EXHIBIT 10.8
FORM OF
NAUGATUCK VALLEY SAVINGS AND LOAN
CHANGE IN CONTROL SEVERANCE PLAN
SECTION 1. PLAN PURPOSE. The purpose of the Naugatuck Valley Savings and
Loan Change in Control Severance Plan is to assure for Naugatuck Valley Savings
and Loan the continued services of Bank employees in the event of a Change in
Control of Naugatuck Valley Financial Corporation or the Bank. The benefits
contemplated by the Plan recognize the value of the services and contributions
of Eligible Employees and seek to minimize the adverse effects upon the Bank of
uncertainties regarding continued employment, reduced employee benefits,
management changes and relocations that may arise in the event of a Change in
Control. The Board of Directors of the Bank further believes that the Plan will
aid the Bank in attracting and retaining the highly qualified employees
essential to its continued success.
SECTION 2. DEFINITIONS. Whenever used herein, the following terms shall
have the meanings set forth below:
(a) "Affiliate" means any parent or subsidiary corporation affiliated
with the Bank.
(b) "Annual Compensation" means [REGULAR BASE SALARY OR TOTAL HOURLY
WAGES PAID DURING THE MOST RECENT 12 MONTHS ENDED AS OF THE DATE OF TERMINATION
OF EMPLOYMENT, WHICH IS INCLUDIBLE IN THE GROSS INCOME OF THE ELIGIBLE EMPLOYEE
FOR FEDERAL INCOME TAX PURPOSES. ANNUAL COMPENSATION SHALL EXCLUDE OVERTIME,
BONUSES, PREMIUMS, INCENTIVE COMPENSATION IN ANY FORM, TRAVEL AND SIMILAR
BUSINESS EXPENSES OR ALLOWANCE AND ANY OTHER SPECIAL PAYMENTS.]
(c) "Bank" means Naugatuck Valley Savings and Loan, or any successor
thereto.
(d) "Change in Control" means any of the following:
(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: A report on
Schedule 13D or another form or schedule (other than Schedule 13G)
is filed or is required to be filed 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 stockholders) by a vote of at least
two-thirds of the directors who were directors at the beginning of
the period shall be deemed to have been a director at the beginning
of the two-year period; or
(iv) Sale of Assets: The Company sells to a third party all or
substantially all of its assets.
A Change in Control shall not occur as a result of a mutual holding
company reorganization or second-step conversion of the Bank from the mutual to
the stock form of ownership.
(e) "Code" means the Internal Revenue Code of 1986, as amended from time
to time.
(f) "Company" means Naugatuck Valley Financial Corporation or any
successor thereto.
(g) "Comparable Position" means a position which:
(i) requires skills and knowledge similar to that required for the
Eligible Employee's position immediately prior to a Change in
Control; or
(ii) involves a work schedule that is substantially similar to that
followed by the Eligible Employee immediately prior to a Change in
Control.
A position shall not fail to be a "Comparable Position," solely
because it results in a change in the Eligible Employee's (A) title,
(B) supervisory authority or (C) reporting responsibilities in
connection with a Change in Control.
(h) "Disqualified Individual" has the same meaning as such term is
defined in Section 280G of the Code and applicable regulations issued
thereunder.
(i) "Eligible Employee" means any Employee of the Bank or an affiliate
who has been employed by the Bank for at least [________] as of the date of a
Change in Control and whose employment status, within [________] following a
change in control, is affected in any one of the following ways without prior
consent:
(i) The Eligible Employee is involuntarily terminated by the
Company, the Bank or an Affiliate for any reason other than Just
Cause.
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(ii) The Eligible Employee voluntarily terminates employment
following a relocation of employment to a work site that is more
than 35 miles from its location immediately prior to the Change in
Control.
(iii) The Eligible Employee voluntarily terminates employment due to
a reduction in base salary below the amount being paid immediately
prior to the Change in Control.
(iv) The Eligible Employee voluntarily terminates employment due to
a failure by the Company or an Affiliate to offer or employ the
Eligible Employee in a Comparable Position.
(j) "Employee" means any person who has been employed by the Bank or any
Affiliate for at least [________] days, on a full-time salaried basis,
immediately prior to the Change in Control, excluding any person who is covered
by an employment contract, change in control or severance agreement with the
Bank or any Affiliate.
(k) "Excess Parachute Payment" has the same meaning as such term is
defined in Section 280G of the Code and applicable regulations issued
thereunder.
(l) "Just Cause," with respect to termination of employment, means an act
or acts of personal dishonesty, incompetence, willful misconduct, breach of
fiduciary duty involving personal profit, failure to perform stated duties,
willful violation of any law, rule, or regulation (other than traffic violations
or similar offenses) or final cease-and-desist order. In determining
incompetence, acts or omissions shall be measured against standards generally
prevailing in the banking industry, as determined by the Boards of Directors of
the Bank or the Company.
(m) "Leave of Absence" means solely for Plan purposes, the taking of an
authorized or approved leave of absence under the provisions of (i) the Family
and Medical Leave Act ("FMLA"), (ii) any state law providing quantitatively
similar benefits to the FMLA, or (iii) an authorized leave policy of the Bank or
an Affiliate.
(n) "Plan" means this Naugatuck Valley Savings and Loan Change in Control
Severance Plan, as may be amended from time to time.
(o) "Year of Service" means each consecutive 12 month period, beginning
with an employee's date of hire and continuing through a termination of
employment, in which an Employee is credited with at least one hour of service
in each month. The taking of a Leave of Absence shall be counted toward a Year
of Service if such time period would otherwise qualify toward completion of a
Year of Service for purposes of the Plan. For purposes of determining a
severance benefit under this Plan, partial years will be rounded up to the
nearest whole Year of Service.
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SECTION 3. SEVERANCE BENEFIT TO ELIGIBLE EMPLOYEES.
(a) Each Eligible Employee shall be entitled to receive a severance
benefit equal to [ONE-TWELFTH (1/12) OF HIS OR HER ANNUAL COMPENSATION FOR EACH
YEAR OF SERVICE WITH THE BANK OR AN AFFILIATE. NOTWITHSTANDING THE FOREGOING, AN
ELIGIBLE EMPLOYEE SHALL BE ENTITLED TO A MAXIMUM SEVERANCE BENEFIT EQUAL TO
______________________________]
(b) All severance payments shall be made in a single lump sum payment,
payable within ten (10) days of the Eligible Employee's termination of
employment.
(c) Notwithstanding anything in the Plan to the contrary, if all or a
portion of a severance benefit payment to an Eligible Employee who is a
Disqualified Individual is considered an Excess Parachute Payment under Section
280G of the Code, the payment shall be reduced to the maximum amount that does
not constitute an Excess Parachute Payment.
(d) The Eligible Employee shall not be required to mitigate damages in
relation to a severance benefit by seeking other employment or otherwise, nor
shall the amount of a severance benefit be reduced by any compensation earned by
the Eligible Employee as a result of employment obtained after termination of
employment hereunder.
SECTION 4. WRITTEN ACKNOWLEDGMENT. As a condition to receiving any
payments pursuant to Section 3 of this Plan, the Eligible Employee shall deliver
to the Bank or any applicable Affiliate on the date of his or her employment
termination a written Acknowledgment signed by the Eligible Employee stating (i)
that the severance payment to be made to the Eligible Employee pursuant to
paragraph 3 above is in full and complete satisfaction of all liabilities and
obligations of the Bank and its Affiliates, directors, officers, employees and
agents, except for any tax-qualified plan benefits that may be due and owing and
except for any liabilities or obligations that may be required by law, and (ii)
that the Bank or any Affiliate shall not have any other liabilities or
obligations to the Eligible Employee relating to the Eligible Employee's
employment by the Bank or any Affiliate.
SECTION 5. LEGAL FEES AND EXPENSES. All reasonable legal fees and other
expenses paid or incurred by a party hereto pursuant to any dispute or question
of interpretation relating to this Plan shall be paid or reimbursed by the
prevailing party in any legal judgment, arbitration or settlement.
SECTION 6. REQUIRED PROVISIONS.
(a) The Bank or any of its Affiliates may terminate an employee's
employment at any time, but any termination by the Bank or any of its
Affiliates, other than termination for Just Cause, shall not prejudice that
employee's right to compensation under this Plan. An employee shall not have the
right to receive compensation for any period after termination for Just Cause as
defined in Section 2(g) of this Plan.
(b) If an Employee is suspended and/or temporarily prohibited from
participating in the conduct of the Bank's affairs by a notice served under
Section 8(e)(3) or 8(g)(1) of the
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Federal Deposit Insurance Act, 12 U.S.C. Section 1818(e)(3) or (g)(1), the
Bank's obligations under this Plan shall be suspended as of the date of service,
unless stayed by appropriate proceedings. If the charges in the notice are
dismissed, the Bank may in its discretion (i) pay the Employee all or part of
the compensation withheld while their obligations were suspended and (ii)
reinstate (in whole or in part) any of the obligations which were suspended.
(c) If an employee is removed and/or permanently prohibited from
participating in the conduct of the Bank'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.
Section 1818(e)(4) or (g)(1), all obligations of the Bank 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 Bank is in default as defined in Section 3(x)(1) of the
Federal Deposit Insurance Act, 12 U.S.C. Section 1813(x)(1), all obligations of
the Bank under this Plan shall terminate as of the date of default, but this
paragraph shall not affect any vested rights of the contracting parties.
(e) All obligations of the Bank under this Plan shall be terminated,
except to the extent it is determined that the Plan's continuation is necessary
for the continued operation of the institution: (i) by the Bank's appropriate
federal banking agency as defined at 12 U.S.C. Section 1813(g) or by the Federal
Deposit Insurance Corporation (FDIC), at the time of entry into an agreement to
provide assistance to or on behalf of the Bank under the authority contained in
Section 13(c) of the Federal Deposit Insurance Act; or (ii) by the Bank's
appropriate federal banking agency as defined at 12. U.S.C. Section 1813(g), at
the time such agency approves a supervisory merger to resolve problems related
to the operation of the Bank, or when the Bank is determined by the agency to be
in an unsafe or unsound condition. Any rights of the parties that have already
vested, however, shall not be affected by such action.
(f) Any payments made pursuant to this Plan, or otherwise, are subject
to and conditioned upon their compliance with 12 U.S.C. Section 1828(k) and any
regulations promulgated thereunder.
SECTION 7. ADMINISTRATIVE PROVISIONS.
(a) The administrator of the Plan shall be under the supervision of the
Board of Directors of the Bank or a committee appointed by the Board of
Directors of the Bank (the "Board"). It shall be a principal duty of the Board
to see that the Plan is carried out, in accordance with its terms, for the
exclusive benefit of persons entitled to participate in the Plan and without
discrimination among Participants. The Board will have full power to administer
the Plan in all of its details; provided, however, that the Board remains
subject to the requirements of ERISA. For this purpose, the Board's powers will
include, but will not be limited to, the following authority, in addition to all
other powers provided for by this Plan: (i) to make and enforce such rules and
regulations as it deems necessary or proper for the efficient administration of
the Plan; (ii) to interpret the Plan, its interpretation thereof in good faith
to be final and conclusive on all persons claiming benefits under the Plan;
(iii) to decide all questions concerning the Plan and the eligibility of any
person to participate in the Plan; (iv) to compute
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the amount of severance benefits payable to any Eligible Employee or other
person in accordance with the provisions of the Plan, and to determine the
person or persons to whom such benefits will be paid; (v) to authorize severance
benefits; (vi) to appoint such agents, counsel, accountants, consultants and
actuaries as may be required to assist in administering the Plan; and (vii) to
allocate and delegate its responsibilities under the Plan and to designate other
persons to carry out any of its responsibilities under the Plan, any such
allocation, delegation or designation to be by written instrument and in
accordance with Section 405 of ERISA, if applicable.
(b) The Board will be a "named fiduciary" for purposes of Section
402(a)(1) of ERISA with authority to control and manage the operation and
administration of the Plan, and will be responsible for complying with all of
the reporting and disclosure requirements of Part 1 of Subtitle B of Title I of
ERISA.
SECTION 8. CLAIMS AND REVIEW PROCEDURES.
(a) If any person believes he is being denied any rights or benefits
under the Plan, such person may file a claim in writing with the Board. If any
such claim is wholly or partially denied, the Board will notify the claimant of
its decision in writing. Such notification will be written in a manner
calculated to be understood by the claimant and will contain: (i) specific
reasons for the denial, (ii) specific references to pertinent Plan provisions,
(iii) a description of any additional material or information necessary for the
claimant to perfect the claim and an explanation of why such material or
information is necessary and (iv) information as to the steps to be taken if the
claimant wishes to submit a request for review. Such notification will be given
within 90 days after the claim is received by the Board (or within 180 days, if
special circumstances require an extension of time for processing the claim, and
if written notice of such extension and circumstances is given to the claimant
within the initial 90 day period). If such notification is not given within such
period, the claim will be considered denied as of the last day of such period
and the claimant may request a review of the claim.
(b) Within 60 days after the date on which a claimant receives a written
notice of a denied claim (or, if applicable, within 60 days after the date on
which such denial is considered to have occurred) the claimant (or his duly
authorized representative) may (i) file a written request with the Board for a
review of his denied claim and of pertinent documents and (ii) submit written
issues and comments to the Board. The Board will notify the claimant of its
decision in writing. Such notification will be written in a manner calculated to
be understood by the claimant and will contain specific reasons for the decision
as well as specific references to pertinent Plan provisions. The decision on
review will be made within 60 days after the request for review is received by
the Board (or within 120 days, if special circumstances require an extension of
time for processing the request, such as an election by the Board to hold a
hearing, and if written notice of such extension and circumstances is given to
the claimant within the initial 60 day period). If the decision on review is not
made within such period, the claim will be considered denied.
SECTION 9. GOVERNING LAW. To the extent not pre-empted by federal law,
this plan shall be governed by the laws of the State of Connecticut.
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SECTION 10. TERMINATION OR AMENDMENT. This plan may be amended or
terminated at any time prior to a Change in Control, in the full discretion of
the Board of Directors of the Bank. This plan may not be terminated or amended
at the time of or following a Change in Control.
Having been duly adopted by the Board of Directors of the Bank, this Plan
is executed by a duly authorized officer of the Bank on this _____ day of
______________________, 2004.
ATTEST: NAUGATUCK VALLEY SAVINGS AND LOAN
____________________ By: _______________________________________
For the Entire Board of Directors
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