Exhibit 10.7
EXECUTION COPY
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AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("the Agreement") is made
and entered into as of October 23, 2007 (the "Effective Date") by and between
WESTFIELD BANK, federally-chartered savings bank having an office at 141 Elm
Street, Westfield, Massachusetts 01085 (the "Bank") and DONALD A. WILLIAMS, an
individual residing at 146 Glenwood Drive, Westfield, Massachusetts 01085 (the
"Executive").
W I T N E S S E T H :
WHEREAS, the Executive currently serves as President and Chief Executive
Officer of the Bank, a subsidiary of Westfield Financial, Inc. (the "Company");
WHEREAS, the Bank desires to assure for itself the continued availability
of the Executive's services as provided in this Agreement and the ability of
the Executive to perform such services with a minimum of personal distraction
in the event of a pending or threatened Change of Control (as hereinafter
defined); and
WHEREAS, the Executive is willing to continue to serve the Bank on the
terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and conditions hereinafter set forth, the Bank and the Executive hereby agree
as follows:
Section 1. Employment.
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The Bank agrees to continue to employ the Executive, and the Executive
hereby agrees to such continued employment, during the period and upon the
terms and conditions set forth in this Agreement.
Section 2. Employment Period; Remaining Unexpired Employment Period.
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(a) The terms and conditions of this Agreement shall be and remain in
effect during the period of employment established under this section 2
("Employment Period"). The Employment Period shall be for an initial term of
three (3) years beginning on the Effective Date and ending on the third
anniversary date of this Agreement, plus such extensions, if any, as are
provided pursuant to section 2(b).
(b) The Board of Directors of the Bank (the "Board") shall conduct an
annual review of the Executive's performance on or about each anniversary of
the Effective Date (each, an "Anniversary Date") and may, on the basis of such
review and by written notice to the Executive, offer to extend the Employment
Period for an additional one (1)-year period. In such event, the Employment
Period shall be deemed extended in the absence of objection from the Executive
by written notice to the Bank given within ten (10) business days after his
receipt of the Bank's offer of extension. Except as otherwise expressly
provided in this Agreement, any reference in this Agreement to the term
"Remaining Unexpired Employment Period" as of any date shall mean the period
beginning on such date and ending on the day of the third (3rd)
anniversary of the last Anniversary Date as of which the Employment Period was
extended pursuant to this Section 2(b).
(c) Nothing in this Agreement shall be deemed to prohibit the Bank at any
time from terminating the Executive's employment during the Employment Period
with or without notice for any reason; provided, however, that the relative
rights and obligations of the Bank and the Executive in the event of any such
termination shall be determined under this Agreement.
Section 3. Duties.
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The Executive shall serve as President and Chief Executive Officer of the
Bank, having such power, authority and responsibility and performing such
duties as are prescribed by or under the By-Laws of the Bank and as are
customarily associated with such position. Subject to section 7 of this
Agreement, the Executive shall devote his full business time and attention
(other than during weekends, holidays, approved vacation periods, and periods
of illness or approved leaves of absence) to the business and affairs of the
Bank and shall use his best efforts to advance the interests of the Bank.
Section 4. Cash Compensation.
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In consideration for the services to be rendered by the Executive
hereunder, the Bank shall continue to pay to him a salary at an annual rate of
$416,078, payable in approximately equal installments in accordance
with the Bank's customary payroll practices for senior officers. The Board
shall review the Executive's annual rate of salary at such times during the
Employment Period as it deems appropriate, but not less frequently than once
every twelve (12) months, and may, in its discretion, approve an increase
therein. In addition to salary, the Executive may receive other cash
compensation from the Bank for services hereunder at such times, in such
amounts and on such terms and conditions as the Board may determine from time
to time.
Section 5. Employee Benefit Plans and Programs.
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During the Employment Period, the Executive shall be treated as an
employee of the Bank and shall be entitled to participate in and receive
benefits under any and all qualified or non-qualified retirement, pension,
savings, profit-sharing or stock bonus plans, any and all group life, health
(including hospitalization, medical and major medical), dental, accident and
long term disability insurance plans, and any other employee benefit and
compensation plans (including, but not limited to, any incentive compensation
plans or programs, stock option and appreciation rights plans and restricted
stock plans) as may from time to time be maintained by, or cover employees of,
the Bank in accordance with the terms and conditions of such employee benefit
plans and programs and compensation plans and programs and consistent with the
Bank's customary practices.
Section 6. Indemnification and Insurance.
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(a) During the Employment Period and for a period of six (6) years
thereafter, the Bank shall cause the Executive to be covered by and named as an
insured under any policy or contract of insurance obtained by it to insure its
directors and officers against personal liability
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for acts or omissions in connection with service as an officer or director of
the Bank or service in other capacities at the request of the Bank. The
coverage provided to the Executive pursuant to this section 6 shall be of the
same scope and on the same terms and conditions as the coverage (if any)
provided to other officers or directors of the Bank.
(b) To the maximum extent permitted under applicable law, during the
Employment Period and for a period of six years thereafter, the Bank shall
indemnify the Executive against and hold him harmless from any costs, damages,
losses and exposures arising out of a bona fide action, suit or proceeding in
which he may be involved by reason of his having been a director or officer of
the Bank to the fullest extent and on the most favorable terms and conditions
that similar indemnification is offered to any director or officer of the Bank
or any subsidiary or affiliate thereof.
(c) The Executive, the Company and the Bank agree that the termination
benefits described in this Section 6 are intended to be exempt from Section
409A of the Internal Revenue Code ("Section 409A") pursuant to Treasury
Regulation Section 1.409A-1(b)(10) as certain indemnification and liability
insurance plans.
Section 7. Outside Activities.
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The Executive may serve as a member of the boards of directors of such
business, community and charitable organizations as he may disclose to and as
may be approved by the Board (which approval shall not be unreasonably
withheld); provided, however, that such service shall not materially interfere
with the performance of his duties under this Agreement. The Executive may also
engage in personal business and investment activities which do not materially
interfere with the performance of his duties hereunder; provided, however, that
such activities are not prohibited under any code of conduct or investment or
securities trading policy established by the Bank and generally applicable to
all similarly situated Executives. The Executive may also serve as an officer
or director of the Company on such terms and conditions as the Company and the
Bank may mutually agree upon, and such service shall not be deemed to
materially interfere with the Executive's performance of his duties hereunder
or otherwise result in a material breach of this Agreement. If the Executive is
discharged or suspended, or is subject to any regulatory prohibition or
restriction with respect to participation in the affairs of the Bank, he shall
not directly or indirectly provide services to or participate in the affairs of
the Bank in a manner inconsistent with the terms of such discharge or
suspension or any applicable regulatory order.
Section 8. Working Facilities and Expenses.
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The Executive's principal place of employment shall be at the Bank's
executive offices at the address first above written or at such other location
as the Bank and the executive may mutually agree upon. The Bank shall provide
the Executive at his principal place of employment with a private office,
secretarial services and other support services and facilities suitable to his
position with the Bank and necessary or appropriate in connection with the
performance of his assigned duties under this Agreement. The Bank shall provide
to the Executive for his exclusive use an automobile owned or leased by the
Bank and appropriate to his position, to be used in the performance of his
duties hereunder, including commuting to and from his personal residence. The
Bank shall reimburse the Executive for his ordinary and necessary business
expenses, including, without limitation, all expenses associated with his
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business use of the aforementioned automobile, fees for memberships in such
clubs and organizations as the Executive and the Bank shall mutually agree are
necessary and appropriate for business purposes, and his travel and
entertainment expenses incurred in connection with the performance of his
duties under this Agreement, in each case upon presentation to the Bank of an
itemized account of such expenses in such form as the Bank may reasonably
require.
Section 9. Termination of Employment with Severance Benefits.
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(a) The Executive shall be entitled to the severance benefits described
in section 9(b) in the event that:
(i) his employment with the Bank terminates during the Employment
Period as a result of the Executive's voluntary resignation within ninety
(90) days following:
(A) the failure of the Board to appoint or re-appoint or
elect or re-elect the Executive to the position with the Bank
stated in section 3 of this Agreement;
(B) if the Executive is a member of the Board, the failure of
the shareholders of the Bank to elect or re-elect the Executive to
the Board or the failure of the Board (or the nominating committee
thereof) to nominate the Executive for such election or
re-election;
(C) the expiration of a thirty (30)-day period following the
date on which the Executive gives written notice to the Bank of its
material failure, whether by amendment of the Bank's Restated
Organization Certificate, the Bank's By-Laws, action of the Board
or the Bank's shareholders or otherwise, to vest in the Executive
the functions, duties, or responsibilities prescribed in section 3
of this Agreement, unless, during such thirty (30)-day period, the
Bank cures such failure;
(D) the expiration of a thirty (30)-day period following the
date on which the Executive gives written notice to the Bank of its
material breach of any term, condition or covenant contained in
this Agreement (including, without limitation any reduction of the
Executive's rate of base salary in effect from time to time and any
change in the terms and conditions of any compensation or benefit
program in which the Executive participates which, either
individually or together with other changes, has a material adverse
effect on the aggregate value of his total compensation package),
unless, during such thirty (30)-day period, the Bank cures such
failure;
(E) a change in the Executive's principal place of employment
to a place that is not the principal executive office of the Bank,
or a relocation of the Bank's principal executive office to a
location that is both more than twenty-five (25) miles away from
the Executive's principal residence and more than twenty-five (25)
miles away from the location of the Bank's principal executive
office on the date of this Agreement; or
(F) any material breach by the Bank of any material term,
condition or covenant contained in this Agreement; provided,
however, that the Executive shall
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have given notice of such materials adverse effect to the Bank, and
the Bank has not fully cured such failure within thirty (30) days
after such notice is deemed given; or
(ii) the Executive's employment with the Bank is terminated by the
Bank for any reason other than for "cause" as provided in section 11(a).
(b) Upon the occurrence of any of the events described in section 9(a) of
this Agreement, the Bank shall pay and provide to the Executive (or, in the
event of his death thereafter and prior to payment, to his estate):
(i) his earned but unpaid salary (including, without limitation,
all items which constitute wages under applicable law and the payment of
which is not otherwise provided for in this section 9(b)) as of the date
of the termination of his employment with the Company and the Bank, such
payment to be made at the time and in the manner prescribed by law
applicable to the payment of wages but in no event later than thirty (30)
days after termination of employment as defined in Treasury Regulation
Section 1.409A-1(h)(1)(ii);
(ii) the benefits, if any, to which he is entitled as a former
employee under the employee benefit plans and programs and compensation
plans and programs maintained for the benefit of the Company's and the
Bank's officers and employees;
(iii) continued group life, health (including hospitalization,
medical and major medical), dental, accident and long-term disability
insurance benefits on substantially the same terms and conditions
(including any required premium-sharing arrangements, co-payments and
deductibles) in effect for them immediately prior to the Executive's
termination for the Remaining Unexpired Employment Period for the
Executive and his dependents. The coverage provided under this section
9(b)(iii) may, at the election of the Company, be secondary to the
coverage provided pursuant to section 9(b)(ii) and to any employer-paid
coverage provided by a subsequent employer or through Medicare, with the
result that benefits under the other coverages will offset the coverage
required by this section 9(b)(iii). The Executive, the Company and the
Bank agree that the termination benefits described in this Section
9(b)(iii) are intended to be exempt from Section 409A pursuant to
Treasury Regulation Section 1.409A-1(b)(1) as non-taxable benefits;
(iv) a lump sum payment in an amount equal to the estimated present
value of the salary that the Executive would have earned if he had
continued working for the Company and the Bank during the Remaining
Unexpired Employment Period at the highest annual rate of salary achieved
during the period of three (3) years ending immediately prior to the date
of termination (the "Salary Severance Payment"). The Salary Severance
Payment shall be computed using the following formula:
n (BS/PR)
SSP=3 [-------------------------------]
1 n
[1 + (I / PR)]
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where "SSP" is the amount of the Salary Severance Payment (before the
deduction of applicable federal, state and local withholding taxes); "BS"
is the highest annual rate of salary achieved by the Executive during the
period of three (3) years ending immediately prior to the date of
termination; "PR" is the number of payroll periods that occur during a
year under the Company's normal payroll practices; "I" equals the
applicable federal short term rate established under section 1274 of the
Internal Revenue Code of 1986 (the "Code") for the month in which the
Executive's termination of employment occurs (the "Short Term AFR") and
"n" equals the product of the Remaining Unexpired Employment Period at
the Executive's termination of employment (expressed in years and
fractions of years) multiplied by the number of payroll periods that
occur during a year under the Company's and the Bank's normal payroll
practices. The Salary Severance Payment shall be made within five (5)
business days after the Executive's termination of employment and shall
be in lieu of any claim to a continuation of base salary which the
Executive might otherwise have and in lieu of cash severance benefits
under any severance benefits program which may be in effect for officers
or employees of the Bank or the Company;
(v) a lump sum payment in an amount equal to the estimated present
value of the annual bonuses that the Executive would have earned if he
had continued working for the Company and the Bank during the Remaining
Unexpired Employment Period at the highest annual rate of salary achieved
during the period of three (3) years ending immediately prior to the date
of termination (the "Bonus Severance Payment"). The Bonus Severance
Payment shall be computed using the following formula:
BSP = SSP x (ABP / ASP)
where "BSP" is the amount of the Bonus Severance Payment (before the
deduction of applicable federal, state and local withholding taxes);
"SSP" is the amount of the Salary Severance Payment (before the deduction
of applicable federal, state and local withholding taxes); "BP" is the
aggregate of the annual bonuses paid or declared (whether or not paid)
for the most recent period of three (3) calendar years to end on or
before the Executive's termination of employment; and "SP" is the
aggregate base salary actually paid to the Executive during such period
of three (3) calendar years (excluding any year for which no bonus was
declared or paid). The Bonus Severance Payment shall be made within five
(5) business days after the Executive's termination of employment and
shall be in lieu of any claim to a continuation of participation in
annual bonus plans of the Bank or the Company which the Executive might
otherwise have;
(vi) a lump sum payment in an amount equal to the estimated present
value of the long-term incentive bonuses that the Executive would have
earned if he had continued working for the Company and the Bank during
the Remaining Unexpired Employment Period (the "Incentive Severance
Payment"). The Incentive Severance Payment shall be computed using the
following formula:
ISP = (SSP / RUP) x (ALTIP / ALTSP) x Y
where "ISP" is the amount of the Incentive Severance Payment (before the
deduction of applicable federal, state and local withholding taxes);
"SSP" is the amount of the Salary
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Severance Payment (before the deduction of applicable federal, state and
local withholding taxes); "ALTIP" is the aggregate of the most recently
paid or declared (whether or not paid) long-term incentive compensation
payments (but not more than three (3) such payments) for performance
periods that end on or before the Executive's termination of employment;
"ALTSP" is the aggregate base salary actually paid to the Executive
during the performance periods covered by the payments included in
"ALTIP" and excluding base salary paid for any period for which no
long-term incentive compensation payment was declared or paid; "RUP" is
the Remaining Unexpired Employment Period, expressed in years and
fractions of years; and "Y" is the aggregate (expressed in years and
fractions of years) of the Remaining Unexpired Employment Period plus the
number of years and fraction of years that have elapsed since the end of
the last performance period for which a long-term incentive payment has
been declared and paid. In the event that the Executive's employment
terminates prior to the payment date under any long-term incentive
compensation plan, then for purposes of computing the Incentive Severance
Payment, the "ALTIP" shall be deemed to be the average of the target and
maximum award level under such plan and the "ALTSP" shall be deemed to be
the Executive's annual base salary as in effect on the Executive's
termination of employment. The Incentive Severance Payment shall be made
within five (5) business days after the Executive's termination of
employment and shall be in lieu of any claim to a continuation of
participation in cash long-term incentive compensation plans of the Bank
or the Company which the Executive might otherwise have;
(vii) a lump sum payment in an amount equal to the excess (if any)
of: (A) the present value of the aggregate benefits to which he would be
entitled under any and all tax-qualified and non-tax-qualified defined
benefit plans maintained by, or covering employees of, the Company or the
Bank (the "Pension Plans") if he had continued working for the Company
and the Bank during the Remaining Unexpired Employment Period; over (B)
the present value of the benefits to which the Executive and his spouse
and/or designated beneficiaries are actually entitled under such plans
(the "Pension Severance Payment"). The Pension Severance Payment shall be
computed according to the following formula:
PSP = PPB - APB
where "PSP" is the amount of the Pension Severance Payment (before
deductions for applicable federal, state and local withholding taxes);
"APB" is the aggregate lump sum present value of the actual vested
pension benefits payable under the Pension Plans in the form of a
straight life annuity beginning at the earliest date permitted under the
Pension Plans, computed on the basis of the Executive's life expectancy
at the earliest date on which payments under the Pension Plans could
begin, determined by reference to Table VI of section 1.72-9 of the
Income Tax Regulations (the "Assumed Life Expectancy"), and on the basis
of an interest rate assumption equal to the average bond-equivalent yield
on United States Treasury Securities with a Constant Maturity of thirty
(30) Years for the month prior to the month in which the Executive's
termination of employment occurs (the "30-Year Treasury Rate"); and "PPB"
is the lump sum present value of the pension benefits (whether or not
vested) that would be payable under the Pension Plans in the form of a
straight life annuity beginning at the earliest date permitted under the
Pension Plans, computed on the basis that the Executive's actual age at
termination of
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employment is his attained age as of his last birthday that would occur
during the Remaining Unexpired Employment Period, that his service for
benefit accrual purposes under the Pension Plans is equal to the
aggregate of his actual service plus the Remaining Unexpired Employment
Period, that his average compensation figure used in determining his
accrued benefit is equal to the highest annual rate of salary achieved by
the Executive during the period of three (3) years ending immediately
prior to the date of termination, that the Executive's life expectancy at
the earliest date on which payments under the Pension Plans could begin
is the Assumed Life Expectancy and that the interest rate assumption used
is equal to the 30-Year Treasury Rate. The Pension Severance Payment
shall be made within five (5) business days after the Executive's
termination of employment and shall be in lieu of any claim to any actual
increase in his accrued benefit in the Pension Plans in respect of the
Remaining Unexpired Employment Period;
(viii) a lump sum payment in an amount equal to the present value
of the additional employer contributions that would have been credited
directly to his account(s) under any and all tax-qualified and
non-tax-qualified defined contribution plans maintained by, or covering
employees of, the Bank and the Company (the "Non-ESOP DC Plans"), plus
the fair market value of the additional shares of employer securities or
other property that would have been allocated to his account as a result
of employer contributions or dividends under any tax-qualified leveraged
employee stock ownership plan and any related non-tax-qualified
supplemental plan maintained by, or covering employees of, the Bank and
the Company (the "ESOP Plans") if he had continued in employment during
the Remaining Unexpired Employment Period (the "Defined Contribution
Severance Payment"). The Defined Contribution Severance Payment shall be
computed according to the following formula:
DCSP = [SSP x (EC / BS)] + [(STK + PROP) x Y]
where: "DCSP" is the amount of the Defined Contribution Severance Payment
(before deductions for applicable federal, state and local withholding
taxes); "SSP" is the amount of the Salary Severance Payment (before
deductions for applicable federal, state and local withholding taxes);
"EC" is the amount of employer contributions actually credited to the
Executive's accounts under the Non-ESOP Plans for the last plan year to
end before his termination of employment; "BS" is the Executive's
compensation taken into account in computing EC; "Y" is the aggregate
(expressed in years and fractions of years) of the Remaining Unexpired
Employment Period and the number of years and fractions of years that
have elapsed between the end of plan year for which EC was computed and
the date of the Executive's termination of employment; "STK" is the fair
market value (determined on the basis of the mid-point of the highest and
lowest reported sales price for a share of stock of the same class during
the thirty (30)-day period ending on the day of the Executive's
termination of employment (the "Fair Market Value of a Share")) of the
employer securities actually allocated to the Executive's accounts under
the ESOP Plans in respect of employer contributions and dividends applied
to loan amortization payments for the last plan year to end before his
termination of employment; and "PROP" is the fair market value
(determined as of the day before the Executive's termination of
employment using the same valuation methodology used to value the assets
of the ESOP Plans) of the property other than employer securities
actually allocated to the Executive's accounts under the ESOP Plans in
respect of employer
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contributions and dividends applied to loan amortization payments for the
last plan year to end before his termination of employment; and
(ix) within the sixty (60)-day period following Executive's
termination of employment, Executive shall have the right to purchase, in
cash, the automobile provided to Executive by the Company or the Bank for
use during Executive's employment at a price equal to the trade-in value
of such automobile as reported in the most recently published version of
the Kelley Blue Book or such similar publication as mutually agreed to by
Executive and the Company. In the event that the automobile used by
Executive is leased by the Company or the Bank and Executive elects to
purchase the automobile under this provision, the Bank or the Company
shall arrange to purchase the automobile from the lessor for immediate
resale to Executive at a like price.
The Bank and the Executive hereby stipulate that the damages which may be
incurred by the Executive following any such termination of employment are not
capable of accurate measurement as of the date first above written and that the
payments and benefits contemplated by this section 9(b) constitute reasonable
damages under the circumstances and shall be payable without any requirement of
proof of actual damage and without regard to the Executive's efforts, if any,
to mitigate damages. The Bank and the Executive further agree that the Bank may
condition the payments and benefits (if any) due under sections 9(b)(iii),
(iv), (v), (vi), (vii), (viii) and (ix) on the receipt of the Executive's
resignation from any and all positions which he holds as an officer, director
or committee member with respect to the Company, the Bank or any subsidiary or
affiliate of either of them.
(c) The Executive, the Company and the Bank acknowledge that each of the
payments and benefits promised to the Executive under this Agreement must
either comply with the requirements of Section 409A and the regulations
thereunder or qualify for an exception from compliance. To that end, the
Executive, the Company and the Bank agree that the termination benefits
described in Section 9(b) are intended to be exempt from Section 409A pursuant
to Treasury Regulation Section 1.409A-1(b)(4) as short-term deferrals.
Section 10. Death and Disability Benefits.
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(a) In the event the Executive's employment with the Bank terminates
during the Employment Period because of the Executive's death, then the Bank
shall pay to the Executive's estate the benefits listed in sections 9(b)(i) and
9(b)(ii) of this Agreement.
(b) The Bank may terminate the Executive's employment upon a
determination, by vote of a majority of the members of the Boards of Directors
of the Bank, acting in reliance on the written advice of a medical professional
acceptable to them, that the Executive is suffering from a physical or mental
impairment which, at the date of the determination, has prevented the Executive
from performing his assigned duties on a substantially full-time basis for a
period of at least ninety (90) days during the period of one (1) year ending
with the date of the determination or is likely to result in death or prevent
the Executive from performing his assigned duties on a substantially full-time
basis for a period of at least ninety (90) days during the period of one (1)
year beginning with the date of the determination. In such event:
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(i) The Bank shall pay and deliver to the Executive (or in the
event of his death before payment, to his estate and surviving dependents
and beneficiaries, as applicable) the benefits described in sections
9(b)(i) and 9(b)(ii).
(ii) In addition to the benefits described in sections 9(b)(i) and
9(b)(ii), the Bank shall continue to pay the Executive his base salary,
at the annual rate in effect for him immediately prior to the termination
of his employment, during a period ending on the earliest of: (A) the
expiration of ninety (90) days after the date of termination of his
employment; (B) the date on which long-term disability insurance benefits
are first payable to him under any long-term disability insurance plan
covering employees of the Bank or the Company (the "LTD Eligibility
Date"); (C) the date of his death; and (D) the expiration of the
Remaining Unexpired Employment Period (the "Initial Continuation
Period"). If the end of the Initial Continuation Period is neither the
LTD Eligibility Date nor the date of his death, the Bank shall continue
to pay the Executive his base salary, at an annual rate equal to sixty
percent (60%) of the annual rate in effect for him immediately prior to
the termination of his employment, during an additional period ending on
the earliest of the LTD Eligibility Date, the date of his death and the
expiration of the Remaining Unexpired Employment Period.
A termination of employment due to disability under this section 10 shall be
effected by notice of termination given to the Executive by the Bank and shall
take effect on the later of the effective date of termination specified in such
notice or the date on which the notice of termination is deemed given to the
Executive.
Section 11. Termination without Additional Company Liability.
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In the event that the Executive's employment with the Bank shall
terminate during the Employment Period on account of:
(a) the discharge of the Executive for "cause," which, for purposes of
this Agreement, shall mean a discharge of the Executive due to the Executive's
(i) personal dishonesty, (ii) incompetence, (iii) willful misconduct, (iii)
breach of fiduciary duties involving personal profit, (iv) intentional failure
to perform stated duties, (v) willful violation of any law, rule or regulation
(other than traffic violations or similar offenses) or final cease-and-desist
order or (vi) material breach of any provision of this Agreement; provided,
however, that, if the Executive engages in any of the acts described in section
11(a)(vi) above, the Bank shall provide the Executive with written notice of
its intent to discharge the Executive for cause, and the Executive shall have
thirty (30) days from the date on which the Executive receives such notice to
cure any such acts; and provided, further, that on and after the date that a
Change of Control occurs, a determination under this section 11 shall require
the affirmative vote of at least three-fourths of the members of the Board
acting in good faith and such vote shall not be made prior to the expiration of
a sixty (60)-day period following the date on which the Board shall, by written
notice to the Executive, furnish to him a statement of its grounds for
proposing to make such determination, during which period the Executive shall
be afforded a reasonable opportunity to make oral and written presentations to
the members of the Board, and to be represented by his legal counsel at such
presentations, to refute the grounds for the proposed determination; or
(b) the Executive's voluntary resignation from employment with the Bank
(including retirement) for reasons other than those specified in section
9(a)(i) or Section 12;
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then the Bank shall have no further obligations under this Agreement, other
than the payment to the Executive of his earned but unpaid salary as of the
date of the termination of his employment and the provision of such other
benefits, if any, to which he is entitled as a former employee under the Bank's
employee benefit plans and programs and compensation plans and programs. For
purposes of this section 11, no act or failure to act, on the part of the
Executive, shall be considered "willful" unless it is done, or omitted to be
done, by the Executive in bad faith or without reasonable belief that the
Executive's action or omission was in the best interests of the Bank. Any act,
or failure to act, based upon authority given pursuant to a resolution duly
adopted by the Board or based upon the written advice of counsel for the Bank
shall be conclusively presumed to be done, or omitted to be done, by the
Executive in good faith and in the best interests of the Bank. The cessation of
employment of the Executive shall not be deemed to be for "cause" within the
meaning of section 11(a) unless and until there shall have been delivered to
the Executive a copy of a resolution duly adopted by the affirmative vote of
three-fourths of the members of the Board at a meeting of the Board called and
held for such purpose (after reasonable notice is provided to the Executive and
the Executive is given an opportunity, together with counsel, to be heard
before the Board), finding that, in the good faith opinion of the Board, the
Executive is guilty of the conduct described in section 11(a) above, and
specifying the particulars thereof in detail.
Section 12. Termination Upon or Following a Change of Control.
-------------------------------------------------
(a) A Change of Control of the Company ("Change of Control") shall be
deemed to have occurred upon the happening of any of the following events:
(i) the consummation of a reorganization, merger or consolidation
of the Company, respectively, with one (1) or more other persons, other
than a transaction following which:
(A) at least 51% of the equity ownership interests of the
entity resulting from such transaction are beneficially owned
(within the meaning of Rule 13d-3 promulgated under the Securities
Exchange Act of 1934, as amended "Exchange Act") in substantially
the same relative proportions by persons who, immediately prior to
such transaction, beneficially owned (within the meaning of Rule
13d-3 promulgated under the Exchange Act) at least 51% of the
outstanding equity ownership interests in the Company; and
(B) at least 51% of the securities entitled to vote generally
in the election of directors of the entity resulting from such
transaction are beneficially owned (within the meaning of Rule
13d-3 promulgated under the Exchange Act) in substantially the same
relative proportions by persons who, immediately prior to such
transaction, beneficially owned (within the meaning of Rule 13d-3
promulgated under the Exchange Act) at least 51% of the securities
entitled to vote generally in the election of directors of the
Company;
(ii) the acquisition of all or substantially all of the assets of
the Company or beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 25% or more of the outstanding
securities of the Company entitled to vote generally in the election of
directors by any person or by any persons acting in concert, or
-11-
approval by the stockholders of the Company of any transaction which
would result in such an acquisition;
(iii) a complete liquidation or dissolution of the Company;
(iv) the occurrence of any event if, immediately following such
event, at least 50% of the members of the Board of the Company do not
belong to any of the following groups:
(A) individuals who were members of the Board of the Company
on the date of this Agreement; or
(B) individuals who first became members of the Board of the
Company after the date of this Agreement either:
(I) upon election to serve as a member of the Board of
the Company by affirmative vote of three-quarters of the
members of such Board, or of a nominating committee thereof,
in office at the time of such first election; or
(II) upon election by the stockholders of the Company
to serve as a member of the Board of the Company, but only if
nominated for election by affirmative vote of three-quarters
of the members of the Board of the Company, or of a
nominating committee thereof, in office at the time of such
first nomination; provided; however, that this section
12(a)(iv) shall only apply if the if the Company is not
majority owned by Westfield Mutual Holding Company;
provided, however, that such individual's election or nomination
did not result from an actual or threatened election contest or
other actual or threatened solicitation of proxies or consents
other than by or on behalf of the Board of the Company; or
(v) any event which would be described in section 12(a)(i), (ii),
(iii) or (iv) if the term "Bank" were substituted for the term "Company"
therein.
In no event, however, shall a Change of Control be deemed to have occurred as a
result of: (i) any acquisition of securities or assets of the Company, the
Bank, or a subsidiary of either of them, by the Company, the Bank, or a
subsidiary of either of them, or by any employee benefit plan maintained by any
of them; or (ii) the conversion of Westfield Mutual Holding Company to a stock
form company and the issuance of additional shares of the Company in connection
therewith. For purposes of this section 12(a), the term "person" shall have the
meaning assigned to it under sections 13(d)(3) or 14(d)(2) of the Exchange Act.
(b) For purposes of this Agreement, a "Pending Change of Control" shall
mean: (i) the signing of a definitive agreement for a transaction which, if
consummated, would result in a Change of Control; (ii) the commencement of a
tender offer which, if successful, would result in a Change of Control; or
(iii) the circulation of a proxy statement seeking proxies
-12-
in opposition to management in an election contest which, if successful, would
result in a Change of Control.
(c) Notwithstanding anything in this Agreement to the contrary, if the
Executive's employment with the Bank and the Company terminates due to death or
disability within one (1) year after the occurrence of a Pending Change of
Control and if a Change of Control occurs within two (2) years after such
termination of employment, he (or in the event of his death, his estate) shall
be entitled to receive the benefits described in section 9(b) that would have
been payable if a Change of Control had occurred on the date of his termination
of employment and he had resigned pursuant to section 9(a)(i) immediately
thereafter; provided, that payment shall be deferred without interest until,
and shall be payable immediately upon, the actual occurrence of a Change of
Control.
(d) Notwithstanding anything in this Agreement to the contrary: (i) in
the event of the Executive's resignation within sixty (60) days after the
occurrence of a Change of Control, he shall be entitled to receive the benefits
described in section 9(b) that would be payable if his resignation were
pursuant to section 9(a)(i), without regard to the actual circumstances of his
resignation; and (ii) for a period of one (1) year after the occurrence of a
Change of Control, no discharge of the Executive shall be deemed a discharge
with Cause unless the votes contemplated by section 11(a) of this Agreement are
supported by at least two-thirds of the members of the Board of Directors of
the Company at the time the vote is taken who were also members of the Board of
Directors of the Company immediately prior to the Change of Control.
(e) Notwithstanding anything in this Agreement to the contrary, for
purposes of computing the benefits described in section 9(b) due upon a
termination of employment that occurs, or is deemed to have occurred, after a
Change of Control, the Remaining Unexpired Employment Period shall be deemed to
be three (3) full years.
Section 13. Covenant Not To Compete.
-----------------------
The Executive hereby covenants and agrees that, in the event of his
termination of employment with the Company prior to the expiration of the
Employment Period, for a period of one (1) year following the date of his
termination of employment with the Bank (or, if less, for the Remaining
Unexpired Employment Period), he shall not, without the written consent of the
Bank, 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 Hampden county or any other
county in which the Company or the Bank maintains an office; provided, however,
that this section 13 shall not apply if the Executive is entitled to benefits
under sections 9(b)(iii), (iv), (v), (vi), (vii), (viii) and (ix).
Section 14. Confidentiality.
---------------
Unless he obtains the prior written consent of the Bank, the Executive
shall keep confidential and shall refrain from using for the benefit of
himself, or any person or entity other than the Company or any entity which is
a subsidiary of the Company or of which the Company is a subsidiary, any
material document or information obtained from the Company, or from its parent
or subsidiaries, in the course of his employment with any of them concerning
their
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properties, operations or business (unless such document or information is
readily ascertainable from public or published information or trade sources or
has otherwise been made available to the public through no fault of his own)
until the same ceases to be material (or becomes so ascertainable or
available); provided, however, that nothing in this section 14 shall prevent
the Executive, with or without the Bank's consent, from participating in or
disclosing documents or information in connection with any judicial or
administrative investigation, inquiry or proceeding to the extent that such
participation or disclosure is required under applicable law.
Section 15. Solicitation.
------------
The Executive hereby covenants and agrees that, for a period of one (1)
year following his termination of employment with the Bank, he shall not,
without the written consent of the Bank, either directly or indirectly:
(a) solicit, offer employment to, or take any other action intended, or
that a reasonable person acting in like circumstances would expect, to have the
effect of causing any officer or employee of the Company, the Bank or any of
their respective subsidiaries or affiliates to terminate his or her employment
and accept employment or become affiliated with, or provide services for
compensation in any capacity whatsoever to, any savings bank, savings and loan
association, bank, bank holding company, savings and loan holding company, or
other institution engaged in the business of accepting deposits, making loans
or doing business within the counties specified in section 13;
(b) provide any information, advice or recommendation with respect to any
such officer or employee of any savings bank, savings and loan company, bank,
bank holding company, savings and loan holding company, or other institution
engaged in the business of accepting deposits, making loans or doing business
within the counties specified in section 13; that is intended, or that a
reasonable person acting in like circumstances would expect, to have the effect
of causing any officer or employee of the Company, the Bank, or any of their
respective subsidiaries or affiliates to terminate his employment and accept
employment or become affiliated with, or provide services for compensation in
any capacity whatsoever to, any savings bank, savings and loan association,
bank, bank holding company, savings and loan holding company, or other
institution engaged in the business of accepting deposits, making loans or
doing business within the counties specified in section 13;
(c) solicit, provide any information, advice or recommendation or take
any other action intended, or that a reasonable person acting in like
circumstances would expect, to have the effect of causing any customer of the
Company, the Bank or any of their respective subsidiaries to terminate an
existing business or commercial relationship with any of them.
Section 16. No Effect on Employee Benefit Plans or Programs.
-----------------------------------------------
The termination of the Executive's employment during the term of this
Agreement or thereafter, whether by the Bank or by the Executive, shall have no
effect on the rights and obligations of the parties hereto under the Bank's
qualified or non-qualified retirement, pension, savings, thrift, profit-sharing
or stock bonus plans, group life, health (including hospitalization, medical
and major medical), dental, accident and long term disability insurance plans
or such other employee benefit plans or programs, or compensation plans or
programs, as may be maintained by, or cover employees of, the Bank from time to
time;
-14-
provided, however, that nothing in this Agreement shall be deemed to duplicate
any compensation or benefits provided under any agreement, plan or program
covering the Executive to which the Bank is a party and any duplicative amount
payable under any such agreement, plan or program shall be applied as an offset
to reduce the amounts otherwise payable hereunder.
Section 17. Successors and Assigns.
----------------------
This Agreement will inure to the benefit of and be binding upon the
Executive, his legal representatives and testate or intestate distributees, and
the Bank, and their respective successors and assigns, including any successor
by merger or consolidation or a statutory receiver or any other person or firm
or corporation to which all or substantially all of the assets and business of
the Bank may be sold or otherwise transferred. Failure of the Bank to obtain
from any successor its express written assumption of the Bank's obligations
hereunder at least sixty (60) days in advance of the scheduled effective date
of any such succession shall be deemed a material breach of this Agreement.
Section 18. Notices.
-------
Any communication required or permitted to be given under this Agreement,
including any notice, direction, designation, consent, instruction, objection
or waiver, shall be in writing and shall be deemed to have been given at such
time as it is delivered personally, or five (5) days after mailing if mailed,
postage prepaid, by registered or certified mail, return receipt requested,
addressed to such party at the address listed below or at such other address as
one (1) such party may by written notice specify to the other party:
If to the Executive:
Donald A. Williams
146 Glenwood Drive
Westfield, Massachusetts 01085
If to the Bank:
Westfield Bank
141 Elm Street
Westfield, Massachusetts
Attention: Chairman of the Board of Directors
----------------------------------
with a copy to:
Thacher Proffitt & Wood LLP
1700 Pennsylvania Avenue, N.W.,
Suite 800
Washington, D.C. 20006
Attention: Richard A. Schaberg, Esq.
-------------------------
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Section 19. Indemnification for Attorneys' Fees.
-----------------------------------
(a) The Bank shall indemnify, hold harmless and defend the Executive
against reasonable costs, including legal fees and expenses, incurred by him in
connection with or arising out of any action, suit or proceeding in which he
may be involved, as a result of his efforts, in good faith, to defend or
enforce the terms of this Agreement; provided, however, that the Executive
shall have substantially prevailed on the merits pursuant to a judgment, decree
or order of a court of competent jurisdiction or of an arbitrator in an
arbitration proceeding. The determination whether the Executive shall have
substantially prevailed on the merits and is therefore entitled to such
indemnification, shall be made by the court or arbitrator, as applicable. In
the event of a settlement pursuant to a settlement agreement, any
indemnification payment under this section 19 shall be made only after a
determination by the members of the Board (other than the Executive and any
other member of the Board to which the Executive is related by blood or
marriage) that the Executive has acted in good faith and that such
indemnification payment is in the best interests of the Bank. For purposes of
this Agreement, any such indemnification payments shall be in addition to
amounts payable pursuant to such settlement agreement, unless such settlement
agreement expressly provides otherwise.
Section 20. Severability.
------------
A determination that any provision of this Agreement is invalid or
unenforceable shall not affect the validity or enforceability of any other
provision hereof.
Section 21. Waiver.
------
Failure to insist upon strict compliance with any of the terms, covenants
or conditions hereof shall not be deemed a waiver of such term, covenant, or
condition. A waiver of any provision of this Agreement must be made in writing,
designated as a waiver, and signed by the party against whom its enforcement is
sought. Any waiver or relinquishment of any right or power hereunder at any one
(1) or more times shall not be deemed a waiver or relinquishment of such right
or power at any other time or times.
Section 22. Counterparts.
------------
This Agreement may be executed in two (2) or more counterparts, each of
which shall be deemed an original, and all of which shall constitute one and
the same Agreement.
Section 23. Governing Law.
-------------
Except to the extent preempted by federal law, this Agreement shall be
governed by and construed and enforced in accordance with the laws of the
Commonwealth of Massachusetts applicable to contracts entered into and to be
performed entirely within the Commonwealth of Massachusetts.
Section 24. Headings and Construction.
-------------------------
The headings of sections in this Agreement are for convenience of
reference only and are not intended to qualify the meaning of any section. Any
reference to a section number shall refer to a section of this Agreement,
unless otherwise stated.
-16-
Section 25. Entire Agreement; Modifications.
-------------------------------
This instrument contains the entire agreement of the parties relating to
the subject matter hereof, and supersedes in its entirety any and all prior
agreements, understandings or representations relating to the subject matter
hereof. No modifications of this Agreement shall be valid unless made in
writing and signed by the parties hereto. Notwithstanding the preceding
sentence, this Agreement shall be construed and administered in such manner as
shall be necessary to effect compliance with Section 409A and shall be subject
to amendment in the future, in such manner as the Company and the Bank may deem
necessary or appropriate to effect such compliance; provided that any such
amendment shall preserve for the Executive the benefit originally afforded
pursuant to this Agreement.
Section 26. Non-duplication.
---------------
In the event that the Executive shall perform services for the Company or
any other direct or indirect subsidiary or affiliate of the Company or the
Bank, any compensation or benefits provided to the Executive by such other
employer shall be applied to offset the obligations of the Bank hereunder.
Section 27. Dispute Resolution.
------------------
(a) The Executive acknowledges and agrees that upon any breach by the
Executive of his obligations under sections 13, 14 or 15 hereof, the Company
and Bank will have no adequate remedy at law, and accordingly will be entitled,
in addition to monetary damages, to specific performance and other appropriate
injunctive and equitable relief.
(b) Excluding only requests for equitable relief by the Company or Bank
under section 27(a) of this Agreement, in the event that there is any claim or
dispute arising out of or relating to this Agreement, or the breach thereof,
and the parties hereto shall not have resolved such claim or dispute within
sixty (60) days after written notice from one party to the other setting forth
the nature of such claim or dispute, then such claim or dispute shall be
settled exclusively by binding arbitration in Boston, Massachusetts in
accordance with the Employment Arbitration Rules of the American Arbitration
Association by an arbitrator mutually agreed upon by the parties hereto or, in
the absence of such agreement, by an arbitrator selected according to such
Rules. Notwithstanding the foregoing, if either the Company and Bank or the
Executive shall request, such arbitration shall be conducted by a panel of
three (3) arbitrators, one (1) selected by the Company and Bank, one (1)
selected by the Executive and the third selected by agreement of the first two
(2), or, in the absence of such agreement, in accordance with such Rules.
Judgment upon the award rendered by such arbitrator(s) shall be entered in any
court having jurisdiction thereof upon the application of either party.
Section 28. Survival.
--------
Any provision of this Agreement which, by its terms, contemplates
performance after the expiration of the Employment Period or other termination
of this Agreement shall be deemed to survive the expiration of this Agreement.
-17-
Section 29. Required Regulatory Provisions.
------------------------------
The following provisions are included for the purposes of complying with
various laws, rules and regulations applicable to the Bank:
(a) Notwithstanding anything herein contained to the contrary, in
no event shall the aggregate amount of compensation payable to the
Executive under section 9(b) hereof exceed the three (3) times the
Executive's average annual compensation (within the meaning of OTS
Regulatory Bulletin 27a or any successor thereto) for the last five (5)
consecutive calendar years to end prior to his termination of employment
with the Bank (or for his entire period of employment with the Bank if
less than five (5) calendar years).
(b) Notwithstanding anything herein contained to the contrary, any
payments to the Executive by the Bank, whether pursuant to this Agreement
or otherwise, are subject to and conditioned upon their compliance with
section 18(k) of the Federal Deposit Insurance Act ("FDI Act"), 12 U.S.C.
ss.1828(k), and any regulations promulgated thereunder.
(c) Notwithstanding anything herein contained to the contrary, if
the Executive is suspended from office and/or temporarily prohibited from
participating in the conduct of the affairs of the Bank pursuant to a
notice served under section 8(e)(3) or 8(g)(1) of the FDI Act, 12 U.S.C.
ss.1818(e)(3) or 1818(g)(1), the Bank's obligations under this Agreement
shall be suspended as of the date of service of such notice, unless
stayed by appropriate proceedings. If the charges in such notice are
dismissed, the Bank, in its discretion, may (i) pay to the Executive all
or part of the compensation withheld while the Bank's obligations
hereunder were suspended and (ii) reinstate, in whole or in part, any of
the obligations which were suspended.
(d) Notwithstanding anything herein contained to the contrary, if
the Executive 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 FDI Act, 12 U.S.C. ss.1818(e)(4) or (g)(1), all
obligations of the Bank under this Agreement shall terminate as of the
effective date of the order, but vested rights of the Bank and the
Executive shall not be affected.
(e) Notwithstanding anything herein contained to the contrary, if
the Bank is in default (within the meaning of section 3(x)(1) of the FDI
Act, 12 U.S.C. ss.1813(x)(1), all obligations of the Bank under this
Agreement shall terminate as of the date of default, but vested rights
and obligations of the Bank and the Executive shall not be affected.
(f) Notwithstanding anything herein contained to the contrary, all
obligations of the Bank hereunder shall be terminated, except to the
extent that a continuation of this Agreement is necessary for the
continued operation of the Bank: (i) by the Director of the OTS or his
designee or the Federal Deposit Insurance Corporation ("FDIC"), at the
time the FDIC enters into an agreement to provide assistance to or on
behalf of the Bank under the authority contained in section 13(c) of the
FDI Act, 12 U.S.C. ss.1823(c); (ii) by the Director of the OTS or his
designee at the time such Director or designee approves a supervisory
merger to resolve problems related to the operation of the Bank or when
the Bank is determined by such Director to be in an unsafe or unsound
condition. The vested rights of the parties shall not be affected by such
action.
-18-
If and to the extent that any of the foregoing provisions shall cease to
be required or by applicable law, rule or regulation, the same shall become
inoperative as though eliminated by formal amendment of this Agreement.
Section 30. Payments to Key Employees.
-------------------------
Notwithstanding anything in this Agreement to the contrary, to the extent
required under Section 409A, no payment to be made to a key employee (within
the meaning of Section 409A) shall be made sooner than six (6) months after
such termination of employment; provided, however, that to the extent such six
(6)-month delay is imposed by Section 409A as a result of a Change of Control
as defined in Section 12(a), the payment shall be paid into a rabbi trust for
the benefit of the Executive as if the six (6)-month delay was not imposed with
such amounts then being distributed to the Executive as soon as permissible
under Section 409A.
Section 31. Involuntary Termination Payments to Employees (Safe Harbor).
-----------------------------------------------------------
In the event a payment is made to an employee upon an involuntary
termination of employment, as deemed pursuant to this Agreement, such payment
will not be subject to Section 409A provided that such payment does not exceed
two (2) times the lesser of (i) the sum of the Executive's annualized
compensation based on the taxable year immediately preceding the year in which
termination of employment occurs or (ii) the maximum amount that may be taken
into account under a qualified plan pursuant to Section 401(a)(17) of the Code
for the year in which the Executive terminates service (the "Safe Harbor
Amount"). However, if such payment exceeds the Safe Harbor Amount, only the
amount in excess of the Safe Harbor Amount will be subject to Section 409A. In
addition, if such Executive is considered a key employee, such payment in
excess of the Safe Harbor Amount will have its timing delayed and will be
subject to the six (6)-month wait-period imposed by Section 409A as provided in
Section 30 of this Agreement. The Executive, the Company and the Bank agree
that the termination benefits described in this Section 31 are intended to be
exempt from Section 409A pursuant to Treasury Regulation Section
1.409A-1(b)(9)(iii) as the safe harbor for separation pay due to involuntary
separation from service.
-19-
IN WITNESS WHEREOF, the Bank has caused this Agreement to be executed and
the Executive has hereunto set his hand, all as of the day and year first above
written.
EXECUTIVE
/s/ Donald A. Williams
---------------------------------------
Donald A. Williams
ATTEST: WESTFIELD BANK
By /s/ Philip R. Smith By /s/ James C. Hagan
------------------------------- ------------------------------------
Secretary Name: James C. Hagan
Title: President and COO
[Seal]
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