to Executive,
immediately terminate his employment at any time for a reason
other than Cause (a termination "Without Cause") and Executive
may, by written notice to the Board, immediately terminate
this Agreement at any time for "Good Reason" as defined below.
ii. Subject to Section 12 of this Agreement, in the event of
termination under this Section 11(f), Executive shall be
entitled to receive an amount equal to (i) his base salary for
the remaining term of the Agreement, and (ii) the value of the
benefits he would have received during the remaining term of
the Agreement under any retirement programs (whether
tax-qualified or non-qualified) in which Executive
participated prior to his termination (with the amount of the
benefits determined by reference to the benefits received by
the Executive or accrued on his behalf under such programs
during the twelve (12) months preceding his termination),
payable as a single cash lump sum distribution within ten (10)
calendar days following such termination. In addition, the
Executive shall continue to participate in any benefit plans
of the Association that provide life insurance and non-taxable
medical and dental insurance, or similar coverage upon terms
no less favorable than the most favorable terms provided to
senior executives of the Association during such period. In
the event that the Association is unable to provide such
coverage by reason of Executive no longer being an employee,
the Association shall pay the Executive the value of such
benefits in a single cash lump sum distribution within ten
(10) calendar days following his termination.
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iii. "Good Reason" shall exist if, without Executive's express
written consent, the Association materially breach any of
their respective obligations under this Agreement. Without
limitation, such a material breach shall be deemed to occur
upon any of the following:
(1) A material reduction in Executive's responsibilities or
authority in connection with his employment with the
Association;
(2) Assignment to Executive of duties of a non-executive
nature or duties for which he is not reasonably equipped
by his skills and experience;
(3) Failure of the Executive to be nominated or re-nominated
to the Board
(4) A material reduction in Executive's salary or benefits
contrary to the terms of this Agreement, or, following a
Change in Control as defined in Section 12 of this
Agreement, any reduction in salary or material reduction
in benefits below the amounts to which he was entitled
prior to the Change in Control;
(5) Termination of incentive and benefit plans, programs or
arrangements, or reduction of Executive's participation
to such an extent as to materially reduce their
aggregate value below their aggregate value as of the
Effective Date;
(6) A requirement that Executive relocate his principal
business office or his principal place of residence
outside of the area consisting of a twenty-five (25)
mile radius from the current main office and any branch
of the Association, or the assignment to Executive of
duties that would reasonably require such a relocation;
or
(7) Liquidation or dissolution of the Company or the
Association, other than liquidations or dissolutions
that are caused by reorganizations that do not
negatively affect the status of the Executive,
provided, however, that prior to any termination of employment
for Good Reason (a termination "With Good Reason"), the
Executive must first provide written notice to the Association
within ninety (90) days following the initial existence of the
condition, describing the existence of such condition, and the
Association shall thereafter have the right to remedy the
condition within thirty (30) days of the date the Association
received the
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written notice from the Executive. If the Association remedies
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 Association does 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.
iv. Notwithstanding the foregoing, a reduction or elimination of
the Executive's benefits under one or more benefit plans
maintained by the Company or the Association as part of a good
faith, overall reduction or elimination of such plans or plans
or benefits thereunder applicably to all participants in a
manner that does not discriminate against Executive (except as
such discrimination may be necessary to comply with law) shall
not constitute an event of Good Reason or a material breach of
this Agreement, provided that benefits of the type or to the
general extent as those offered under such plans prior to such
reduction or elimination are not available to other officers
of the Association or any company that controls the
Association under a plan or plans in or under which Executive
is not entitled to participate.
v. For purposes of this Agreement, any termination of Executive's
employment shall be construed to require a "Separation from
Service" in accordance with Code Section 409A and the
regulations promulgated thereunder, such that the Association
and Executive reasonably anticipate that the level of bona
fide services Executive would perform after termination would
permanently decrease to a level that is less than 50% of the
average level of bona fide services performed (whether as an
employee or an independent contractor) over the immediately
preceding thirty-six (36) month period.
g. Continuing Covenant Not to Compete or Interfere with Relationships.
Regardless of anything herein to the contrary, following a
termination by the Association or Executive pursuant to Section
11(f):
i. Executive's obligations under Section 10(c) of this Agreement
will continue in effect; and
ii. During the period ending on the first anniversary of such
termination, the Executive shall not serve as an officer,
director or employee of any bank holding company, bank,
savings bank, savings and loan holding company, or mortgage
company (any of which, a "Financial Institution") which
Financial Institution offers products or services competing
with those offered by the Association from any office within
fifty (50) miles from the
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main office or any branch of the Association and shall not
interfere with the relationship of the Company and the
Association and any of its employees, agents, or
representatives.
12. Termination in Connection with a Change in Control.
a. For purposes of this Agreement, a Change in Control means any of the
following events:
(i) Merger: The Company merges into or consolidates with another
corporation, or merges another corporation into the Company,
and as a result less than a majority of the combined voting
power of the resulting corporation immediately after the
merger or consolidation is held by persons who were
stockholders of the Company immediately before the merger or
consolidation.
(ii) Acquisition of Significant Share Ownership: There is filed or
required to be filed a report on Schedule 13D or another form
or schedule (other than Schedule 13G) required under Sections
13(d) or 14(d) of the Securities Exchange Act of 1934, if the
schedule discloses that the filing person or persons acting in
concert has or have become the beneficial owner of 25% or more
of a class of the Company's voting securities, but this clause
(b) shall not apply to beneficial ownership of Company voting
shares held in a fiduciary capacity by an entity of which the
Company directly or indirectly beneficially owns 50% or more
of its outstanding voting securities.
(iii) Change in Board Composition: During any period of two
consecutive years, individuals who constitute the Company's
Board of Directors at the beginning of the two-year period
cease for any reason to constitute at least a majority of the
Company's Board of Directors; provided, however, that for
purposes of this clause (iii), each director who is first
elected by the board (or first nominated by the board for
election by the stockholders) by a vote of at least two-thirds
(2/3) of the directors who were directors at the beginning of
the two-year period shall be deemed to have also been a
director at the beginning of such period; or
(iv) Sale of Assets: The Company sells to a third party all or
substantially all of its assets.
Notwithstanding anything in this Agreement to the contrary, in no event
shall reorganization of the Association from the mutual holding company form or
organization to the
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full stock holding company form of organization (including the elimination of
the mutual holding company) constitute a "Change in Control" for purposes of
this Agreement.
b. Termination. If within the period ending two (2) years after a
Change in Control, (i) the Company and the Association shall
terminate the Executive's employment Without Cause, or (ii)
Executive voluntarily terminates his employment With Good Reason,
the Company and the Association shall, within ten calendar days
following the termination of Executive's employment, make a single
lump-sum cash payment to him equal to three (3) times the
Executive's average Annual Compensation (as defined in this Section
12(b)) over the five (5) most recently completed calendar years
ending with the year immediately preceding the effective date of the
Change in Control. In determining Executive's average Annual
Compensation, 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, commissions, bonuses (whether paid or accrued for the
applicable period), as well as, 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 plan or
arrangement (whether or not taxable) made or accrued on behalf of
Executive of such year. The cash payment made under this Section
12(b) shall be made in lieu of any payment also required under
Section 11(f) of this Agreement because of a termination in such
period. Executive's rights under Section 11(f) are not otherwise
affected by this Section 12. Also, in such event, the Executive
shall, for a thirty-six (36) month period following his termination
of employment, receive the value of the benefits he would have
received over such period under any retirement programs (whether
tax-qualified or nonqualified) in which the Executive participated
prior to his termination (with the amount of the benefits determined
by reference to the benefits received by the Executive or accrued on
his behalf under such programs during the twelve (12) months
preceding the Change in Control), payable as a single cash lump sum
distribution within ten (10) calendar days following such
termination. In addition, the Executive shall continue to
participate in any benefit plans of the Company and the Association
that provide life insurance and non-taxable medical and dental
insurance, or similar coverage upon terms no less favorable than the
most favorable terms provided to senior executives of the
Association during such period. In the event that the Company and
the Association are unable to provide such coverage by reason of the
Executive no longer being an employee, the Association shall pay the
Executive the value of such benefits in a single lump sum within ten
(10) calendar days following his termination.
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c. The provisions of Section 12 and Sections 14 through 25, including
the defined terms used is such sections, shall continue in effect
until the later of the expiration of this Agreement or two (2) years
following a Change in Control.
13. Indemnification and Liability Insurance. Subject to, and limited by
Section 26(f) of this Agreement, the Association shall provide the following:
a. Indemnification. The Company and the Association agree to indemnify
the Executive (and his heirs, executors, and administrators), and to
advance expenses related thereto, to the fullest extent permitted
under applicable law and regulations against any and all expenses
and liabilities reasonably incurred by him in connection with or
arising out of any action, suit, or proceeding in which he may be
involved by reason of his having been a director or Executive of the
Company, the Association or any of their subsidiaries (whether or
not he continues to be a director or Executive at the time of
incurring any such expenses or liabilities) such expenses and
liabilities to include, but not be limited to, judgments, court
costs, and attorney's fees and the cost of reasonable settlements,
such settlements to be approved by the Board, if such action is
brought against the Executive in his capacity as an Executive or
director of the Company and the Association or any of their
subsidiaries. Indemnification for expense shall not extend to
matters for which the Executive has been terminated for Cause.
Nothing contained herein shall be deemed to provide indemnification
prohibited by applicable law or regulation. Notwithstanding anything
herein to the contrary, the obligations of this Section 13 shall
survive the term of this Agreement by a period of six (6) years.
b. Insurance. During the period in which indemnification of the
Executive is required under this Section, the Company and the
Association shall provide the Executive (and his heirs, executors,
and administrators) with coverage under a directors' and Executives'
liability policy at the expense of the Company and the Association,
at least equivalent to such coverage provided to directors and
senior Executives of the Company and the Association.
14. Reimbursement of Executive's Expenses to Enforce this Agreement. The
Association shall reimburse the Executive for all reasonable out-of-pocket
expenses, including, without limitation, reasonable attorney's fees, incurred by
the Executive in connection with successful enforcement by the Executive of the
obligations of the Association to the Executive under this Agreement. The
Association shall make such payments promptly and, in any event, not later than
March 15 of the year immediately following the year in which such expense was
incurred by Executive. Successful enforcement shall mean the grant of an award
of money or the requirement that the Association take some action specified by
this Agreement: (i) as a result of court order; or (ii) otherwise by the
Association following an initial failure of the Association to pay such money or
take such action promptly after written demand therefor from the
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Executive stating the reason that such money or action was due under this
Agreement at or prior to the time of such demand.
15. Limitation of Benefits under Certain Circumstances. If the payments
and benefits pursuant to Section 12 of this Agreement, either alone or together
with other payments and benefits which the Executive has the right to receive
from the Association, would constitute a "parachute payment" under Section 280G
of the Code, the payments and benefits pursuant to Section 12 shall be reduced
by the amount, if any, which is the minimum necessary to result in no portion of
the payments and benefits under Section 12 being non-deductible to the
Association pursuant to Section 280G of the Code and subject to the excise tax
imposed under Section 4999 of the Code. The determination of any reduction in
the payments and benefits to be made pursuant to Section 12 shall be based upon
the opinion of the Association's independent tax counsel and paid for by the
Association. In the event that the Association and/or the Executive do not agree
with the opinion of such counsel, (i) the Association shall pay to the Executive
the maximum amount of payments and benefits pursuant to Section 12, as selected
by the Executive, which such opinion indicates there is a high probability of
such payments and benefits being deductible to the Association and not subject
to the imposition of the excise tax imposed under Section 4999 of the Code and
(ii) the Association may request, and the Executive shall have the right to
demand that they request, a ruling from the IRS as to whether the disputed
payments and benefits pursuant to Section 12 have such consequences. Any such
request for a ruling from the IRS shall be promptly prepared and filed by the
Association, but in no event later than thirty (30) days from the date of the
opinion of counsel referred to above, and shall be subject to the Executive's
approval prior to filing, which shall not be unreasonably withheld. The
Association and the Executive agree to be bound by any ruling received from the
IRS and to make appropriate payments to each other to reflect any such rulings,
together with interest at the applicable federal rate provided for in Section
7872(f)(2) of the Code.
16. Injunctive Relief. If there is a breach or threatened breach of
Section 11(g) of this Agreement or the prohibitions upon disclosure contained in
Section 10(c) of this Agreement, the parties agree that there is no adequate
remedy at law for such breach, and that the Association shall be entitled to
injunctive relief restraining the Executive from such breach or threatened
breach, but such relief shall not be the exclusive remedy hereunder for such
breach. The parties hereto likewise agree that the Executive, without
limitation, shall be entitled to injunctive relief to enforce the obligations of
the Association under this Agreement.
17. Successors and Assigns.
a. This Agreement shall inure to the benefit of and be binding upon any
corporate or other successor of the Association which shall acquire,
directly or indirectly, by merger, consolidation, purchase or
otherwise, all or substantially all of the assets or stock of the
Company and the Association.
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b. Since the Association is contracting for the unique and personal
skills of Executive, Executive shall be precluded from assigning or
delegating his rights or duties hereunder without first obtaining
the written consent of the Association.
18. No Mitigation. Executive shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other employment
or otherwise and no such payment shall be offset or reduced by the amount of any
compensation or benefits provided to Executive in any subsequent
19. Notices. All notices, requests, demands and other communications in
connection with this Agreement shall be made in writing and shall be deemed to
have been given when delivered by hand or 48 hours after mailing at any general
or branch United States Post Office, by registered or certified mail, postage
prepaid, addressed to the Association at their principal business offices and to
Executive at his home address as maintained in the records of the Association.
20. No Plan Created by this Agreement. Executive and the Association
expressly declare and agree that this Agreement was negotiated among them and
that no provision or provisions of this Agreement are intended to, or shall be
deemed to, create any plan for purposes of the Employee Retirement Income
Security Act or any other law or regulation, and each party expressly waives any
right to assert the contrary. Any assertion in any judicial or administrative
filing, hearing, or process that such a plan was so created by this Agreement
shall be deemed a material breach of this Agreement by the party making such an
assertion.
21. Amendments. No amendments or additions to this Agreement shall be
binding unless made in writing and signed by all of the parties, except as
herein otherwise specifically provided.
22. Applicable Law. Except to the extent preempted by Federal law, the
laws of the State of Connecticut shall govern this Agreement in all respects,
whether as to its validity, construction, capacity, performance or otherwise.
23. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
24. Headings. Headings contained herein are for convenience of reference
only.
25. Entire Agreement. This Agreement, together with any understanding or
modifications thereof as agreed to in writing by the parties, shall constitute
the entire agreement among the parties hereto with respect to the subject matter
hereof, other than written agreements with respect to specific plans, programs
or arrangements described in Sections 5 and 6. Upon
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execution of this Agreement, the employment agreement entered into between the
parties on June 4, 2002, will become null and void.
26. Required Provisions. In the event any of the foregoing provisions of
this Section 26 are in conflict with the terms of this Agreement, this Section
26 shall prevail.
a. The Association's board of directors may terminate Executive's
employment at any time, but any termination by the Association,
other than Termination for Cause, shall not prejudice Executive's
right to compensation or other benefits under this Agreement.
Executive shall not have the right to receive compensation or other
benefits for any period after Termination for Cause as defined in
Section 11(d) hereinabove.
b. If Executive is suspended from office and/or temporarily prohibited
from participating in the conduct of the Association's affairs by a
notice served under Section 8(e)(3) or 8(g)(1) of the Federal
Deposit Insurance Act, 12 U.S.C. ss.1818(e)(3) or (g)(1); the
Association's obligations under this contract shall be suspended as
of the date of service, unless stayed by appropriate proceedings. If
the charges in the notice are dismissed, the Association may in its
discretion: (i) pay Executive all or part of the compensation
withheld while their contract obligations were suspended; and (ii)
reinstate (in whole or in part) any of the obligations which were
suspended.
c. If Executive is removed and/or permanently prohibited from
participating in the conduct of the Association's affairs by an
order issued under Section 8(e)(4) or 8(g)(1) of the Federal Deposit
Insurance Act, 12 U.S.C. ss.1818(e)(4) or (g)(1), all obligations of
the Association under this contract shall terminate as of the
effective date of the order, but vested rights of the contracting
parties shall not be affected.
d. If the Association is in default as defined in Section 3(x)(1) of
the Federal Deposit Insurance Act, 12 U.S.C. ss.1813(x)(1) all
obligations of the Association under this contract shall terminate
as of the date of default, but this paragraph shall not affect any
vested rights of the contracting parties.
e. All obligations under this contract shall be terminated, except to
the extent determined that continuation of the contract is necessary
for the continued operation of the Association: (i) by the Director
of the OTS (or his designee), at the time the FDIC enters into an
agreement to provide assistance to or on behalf of the Association
under the authority contained in Section 13(c) of the Federal
Deposit Insurance Act, 12 U.S.C. ss.1823(c); or (ii) by the Director
of the OTS (or his designee) at the time the Director (or his
designee) approves a supervisory merger to resolve problems related
to the operations of the Association or when the Association is
determined by the Director to be in an unsafe or unsound
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condition. Any rights of the parties that have already vested,
however, shall not be affected by such action.
f. Any payments made to employees pursuant to this Agreement, or
otherwise, are subject to and conditioned upon their compliance with
12 U.S.C. ss.1828(k) and FDIC regulation 12 C.F.R. Part 359, Golden
Parachute and Indemnification Payments.
g. Notwithstanding anything in this Agreement to the contrary, in the
event the Executive is a Specified Employee (as defined herein),
then, solely, to the extent required to avoid penalties under Code
Section 409A, the Executive's payments shall be delayed until the
first day of the seventh month following the Executive's Separation
from Service. A "Specified Employee" shall be interpreted to comply
with Code Section 409A and shall mean a key employee within the
meaning of Code Section 416(i) (without regard to paragraph 5
thereof).
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first set forth above.
Attest: ENFIELD FEDERAL SAVINGS
AND LOAN ASSOCIATION
/s/ Nancy L. Grady By:/s/ Peter T. Dow
- ------------------------------ -------------------------------------
Chairman of the Board of Directors
Witness: EXECUTIVE
/s/ Nancy L. Grady /s/ David J. O'Connor
- ------------------------------ ----------------------------------------
David J. O'Connor
President and Chief Executive Officer
F:\Clients\1335\Benefits\409A\Employment Agreement - David O'Connor -
Association - Revised (10 30 08).DOC
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