Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT
(the “Agreement”) is entered into as of
January 25, 2012
, by and among
WELLESLEY BANCORP, INC.
,
(the “Corporation”),
WELLESLEY BANK
, a wholly-owned subsidiary of the Corporation (the “Bank”), and
THOMAS J. FONTAINE
(the “Executive”). The Corporation and the Bank are sometimes referred to in this Agreement individually and together as the “Employer,” or “Employers.”
WHEREAS,
the Executive serves in position of substantial responsibility with the Corporation and the Bank;
WHEREAS,
the Executive and the Bank previously entered into an employment agreement as of May 16, 2007;
WHEREAS,
the Executive and the Bank wish to make certain changes to the existing agreement and the Executive and the Corporation wish to enter into an employment agreement to set forth the terms of the Executive’s continued employment in these positions;
WHEREAS,
the Executive is willing and desires to serve in these positions with the Corporation and the Bank.
NOW, THEREFORE,
in consideration of these premises, the mutual covenants contained herein, and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows.
ARTICLE 1
EMPLOYMENT
1.1
Employment
.
The Employer hereby employs the Executive to serve as President and Chief Executive Officer of each of the Corporation and the Bank according to the terms and conditions of this Agreement and for the period stated in Section 1.3 of this Agreement. The Executive hereby accepts employment according to the terms and conditions of this Agreement and for the period stated in Section 1.3 of this Agreement.
1.2
Duties
.
As President and Chief Executive Officer, the Executive shall perform all duties and have all powers associated with these positions, as set forth in any job description provided to the Executive by the Bank and the Corporation and as set forth on
Exhibit A
to this Agreement. The duties and responsibilities assigned to the Executives by the boards of directors shall be consistent with the duties and responsibilities as would be customarily assigned to a person occupying the positions held by the Executive pursuant to the terms of this Agreement. The Executive shall serve under the directions of the boards of directors. The Executive shall report directly to the boards of directors. The Executive shall serve the Employers faithfully, diligently, competently, and to the best of the Executive’s ability. The Executive shall exclusively devote full working time, energy, and attention to the business of the Employers and to the promotion of the interests of the Employers throughout the term of this Agreement. Without the prior written consent of the board of directors of each of the Corporation and the Bank, during the term of this Agreement the Executive shall not render services to or for any person, firm, corporation, or other entity or organization in exchange for compensation, regardless of the form in which the compensation is paid and regardless of whether it is paid directly or indirectly to the Executive. Nothing in this Section 1.2 shall prevent the Executive from managing personal investments and affairs, provided that doing so does not interfere with the proper performance of the Executive’s duties and responsibilities under this Agreement.
1.3
Term
.
(a) The period of Executive’s employment under this Agreement shall be deemed to have commenced as of the date first above written and shall continue for a period of thirty-six (36) full calendar months thereafter. Commencing on the date of the execution of this Agreement, the term of this Agreement shall be extended for one day each day until such time as the boards of directors or the Executive elects not to extend the term of the Agreement by giving proper written notice to the other party, in which case the term of this Agreement shall be fixed and shall end on the third anniversary of the date of such written notice.
(b) During the period of Executive’s employment hereunder, except for periods of absence occasioned by illness, reasonable vacation periods, and reasonable leaves of absence, Executive shall devote substantially all his business time, attention, skill, and efforts to the faithful performance of his duties hereunder, including activities and services related to the organization, operation and management of the Holding Company and its direct or indirect subsidiaries (“Subsidiaries”) and participation in community, professional and civic organizations; provided, however, that, with the approval of the Board, as evidenced by a resolution of such Board, from time to time, Executive may serve, or continue to serve, on the boards of directors of, and hold any other offices or positions in, companies or organizations, which, in such Board’s judgment, will not present any conflict of interest with the Holding Company or its Subsidiaries, or materially affect the performance of Executive’s duties pursuant to this Agreement.
(c) Notwithstanding anything herein contained to the contrary, Executive’s employment with the Holding Company may be terminated by the Holding Company or Executive during the term of this Agreement, subject to the terms and conditions of this Agreement. However, Executive shall not perform, in any respect, directly or indirectly, during the pendency of his temporary or permanent suspension or termination from the Institution, duties and responsibilities formerly performed at the Institution as part of his duties and responsibilities as President and Chief Executive Officer of the Holding Company.
1.4
Service on the Boards of Directors
.
The Executive serves as a member of the board of directors each of the Corporation and the Bank. The board of directors of each of the Corporation and the Bank shall undertake every lawful effort to ensure that the Executive continues throughout the term of his employment to be elected or reelected as a director of the Corporation and the Bank. Notwithstanding anything in this Agreement to the contrary, unless otherwise agreed to by the parties, the Executive shall be deemed to have resigned as a director of each of the Corporation and the Bank effective immediately after termination of the Executive’s employment under Article 3 of this Agreement, regardless of whether the Executive submits a formal, written resignation as director.
ARTICLE 2
COMPENSATION AND BENEFITS
2.1
Base Salary
.
In consideration of the Executive’s performance of the obligations under this Agreement, the Employer shall pay or cause to be paid to the Executive a salary at the annual rate of not less than $286,000.00, payable according to the regular payroll practices of the Employer. The Executive’s salary shall be subject to annual review. The Executive’s salary, as the same may be modified from time to time, is referred to in this Agreement as the “Base Salary.” All compensation under this Agreement shall be subject to customary income tax withholding and such other employment taxes as are imposed by law.
2.2
Incentive Compensation
.
(a) The Executive shall be eligible for an incentive bonus at the discretion of the Board of Directors of the Bank, subjectively based on the Bank’s performance. Such incentive compensation shall be awarded in November of each year.
(b) The Executive shall be eligible to receive a holiday bonus to be paid in December of each year. Such bonus shall be equal to one week’s pay.
(c) The Executive may receive an annual bonus in August of each year, to be approved annually by the Audit Committee of the board of Directors of the Bank, subject to the Employer’s profitability. The award of said bonus is discretionary but shall be a fixed about of Ten Thousand Dollars ($10,000.00).
2.3
Benefit Plans and Perquisites
.
For as long as the Executive is employed by the Employer, the Executive shall be eligible (x) to participate in any and all officer or employee compensation, incentive compensation and benefit plans in effect from time to time, including without limitation plans providing retirement, medical, dental, disability, and group life benefits and including stock-based compensation, incentive, or bonus plans existing on the date of this Agreement or adopted after the date of this Agreement, provided that the Executive satisfies the eligibility requirements for any the plans or benefits, and (y) to receive any and all fringe and other benefits provided from time to time, including the specific items described in (a)-(f) below.
(a)
Reimbursement of business expenses
.
The Executive shall be entitled to reimbursement for all reasonable business expenses incurred while performing his obligations under this Agreement, including but not limited to all reasonable business travel and entertainment expenses incurred while acting at the request of or in the service of the Employers and reasonable expenses for attendance at annual and other periodic meetings of trade associations. Expenses will be reimbursed if they are submitted in accordance with the Employer’s policies and procedures.
(b)
Automobile
.
The Employer shall provide the Executive with, and the Executive shall have the primary use of, an automobile owned or leased by the Employer. The Employer shall pay (or reimburse the Executive) for all expenses of insurance, registration, operation and maintenance of the automobile. The Executive shall comply with reasonable reporting and expense limitations on the use of such automobile, as the Employer may establish from time to time, and the Employer shall annually include on the Executive’s Form W-2 any amount attributable to the Executive’s personal use of such automobile. In addition, on the date of the Executive’s retirement or termination other than for Cause, the Employer shall transfer the title and ownership of the vehicle in use to the Executive and shall make federal and state withholding tax deposits for the quarter on behalf of the Executive in amounts calculated as the “Tax Gross-Up” pursuant to this Section 2.2(b). The Tax Gross-Up shall be calculated by first determining the fair value of the vehicle at the date of transfer. This fair value will be divided by the “Tax %” and the fair value will then be subtracted for the result to determine the Tax Gross-Up to be deposited. The Tax % will be the result of subtracting the sum of the Executive’s marginal tax rates for federal and state income taxes, employee Medicare tax, and, if applicable, employee Social Security tax from 100.0%
(c)
Deferred Compensation and Split Dollar Program
.
The Executive shall be entitled to participate in the Split Dollar Insurance Program of the Bank in existence at the Effective Date hereof, and in future deferred compensation or split dollar programs proposed by the Governance Committee and approved by the boards of directors.
(d)
Professional Associations
.
The Executive shall be entitled to attend such courses, conferences and seminars of his selection at the Employer’s expense, including the cost of spouse accompanied travel when deemed appropriate by the boards of directors, provided that the Employer shall only be required to cover reasonable expense associated with the Executive’s attendance at such courses, conferences and seminars that are incurred consistent with the Employer’s budget operating plan and policies then in effect.
(e)
Facilities
.
The Employer will furnish the Executive with the working facilities and staff customary for executive officers with comparable titles and duties of the Executive as set forth in Sections 1.1 and 1.2 of this Agreement and as are necessary for the Executive to perform his duties. The location of such facilities and staff shall be at the principal administrative offices of the Corporation, or at such other site or sites customary for such offices.
2.3
Vacation; Leave
.
The Executive shall be entitled to sick leave and paid annual vacation in accordance with policies established from time to time by the Employer. In addition to paid vacations (of no less than four (4) weeks on a non-cumulative basis) and other leave, the boards of directors may grant 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 boards of directors may determine.
2.4
Insurance
.
The Employer shall maintain or cause to be maintained liability insurance covering the Executive throughout the term of this Agreement.
ARTICLE 3
EMPLOYMENT TERMINATION
3.1
Termination Because of Death
.
(a)
Death
.
The Executive’s employment and this Agreement shall terminate automatically at the Executive’s death. If the Executive dies in active service to the Employer, the Executive’s spouse, or, if there is no surviving spouse, his estate, shall receive any sums due to the Executive as Base Salary and reimbursement of expenses through the date his death occurred.
(b)
Disability
.
By delivery of written notice thirty (30) days in advance to the Executive, the Employer may terminate the Executive’s employment and this Agreement if the Executive is disabled and the Executive shall receive any sums due to him as Base Salary and reimbursement of expenses through the date of his termination. The Employer shall also pay to the Executive an amount equal to Average Monthly Compensation (as defined for purposes of Section 4.1 of this Agreement) for each full month following such termination until the later of the month prior to the month for which the Executive’s long-term disability benefits become payable or six (6) months commencing with the month following the month in which the date of termination occurs. For purposes of this Agreement, the Executive shall be considered disabled if: (i) he 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 can be expected to last for a continuous period of not less than twelve (12) months, or (ii) he is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not les than twelve (12) months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Employer. Medical determination of a disability may be made by either the Social Security Administration or by the provider of an accident or health plan covering employees of the Employer. Upon the request of the Employer, the Executive must submit proof of the Social Security Administration’s or the provider’s determination. The Executive shall not be considered disabled, however, if the Executive returns to work on a full-time basis within thirty (30) days after the Employer gives notice of termination due to disability. If the Executive is terminated by either of the Corporation or the Bank because of disability, the Executive’s employment with the other shall also terminate at the same time. During the period of incapacity leading up to the termination of the Executive’s employment under this provision, the Employer shall continue to pay the full Base Salary at the rate then in effect and all perquisites and other benefits (other than bonus) until the Executive becomes eligible for benefits under any disability plan or insurance program maintained by the Employer, provided that the amount of the payments by the Employer to the Executive under this Section 3.1(b) shall be reduced by the sum of the amounts, if any, payable to the Executive for the same period under any disability benefit or pension plan covering the Executive.
3.2
Involuntary Termination with Cause
.
The Employer may terminate the Executive’s employment for Cause. If the Executive’s employment terminates for Cause, the Executive shall receive the Base Salary through the date on which termination becomes effective and reimbursement of expenses to which the Executive is entitled when termination becomes effective. If the Executive is terminated for Cause by either of the Corporation or the Bank, the Executive shall be deemed also to have been terminated for Cause by the other. The Executive shall not be deemed to have been terminated for Cause under this Agreement unless and until there is delivered to the Executive a copy of a resolution adopted at a meeting of the board of directors called and held for the purpose, which resolution shall (x) contain findings that the Executive has committed an act constituting Cause, and (y) specify the particulars thereof. The resolution of the board of directors shall be deemed to have been duly adopted if and only if it is adopted by the affirmative vote of 75% of the directors of the Corporation then in office or a majority of the directors of the Bank then in office, in either case excluding the Executive. Notice of the meeting and the proposed termination for Cause shall be given to the Executive a reasonable time before the meeting of the board of directors. The Executive and the Executive’s counsel (if the Executive chooses to have counsel present) shall have a reasonable opportunity to be heard by the board of directors at the meeting. For purposes of this Agreement “Cause” means any of the following:
|
|
(1)
|
a material act of personal dishonesty in performing Executive’s duties on behalf of the Employers;
|
|
|
(2)
|
a willful misconduct that in the judgment of the boards of directors will likely cause economic damage to the Employers or their affiliates or injury to the business reputation of the Employers or their affiliates;
|
|
|
(3)
|
a breach of fiduciary duty involving personal profit;
|
|
|
(4)
|
the intentional failure to perform stated duties under this Agreement after written notice thereof from the board of directors if such failure is not cured within thirty (30) days of such notice;
|
|
|
(5)
|
a willful violation of any law, rule or regulation (other than minor or routine traffic violations or similar offenses) that reflects adversely on the reputation of the Company or the Association or its affiliates, any felony conviction, any violation of law involving moral turpitude, or any violation of a final cease-and-desist order;
|
|
|
(6)
|
a material breach by the Executive of any provision of this Agreement.
|
No act, or failure to act, on the Executive’s part shall be considered “willful” unless he has acted, or failed to act, with an absence of good faith and without reasonable belief that his action or failure to act was in the best interest of the Company.
3.3
Voluntary Termination by the Executive Without Good Reason
.
If the Executive terminates employment without Good Reason, the Executive shall receive the Base Salary and expense reimbursement to which the Executive is entitled through the date on which termination becomes effective. The Executive must provide the Employers with sixty (60) days notice of termination under this provision.
3.4
Involuntary Termination Without Cause and Voluntary Termination with Good Reason
.
With written notice to the Executive at least sixty (60) days in advance, the Employer may terminate the Executive’s employment without Cause. Termination shall take effect at the end of the notice period. With advance written notice to the Employer as provided in clause (y), the Executive may terminate employment for Good Reason. If the Executive’s employment terminates involuntarily without Cause or voluntarily but with Good Reason, the Executive shall be entitled to the benefits specified in Article 4 of this Agreement. For purposes of this Agreement, a voluntary termination by the Executive shall be considered a voluntary termination with Good Reason if the conditions stated in both clauses (x) and (y) of this Section 3.4 are satisfied:
(x) a voluntary termination by the Executive shall be considered a voluntary termination with Good Reason if any of the following occur without the Executive’s written consent, and the term Good Reason shall mean the occurrence of any of the following without the Executive’s written consent:
(1) a material diminution of the Executive’s Base Salary;
(2) a material diminution of the Executive’s authority, duties, or responsibilities;
|
|
(3)
|
a change in the Executive’s reporting responsibilities so that the Executive reports to an officer or employee instead of reporting directly to the board of directors or the failure re-elected the Executive to the board of directors;
|
|
|
(4)
|
any other action or inaction that constitutes a material breach by the Employer under this Agreement.
|
(y) the Executive must give notice to the Employer of the existence of one or more of the conditions described in clause (x) within sixty (60) days after the initial existence of the condition, and the Employer shall have thirty (30) days thereafter to remedy the condition. In addition, the Executive’s voluntary termination because of the existence of one or more of the conditions described in clause (x) must occur within six (6) months after the initial existence of the condition.
ARTICLE 4
SEVERANCE COMPENSATION
4.1
Cash Severance after Termination Without Cause or Termination for Good Reason
.
(a) Subject to the possibility that cash severance after employment termination might be delayed under Section 4.1(b), if the Executive’s employment terminates involuntarily but without Cause or if the Executive voluntarily terminates employment with Good Reason, the Executive shall receive a lump sum payment, within ten (10) business days of his termination, equal to the product of his (i) Average Monthly Compensation multiplied by (ii) the number of months (including partial months) from the effective date of his termination through the then unexpired term of the Agreement or, if greater, twelve (12). In addition, from the effective date of the termination through the then un-expired portion of the term of the Agreement (or, if greater, for a period of twelve months following the effective date of the termination (the “Severance Period”), the Employer shall pay an amount equal to what would be the Executive’s cost of COBRA health continuation coverage for the Executive and eligible dependents for the greater of the Severance Period or the period during which the Executive and those eligible dependents are entitled to COBRA health continuation coverage from the Employer. However, the Employer and the Executive acknowledge and agree that the compensation and benefits under this Section 4.1 shall not be payable if compensation and benefits are payable or shall have been paid to the Executive under Article 5 of this Agreement. For purposes of this Section 4.1, the terms “Average Monthly Compensation” means the highest amount of the Executive’s compensation reported in Box 5 on Form W-2 for three years divided by 12.
(b) If when employment termination occurs the Executive is a “specified employee” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) if the cash severance payment under Section 4.1(a) would be considered deferred compensation under Section 409A of the Code, and finally if an exemption from the six-month delay requirement of Section 409A(a)(2)(B)(i) of the Code is not available, the payment, to the extent or amount necessary, will be made to the Executive without interest on the first business day of the seventh (7
th
) month after the month in which the Executive’s employment terminates. References in this Agreement to Section 409A of the Code include rules, regulations, and guidance of general application issued by the Department of the Treasury under Section 409A of the Code.
ARTICLE 5
CHANGE IN CONTROL BENEFITS
5.1
Change in Control Benefits
.
If a Change in Control occurs during the term of this Agreement and (i) thereafter during the term of the Agreement, the Executive’s employment terminates involuntarily but without Cause or (ii) if the Executive voluntarily terminates employment with Good Reason or (iii) the Executive voluntarily terminates employment for any reason, upon thirty (30) days notice, within the period commencing ninety (90) days prior to the Change in Control and ending twelve (12) months following the Change in Control, the Executive shall receive a lump sum payment, within ten (10) business days of his termination, equal to the product of his (i) Average Monthly Compensation multiplied by (ii) the number of months (including partial months) from the effective date of his termination through the then unexpired term of the Agreement or, if greater, twelve (12). In addition, from the effective date of the termination through the then un-expired portion of the term of the Agreement (or, if greater, for a period of twelve months following the effective date of the termination (the “Severance Period”), the Employer shall pay an amount equal to what would be the Executive’s cost of COBRA health continuation coverage for the Executive and eligible dependents for the greater of the Severance Period or the period during which the Executive and those eligible dependents are entitled to COBRA health continuation coverage from the Employer. However, the Employer and the Executive acknowledge and agree that the compensation and benefits under this Section 5.1 shall not be payable if compensation and benefits are payable or shall have been paid to the Executive under Article 4 of this Agreement. For purposes of this Section 5.1, the terms “Average Monthly Compensation” means the highest amount of the Executive’s compensation reported in Box 5 on Form W-2 for three years divided by 12. If the Executive receives payment under Section 5.1, the Executive shall not be entitled to any additional severance benefits under Section 4.1 of this Agreement. In addition, the Employer shall provide the Executive and his dependents with the post-termination insurance coverage described in Section 4.2(a) of this Agreement, subject to the provisions of Section 4.2(b) of this Agreement.
5.2
Change in Control Defined
.
For purposes of this Agreement “Change in Control” means a change in control as defined in Section 409A of the Code and rules, regulations, and guidance of general application thereunder issued by the Department of the Treasury, including:
(a)
Change in ownership
:
a change in ownership of the Corporation occurs on the date any one person or group accumulates ownership of Corporation stock constituting more than 50% of the total fair market value or total voting power of Corporation stock,
(b)
Change in effective control
:
(x) any one person or more than one person acting as a group acquires within a 12-month period ownership of Corporation stock possessing 30% or more of the total voting power of Corporation stock, or (y) a majority of the Corporation’s board of directors is replaced during any 12-month period by directors whose appointment or election is not endorsed in advance by a majority of the Corporation’s board of directors, or
(c)
Change in ownership of a substantial portion of assets
:
a change in ownership of a substantial portion of the Corporation’s assets occurs if in a 12-month period any one person or more than one person acting as a group acquires from the Corporation assets having a total gross fair market value equal to or exceeding 40% of the total gross fair market value of all of the Corporation’s assets immediately before the acquisition or acquisitions. For this purpose, gross fair market value means the value of the Corporation’s assets, or the value of the assets being disposed of, determined without regard to any liabilities associated with the assets.
5.3
Potential Limitation of Benefits Under Certain Circumstances
.
Notwithstanding any other provisions of this Agreement, in the event that (x) the aggregate payments or benefits to be made or afforded to the Executive under this Agreement or otherwise, which are deemed to be parachute payments as defined in Section 280G of the Code or any successor thereof, (the “Termination Benefits”) would be deemed to include an “excess parachute payment” under Section 280G of the Code; and (y) if such Termination Benefits were reduced to an amount (the “Non-Triggering Amount”), the value of which is one dollar ($1.00) less than an amount equal to three (3) times the Executive’s “base amount,” as determined in accordance with Section 280G of the Code and the Non-Triggering Amount less the product of the marginal rate of any applicable state and federal income tax and the Non-Triggering Amount would be greater than the aggregate value of the Termination Benefits (without such reduction) minus (1) the amount of tax required to be paid by the Executive thereon by Section 4999 of the Code and further minus (2) the product of the Termination Benefits and the marginal rate of any applicable state and federal income tax, then the Termination Benefits shall be reduced to the Non-Triggering Amount. The allocation of the reduction required hereby among the Termination Benefits shall be determined by the Executive. The Corporation’s independent public accountants or another independent firm will determine the value of any reduction in the payments and benefits; the Employer will pay for the accountants’ opinion. If the Employer and/or the Executive do not agree with the accountants’ opinion, the Employer will pay to the Executive the maximum amount of payments and benefits pursuant to Section 5 of this Agreement or otherwise, as selected by the Executive, that the opinion indicates have a high probability of not causing any of the payments and benefits to be non-deductible and subject to the excise tax imposed under Section 4999 of the Code. Nothing contained in this Agreement shall result in a reduction of any payments or benefits to which the Executive may be entitled upon termination of employment other than pursuant to Section 5 hereof, or a reduction in the payments and benefits specified, below zero.
ARTICLE 6
CONFIDENTIALITY AND CREATIVE WORK
6.1
Non-disclosure
.
The Executive covenants and agrees not to reveal to any person, firm, or corporation any confidential information of any nature concerning the Employer or its business, or anything connected therewith. As used in this Article 6 the term “confidential information” means all of the Employer’s and the Employer’s affiliates’ confidential and proprietary information and trade secrets in existence on the date hereof or existing at any time during the term of this Agreement, including but not limited to:
(a) the whole or any portion or phase of any business plans, financial information, purchasing data, supplier data, accounting data, or other financial information;
(b) the whole or any portion or phase of any research and development information, design procedures, algorithms or processes, or other technical information;
(c) the whole or any portion or phase of any marketing or sales information, sales records, customer lists, prices, sales projections, or other sales information; and
(d) trade secrets, as defined from time to time by the laws of Massachusetts. This Section 6.1 does not prohibit disclosure required by an order of a court having jurisdiction or a subpoena from an appropriate governmental agency or disclosure made by the Executive in the ordinary course of business and within the scope of the Executive’s authority.
6.2
Return of Materials
.
The Executive agrees to immediately deliver or return to the Employer upon request of the Employer, upon termination, upon expiration of this Agreement, or as soon thereafter as possible, all written information and any other similar items furnished by the Employer or prepared by the Executive in connection with the Executive’s services hereunder and to immediately delete all electronically stored data of the Employer maintained on the Executive’s personal computers and to return all Employer-provided computers or communication devices. The Executive will retain no copies thereof after termination of this Agreement or termination of the Executive’s employment.
6.3
Creative Work
.
The Executive agrees that all creative work and work product, including but not limited to all technology, business management tools, processes, software, patents, trademarks, and copyrights developed by the Executive during the term of this Agreement, regardless of when or where such work or work product was produced, constitutes work made for hire, all rights of which are owned by the Employer. The Executive hereby assigns to the Employer all rights, title, and interest, whether by way of copyrights, trade secret, trademark, patent, or otherwise, in all such work or work product, regardless of whether the same is subject to protection by patent, trademark, or copyright laws.
6.4
Affiliates’ Confidential Information is Covered; Confidentiality Obligation Survives Termination
.
For purposes of this Agreement, the term “affiliate” of the Employer includes any entity that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with the Corporation or the Bank. The rights and obligations set forth in this Article 6 shall survive termination of this Agreement.
6.5
Injunctive Relief
.
The Executive acknowledges that it is impossible to measure in money the damages that will accrue to the Employer if the Executive fails to observe the obligations imposed by this Article 6. Accordingly, if the Employer institutes an action to enforce the provisions hereof, the Executive hereby waives the claim or defense that an adequate remedy at law is available to the Employer, and the Executive agrees not to urge in any such action the claim or defense that an adequate remedy at law exists. The confidentiality and remedies provisions of this Article 6 shall be in addition to and shall not be deemed to supersede or restrict, limit, or impair the Employer’s rights under applicable state or federal statute or regulation dealing with or providing a remedy for the wrongful disclosure, misuse, or misappropriation of trade secrets or proprietary or confidential information.
ARTICLE 7
COMPETITION AFTER EMPLOYMENT TERMINATION
7.1
Covenant Not to Solicit Employees
.
The Executive agrees not to, directly or indirectly, solicit or employ the services of any officer or employee of the Employer (including an individual who was an officer or employee of the Employer during the one year period following the Executive’s termination) for one year after the Executive’s employment termination, other than a termination by the Employer without Cause or termination by the Executive for Good Reason.
7.2
Covenant Not to Solicit Customers
.
The Executive agrees not to, directly or indirectly (without the written consent of the Employer) on his own behalf or in the service or on behalf of others, solicit, divert or appropriate or attempt to solicit, divert or appropriate, directly or by assisting others, any business from any of the Employers’ customers (or the customers of any affiliate of the Employers), including actively sought prospective customers, with whom the Executive has or had material contact during the last two years of the Executive’s employment, for purposes of providing products or services that are competitive with those provided by the Employers, for one year after the Executive’s employment termination, other than a termination by the Employer without Cause or termination by the Executive for Good Reason.
7.3
Covenant Not to Compete
.
(a) The Executive covenants and agrees not to compete directly or indirectly with the Employer for one year after employment termination, other than a termination by the Employer without Cause or a termination by the Executive for Good Reason. For purposes of this Section 7.3:
(1) the term
compete
means:
|
|
(i)
|
providing financial products or services on behalf of any financial institution for any person residing in the territory;
|
|
|
(ii)
|
assisting (other than through the performance of ministerial or clerical duties) any financial institution in providing financial products or services to any person residing in the territory; or
|
|
|
(iii)
|
inducing or attempting to induce any person who was a customer of the Employer at the date of the Executive’s employment termination to seek financial products or services from another financial institution.
|
(2) the words
directly
or
indirectly
mean:
|
|
(i)
|
acting as a consultant, officer, director, independent contractor, or employee of any financial institution in competition with the Employer in the territory, or
|
|
|
(ii)
|
communicating to such financial institution the names or addresses or any financial information concerning any person who was a customer of the Employer when the Executive’s employment terminated.
|
|
|
(3)
|
the term
customer
means any person to whom the Employer is providing financial products or services on the date of the Executive’s employment termination or within one year thereafter.
|
|
|
(4)
|
the term
financial institution
means any bank, savings association, or bank or savings association holding company, or any other institution, the business of which is engaging in activities that are financial in nature or incidental to such financial activities as described in Section 4(k) of the Bank Holding Company Act of 1956, other than the Employer or any of its affiliated corporations.
|
|
|
(5)
|
financial product or service
means any product or service that a financial institution or a financial holding company could offer by engaging in any activity that is financial in nature or incidental to such a financial activity under Section 4(k) of the Bank Holding Company Act of 1956 and that is offered by the Employer or an affiliate on the date of the Executive’s employment termination, including but not limited to banking activities and activities that are closely related and a proper incident to banking.
|
|
|
(6)
|
the term
person
means any individual or individuals, corporation, partnership, fiduciary or association.
|
|
|
(7)
|
the term
territory
means the geographic area within a fifty (50) miles radius of any office or branch of the Bank.
|
(b) If any provision of this section or any word, phrase, clause, sentence or other portion thereof (including, without limitation, the geographical and temporal restrictions contained therein) is held to be unenforceable or invalid for any reason, the unenforceable or invalid provision or portion shall be modified or deleted so that the provisions hereof, as modified, are legal and enforceable to the fullest extent permitted under applicable law.
(c) The Executive acknowledges that the Employer’s willingness to enter into this Agreement and to make the payments contemplated by Articles 3 and 4 of this Agreement is conditioned on the Executive’s acceptance of the covenants set forth in Articles 6 and 7 of this Agreement and that the Employer would not have entered into this Agreement without such covenants in force.
7.4
Injunctive and Other Relief
.
Because of the unique character of the services to be rendered by the Executive hereunder, the Executive understands that the Employer would not have an adequate remedy at law for the material breach or threatened breach by the Executive of any one or more of the Executive’s covenants in this Article 7. Accordingly, the Executive agrees that the Employer’s remedies for a breach of this Article 7 include, but are not limited to, (x) forfeiture of any money representing accrued salary, contingent payments, or other fringe benefits (including any amount payable pursuant to Article 4) due and payable to the Executive during the period of any breach by Executive, and (y) a suit in equity by the Employer to enjoin the Executive from the breach or threatened breach of such covenants. The Executive hereby waives the claim or defense that an adequate remedy at law is available to the Bank and the Executive agrees not to urge in any such action the claim or defense that an adequate remedy at law exists. Nothing herein shall be construed to prohibit the Employer from pursuing any other or additional remedies for the breach or threatened breach.
7.5
Article 7 Survives Termination But Is Void After a Change in Control
.
The rights and obligations set forth in this Article 7 shall survive termination of this Agreement. However, Article 7 shall become null and void effective immediately upon a Change in Control.
ARTICLE 8
MISCELLANEOUS
8.1
Successors and Assigns
.
(a) This Agreement shall be binding upon the Employers and any successor to the Employers, including any persons acquiring directly or indirectly all or substantially all of the business or assets of the Employers by purchase, merger, consolidation, reorganization, or otherwise, but this Agreement and the Employers’ obligations under this Agreement are not otherwise assignable, transferable, or delegable by the Employer. By agreement in form and substance satisfactory to the Executive, the Employers shall require any successor to all or substantially all of the business or assets of the Employers expressly to assume and agree to perform this Agreement in the same manner and to the same extent the Employers would be required to perform had no succession occurred.
(b) This Agreement shall inure to the benefit of and be enforceable by the Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributees, and legatees.
(c) Without written consent of the other parties, no party shall assign, transfer, or delegate this Agreement or any rights or obligations under this Agreement, except as expressly provided herein. Without limiting the generality or effect of the foregoing, the Executive’s right to receive payments hereunder is not assignable or transferable, whether by pledge, creation of a security interest, or otherwise, except for a transfer by the Executive’s will or by the laws of descent and distribution. If the Executive attempts an assignment or transfer that is contrary to this Section 8.1, the Employer shall have no liability to pay any amount to the assignee or transferee.
8.2
Arbitration
.
Except for any claim for injunctive relief, any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The Employer and the Executive agree that they will seek to enforce any arbitration award in the Superior Court of Norfolk County. The decision of the arbitration panel shall be final and biding upon the parties and judgment upon the award rendered by the arbitration panel may be entered by any court having jurisdiction. The Employer and the Executive agree to share equally the fees and expenses associated with the arbitration proceedings. The Executive must initial here:
TJF
8.3
Attorneys’ Fees
.
With respect to arbitration of disputes and litigation ensues between the parties concerning the enforcement of an arbitration award, each party shall pay its own fees, costs and expenses; provided, however, the Employer shall advance to the Executive reasonable fees, costs and expenses incurred by the Executive in preparing for and in initiating or defending against any proceeding or suit brought to enforce rights or obligations set forth in this Agreement. Such advances shall be made within thirty (30) days after receiving copies of invoices presented by the Executive for such fees, costs and expenses. The Executive shall have the obligation to reimburse the Employer within sixty (60) days following the final disposition of the matter (including appeals) to the full extent of the aggregate advances unless the panel of arbitrators or court, as the case may be, has ruled in favor of the Executive on the merits of the substantive issues in dispute.
8.4
Governing Law, Jurisdiction and Forum
.
This Agreement shall be construed under and governed by the internal laws of the Commonwealth of Massachusetts, without giving effect to any conflict of laws provision or rule that would cause the application of the laws of any jurisdiction other than the Commonwealth of Massachusetts. By entering into this Agreement, the Executive acknowledges that the Executive is subject to the jurisdiction of both the federal and state courts in Norfolk County, Massachusetts.
8.5
Entire Agreement
.
This Agreement sets forth the entire agreement of the parties concerning the employment of the Executive by the Employer. Any oral or written statements, representations, agreements, or understandings made or entered into prior to or contemporaneously with the execution of this Agreement, including the agreement with the Bank, dated May 16, 2007, are hereby rescinded, revoked, and rendered null and void by the parties.
8.6
Notices
.
All notices, requests, demands, and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered by hand or mailed, certified or registered mail, return receipt requested, with postage prepaid. Unless otherwise changed by notice, notice shall be properly addressed to the Executive if addressed to the address of the Executive on the books and records of the Employer at the time of the delivery of such notice, and properly addressed to the Employer if addressed to the board of directors of the Corporation and the Bank at the Bank’s executive offices.
8.7
Severability
.
If there is a conflict between any provision of this Agreement and any statute, regulation, or judicial precedent, the latter shall prevail, but the affected provisions of this Agreement shall be curtailed and limited solely to the extent necessary to bring them within the requirements of law. If any provisions of this Agreement is held by a court of competent jurisdiction to be indefinite, invalid, void or voidable, or otherwise unenforceable, the remainder of this Agreement shall continue in full force and effect unless that would clearly be contrary to the intentions of the parties or would result in an injustice.
8.8
Captions and Counterparts
.
The captions in this Agreement are solely for convenience. The captions do not define, limit, or describe the scope or intent of this Agreement. This Agreement may be executed in several counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument.
8.9
No Duty to Mitigate
.
The Executive shall not be required to mitigate the amount of any payment provided for in this Agreement by seeking other employment. Moreover, provided the Executive is not in breach of any obligation under Articles 6 and 7 of this Agreement, the amount of any payment provided for in this Agreement shall not be reduced by any compensation earned or benefits provided as the result of employment of the Executive or as a result of the Executive being self-employed after employment termination.
8.10
Amendment and Waiver
.
This Agreement may not be amended, released, discharged, abandoned, changed, or modified in any manner, except by an instrument in writing signed by each of the parties hereto. The failure of any party hereto to enforce at any time any of the provisions of this Agreement shall not be construed to be a waiver of any such provision, nor affect the validity of this Agreement or any part thereof or the right of any party thereafter to enforce each and every such provision. No waiver or any breach of this Agreement shall be held to be a waiver of any other or subsequent breach.
8.11
Compliance with Internal Revenue Code Section 409A
.
The Employer and the Executive intend that their exercise of authority or discretion under this Agreement shall comply with Section 409A of the Code. If any provision of this Agreement does not satisfy the requirements of Section 409A of the Code, such provision shall nevertheless be applied in a manner consistent with those requirements. If any provision of this Agreement would subject the Executive to additional tax or interest under Section 409A of the Code, the Employer shall reform the provision. However, the Employer shall maintain to the maximum extent practicable the original intent of the applicable provision without subjecting the Executive to additional tax or interest, and the Employer shall not be required to incur any additional compensation expense as a result of the reformed provision.
8.12
Regulatory Requirements
.
(a) If the Executive is removed and/or permanently prohibited from participating in the conduct of the Employer’s affairs by an order issued under Section 8(e)(4) or 8(g)(1) of the Federal Deposit Insurance act (“FDIA”) (12 U.S.C. 1818(e)(4) and (g)(1)), all obligations of the Employer under this Agreement shall terminate, as of the effective date of such order, except for the payment of Annual Base Salary due and owing under Section 3.1 on the effective date of said order, and reimbursement under Section 3.5 of expenses incurred as of the effective date of termination.
(b) If the Executive is suspended and/or temporarily prohibited from participating in the conduct of the Employer’s affairs by a notice served under Section 8(e)(3) or 8(g)(1) of the FDIA (12 U.S.C. 1818(e)(3) and (g)(1)), all obligations of the Employer under this Agreement shall be suspended as of the date of service unless stayed by appropriate proceedings. If the charges in the notice are dismissed, the Employer shall reinstate (in whole or in part) any of its obligations which were suspended.
(c) If the Employer is in default (as defined in Section 3(x)(1) of the FDIA), all obligations under this Agreement shall terminate as of the date of default, but the vested rights of the parties shall not be affected.
(d) All obligations under this Agreement shall be terminated, except to the extent a determination is made that continuation of the contract is necessary for the continued operation of the Employer (1) by the director of the Federal Deposit Insurance Corporation (the “FDIC”) or his or her designee (the “Director”), at the time the FDIC enters into an agreement to provide assistance to or on behalf of the Employer under the authority contained in Section 13(c) of the FDIA; or (2) by the Director, at the time the Director approves a supervisory merger to resolve problems related to operation of the Employer when the Employer is determined by the Director to be in an unsafe and unsound condition. Any rights of the Executive that have already vested, however, shall not be affected by such action.
(e) All obligations under this Agreement are further subject to such conditions, restrictions, limitations and forfeiture provisions as may separately apply pursuant to any applicable state banking laws.
(f) Notwithstanding anything contained in this Agreement to the contrary, no payments shall be made pursuant any provision herein in contravention of the requirements of the Federal Deposit Insurance Act (12 U.S.C. 1828(k)).
[signature page to follow]
IN WITNESS WHEREOF,
the parties have executed this Employment Agreement as of the date first written above.
|
|
|
|
|
|
|
WELLESLEY BANCORP, INC.
|
|
|
|
|
/s/ Theodore F. Parker
|
|
|
|
|
For the Board of Directors
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
WELLESLEY BANK
|
|
|
|
|
/s/ Theodore F. Parker
|
|
|
|
|
For the Board of Directors
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Thomas J. Fontaine
|
|
|
|
|
Thomas J. Fontaine
|
|
Exhibit 10.2
WELLESLEY BANK
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
WELLESLEY BANK
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
Table of Contents
|
ARTICLE I
|
Introduction
|
1
|
|
ARTICLE II
|
Definitions
|
1
|
|
ARTICLE III
|
Eligibility and Participation
|
3
|
|
ARTICLE IV
|
Benefits
|
4
|
|
ARTICLE V
|
Accounts
|
5
|
|
ARTICLE VI
|
Supplemental Benefit Payments
|
6
|
|
ARTICLE VII
|
Claims Procedures
|
7
|
|
ARTICLE VIII
|
Amendment and Termination
|
8
|
|
ARTICLE IX
|
General Provisions
|
8
|
ARTICLE I
INTRODUCTION
|
Section 1.01
|
Purpose, Design and Intent
.
|
|
(a)
|
The purpose of the Wellesley Bank Supplemental Executive Retirement Plan (the “Plan”) is to assist Wellesley Bank (the “Bank”) in retaining the services of key employees until their retirement, to induce such employees to use their best efforts to enhance the business of the Bank and its affiliates, and to provide certain supplemental retirement benefits to such employees, which cannot otherwise be provided under certain tax-qualified retirement plans.
|
|
(b)
|
The Plan, in relevant part, is intended to constitute an unfunded “excess benefit plan” as defined in Section 3(36) of the Employee Retirement Income Security Act of 1974, as amended. In this respect, the Plan is specifically designed to provide certain key employees with retirement benefits that would have been provided under various tax-qualified retirement plans sponsored by the Bank but for the applicable limitations placed on benefits and contributions under such plans by various provisions of the Internal Revenue Code of 1986, as amended.
|
ARTICLE II
DEFINITIONS
Section 2.01
Definitions
.
In this Plan, whenever the context so indicates, the singular or the plural number and the masculine or feminine gender shall be deemed to include the other, the terms “he,” “his,” and “him,” shall refer to a Participant or a beneficiary of a Participant, as the case may be, and, except as otherwise provided, or unless the context otherwise requires, the capitalized terms shall have the following meanings:
(a)
“401(k) Plan”
means the Wellesley Bank Employee 401(k) Plan.
(b)
“Applicable Limitations”
means one or more of the following, as applicable:
|
|
(i)
|
the maximum limitations on annual additions to a tax-qualified defined contribution plan under Section 415(c) of the Code; and
|
|
|
(ii)
|
the maximum limitation on the annual amount of compensation that may, under Section 401(a)(17) of the Code, be taken into account in determining contributions to and benefits under tax-qualified plans; and
|
|
|
(iii)
|
the maximum limitations, under Section 401(k), 401(m), or 402(g) of the Code, on pre-tax contributions that may be made to a qualified defined contribution plan.
|
(c)
“Bank”
means
Wellesley Bank and its successors.
(d)
“Board of Directors”
means the Board of Directors of the Bank.
(e)
“Change in Control”
means a change in control of the Bank or the Corporation as defined in Section 409A of the Code and rules, regulations, and guidance of general application thereunder issued by the Department of the Treasury, including:
|
|
(i)
|
Change in ownership
: a change in ownership of the Corporation occurs on the date any one person or group accumulates ownership of Corporation stock constituting more than 50% of the total fair market value or total voting power of Corporation stock; or
|
|
|
(ii)
|
Change in effective control
: (
x
) any one person or more than one person acting as a group acquires within a 12-month period ownership of Corporation stock possessing 30% or more of the total voting power of Corporation stock, or (
y
) a majority of the Corporation’s board of directors is replaced during any 12-month period by directors whose appointment or election is not endorsed in advance by a majority of the Corporation’s board of directors; or
|
|
|
(iii)
|
Change in ownership of a substantial portion of assets
: a change in ownership of a substantial portion of the Corporation’s assets occurs if in a 12-month period any one person or more than one person acting as a group acquires from the Corporation assets having a total gross fair market value equal to or exceeding 40% of the total gross fair market value of all of the Corporation’s assets immediately before the acquisition or acquisitions. For this purpose, gross fair market value means the value of the Corporation’s assets, or the value of the assets being disposed of, determined without regard to any liabilities associated with the assets.
|
(f)
“Code”
means the Internal Revenue Code of 1986, as amended.
(g)
“Committee”
means the person(s) designated by the Board of Directors, pursuant to Section 9.02 of the Plan, to administer the Plan.
(h)
“Common Stock”
means the common stock of the Corporation.
(i)
“Corporation”
means Wellesley Bancorp, Inc. and its successors.
(j)
“Eligible Individual”
means any Employee who participates in the ESOP or 401(k) Plan, as the case may be, and whom the Board of Directors determines is one of a “select group of management or highly compensated employees,” as such phrase is used for purposes of Sections 101, 201, and 301 of ERISA.
(k)
“Employee”
means any person employed by the Bank or an Affiliate.
(l)
“Employer”
means the Bank or Affiliate thereof that employs the Employee.
(m)
“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended.
(n)
“ESOP”
means the Wellesley Savings Bank Employee Stock Ownership Plan, as amended from time to time.
(o)
“ESOP Acquisition Loan”
means a loan or other extension of credit incurred by the trustee of the ESOP in connection with the purchase of Common Stock on behalf of the ESOP.
(p)
“ESOP Valuation Date”
means any day as of which the investment experience of the trust fund of the ESOP is determined and individuals’ accounts under the ESOP are adjusted accordingly.
(q)
“Effective Date”
means January 25, 2012.
(r)
“Participant”
means an Eligible Employee who is entitled to benefits under the Plan.
(s)
“Plan”
means this Wellesley Bank Supplemental Executive Retirement Plan, as amended from time to time.
(t)
“Separation from Service”
means a termination of a Participant’s services (whether as an employee or as an independent contractor) to the Bank. Whether a Separation from Service has occurred shall be determined in accordance with the requirements of Section 409A of the Code based on whether the facts and circumstances indicate that the Bank and the Participant reasonably anticipated that no further services would be performed after a certain date or that the level of bona fide services the Participant would performed after a certain date or (whether as an employee or as an independent contractor) would permanently decrease to no more than twenty percent (20%) 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.
(u)
“Supplemental ESOP Account”
means an account established by an Employer, pursuant to Section 5.01 of the Plan, with respect to a Participant’s Supplemental ESOP Benefit.
(v)
“Supplemental ESOP Benefit”
means the benefit credited to a Participant pursuant to Section 4.01 of the Plan.
(w)
“Supplemental Savings Account”
means an account established by an Employer, pursuant to Section 5.03 of the Plan, with respect to a Participant’s Supplemental Savings Benefit.
(x)
“Supplemental Savings Benefit”
means the benefit credited to a Participant pursuant to Section 4.03 of the Plan.
(y)
“Supplemental Stock Ownership Account”
means an account established by an Employer, pursuant to Section 5.02 of the Plan, with respect to a Participant’s Supplemental Stock Ownership Benefit.
(z)
“Supplemental Stock Ownership Benefit”
means the benefit credited to a Participant pursuant to Section 4.02 of the Plan.
ARTICLE III
ELIGIBILITY AND PARTICIPATION
|
Section 3.01
|
Eligibility and Participation
.
|
|
(a)
|
Each Eligible Employee may participate in the Plan. An Eligible Employee shall become a Participant in the Plan upon designation as such by the Board of Directors. An Eligible Employee whom the Board of Directors designates as a Participant in the Plan shall commence participation as of the date established by the Board of Directors. The Board of Directors shall establish an Eligible Employee’s date of participation at the same time it designates the Eligible Employee as a Participant in the Plan.
|
|
(b)
|
The Board of Directors may, at any time, designate an Eligible Employee as a Participant for any or all supplemental benefits provided for under Article IV of the Plan.
|
ARTICLE IV
BENEFITS
|
Section 4.01
|
Supplemental ESOP Benefit
.
|
As of the last day of each plan year of the ESOP, the Employer shall credit the Participant’s Supplemental ESOP Account with a Supplemental ESOP Benefit equal to the excess of (a) over (b), where:
|
(a)
|
Equals the annual contributions made by the Employer and/or the number of shares of Common Stock released for allocation in connection with the repayment of an ESOP Acquisition Loan that would otherwise be allocated to the accounts of the Participant under the ESOP for the applicable plan year, if the provisions of the ESOP were administered without regard to any of the Applicable Limitations; and
|
|
(b)
|
Equals the annual contributions made by the Employer and/or the number of shares of common stock released for allocation in connection with the repayment of an ESOP Acquisition Loan that are actually allocated to the accounts of the Participant under the provisions of the ESOP for that particular plan year, after giving effect to any reduction of such allocation required by any of the Applicable Limitations.
|
|
Section 4.02
|
Supplemental Stock Ownership Benefit
.
|
|
(a)
|
Upon a Change in Control, the Employer shall credit to the Participant’s Supplemental Stock Ownership Account a Supplemental Stock Ownership Benefit equal to (i) less (ii), the result of which is multiplied by (iii), where:
|
|
|
(i)
|
Equals the total number of shares of Common Stock acquired with the proceeds of all ESOP Acquisition Loans (together with any dividends, cash proceeds, or other medium related to such ESOP Acquisition Loans) that would have been allocated or credited for the benefit of the Participant under the ESOP and/or this Plan, as the case may be, had the Participant continued in the employ of the Employer through the first ESOP Valuation Date following the last scheduled payment of principal and interest on all ESOP Acquisition Loans outstanding at the time of the Change in Control; and
|
|
|
(ii)
|
Equals the total number of shares of Common Stock acquired with the proceeds of all ESOP Acquisition Loans (together with any dividends, cash proceeds, or other medium related to such ESOP Acquisition Loans) and allocated for the benefit of the Participant under the ESOP and/or this Plan, as the case may be, as of the first ESOP Valuation Date following the Change in Control; and
|
|
|
(iii)
|
Equals the fair market value of the Common Stock immediately preceding the Change in Control.
|
|
(b)
|
For purposes of clause (i) of subsection (a) of this Section 4.02, the total number of shares of Common Stock shall be determined by multiplying the sum of (i) and (ii) by (iii), where:
|
|
|
(i)
|
Equals the average of the total shares of Common Stock acquired with the proceeds of an ESOP Acquisition Loan and allocated for the benefit of the Participant under the ESOP as of the three most recent ESOP Valuation Dates preceding the Change in Control (or lesser number if the Participant has not participated in the ESOP for three full years);
|
|
|
(ii)
|
Equals the average number of shares of Common Stock credited to the Participant’s Supplemental ESOP Account for the three most recent plan years of the ESOP (such that the three most recent plan years coincide with the three most recent ESOP Valuation Dates referred to in (i) above); and
|
|
|
(iii)
|
Equals the original number of scheduled annual payments on the ESOP Acquisition Loan.
|
|
Section 4.03
|
Supplemental Savings Benefit
.
|
A Participant’s Supplemental Savings Benefit under the Plan shall be equal to the excess of (a) over (b), where:
|
(a)
|
is the sum of the matching contributions and other contributions of the Employer that would otherwise be allocated to an account of the Participant under the 401(k) Plan for a particular year, if the provisions of the 401(k) Plan were administered without regard to any of the Applicable Limitations; and
|
|
(b)
|
is the sum of the matching contributions and other contributions of the Employer that are actually allocated on account of the Participant under the provisions of the 401(k) Plan for that particular year, after giving effect to any reduction of such allocation required by any of the Applicable Limitations.
|
ARTICLE V
ACCOUNTS
|
Section 5.01
|
Supplemental ESOP Benefit Account
.
|
For each Participant who is credited with a benefit pursuant to Section 4.01 of the Plan, the Employer shall establish, as a memorandum account on its books, a Supplemental ESOP Account. Each year, the Committee shall credit to the Participant’s Supplemental ESOP Account the amount of benefits determined under Section 4.01 of the Plan for that year. The Committee shall credit the account with an amount equal to the appropriate number of shares of Common Stock or other medium of contribution that would have otherwise been made to the Participant’s accounts under the ESOP but for the limitations imposed by the Code. Shares of Common Stock shall be valued under this Plan in the same manner as under the ESOP. Cash contributions credited to a Participant’s Supplemental ESOP Account shall be credited annually with interest at a rate equal to the combined weighted return provided to the Participant’s non-stock accounts under the ESOP.
|
Section 5.02
|
Supplemental Stock Ownership Account
.
|
The Employer shall establish, as a memorandum account on its books, a Supplemental Stock Ownership Account. Upon a Change in Control, the Committee shall credit to the Participant’s Supplemental Stock Ownership Account the amount of benefits determined under Section 4.02 of the Plan. The Committee shall credit the account with an amount equal to the appropriate number of shares of Common Stock or other medium of contribution that would have otherwise been made to the Participant’s accounts under the ESOP. Shares of Common Stock shall be valued under this Plan in the same manner as under the ESOP. Cash contributions credited to a Participant’s Supplemental Stock Ownership Account shall be credited annually with interest at a rate equal to the combined weighted return provided to the Participant’s non-stock accounts under the ESOP.
Section 5.03
Supplemental Savings Account.
The Employer shall establish a memorandum account on its books, a Supplemental Savings Account, for each Participant, and each year the Committee will credit the amount of contributions determined under Section 4.03 of the Plan. Contributions credited to a Participant’s Supplemental Savings Account shall be credited monthly with interest at a rate equal to the combined weighted return provided to the Participant’s account(s) under the 401(k) Plan.
ARTICLE VI
SUPPLEMENTAL BENEFIT PAYMENTS
Section 6.01
Payment of Supplemental ESOP Benefit
.
|
(a)
|
A Participant’s Supplemental ESOP Benefit shall be paid to the Participant or, in the event of the Participant’s death, to his beneficiary (as designated on a form acceptable to the Employer), in a single lump sum cash payment as soon as administratively practicable, but in no event not later than sixty (60) days, following the Participant’s Separation from Service.
|
|
(b)
|
A Participant shall have a non-forfeitable right to the Supplemental ESOP Benefit credited to him under this Plan in the same percentage as he has with respect to benefits allocated to him under the ESOP at the time the benefits become distributable to him under the ESOP.
|
Section 6.02
Payment of Supplemental Stock Ownership Benefit
.
|
(a)
|
A Participant’s Supplemental Stock Ownership Benefit shall be paid to the Participant or, in the event of the Participant’s death, to his beneficiary (as designated on a form acceptable to the Employer), in a single lump sum cash payment as soon as administratively practicable, but in no event not later than sixty (60) days, following the Participant’s Separation from Service.
|
|
(b)
|
A Participant shall always have a fully non-forfeitable right to the Supplemental Stock Ownership Benefit credited to him under this Plan.
|
Section 6.03
Payment of Supplemental Savings Benefit
.
|
(a)
|
A Participant’s Supplemental Savings Benefit shall be paid to the Participant or, in the event of the Participant’s death, to his beneficiary (as designated on a form acceptable to the Employer) in a single sum cash payment, as soon as administratively practicable, but in no event not later than sixty (60) days, following the Participant’s Separation from Service.
|
|
(b)
|
A Participant shall have a non-forfeitable right to his Supplemental Savings Benefit under this Plan in the same percentage as he has to any matching contributions under the 401(k) Plan at the time of his Separation from Service.
|
Section 6.04
Payment to Specified Employees
.
Notwithstanding anything in Article VI, if when a Separation from Service occurs the Participant is a “specified employee” within the meaning of Section 409A of the Code, the benefit shall be paid to the Participant in a single lump sum cash payment without interest on the first business day of the seventh (7
th
) month after which the Participant incurs a Separation from Service.
ARTICLE VII
CLAIMS PROCEDURES
|
Section 7.01
|
Claims Reviewer
.
|
For purposes of handling claims with respect to this Plan, the “Claims Reviewer” shall be the Committee, unless the Committee designates another person or group of persons as Claims Reviewer.
|
Section 7.02
|
Claims Procedure
.
|
|
(a)
|
An initial claim for benefits under the Plan must be made by the Participant or his beneficiary or beneficiaries in accordance with the terms of this Section 7.02.
|
|
(b)
|
Not later than ninety (90) days after receipt of such a claim, the Claims Reviewer will render a written decision on the claim to the claimant, unless special circumstances require the extension of such 90-day period. If such extension is necessary, the Claims Reviewer shall provide the Participant or the Participant’s beneficiary or beneficiaries with written notification of such extension before the expiration of the initial 90-day period. Such notice shall specify the reason or reasons for the extension and the date by which a final decision can be expected. In no event shall such extension exceed a period of ninety (90) days from the end of the initial 90-day period.
|
|
(c)
|
In the event the Claims Reviewer denies the claim of a Participant or any beneficiary in whole or in part, the Claims Reviewer’s written notification shall specify, in a manner calculated to be understood by the claimant, the reason for the denial; a reference to the Plan or other document or form that is the basis for the denial; a description of any additional material or information necessary for the claimant to perfect the claim; an explanation as to why such information or material is necessary; and an explanation of the applicable claims procedure.
|
|
(d)
|
Should the claim be denied in whole or in part and should the claimant be dissatisfied with the Claims Reviewer’s disposition of the claimant’s claim, the claimant may have a full and fair review of the claim by the Committee upon written request submitted by the claimant or the claimant’s duly authorized representative and received by the Committee within sixty (60) days after the claimant receives written notification that the claimant’s claim has been denied. In connection with such review, the claimant or the claimant’s duly authorized representative shall be entitled to review pertinent documents and submit the claimant’s views as to the issues, in writing. The Committee shall act to deny or accept the claim within sixty (60) days after receipt of the claimant’s written request for review unless special circumstances require the extension of such 60-day period. If such extension is necessary, the Committee shall provide the claimant with written notification of such extension before the expiration of such initial 60-day period. In all events, the Committee shall act to deny or accept the claim within one hundred and twenty (120) days of the receipt of the claimant’s written request for review. The action of the Committee shall be in the form of a written notice to the claimant and its contents shall include all of the requirements for action on the original claim.
|
|
(e)
|
In no event may a claimant commence legal action for benefits the claimant believes are due the claimant until the claimant has exhausted all of the remedies and procedures afforded the claimant by this Article VII.
|
AMENDMENT AND TERMINATION
Section 8.01
Amendment of the Plan
.
The Bank may from time to time and at any time amend the Plan; provided, however, that such amendment may not adversely affect the rights of any Participant or beneficiary with respect to any benefit under the Plan to which the Participant or beneficiary may have previously become entitled prior to the effective date of such amendment without the consent of the Participant or beneficiary. The Committee shall be authorized to make minor or administrative changes to the Plan, as well as amendments required by applicable federal or state law (or authorized or made desirable by such statutes); provided, however, that such amendments must subsequently be ratified by the Board of Directors.
Section 8.02
Termination of the Plan
.
The Bank may terminate the Plan at any time; provided, however, that such termination may not adversely affect the rights of any Participant or beneficiary with respect to any benefit under the Plan to which the Participant or beneficiary may have previously become entitled prior to the effective date of such termination without the consent of the Participant or beneficiary. Any amounts credited to the supplemental accounts of any Participant shall remain subject to the provisions of the Plan and no distribution of benefits shall be accelerated because of termination of the Plan.
ARTICLE IX
GENERAL PROVISIONS
Section 9.01
Unfunded, Unsecured Promise to Make Payments in the Future
.
The right of a Participant or any beneficiary to receive a distribution under this Plan shall be an unsecured claim against the general assets of the Bank or its Affiliates, and neither a Participant, nor his designated beneficiary or beneficiaries, shall have any rights in or against any amount credited to any account under this Plan or any other assets of the Bank or an Affiliate. The Plan at all times shall be considered entirely unfunded both for tax purposes and for purposes of Title I of ERISA. Any funds invested hereunder shall continue for all purposes to be part of the general assets of the Bank or an Affiliate and available to its general creditors in the event of bankruptcy or insolvency. Accounts under this Plan and any benefits which may be payable pursuant to this Plan are not subject in any manner to anticipation, sale, alienation, transfer, assignment, pledge, encumbrance, attachment, or garnishment by creditors of a Participant or a Participant’s beneficiary. The Plan constitutes a mere promise by the Bank or Affiliate to make benefit payments in the future. No interest or right to receive a benefit may be taken, either voluntarily or involuntarily, for the satisfaction of the debts of, or other obligations or claims against, such Participant or beneficiary, including claims for alimony, support, separate maintenance and claims in bankruptcy proceedings.
Section 9.02
Committee as Plan Administrator
.
|
(a)
|
The Plan shall be administered by the Committee designated by the Board of Directors of the Bank.
|
|
(b)
|
The Committee shall have the authority, duty and power to interpret and construe the provisions of the Plan as it deems appropriate. The Committee shall have the duty and responsibility of maintaining records, making the requisite calculations and disbursing the payments hereunder. In addition, the Committee shall have the authority and power to delegate any of its administrative duties to employees of the Bank or an Affiliate, as they may deem appropriate. The Committee shall be entitled to rely on all tables, valuations, certificates, opinions, data and reports furnished by any actuary, accountant, controller, counsel or other person employed or retained by the Bank with respect to the Plan. The interpretations, determinations, regulations and calculations of the Committee shall be final and binding on all persons and parties concerned.
|
Section 9.03
Expenses
.
Expenses of administration of the Plan shall be paid by the Bank or an Affiliate.
Section 9.04
Statements
.
The Committee shall furnish individual annual statements of accrued benefits to each Participant, or current beneficiary, in such form as determined by the Committee or as required by law.
Section 9.05
Rights of Participants and Beneficiaries
.
|
(a)
|
The sole rights of a Participant or beneficiary under this Plan shall be to have this Plan administered according to its provisions and to receive whatever benefits he may be entitled to hereunder.
|
|
(b)
|
Nothing in the Plan shall be interpreted as a guaranty that any funds in any trust which may be established in connection with the Plan or assets of the Bank or an Affiliate will be sufficient to pay any benefit hereunder.
|
|
(c)
|
The adoption and maintenance of this Plan shall not be construed as creating any contract of employment or service between the Bank or an Affiliate and any Participant or other individual. The Plan shall not affect the right of the Bank or an Affiliate to deal with any Participants in employment or service respects, including their hiring, discharge, compensation, and other conditions of employment or service.
|
Section 9.06
Incompetent Individuals
.
The Committee may, from time to time, establish rules and procedures which it determines to be necessary for the proper administration of the Plan and the benefits payable to a Participant or beneficiary in the event that such Participant or beneficiary is declared incompetent and a conservator or other person is appointed and legally charged with that Participant’s or beneficiary’s care. Except as otherwise provided for herein, when the Committee determines that such Participant or beneficiary is unable to manage his financial affairs, the Committee may pay such Participant’s or beneficiary’s benefits to such conservator, person legally charged with such Participant’s or beneficiary’s care, or institution then contributing toward or providing for the care and maintenance of such Participant or beneficiary. Any such payment shall constitute a complete discharge of any liability of the Bank or an Affiliate and the Plan for such Participant or beneficiary.
Section 9.07
Sale, Merger or Consolidation of the Bank
.
The Plan may be continued after a sale of assets of the Bank, or a merger or consolidation of the Bank into or with another corporation or entity only if, and to the extent that, the transferee, purchaser or successor entity agrees to continue the Plan. Additionally, upon a merger, consolidation or other Change in Control, any amounts credited to Participant’s deferral accounts shall be placed in a grantor trust to the extent not already in such a trust. In the event that the Plan is not continued by the transferee, purchaser or successor entity, then the Plan shall be terminated subject to the provisions of Section 8.02 of the Plan. Any legal fees incurred by a Participant in determining benefits to which such Participant is entitled under the Plan following a sale, merger, or consolidation of the Bank or an Affiliate of which the Participant is an Employee or, if applicable, a member of the Board of Directors, shall be paid by the resulting or succeeding entity.
Section 9.08
Location of Participants
.
Each Participant shall keep the Bank informed of his current address and the current address of his designated beneficiary or beneficiaries. The Bank shall not be obligated to search for any person. If such person is not located within three (3) years after the date on which payment of the Participant’s benefits payable under this Plan may first be made, payment may be made as though the Participant or his beneficiary had died at the end of such three-year period.
Section 9.09
Liability of the Bank and its Affiliates
.
Notwithstanding any provision herein to the contrary, neither the Bank nor any individual acting as an employee or agent of the Bank shall be liable to any Participant, former Participant, beneficiary, or any other person for any claim, loss, liability or expense incurred in connection with the Plan, unless attributable to fraud or willful misconduct on the part of the Bank or any such employee or agent of the Bank.
Section 9.10
Governing Law
.
All questions pertaining to the construction, validity and effect of the Plan shall be determined in accordance with the laws of the United States and, to the extent not preempted by such laws, by the laws of the Commonwealth of Massachusetts.
[Signature page follows]
This Plan has been approved and adopted by the Board of Directors of the Bank and is effective as of January 25, 2012.
|
Attest:
|
WELLESLEY BANK
|
|
|
|
|
|
|
|
/s/ Gary P. Culyer
|
By:
|
/s/ Theodore F. Parker
|
|
|
|
|
For the entire of Board of Directors
|
|
|
|
|
|
|
|
|
|
|
|
Exhibit 10.3
WELLESLEY BANK
EMPLOYEE SEVERANCE COMPENSATION PLAN
The primary purpose of the Wellesley Bank Employee Severance Compensation Plan is to ensure the successful continuation of the business of Wellesley Bank and the fair and equitable treatment of the employees of Wellesley Bank following a Change in Control.
B.
Definitions
.
In this Plan, whenever the context so indicates, the singular or the plural number and the masculine or feminine gender shall be deemed to include the other, the terms “he,” “his,” and “him,” shall refer to an employee and, except as otherwise provided, or unless the context otherwise requires, the capitalized terms shall have the following meanings:
“Bank”
means Wellesley Bank and its successors.
“Base Compensation”
means
(a) For salaried employees, the employee’s annual base salary at the rate in effect on his termination date or, if greater, the rate in effect on the date immediately preceding the Change in Control.
(b) For employees whose compensation is determined in whole or in part on the basis of commission income, the employee’s base salary at his termination date (or, if greater, the employee’s base salary on the date immediately preceding the effective date of the Change in Control), if any, plus the commissions earned by the employee in the twelve (12) full calendar months preceding his termination of employment (or, if greater, the commissions earned in the twelve (12) full calendar months immediately preceding the effective date of the Change in Control).
(c) For hourly employees, the employee’s total hourly wages for the twelve (12) full calendar months preceding his termination of employment or, if greater, the twelve (12) full calendar months preceding the effective date of the Change in Control.
“Board of Directors”
means the Board of Directors of the Bank.
“Cause”
means
grounds for termination of employment due to the employee’s personal dishonesty, willful misconduct, breach of fiduciary duty involving personal profit, intentional 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.
“Change in Control”
means
a change in control of the Bank or the Corporation, as defined in Section 409A of the Code and rules, regulations, and guidance of general application thereunder issued by the Department of the Treasury, including:
(a)
Change in ownership
:
a change in ownership of the Corporation occurs on the date any one person or group accumulates ownership of Corporation stock constituting more than 50% of the total fair market value or total voting power of Corporation stock;
(b)
Change in effective control
:
(x) any one person or more than one person acting as a group acquires within a 12-month period ownership of Corporation stock possessing 30% or more of the total voting power of Corporation stock, or (y) a majority of the Corporation’s board of directors is replaced during any 12-month period by directors whose appointment or election is not endorsed in advance by a majority of the Corporation’s board of directors; or
(c)
Change in ownership of a substantial portion of assets
:
a change in ownership of a substantial portion of the Corporation’s assets occurs if in a 12-month period any one person or more than one person acting as a group acquires from the Corporation assets having a total gross fair market value equal to or exceeding 40% of the total gross fair market value of all of the Corporation’s assets immediately before the acquisition or acquisitions. For this purpose, gross fair market value means the value of the Corporation’s assets, or the value of the assets being disposed of, determined without regard to any liabilities associated with the assets.
“Change in Control Severance Benefit”
means the benefit provided for in Paragraph D of the Plan.
“Code”
means the Internal Revenue Code of 1986, as amended.
“Comparable Position”
means
a position that would (i) provide the employee with base compensation and benefits that are comparable in the aggregate to those provided to the employee prior to the Change in Control; (ii) provide the employee with an opportunity for variable bonus compensation that is comparable to the opportunity provided to the employee prior to the Change in Control; (iii) be in a location that would not require the employee to increase his daily one-way commuting distance by more than thirty-five (35) miles as compared to the employee’s commuting distance immediately prior to the Change in Control; and (iv) have job skill requirements and duties that are comparable to the requirements and duties of the position held by the employee immediately prior to the Change in Control.
“Corporation”
means Wellesley Bancorp, Inc. and its successors.
“Plan”
means this Wellesley Bank Employee Severance Compensation Plan, as may be amended from time to time.
“Year of Service”
means each 12-month period of service following an employee’s date of hire during which the employee completes at least one hour of service each month. The taking of a leave of absence shall not eliminate a period of time from being a Year of Service if the period of time otherwise qualifies as a year of service. A “leave of absence” means (i) the taking of an authorized or approved leave of absence under the provisions of the federal Family and Medical Leave Act (“FMLA”), (ii) any state law providing qualitatively similar benefits as the FMLA, or (iii) a leave of absence authorized under the policies of the Bank.
C.
Covered Employees
.
(a) Any employee of the Bank with at least one Year of Service as of the date of his termination of employment shall receive a Change in Control Severance Benefit if, within the period beginning on the effective date of a Change in Control and ending on the first anniversary of the effective date of the Change in Control, (i) the Bank terminates the employee’s employment without Cause, or (ii) the employee terminates employment with the Bank voluntarily after being offered continued employment in a position that is not a Comparable Position.
(b) Notwithstanding the foregoing, no employee shall be eligible for a Change in Control Severance Benefit if, at the time of his termination of employment, the employee is a party to an individual employment agreement or change in control agreement with the Bank and/or the Corporation pursuant to which he is entitled to severance benefits.
D.
Determination and Payment of the Change in Control Severance Benefit
.
(a) The Change in Control Severance Benefit payable to an eligible employee under this Plan shall be determined under as follows:
(1) Except as provided for in Paragraph D(a)(2), an eligible employee shall receive a Change in Control Severance Benefit equal to the product of (i) the employee’s Years of Service from his hire date (including partial years and years prior to the adoption of this Plan) through the date of the termination of his employment and (ii) an amount equal to the employee’s Base Compensation for two (2) weeks. The maximum payment to an eligible employee shall be an amount equal to fifty-two (52) week’s of Base Compensation and the minimum payment shall be an amount equal to four (4) week’s of Base Compensation.
(2) An eligible employee who is designated as a Vice President or above shall receive a Change in Control Severance Benefit equal to fifty-two week’s of Base Compensation, regardless of the employees Years of Service.
(b)
The Change in Control Severance Benefit shall be paid in a lump sum not later than five (5) business days after the date of the eligible employee’s termination of employment.
(c) All payments under this Plan will be subject to required withholding for federal, state and local tax purposes.
E.
Parachute Payment
.
Notwithstanding anything in this Plan to the contrary, if a Change in Control Severance Benefit that is otherwise payable to an employee who is a “disqualified individual” would constitute an “excess parachute payment,” taking into account payments under this Plan and otherwise, then the benefit payable under this Plan shall be reduced to the maximum amount which does not include an excess parachute payment. The terms “disqualified individual” and “excess parachute payment” shall have the same meanings as under Section 280G of the Code.
F.
Adoption by Affiliates
.
Upon approval by the Board of Directors, this Plan may be adopted by any “subsidiary” or “parent” of the Bank. Upon such adoption, the provisions of the Plan shall be fully applicable to the employees of that subsidiary or parent. The term “subsidiary” means any corporation in which the Bank, directly or indirectly, holds a majority of the voting power of its outstanding shares of capital stock. The term “parent” means any corporation which holds a majority of the voting power of the outstanding shares of capital stock of the Bank.
G.
Administration
.
The Plan shall be administered by the Board of Directors, which shall have the discretion to interpret the terms of the Plan and to make all determinations about eligibility and payment of benefits. All decisions of the Board of Directors, any action taken by the Board of Directors with respect to the Plan and within the powers granted to the Board of Directors under the Plan, and any interpretation by the Board of Directors of any term or condition of the Plan, shall be conclusive and binding on all persons, and will be given the maximum possible deference allowed by law. The Board of Directors may delegate and reallocate any authority and responsibility with respect to the Plan.
Unless otherwise determined by the Board of Directors, all payments and benefits provided under this Agreement shall be paid solely by the Bank or, if applicable, any affiliate that adopts the Plan.
I.
Inalienability
.
In no event may any employee sell, transfer, anticipate, assign or otherwise dispose of any right or interest under the Plan. At no time will any such right or interest be subject to the claims of creditors, nor liable to attachment, execution or other legal process.
J.
Governing Law
.
The provisions of the Plan will be construed, administered and enforced in accordance with the laws of the Commonwealth of Massachusetts, except to the extent that federal law applies.
K.
Severability
.
If any provision of the Plan is held invalid or unenforceable, its invalidity or unenforceability will not affect any other provision of the Plan, and the Plan will be construed and enforced as if such provision had not been included.
L.
No Employment Rights
.
Neither the establishment nor the terms of this Plan shall be held or construed to confer upon any employee the right to a continuation of employment, nor constitute a contract of employment, express or implied. The Bank and, if applicable, any affiliate that adopts the Plan, reserves the right to dismiss or otherwise deal with any employee to the same extent and on the same basis as though this Plan had not been adopted. Nothing in this Plan is intended to alter the at-will status of an employee’s employment status, it being understood that, except to the extent otherwise expressly set forth to the contrary in an individual employment-related agreement, the employment of any employee may be terminated at any time by the Bank or, if applicable, any affiliate that adopts the Plan.
M.
Amendment and Termination
.
The Board of Directors may terminate or amend the Plan in any respect, unless a Change in Control has previously occurred. If a Change in Control occurs, the Plan no longer shall be subject to amendment, change, substitution, deletion, revocation or termination in any respect whatsoever. The form of any proper amendment or termination of the Plan shall be a written instrument signed by a duly authorized officer or officers of the Bank, certifying that the amendment or termination has been approved by the Board of Directors. A proper amendment of the Plan automatically shall effect a corresponding amendment to each Participant’s rights hereunder. A proper termination of the Plan automatically shall effect a termination of all employees’ rights and benefits hereunder.
N.
Required Provisions
.
(1)
In the event any of the provisions of this Paragraph N are in conflict with the terms of this Plan, this Paragraph N shall prevail.
(2)
The Bank may terminate an employee’s employment at any time, but any termination by the Bank, other than termination for Cause, shall not prejudice an employee’s right to compensation or other benefits under this Plan. An employee shall not have the right to receive compensation or other benefits for any period after termination for Cause.
(3)
If an employee is suspended from office 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 Federal Deposit Insurance Act, 12 U.S.C. §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 contract obligations were suspended; and (ii) reinstate (in whole or in part) any of the obligations which were suspended.
(4)
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. §1818(e)(4) or (g)(1), all obligations of the Bank under this Plan shall terminate as of the effective date of the order, but vested rights of the contracting parties shall not be affected.
(5)
If the Bank is in default as defined in Section 3(x)(1) of the Federal Deposit Insurance Act, 12 U.S.C. §1813(x)(1) all obligations under this Plan shall terminate as of the date of default, but this paragraph shall not affect any vested rights of the contracting parties.
(6)
Any payments made to employees pursuant to this Plan, or otherwise, are subject to and conditioned upon their compliance with 12 U.S.C. §1828(k) and FDIC regulation 12 C.F.R. Part 359, Golden Parachute and Indemnification Payments.
[signature page to follow]
This plan has been approved and adopted by the Board of Directors of the Bank and is effective as of January 25, 2012.
|
|
WELLESLEY BANK
|
|
|
|
|
|
|
|
Attest:
/s/ Theodore F. Parker
|
By:
|
/s/ Thomas J. Fontaine
|
|
|
|
|
For the Entire Board of Directors
|
|
|
|
|
|
|
|
|
|
|
|