SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT J. WILLIAR DUNLAEVY
EXHIBIT 10.9.1
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
J. WILLIAR DUNLAEVY
| Page | ||
| 1. Definitions | 1 | |
| 2. Payments to Executive | 4 | |
| 3. Death of the Executive | 6 | |
| 4. Disability Benefits | 6 | |
| 5. Termination not for Cause or for Good Reason | 7 | |
| 6. Re-employment | 7 | |
| 7. Claims Procedure | 7 | |
| 8. Provision for Incapacity | 10 | |
| 9. Violation of Agreement | 10 | |
| 10. Nonassignable Rights | 10 | |
| 11. Independence of Agreement | 11 | |
| 12. General Obligation of the Company | 11 | |
| 13. Establishment of Trust | 12 | |
| 14. Governing Law | 12 | |
| 15. Notice | 12 | |
| 16. Board Authority; Indemnification | 13 | |
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SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
J. WILLIAR DUNLAEVY
This Supplemental Executive Retirement Agreement (the “Agreement”) is dated as of the 1st day of January, 2004, by and among Mutual Bancorp of the Berkshires, Inc. (“Mutual”), a Massachusetts corporation, Legacy Group, Inc. (“Legacy”), a Massachusetts corporation, and Legacy Banks (the “Bank”), a bank organized and existing under the laws of the Commonwealth of Massachusetts with its headquarters in Pittsfield, Massachusetts (Mutual, Legacy Group, and Legacy are referred to collectively herein as the “Company”) and J. Williar Dunlaevy (the “Executive”).
In consideration of the mutual covenants herein contained and implied, the sufficiency of which is acknowledged by each party, the Company and the Executive agree as follows:
| 1. | Definitions. |
| (a) | “Actuarial Equivalent” means a benefit of equivalent value when computed on the basis of an interest rate of 6.5% and the 1983 Group Annuity Mortality Table, Unisex (50% male, 50% female), with no setback; provided, however, that for purposes of determining the value of a lump sum distribution, the following assumptions will be used: |
| Interest: | Applicable interest rate under Section 417(e)(3) of the Code, as determined for the month of November of the preceding year. | |
| Mortality: | Applicable mortality table under Section 417(e)(3) of the Code. | |
| (b) | “Annual Annuity Equivalent” shall be equal to the annual benefit payable from a single life annuity on the Executive’s life from a provider of annuity products holding at least an AA rating from Moody’s, Standard & Poor’s, or an equivalent rating service. For purposes of this section, the amount available to invest in said |
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| annuity shall be the balance attributable to the Company’s matching contributions in the Executive’s account in the SBERA Defined Contribution Plan. |
| (c) | “Board” means the Board of Trustees of Mutual or the Boards of Directors of the Bank or Legacy or their designees. |
| (d) | “Cause” means the following: |
| (i) | the Executive’s refusal to perform, or gross negligence in the performance of, his duties or responsibilities on behalf of the Company and, if applicable, its affiliates and subsidiaries; |
| (ii) | the Executive’s fraud, embezzlement or other material dishonesty with respect to the Company or any of its affiliates or subsidiaries; |
| (iii) | the Executive’s gross misconduct or his conviction of, or plea of no contest to, a felony. |
The determination of whether the Executive’s employment terminated for Cause shall be made by the Board in its reasonable judgment, notice of such determination having been provided to the Executive setting forth in reasonable detail the nature of such Cause.
| (e) | “Code” means the Internal Revenue Code of 1986, as amended from time to time. |
| (f) | “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time. |
| (g) | “Final Average Compensation” means the average of the Executive’s annual base salary and bonuses (prior to any salary reduction contributions to any Section 401(k), 125 or 132 plan) for the three (3) calendar years during the Executive’s |
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| employment with the Company for which the Executive’s combined annual base salary and bonus were the highest. |
| (h) | “Good Reason” means the following: |
| (i) | the failure of the Company to continue the Executive in his executive position; |
| (ii) | a change adverse to the Executive in the Executive’s primary reporting relationship; |
| (iii) | a material diminution in the nature or scope of the Executive’s responsibilities, duties or authority; |
| (iv) | the material failure of the Company to provide the Executive base salary and benefits in accordance with the terms of the Executive Employment Agreement effective as of January 1, 1999 between the Executive and the Company; or |
| (v) | a work assignment of more than four (4) full consecutive months outside of Berkshire County, Massachusetts. |
The determination of whether the Executive’s employment terminated for Good Reason shall be made by the Executive, notice of such determination having been provided to the Board setting forth in reasonable detail the nature of such Good Reason.
| (i) | “Normal Form” means an annuity payable monthly for twenty (20) years certain. |
| (j) | “Normal Retirement Date” means the first day of the month coinciding with or next following date on which the Executive attains age sixty-five (65). |
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| (k) | “Optional Form” means the Actuarial Equivalent of the Normal Form in any form of retirement benefit distribution offered under the SBERA Defined Benefit Plan. |
| (l) | “SBERA Defined Benefit Plan” means the Savings Bank Employees Retirement Association Pension Plan as Adopted by Legacy Banks. |
| (m) | “SBERA Defined Contribution Plan” means the Savings Bank Employees Retirement Association 401 (k) Plan as Adopted by Legacy Banks. |
| (n) | “Vested Accrued Benefit” means the amount to which the Executive would be entitled under subsection 2(b) commencing at the Normal Retirement Date. |
| 2. | Payments to Executive. |
| (a) | If the Executive remains continuously employed by the Company from the date of his employment until his termination of employment on or after he attains age fifty-eight (58), the Company will pay the Vested Accrued Benefit to the Executive in the Normal Form commencing on the first day of the month next following the Normal Retirement Date, subject to adjustment pursuant to Subsections 2(c) and 2(d) below. |
| (b) | The Vested Accrued Benefit shall be determined pursuant to this subsection 2(b). |
| (i) | The Executive’s Final Average Compensation shall be calculated. |
| (ii) | The Executive’s Final Average Compensation shall be multiplied by seventy percent (70%) (the “Target Benefit”). |
| (iii) | The Target Benefit shall be reduced by: (1) one-half of the Executive’s actual Primary Social Security retirement benefit payable at age sixty-five (65), if available, otherwise as determined by the Company, (2) the annual amount of benefits payable to the Executive at age sixty-five (65) on a life annuity basis from the employer account portion of the SBERA Defined |
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| Benefit Plan, and (3) the Annual Annuity Equivalent, as defined herein, from the employer account portion of the SBERA Defined Contribution Plan (the “Accrued Benefit”). |
| (iv) | The Accrued Benefit shall be multiplied by the applicable Non-Forfeitable Percentage from the table below based on the Executive’s age at his termination of employment (the “Vested Accrued Benefit”). |
| Age at Termination of Employment | Non-Forfeitable Percentage | ||
| Less than 58 | 0 | % | |
| 58 but less than 59 | 80 | % | |
| 59 but less than 60 | 85 | % | |
| 60 but less than 61 | 90 | % | |
| 61 but less than 62 | 95 | % | |
| 62 or more | 100 | % |
| (c) | If the Executive retires from the employ of the Company before age sixty-five (65), he may elect to begin to receive his Vested Accrued Benefit at any time between his retirement date and his 65th birthday; provided, however, that if the Executive makes such election, the Vested Accrued Benefit shall be reduced by 0.25% for each full month benefits commence before the Executive’s 65th birthday. |
| (d) | In lieu of the Normal Form of the Vested Accrued Benefit provided by the foregoing provisions of this Section 2, with the written consent of a duly authorized officer of the Company, the Executive may elect, at least twelve (12) months prior to the date on which payments are to commence, an Optional Form of payment. |
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| (e) | Notwithstanding anything to the contrary herein contained or implied, in no event shall the Executive be entitled to receive any benefits under this Agreement if he is terminated by the Company for Cause. If it is later determined that the Executive could have been terminated by the Company for Cause, any benefits payable under this Agreement shall cease and the Executive shall repay to the Company any amounts received under the terms of this Agreement. |
| 3. | Death of the Executive. |
| (a) | If the Executive dies while employed by the Company, the Company will pay to the Executive’s surviving spouse the Executive’s Vested Accrued Benefit determined as if the Executive had retired the day before his death after attaining age sixty-five (65). The surviving spouse may elect to receive the death benefit in the Normal Form, a lump sum, or any Optional Form. If the Executive leaves no surviving spouse, his estate shall receive the present value of the Executive’s Vested Accrued Benefit in a lump sum as soon as practicable after the Executive’s death. |
| (b) | If the Executive dies following the commencement of the payment of benefits under this Agreement, death benefits, if any, will be determined pursuant to the form of benefit payment in effect at the time of death. |
| 4. | Disability Benefits. |
In the event that the Executive, while in the employ of the Company and prior to the commencement of payments under Section 2 above, is unable to perform substantially all of his duties for the Company for more than one hundred and eighty (180) days during any period of three hundred and sixty-five (365) days and terminates employment on account of such disability, the Executive shall be entitled to receive the Vested Accrued Benefit that would be
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payable to the Executive pursuant to Section 2 above determined as if the Executive had terminated his employment after having attained age 65.
| 5. | Termination not for Cause or for Good Reason. |
If the Executive is terminated by the Company other than for Cause or terminates his employment involuntarily for Good Reason, the Executive shall be entitled to receive his Vested Accrued Benefit payable pursuant to Section 2 above as if the Executive had terminated his employment after having attained age 65.
| 6. | Re-employment. |
If the Executive is rehired by the Company after he has begun receiving payments hereunder but before he has received all payments due hereunder, such payments shall be discontinued until the Executive’s subsequent retirement, whereupon the amount of the Executive’s benefit shall be recalculated as of that termination of employment.
| 7. | Claims Procedure. |
| (a) | The Company shall make all decisions and determinations respecting the right of any person to a payment under this Agreement. |
| (b) | The following procedure shall be followed with respect to claims under this Agreement: |
| (i) | Any claimant who believes he or she is entitled to a benefit under this Agreement shall submit a claim for such benefit in writing to the Board. |
| (ii) | Any decision by the Board denying a claim in whole or in part shall be stated in writing by the Board and delivered or the mailed to the claimant within ninety (90) days after receipt of the claim by the Board unless special circumstances require an extension of time for processing, but in any event within one hundred eighty (180) days after such receipt. If such |
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| an extension of time is taken, the Board shall inform the claimant of the delay in writing before the expiration of the initial ninety (90) day period, including the reasons therefor and the date by which the Board expects to render a decision. Any decision denying a claim shall be in writing and set forth the specific reasons for the denial with specific references to the Agreement provisions on which the denial is based, a description of any additional material or information necessary to perfect the claim and the reasons therefor, and an explanation of the Agreement’s claim review procedure, all written in a manner calculated to be understood by the claimant. If the Board does not notify the claimant of denial of the claim or the need for an extension of time within the initial ninety (90) day period, the claim shall be deemed denied. |
| (iii) | If a claim is denied in whole or in part, the claimant or a duly authorized representative may request a review by the Board of the decision upon written application to the Board within sixty (60) days after notification of the decision. The claimant or a duly authorized representative may review pertinent documents and submit issues and comments in writing. The Board shall make its decision on review not later than sixty (60) days after receipt of the request for review unless special circumstances require an extension of time for processing, in which case its decision shall be rendered as soon as possible, but not later than one hundred twenty (120) days after receipt of the request for review. If such an extension of time is taken, the Board shall inform the claimant of the delay in writing before |
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| the expiration of the initial sixty (60) day period. The decision on review shall be in writing and shall set forth the specific reasons for the decision, shall make specific references to the pertinent Agreement provisions on which the decision is based, and shall be written in a manner calculated to be understood by the claimant. If the Board does not notify the claimant of its decision on review within the period herein provided for, the claim shall be deemed denied on review. |
| (c) | The Board may adopt such rules as it deems necessary, desirable, or appropriate to carry out its duties under this Section 7. Any action or determination or decision whatsoever taken or made by the Board under this Section 7 shall be final, conclusive, and binding upon all persons concerned. |
| (d) | The procedure provided for in this Section 7 shall be the sole, exclusive and mandatory procedure for resolving any dispute under this Agreement; provided, however, that if the Executive wishes to make a valid legal challenge to the Board’s determination and he has entered into an agreement with the Board to arbitrate disputes arising from his employment with the Company, such legal challenge shall be resolved pursuant to the arbitration procedures in that agreement and the Executive’s burden of proof in any arbitration shall be the same as if the dispute were tried in a court proceeding. |
| (e) | In any arbitration or litigation to enforce rights and obligations hereunder, except as required by law or separate contract between the parties, the unsuccessful party shall pay the successful party an amount equal to all reasonable out-of-pocket |
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| expenses (including reasonable legal expenses and court costs) incurred by the successful party. |
| (f) | In the event of the death of the Executive or any beneficiary, the Board need not make any payment provided for by this Agreement until it shall have received proof satisfactory to it of such death and of the identity, existence and location of the party thereafter entitled to receive payments under this Agreement. |
| (g) | In making any payment or taking any action under this Agreement the Board shall be absolutely protected in relying upon any finding or statement of facts believed to be true, and on any written instrument believed to have been signed by the proper party. |
| 8. | Provision for Incapacity. |
If the Board reasonably deems the Executive incapable of receiving his benefits by reason of illness, infirmity or incapacity of any kind, the Board may, in its sole discretion, apply such payment directly for the comfort, support and maintenance of the Executive, or reimburse any person for such support supplied to the Executive.
| 9. | Violation of Agreement. |
In the event of the violation of any material terms of the Agreement by the Executive, the Company, in addition to any other rights which it may have, shall be relieved of the liability to make any further payments under the Agreement to, or on behalf of, the Executive so long as such violation continues and shall have the right to specific enforcement of the Agreement by proceedings in equity.
| 10. | Nonassignable Rights. |
Except as otherwise provided by the Agreement, neither the Executive, nor his surviving spouse, nor his estate shall have any right to commute, sell, assign, transfer or otherwise convey
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the right to receive any payments hereunder, which payments and the right thereto are expressly declared to be nonassignable and nontransferable.
| 11. | Independence of Agreement. |
The benefits payable under the Agreement shall be independent of, and in addition to, any other employment agreement that may exist from time to time between the parties hereto, or any other compensation payable by the Company to the Executive, whether as salary, bonus or otherwise. The Agreement shall not be deemed to constitute a contract of employment between the parties hereto, and no provision hereof shall restrict the right of the Company to discharge the Executive with or without Cause or restrict the right of the Executive to terminate his employment.
| 12. | General Obligation of the Company. |
The benefits provided under the Agreement constitute a mere promise by the Company to make payments in the future, and the rights of the Executive hereunder shall be those of a general unsecured creditor of the Company. Nothing contained herein shall be construed to create a trust of any kind or to render the Company a fiduciary with respect to the Executive. The Company shall not be required to maintain any fund or segregate any amount or in any other way currently fund the future payment of any benefit provided under the Agreement, and nothing contained herein shall be construed to give the Executive or any other person any right to any specific assets of the Company or of any other person. This Agreement is intended to be, and shall in all events be construed and treated as, a deferred compensation arrangement for a “select group of management and highly compensated employees,” within the meaning of Title I of ERISA.
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| 13. | Establishment of Trust. |
The provisions of Section 12 notwithstanding, the Company may, in its sole and absolute discretion, establish a trust to which funds earmarked for payment under this Agreement may be transferred and from which benefits arising hereunder, and subject to the provisions and limitations hereof, may be paid. Any such trust would contain provisions making it irrevocable by the Company unless and until all benefits hereunder which are funded through such trust have been paid or provided for, except in the case of bankruptcy or insolvency of the Company, in which event benefit payments from the trust would cease and assets thereof would revert to the Company or be paid to its creditors.
| 14. | Governing Law. |
The Agreement shall be construed under and governed by the laws of the Commonwealth of Massachusetts, except to the extent preempted by ERISA.
| 15. | Notice. |
Any notice or communication required of either party with respect to this Agreement shall be made in writing and may either be delivered personally or sent by First Class mail or via any national courier service, as the case may be:
To the Company:
Attn: Presiding Director, Executive Committee
Legacy Banks
99 North Street
Pittsfield, MA 01201
To the Executive:
J. Williar Dunlaevy
196 Hubbard St.
Lenox, MA 01240
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Each party shall have the right by written notice to change the place to which any notice may be addressed.
| 16. | Board Authority; Indemnification. |
| (a) | The Board shall administer this Agreement in accordance with its terms and shall have the power and discretion to construe the terms of the Agreement, decide any issues of fact or law, and to determine all questions arising in connection with the administration, interpretation, and application of the Agreement. Any such determination by the Board shall be conclusive and binding upon all persons. The Board may establish procedures, correct any defect, supply any information, or reconcile any inconsistency in such manner and to such extent as shall be deemed necessary or advisable to carry out the purposes of this Agreement. |
| (b) | Neither the Board nor any member of the Board or any delegate thereof, shall be liable for any act, omission, interpretation, construction or determination made in good faith in connection with the Agreement, and the members of the Board (and any delegate thereof) shall be entitled in all cases to indemnification and reimbursement by the Company in respect of any claim, loss, damage or expense (including, without limitation, reasonable attorneys’ fees) arising or resulting therefrom to the fullest extent permitted by law or under any directors’ and officers’ liability insurance coverage which may be in effect from time to time. |
[Signature Page follows]
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EXECUTED under seal as of the day and year first above written, and in the case of the Company by its duly authorized representatives.
| EXECUTIVE | LEGACY BANKS | |||
| /s/ J. Williar Dunlaevy | /s/ Joseph H. Nolan | |||
| J. Williar Dunlaevy | By: Director and member of the Executive Committee | |||
| MUTUAL BANCORP OF THE BERKSHIRES, INC. | LEGACY GROUP, INC. | |||
| /s/ Dorothy B. Winsor | /s/ Dorothy B. Winsor | |||
| By: Trustee and member of the Executive Committee | By: Director and member of the Executive Committee | |||
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