ROCKVILLE BANK Employment Agreement for Christopher Buchholz Effective as of June 5, 2006 ROCKVILLE BANK Employment Agreement for Christopher Buchholz Effective as of June 5, 2006

1. Employment

 

2. Term

 

3. Offices and Duties

 

(a) Generally

 

(b) Place of Employment

 

4. Salary and Annual Incentive Compensation

 

(a) Base Salary

 

(b) Annual Incentive Compensation

 

5. Long-Term Compensation, Including Stock Options, Benefits, Deferred Compensation, and Expense Reimbursement 

 

(a) Executive Compensation Plans

 

(b) Employee and Executive Benefit Plans

 

(c) Acceleration of Awards Upon a Change in Control

 

(d) Deferral of Compensation

 

(e) Company Registration Obligations

 

(f) Reimbursement of Expenses

 

(g) Limitations Under Code Section 409A4

 

6. Termination Due to Retirement, Death, or Disability

 

(a) Retirement

 

(b) Death

 

(c) Disability

 

(d) Other Terms of Payment Following Retirement, Death, or Disability

 

7. Termination of Employment For Reasons Other Than Retirement, Death or Disability

 

(a) Termination by the Bank for Cause

 

(b) Termination by Executive Other Than For Good Reason

 

(c) Termination by the Bank Without Cause Prior to or More than Two Years After a Change in Control

 

(d) Termination by Executive for Good Reason Prior to or More than Two Years After a Change in Control  

 

(e) Termination by the Bank Without Cause Within Two Years After a Change in Control  

 

(f) Termination by Executive for Good Reason Within Two Years After a Change in Control

 

(g) Other Terms Relating to Certain Terminations of Employment

 

8. Definitions Relating to Termination Events

 

(a) “Cause

 

(b) “Change in Control

 

(c) “Compensation Accrued at Termination

 

(d) “Disability

 

(e) “Good Reason

 

(f) “Potential Change in Control

 

9. Rabbi Trust Obligation Upon Potential Change in Control; Excise Tax-Related Provisions  

 

(a) Rabbi Trust Funded Upon Potential Change in Control

 

(b) Gross-up If Excise Tax Would Apply

 

10. Non-Competition and Non-Disclosure; Executive Cooperation; Non-Disparagement; Certain Forfeitures

 

(a) Non-Competition

 

(b) Non-Disclosure; Ownership of Work

 

(c) Cooperation With Regard to Litigation

 

(d) Non-Disparagement

 

(e) Release of Employment Claims

 

(f) Forfeiture of Outstanding Options

 

(g) Forfeiture of Certain Bonuses and Profits

 

(h) Forfeiture Due to Regulatory Restrictions

 

(i) Survival

 

11. Governing Law; Disputes

 

(a) Governing Law

 

(b) Reimbursement of Expenses in Enforcing Rights

 

(c) Dispute Resolution

 

(d) Interest on Unpaid Amounts

 

12. Miscellaneous

 

(a) Integration

 

(b) Successors; Transferability

 

(c) Beneficiaries

 

(d) Notices

 

(e) Reformation

 

(f) Headings

 

(g) No General Waivers

 

(h) No Obligation To Mitigate

 

(i) Offsets; Withholding

 

(j) Successors and Assigns

 

(k) Counterparts

 

13. Indemnification

 

(i)

 

Executive will participate as Senior Vice President in all executive and employee vacation and time-off programs;

 

(ii)

 

The Bank will provide Executive with coverage as Senior Vice President with respect to long-term disability insurance;

 

(iii)

 

Executive will be covered by Bank-paid group term life insurance;

 

(iv)

 

Executive will be entitled to benefits under the Supplemental Savings and Retirement Plan (the “SERP”) in accordance with the terms thereof, with the effective date of Executive's participation therein to be the Effective Date; and

 

(v)

 

Following Executive’s completion of five years of “Credited Service” with the Bank (within the meaning provided in the SERP) or earlier termination of employment in accordance with Section 6(c) of this Agreement by reason of Executive’s Disability (as defined in Section 8(d)), Executive will be entitled to payment of a retirement benefit (the “Retirement Benefit”) equal to $40,000 per year (subject to reduction as provided hereinbelow) for a period of 20 years, commencing on the first day of the month coinciding with or immediately following the later of his attainment of age 60 or termination of service with the Bank. In the event that Executive’s service with the Bank shall be terminated prior to his attainment of age 60 for any reason other than death as provided in Section 6(b), Disability as provided in Section 6(c), termination by the Bank without Cause as provided in Sections 7(c) and (e), or termination by Executive for Good Reason as provided in Sections 7(d) and (f), such $40,000 annual Retirement Benefit shall be reduced at a rate of five percent per year for each 12-month period or portion thereof that Executive’s termination of service with the Bank precedes his attainment of age 65, with any pro rata reduction for periods of fewer than 12 months to be determined by disregarding any partial months. Such Retirement Benefit shall be payable to Executive in equal monthly installments on the first day of each month following the later of his attainment of age 60 or termination of service with the Bank for a total of 240 monthly payments. In the event of Executive’s death prior to the commencement of payment of such Retirement Benefit, Executive’s beneficiary (the “Beneficiary”), designated on such form as the Bank may provide, shall be entitled to receive the Retirement Benefit that would otherwise have been provided to Executive pursuant to this Section 5(b)(v). In the event of the death of Executive after the commencement of payment of the Retirement Benefit, payment shall continue to be made to Executive’s Beneficiary in an amount equal to the annual benefit that Executive was receiving at the time of death until such annual Retirement Benefit shall have been paid to Executive and his Beneficiary for a total period of 20 years. Monthly installments shall cease to be paid after 240 months of installments have been paid to Executive, his Beneficiary or both. Anything in this Agreement to the contrary notwithstanding, if Executive’s employment is terminated for Cause as provided in Section 7(a) of this Agreement, the Retirement Benefit otherwise payable in accordance with this Section 5(b)(v) shall be forfeited. If Executive or his Beneficiary has received any monthly installments of the Retirement Benefit and it is subsequently determined that Executive was terminated for Cause as provided in Section 7(a), then the monthly installments previously paid shall be returned by Executive or his Beneficiary, as the case may be, to the Bank, and no further monthly installments shall be payable under this Agreement. In the event that Executive’s employment is terminated by the Bank without Cause within two years after a Change in Control as provided in Section 7(e) of this Agreement or is terminated by Executive for Good Reason within two years after a Change in Control as provided in Section 7(f) of this Agreement, payment of the Retirement Benefit provided under this Section 5(b)(v) shall begin on the first day of the month coinciding with or immediately following Executive’s termination, regardless of the number of years of Credited Service completed by Executive and regardless of whether Executive shall have attained age 60 and such Retirement Benefit shall not be reduced as otherwise provided hereinabove on account of payment prior to Executive’s attainment of age 60. The Retirement Benefit payable pursuant to this Section 5(b)(v) shall not be funded and shall not be subject in any manner to alienation, transfer or assignment by Executive. Executive shall have only the right of an unsecured general creditor of the Bank and the Company for the Retirement Benefit provided pursuant to this Section 5(b)(v), which is intended to comply with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and shall be interpreted and administered in a manner consistent therewith.

 

(i)

 

Executive’s Compensation Accrued at Termination (as defined in Section 8(c));

 

(ii)

 

In lieu of any annual incentive compensation under Section 4(b) for the year in which Executive’s employment terminated, an amount equal to the portion of annual incentive compensation that would have become payable in cash to Executive (i.e., excluding the portion payable in stock or in other non-cash awards) for that year if his employment had not terminated, based on performance actually achieved in that year (determined by the Committee following completion of the performance year), multiplied by a fraction the numerator of which is the number of days Executive was employed in the year of termination and the denominator of which is the total number of days in the year of termination;

 

(iii)

 

The vesting and exercisability of stock options held by Executive at termination and all other terms of such options shall be governed by the plans and programs and the agreements and other documents pursuant to which such options were granted (subject to Section 10(f) hereof);

 

(iv)

 

All restricted stock and deferred stock awards, including outstanding stock plan awards, all other long-term incentive awards, and all deferral arrangements under Section 5(d), shall be governed by the plans and programs under which the awards were granted or governing the deferral, all rights under the SERP any other benefit plan shall be governed by such plans and all rights to the Retirement Benefit provided under Section 5(b)(v) of this Agreement shall be governed by Section 5(b)(v); and

 

(v)

 

If Executive shall not be eligible upon Retirement for retiree coverage under the Bank’s health plan (the “Health Plan”) and Executive elects in accordance with the applicable provisions of the Consolidated Omnibus Budget Reconciliation Act of 1986, as amended (“COBRA”) continued coverage under the Health Plan in accordance with the applicable provisions of COBRA, the Bank shall pay to Executive on a monthly basis during such COBRA continuation period an amount equal on an after-tax basis to the total cost of such coverage. Prior to the expiration of the maximum COBRA continuation period available to Executive, provided that Executive theretofore shall have complied with the conditions set forth in Section 10, the Bank shall make a good faith effort to obtain insured coverage for Executive (and his spouse and eligible dependents, if any, for whom coverage had been provided during the COBRA continuation period) that is substantially comparable to such COBRA continuation coverage, which insured coverage shall begin on the date of expiration of Executive’s COBRA continuation period and continue until the earliest of: (1) Executive’s eligibility for medical coverage under the Bank’s Health Plan, as a retiree or active employee, (2) Executive’s eligibility for medical coverage under a plan maintained by a subsequent employer or other entity to which Executive provides services, (3) Executive’s eligibility for Medicare, or (4) Executive’s attainment of Social Security retirement age, within the meaning of Section 216(l) of the Social Security Act, as the same may be amended (“Social Security Retirement Age”). In the event that the Bank determines, in its sole discretion, that it is unable to obtain such insured coverage for Executive (and his spouse and eligible dependents, if any, for whom coverage had been provided during the COBRA continuation period) or in the event that Executive determines, in his sole discretion, that any such insured coverage offered by the Bank is not substantially comparable to such COBRA continuation coverage, the Bank shall pay to Executive, provided that Executive shall not have become eligible for medical coverage under (1) the Bank’s Health Plan, as a retiree or active employee, (2) a plan maintained by a subsequent employer or other entity to which Executive provides services, or (3) Medicare and, provided further, that Executive theretofore shall have complied with the conditions set forth in Section 10, a lump sum amount equal on an after-tax basis to the present value of the total cost of retiree medical coverage under the Health Plan that would have been incurred by both Executive and the Bank on behalf of Executive (and his spouse and eligible dependents, if any, for whom coverage had been provided during the COBRA continuation period) if Executive (and such spouse and dependents, if any) had been eligible for such retiree medical coverage from the end of Executive’s COBRA continuation period until Executive’s attainment of Social Security retirement age, calculated on the assumption that the cost of such coverage would remain unchanged from that in effect for the year in which such lump sum is paid. Such lump sum amount shall be calculated by an actuary selected by the Bank and paid in cash as soon as administratively practicable following the expiration of Executive’s COBRA continuation period and shall not be subject to reduction or forfeiture by reason of any coverage for which Executive may thereafter become eligible by reason of subsequent employment or otherwise. For purposes of this Section, present value shall be calculated on the basis of the discount rate set forth in the Bank’s qualified retirement plan for the determination of lump sum payments.

 

(i)

 

Executive’s Compensation Accrued at Termination;

 

(ii)

 

In lieu of any annual incentive compensation under Section 4(b) for the year in which Executive’s death occurred, an amount equal to the portion of annual incentive compensation that would have become payable in cash to Executive (i.e., excluding the portion payable in stock or in other non-cash awards) for that year if his employment had not terminated, based on performance actually achieved in that year (determined by the Committee following completion of the performance year), multiplied by a fraction the numerator of which is the number of days Executive was employed in the year of his death and the denominator of which is the total number of days in the year of death;

 

(iii)

 

The vesting and exercisability of stock options held by Executive at death and all other terms of such options shall be governed by the plans and programs and the agreements and other documents pursuant to which such options were granted;

 

(iv)

 

All restricted stock and deferred stock awards, including outstanding stock plan awards, all other long-term incentive awards, and all deferral arrangements under Section 5(d), shall be governed by the plans and programs under which the awards were granted or governing the deferral, all rights under the SERP and any other benefit plan shall be governed by such plans and all rights to the Retirement Benefit provided under Section 5(b)(v) of this Agreement shall be governed by Section 5(b)(v);

 

(v)

 

If Executive’s surviving spouse (and eligible dependents, if any) elects continued coverage under the Bank’s Health Plan in accordance with the applicable provisions of COBRA, the Bank shall pay to Executive’s surviving spouse on a monthly basis during such COBRA continuation period an amount equal on an after-tax basis to the total cost of such coverage. No further benefits shall be paid under this Section after the expiration of the maximum COBRA continuation period available to Executive’s surviving spouse and eligible dependents, if any.

 

(i)

 

Executive’s Compensation Accrued at Termination;

 

(ii)

 

In lieu of any annual incentive compensation under Section 4(b) for the year in which Executive’s employment terminated, an amount equal to the portion of annual incentive compensation that would have become payable in cash to Executive (i.e., excluding the portion payable in stock or in other non-cash awards) for that year if his employment had not terminated, based on performance actually achieved in that year (determined by the Committee following completion of the performance year), multiplied by a fraction the numerator of which is the number of days Executive was employed in the year of termination and the denominator of which is the total number of days in the year of termination;

 

(iii)

 

Stock options held by Executive at termination shall be governed by the plans and programs and the agreements and other documents pursuant to which such options were granted;

 

(iv)

 

Any performance objectives upon which the earning of performance-based restricted stock and deferred stock awards, including outstanding stock plan awards, and other long-term incentive awards is conditioned shall be deemed to have been met at target level at the date of termination, and restricted stock and deferred stock awards, including outstanding stock plan awards, and other long-term incentive awards (to the extent then or previously earned, in the case of performance-based awards) shall become fully vested and non-forfeitable at the date of such termination, and, in other respects, such awards shall be governed by the plans and programs and the agreements and other documents pursuant to which such awards were granted;

 

(v)

 

Disability benefits shall be payable in accordance with the Bank's plans, programs and policies, including the SERP, all deferral arrangements under Section 5(d) will be settled in accordance with the plans and programs governing the deferral and all rights to the Retirement Benefit provided under Section 5(b)(v) of this Agreement shall be governed by Section 5(b)(v);

 

(vi)

 

If Executive elects after termination of employment continued coverage under the Health Plan in accordance with the applicable provisions of COBRA, the Bank shall pay to Executive on a monthly basis during such COBRA continuation period an amount equal on an after-tax basis to the total cost of such coverage. Prior to the expiration of the maximum COBRA continuation period available to Executive, provided that Executive theretofore shall have complied with the conditions set forth in Section 10, the Bank shall make a good faith effort to obtain insured coverage for Executive (and his spouse and eligible dependents, if any, for whom coverage had been provided during the COBRA continuation period) that is substantially comparable to such COBRA continuation coverage, which insured coverage shall begin on the date of expiration of Executive’s COBRA continuation period and continue until the earliest of: (1) Executive’s eligibility for medical coverage under the Bank’s Health Plan, as a retiree or active employee, (2) Executive’s eligibility for medical coverage under a plan maintained by a subsequent employer or other entity to which Executive provides services, (3) Executive’s eligibility for Medicare, or (4) Executive’s attainment of Social Security retirement age. In the event that the Bank determines, in its sole discretion, that it is unable to obtain such insured coverage for Executive (and his spouse and eligible dependents, if any, for whom coverage had been provided during the COBRA continuation period) or in the event that Executive determines, in his sole discretion, that any such insured coverage offered by the Bank is not substantially comparable to such COBRA continuation coverage, the Bank shall pay to Executive, provided that Executive shall not have become eligible for medical coverage under (1) the Bank’s Health Plan, as a retiree or active employee, (2) a plan maintained by a subsequent employer or other entity to which Executive provides services, or (3) Medicare and, provided further, that Executive theretofore shall have complied with the conditions set forth in Section 10, a lump sum amount equal on an after-tax basis to the present value of the total cost of retiree medical coverage under the Health Plan that would have been incurred by both Executive and the Bank on behalf of Executive (and his spouse and eligible dependents, if any, for whom coverage had been provided during the COBRA continuation period) if Executive (and such spouse and dependents, if any) had been eligible for such retiree medical coverage from the end of Executive’s COBRA continuation period until Executive’s attainment of Social Security retirement age, calculated on the assumption that the cost of such coverage would remain unchanged from that in effect for the year in which such lump sum is paid. Such lump sum amount shall be calculated by an actuary selected by the Bank and paid in cash as soon as administratively practicable following the expiration of Executive’s COBRA continuation period and shall not be subject to reduction or forfeiture by reason of any coverage for which Executive may thereafter become eligible by reason of subsequent employment or otherwise. In addition, as soon as administratively practicable following Executive’s termination of employment, provided that Executive shall have complied with the conditions set forth in Section 10, the Bank shall pay to Executive a lump sum amount equal on an after-tax basis to the present value of the sum of (1) the amount that Executive and the Bank would have been paid for coverage under the Bank’s group long-term disability policy from Executive’s termination of employment until Executive’s attainment of Social Security retirement age, calculated on the assumption that the cost of such coverage would remain unchanged from that in effect for the year in which Executive’s termination occurred; and (2) the amount that Executive and the Bank would have paid to continue Executive’s group life insurance coverage from Executive’s termination of employment until Executive’s attainment of Social Security retirement age, calculated on the assumption that the cost of such coverage would remain unchanged from that in effect for the year in which Executive’s termination occurred. For purposes of this Section, present value shall be calculated on the basis of the discount rate set forth in the Bank’s qualified retirement plan for the determination of lump sum payments.

 

(i)

 

Executive’s Compensation Accrued at Termination (as defined in Section 8(c));

 

(ii)

 

All stock options, restricted stock and deferred stock awards, including outstanding stock plan awards, and all other long-term incentive awards will be governed by the terms of the plans and programs under which the awards were granted; and

 

(iii)

 

All deferral arrangements under Section 5(d) will be settled in accordance with the plans and programs governing the deferral, and all rights, if any, under the SERP and any other benefit plan shall be governed by such plans.

 

(i)

 

Executive’s Compensation Accrued at Termination;

 

(ii)

 

All stock options, restricted stock and deferred stock awards, including outstanding stock plan awards, and all other long-term incentive awards will be governed by the terms of the plans and programs under which the awards were granted;

 

(iii)

 

All deferral arrangements under Section 5(d) will be settled in accordance with the plans and programs governing the deferral, all rights under the SERP and any other benefit plan shall be governed by such plans and all rights to the Retirement Benefit provided under Section 5(b)(v) of this Agreement shall be governed by Section 5(b)(v).

 

(i)

 

Executive’s Compensation Accrued at Termination;

 

(ii)

 

Cash in an aggregate amount equal to three times the sum of (A) Executive’s Base Salary under Section 4(a) immediately prior to termination plus (B) an amount equal to the greater of (x) the portion of Executive’s annual target incentive compensation potentially payable in cash to Executive (i.e., excluding the portion payable in stock or in other non-cash awards) for the year of termination or (y) the portion of Executive’s annual incentive compensation that became payable in cash to Executive (i.e., excluding the portion payable in stock or in other non-cash awards) for the latest year preceding the year of termination based on performance actually achieved in that latest year. The amount determined to be payable under this Section 7(c)(ii) shall be payable in monthly installments over the 36 months following termination, without interest, except the Bank may elect to accelerate payment of the remaining balance of such amount and to pay it as a lump sum, without discount;

 

(iii)

 

In lieu of any annual incentive compensation under Section 4(b) for the year in which Executive’s employment terminated, an amount equal to the portion of Executive’s annual target incentive compensation potentially payable in cash to Executive (i.e., excluding the portion payable in stock or in other non-cash awards) for the year of termination, multiplied by a fraction the numerator of which is the number of days Executive was employed in the year of termination and the denominator of which is the total number of days in the year of termination;

 

(iv)

 

Stock options held by Executive at termination, if not then vested and exercisable, will become fully vested and exercisable at the date of such termination, and, in other respects (including the period following termination during which such options may be exercised), such options shall be governed by the plans and programs and the agreements and other documents pursuant to which such options were granted;

 

(v)

 

Any performance objectives upon which the earning of performance-based restricted stock and deferred stock awards, including outstanding stock plan awards, and other long-term incentive awards is conditioned shall be deemed to have been met at target level at the date of termination, and restricted stock and deferred stock awards, including outstanding stock plan awards, and other long-term incentive awards (to the extent then or previously earned, in the case of performance-based awards) shall become fully vested and non-forfeitable at the date of such termination, and, in other respects, such awards shall be governed by the plans and programs and the agreements and other documents pursuant to which such awards were granted;

 

(vi)

 

All deferral arrangements under Section 5(d) will be settled in accordance with the plans and programs governing the deferral;

 

(vii)

 

All rights under the SERP shall be governed by such plan and all rights to the Retirement Benefit provided under Section 5(b)(v) of this Agreement shall be governed by Section 5(b)(v);

 

(viii)

 

If Executive elects after termination of employment continued coverage under the Health Plan in accordance with the applicable provisions of COBRA, the Bank shall pay to Executive on a monthly basis during such COBRA continuation period an amount equal on an after-tax basis to the total cost of such coverage. If the maximum COBRA continuation period available to Executive shall be less than three years, prior to the expiration of the maximum COBRA continuation period available to Executive, provided that Executive theretofore shall have complied with the conditions set forth in Section 10, the Bank shall make a good faith effort to obtain insured coverage for Executive (and his spouse and eligible dependents, if any, for whom coverage had been provided during the COBRA continuation period) that is substantially comparable to such COBRA continuation coverage, which insured coverage shall begin on the date of expiration of Executive’s COBRA continuation period and continue until the third anniversary of Executive’s termination of employment. In the event that the Bank determines, in its sole discretion, that it is unable to obtain such insured coverage for Executive (and his spouse and eligible dependents, if any, for whom coverage had been provided during the COBRA continuation period) or in the event that Executive determines, in his sole discretion, that any such insured coverage offered by the Bank is not substantially comparable to such COBRA continuation coverage, the Bank shall pay to Executive, provided that Executive shall not have become eligible for medical coverage under (1) the Bank’s Health Plan, as a retiree or active employee, (2) a plan maintained by a subsequent employer or other entity to which Executive provides services, or (3) Medicare and, provided further, that Executive theretofore shall have complied with the conditions set forth in Section 10, a lump sum amount equal on an after-tax basis to the present value of the total cost of retiree medical coverage under the Health Plan that would have been incurred by both Executive and the Bank on behalf of Executive (and his spouse and eligible dependents, if any, for whom coverage had been provided during the COBRA continuation period) if Executive (and such spouse and dependents, if any) had been eligible for such retiree medical coverage from the end of Executive’s COBRA continuation period until the third anniversary of Executive’s termination of employment, calculated on the assumption that the cost of such coverage would remain unchanged from that in effect for the year in which such lump sum is paid. Such lump sum amount shall be calculated by an actuary selected by the Bank and paid in cash as soon as administratively practicable following the expiration of Executive’s COBRA continuation period and shall not be subject to reduction or forfeiture by reason of any coverage for which Executive may thereafter become eligible by reason of subsequent employment or otherwise. In addition, as soon as administratively practicable following Executive’s termination of employment, provided that Executive shall have complied with the conditions set forth in Section 10, the Bank shall pay to Executive a lump sum amount equal on an after-tax basis to the present value of the sum of (1) the amount that Executive and the Bank would have paid, had he remained employed, for coverage under the Bank’s group long-term disability policy from the date of Executive’s termination of employment until the third anniversary of Executive’s termination of employment, calculated on the assumption that the cost of such coverage would remain unchanged from that in effect for the year in which Executive’s termination occurred; and (2) the amount that Executive and the Bank would have paid to continue Executive’s group life insurance coverage, had he remained employed, from the date of Executive’s termination of employment until the third anniversary of Executive’s termination of employment, calculated on the assumption that the cost of such coverage would remain unchanged from that in effect for the year in which Executive’s termination occurred. For purposes of this Section, present value shall be calculated on the basis of the discount rate set forth in the Bank’s qualified retirement plan for the determination of lump sum payments.

 

(i)

 

Executive’s Compensation Accrued at Termination;

 

(ii)

 

Cash in an aggregate amount equal to three times the sum of (A) Executive’s Base Salary under Section 4(a) immediately prior to termination plus (B) an amount equal to the greater of (x) the portion of Executive’s annual target incentive compensation potentially payable in cash to Executive (i.e., excluding the portion payable in stock or in other non-cash awards) for the year of termination or (y) the portion of Executive’s annual incentive compensation that became payable in cash to Executive (i.e., excluding the portion payable in stock or in other non-cash awards) for the latest year preceding the year of termination based on performance actually achieved in that latest year. The amount determined to be payable under this Section 7(d)(ii) shall be payable in monthly installments over the 36 months following termination, without interest, except the Bank may elect to accelerate payment of the remaining balance of such amount and to pay it as a lump sum, without discount;

 

(iii)

 

In lieu of any annual incentive compensation under Section 4(b) for the year in which Executive’s employment terminated, an amount equal to the portion of Executive’s annual target incentive compensation potentially payable in cash to Executive (i.e., excluding the portion payable in stock or in other non-cash awards) for the year of termination, multiplied by a fraction the numerator of which is the number of days Executive was employed in the year of termination and the denominator of which is the total number of days in the year of termination;

 

(iv)

 

Stock options held by Executive at termination, if not then vested and exercisable, will become fully vested and exercisable at the date of such termination, and, in other respects (including the period following termination during which such options may be exercised), such options shall be governed by the plans and programs and the agreements and other documents pursuant to which such options were granted;

 

(v)

 

Any performance objectives upon which the earning of performance-based restricted stock and deferred stock awards, including outstanding stock plan awards, and other long-term incentive awards is conditioned shall be deemed to have been met at target level at the date of termination, and restricted stock and deferred stock awards, including outstanding stock plan awards, and other long-term incentive awards (to the extent then or previously earned, in the case of performance-based awards) shall become fully vested and non-forfeitable at the date of such termination, and, in other respects, such awards shall be governed by the plans and programs and the agreements and other documents pursuant to which such awards were granted;

 

(vi)

 

All deferral arrangements under Section 5(d) will be settled in accordance with the plans and programs governing the deferral;

 

(vii)

 

All rights under the SERP shall be governed by such plan and all rights to the Retirement Benefit provided under Section 5(b)(v) of this Agreement shall be governed by Section 5(b)(v); and

 

(viii)

 

If Executive elects after termination of employment continued coverage under the Health Plan in accordance with the applicable provisions of COBRA, the Bank shall pay to Executive on a monthly basis during such COBRA continuation period an amount equal on an after-tax basis to the total cost of such coverage. If the maximum COBRA continuation period available to Executive shall be less than three years, prior to the expiration of the maximum COBRA continuation period available to Executive, provided that Executive theretofore shall have complied with the conditions set forth in Section 10, the Bank shall make a good faith effort to obtain insured coverage for Executive (and his spouse and eligible dependents, if any, for whom coverage had been provided during the COBRA continuation period) that is substantially comparable to such COBRA continuation coverage, which insured coverage shall begin on the date of expiration of Executive’s COBRA continuation period and continue until the third anniversary of Executive’s termination of employment. In the event that the Bank determines, in its sole discretion, that it is unable to obtain such insured coverage for Executive (and his spouse and eligible dependents, if any, for whom coverage had been provided during the COBRA continuation period) or in the event that Executive determines, in his sole discretion, that any such insured coverage offered by the Bank is not substantially comparable to such COBRA continuation coverage, the Bank shall pay to Executive, provided that Executive shall not have become eligible for medical coverage under (1) the Bank’s Health Plan, as a retiree or active employee, (2) a plan maintained by a subsequent employer or other entity to which Executive provides services, or (3) Medicare and, provided further, that Executive theretofore shall have complied with the conditions set forth in Section 10, a lump sum amount equal on an after-tax basis to the present value of the total cost of retiree medical coverage under the Health Plan that would have been incurred by both Executive and the Bank on behalf of Executive (and his spouse and eligible dependents, if any, for whom coverage had been provided during the COBRA continuation period) if Executive (and such spouse and dependents, if any) had been eligible for such retiree medical coverage from the end of Executive’s COBRA continuation period until the third anniversary of Executive’s termination of employment, calculated on the assumption that the cost of such coverage would remain unchanged from that in effect for the year in which such lump sum is paid. Such lump sum amount shall be calculated by an actuary selected by the Bank and paid in cash as soon as administratively practicable following the expiration of Executive’s COBRA continuation period and shall not be subject to reduction or forfeiture by reason of any coverage for which Executive may thereafter become eligible by reason of subsequent employment or otherwise. In addition, as soon as administratively practicable following Executive’s termination of employment, provided that Executive shall have complied with the conditions set forth in Section 10, the Bank shall pay to Executive a lump sum amount equal on an after-tax basis to the present value of the sum of (1) the amount that Executive and the Bank would have paid, had he remained employed, for coverage under the Bank’s group long-term disability policy from the date of Executive’s termination of employment until the third anniversary of Executive’s termination of employment, calculated on the assumption that the cost of such coverage would remain unchanged from that in effect for the year in which Executive’s termination occurred; and (2) the amount that Executive and the Bank would have paid to continue Executive’s group life insurance coverage, had he remained employed, from the date of Executive’s termination of employment until the third anniversary of Executive’s termination of employment, calculated on the assumption that the cost of such coverage would remain unchanged from that in effect for the year in which Executive’s termination occurred. For purposes of this Section, present value shall be calculated on the basis of the discount rate set forth in the Bank’s qualified retirement plan for the determination of lump sum payments.

 

(i)

 

Executive’s Compensation Accrued at Termination;

 

(ii)

 

Cash in an aggregate amount equal to three times the sum of (A) Executive’s Base Salary under Section 4(a) immediately prior to termination plus (B) an amount equal to the greater of (x) the portion of Executive’s annual target incentive compensation potentially payable in cash to Executive (i.e., excluding the portion payable in stock or in other non-cash awards) for the year of termination or (y) the portion of Executive’s annual incentive compensation that became payable in cash to Executive (i.e., excluding the portion payable in stock or in other non-cash awards) for the latest year preceding the year of termination based on performance actually achieved in that latest year. The amount determined to be payable under this Section 7(e)(ii) shall be paid by the Bank not later than 15 days after Executive’s termination;

 

(iii)

 

In lieu of any annual incentive compensation under Section 4(b) for the year in which Executive’s employment terminated, an amount equal to the portion of Executive’s annual target incentive compensation potentially payable in cash to Executive (i.e., excluding the portion payable in stock or in other non-cash awards) for the year of termination, multiplied by a fraction the numerator of which is the number of days Executive was employed in the year of termination and the denominator of which is the total number of days in the year of termination;

 

(iv)

 

Stock options held by Executive at termination, if not then vested and exercisable, will become fully vested and exercisable at the date of such termination, and any such options granted on or after the date hereof shall remain outstanding and exercisable until the stated expiration date of the Option as though Executive’s employment did not terminate, and, in other respects, such options shall be governed by the plans and programs and the agreements and other documents pursuant to which such options were granted;

 

(v)

 

Any performance objectives upon which the earning of performance-based restricted stock and deferred stock awards, including outstanding stock plan awards, and other long-term incentive awards is conditioned shall be deemed to have been met at target level at the date of termination, and restricted stock and deferred stock awards, including outstanding stock plan awards, and other long-term incentive awards (to the extent then or previously earned, in the case of performance-based awards) shall become fully vested and non-forfeitable at the date of such termination, and, in other respects, such awards shall be governed by the plans and programs and the agreements and other documents pursuant to which such awards were granted;

 

(vi)

 

All deferral arrangements under Section 5(d) will be settled in accordance with the plans and programs governing the deferral;

 

(vii)

 

All rights under the SERP shall be governed by such plan and all rights to the Retirement Benefit provided under Section 5(b)(v) of this Agreement shall be governed by Section 5(b)(v); and

 

(viii)

 

If Executive elects after termination of employment continued coverage under the Health Plan in accordance with the applicable provisions of COBRA, the Bank shall pay to Executive on a monthly basis during such COBRA continuation period an amount equal on an after-tax basis to the total cost of such coverage. If the maximum COBRA continuation period available to Executive shall be less than three years, prior to the expiration of the maximum COBRA continuation period available to Executive, provided that Executive theretofore shall have complied with the conditions set forth in Section 10, the Bank shall make a good faith effort to obtain insured coverage for Executive (and his spouse and eligible dependents, if any, for whom coverage had been provided during the COBRA continuation period) that is substantially comparable to such COBRA continuation coverage, which insured coverage shall begin on the date of expiration of Executive’s COBRA continuation period and continue until the third anniversary of Executive’s termination of employment. In the event that the Bank determines, in its sole discretion, that it is unable to obtain such insured coverage for Executive (and his spouse and eligible dependents, if any, for whom coverage had been provided during the COBRA continuation period) or in the event that Executive determines, in his sole discretion, that any such insured coverage offered by the Bank is not substantially comparable to such COBRA continuation coverage, the Bank shall pay to Executive, provided that Executive shall not have become eligible for medical coverage under (1) the Bank’s Health Plan, as a retiree or active employee, (2) a plan maintained by a subsequent employer or other entity to which Executive provides services, or (3) Medicare and, provided further, that Executive theretofore shall have complied with the conditions set forth in Section 10, a lump sum amount equal on an after-tax basis to the present value of the total cost of retiree medical coverage under the Health Plan that would have been incurred by both Executive and the Bank on behalf of Executive (and his spouse and eligible dependents, if any, for whom coverage had been provided during the COBRA continuation period) if Executive (and such spouse and dependents, if any) had been eligible for such retiree medical coverage from the end of Executive’s COBRA continuation period until the third anniversary of Executive’s termination of employment, calculated on the assumption that the cost of such coverage would remain unchanged from that in effect for the year in which such lump sum is paid. Such lump sum amount shall be calculated by an actuary selected by the Bank and paid in cash as soon as administratively practicable following the expiration of Executive’s COBRA continuation period and shall not be subject to reduction or forfeiture by reason of any coverage for which Executive may thereafter become eligible by reason of subsequent employment or otherwise. In addition, as soon as administratively practicable following Executive’s termination of employment, provided that Executive shall have complied with the conditions set forth in Section 10, the Bank shall pay to Executive a lump sum amount equal on an after-tax basis to the present value of the sum of (1) the amount that Executive and the Bank would have paid, had he remained employed, for coverage under the Bank’s group long-term disability policy from the date of Executive’s termination of employment until the third anniversary of Executive’s termination of employment, calculated on the assumption that the cost of such coverage would remain unchanged from that in effect for the year in which Executive’s termination occurred; and (2) the amount that Executive and the Bank would have paid to continue Executive’s group life insurance coverage, had he remained employed, from the date of Executive’s termination of employment until the third anniversary of Executive’s termination of employment, calculated on the assumption that the cost of such coverage would remain unchanged from that in effect for the year in which Executive’s termination occurred. For purposes of this Section, present value shall be calculated on the basis of the discount rate set forth in the Bank’s qualified retirement plan for the determination of lump sum payments.

 

(i)

 

Executive’s Compensation Accrued at Termination;

 

(ii)

 

Cash in an aggregate amount equal to three times the sum of (A) Executive’s Base Salary under Section 4(a) immediately prior to termination plus (B) an amount equal to the greater of (x) the portion of Executive’s annual target incentive compensation potentially payable in cash to Executive (i.e., excluding the portion payable in stock or in other non-cash awards) for the year of termination or (y) the portion of Executive’s annual incentive compensation that became payable in cash to Executive (i.e., excluding the portion payable in stock or in other non-cash awards) for the latest year preceding the year of termination based on performance actually achieved in that latest year. The amount determined to be payable under this Section 7(f)(ii) shall be paid by the Bank not later than 15 days after Executive’s termination;

 

(iii)

 

In lieu of any annual incentive compensation under Section 4(b) for the year in which Executive’s employment terminated, an amount equal to the portion of Executive’s annual target incentive compensation potentially payable in cash to Executive (i.e., excluding the portion payable in stock or in other non-cash awards) for the year of termination, multiplied by a fraction the numerator of which is the number of days Executive was employed in the year of termination and the denominator of which is the total number of days in the year of termination;

 

(iv)

 

Stock options held by Executive at termination, if not then vested and exercisable, will become fully vested and exercisable at the date of such termination, and any such options granted on or after the date hereof shall remain outstanding and exercisable until the stated expiration date of the Option as though Executive’s employment did not terminate, and, in other respects, such options shall be governed by the plans and programs and the agreements and other documents pursuant to which such options were granted;

 

(v)

 

Any performance objectives upon which the earning of performance-based restricted stock and deferred stock awards, including outstanding stock plan awards, and other long-term incentive awards is conditioned shall be deemed to have been met at target level at the date of termination, and restricted stock and deferred stock awards, including outstanding stock plan awards, and other long-term incentive awards (to the extent then or previously earned, in the case of performance-based awards) shall become fully vested and non-forfeitable at the date of such termination, and, in other respects, such awards shall be governed by the plans and programs and the agreements and other documents pursuant to which such awards were granted;

 

(vi)

 

All deferral arrangements under Section 5(d) will be settled in accordance with the plans and programs governing the deferral;

 

(vii)

 

All rights under the SERP shall be governed by such plan and all rights to the Retirement Benefit provided under Section 5(b)(v) of this Agreement shall be governed by Section 5(b)(v); and

 

(viii)

 

If Executive elects after termination of employment continued coverage under the Health Plan in accordance with the applicable provisions of COBRA, the Bank shall pay to Executive on a monthly basis during such COBRA continuation period an amount equal on an after-tax basis to the total cost of such coverage. If the maximum COBRA continuation period available to Executive shall be less than three years, prior to the expiration of the maximum COBRA continuation period available to Executive, provided that Executive theretofore shall have complied with the conditions set forth in Section 10, the Bank shall make a good faith effort to obtain insured coverage for Executive (and his spouse and eligible dependents, if any, for whom coverage had been provided during the COBRA continuation period) that is substantially comparable to such COBRA continuation coverage, which insured coverage shall begin on the date of expiration of Executive’s COBRA continuation period and continue until the third anniversary of Executive’s termination of employment. In the event that the Bank determines, in its sole discretion, that it is unable to obtain such insured coverage for Executive (and his spouse and eligible dependents, if any, for whom coverage had been provided during the COBRA continuation period) or in the event that Executive determines, in his sole discretion, that any such insured coverage offered by the Bank is not substantially comparable to such COBRA continuation coverage, the Bank shall pay to Executive, provided that Executive shall not have become eligible for medical coverage under (1) the Bank’s Health Plan, as a retiree or active employee, (2) a plan maintained by a subsequent employer or other entity to which Executive provides services, or (3) Medicare and, provided further, that Executive theretofore shall have complied with the conditions set forth in Section 10, a lump sum amount equal on an after-tax basis to the present value of the total cost of retiree medical coverage under the Health Plan that would have been incurred by both Executive and the Bank on behalf of Executive (and his spouse and eligible dependents, if any, for whom coverage had been provided during the COBRA continuation period) if Executive (and such spouse and dependents, if any) had been eligible for such retiree medical coverage from the end of Executive’s COBRA continuation period until the third anniversary of Executive’s termination of employment, calculated on the assumption that the cost of such coverage would remain unchanged from that in effect for the year in which such lump sum is paid. Such lump sum amount shall be calculated by an actuary selected by the Bank and paid in cash as soon as administratively practicable following the expiration of Executive’s COBRA continuation period and shall not be subject to reduction or forfeiture by reason of any coverage for which Executive may thereafter become eligible by reason of subsequent employment or otherwise. In addition, as soon as administratively practicable following Executive’s termination of employment, provided that Executive shall have complied with the conditions set forth in Section 10, the Bank shall pay to Executive a lump sum amount equal on an after-tax basis to the present value of the sum of (1) the amount that Executive and the Bank would have paid, had he remained employed, for coverage under the Bank’s group long-term disability policy from the date of Executive’s termination of employment until the third anniversary of Executive’s termination of employment, calculated on the assumption that the cost of such coverage would remain unchanged from that in effect for the year in which Executive’s termination occurred; and (2) the amount that Executive and the Bank would have paid to continue Executive’s group life insurance coverage, had he remained employed, from the date of Executive’s termination of employment until the third anniversary of Executive’s termination of employment, calculated on the assumption that the cost of such coverage would remain unchanged from that in effect for the year in which Executive’s termination occurred. For purposes of this Section, present value shall be calculated on the basis of the discount rate set forth in the Bank’s qualified retirement plan for the determination of lump sum payments.

 

(a)

 

“Cause.” For purposes of this Agreement, “Cause” shall mean:

 

(i)

 

Executive’s willful and continued failure to substantially perform his duties hereunder (other than any such failure resulting from incapacity due to physical or mental illness or Disability or any failure after the issuance of a notice of termination by Executive for Good Reason) which failure is demonstrably and materially damaging to the financial condition or reputation of the Company, the Bank and/or their affiliates, and which failure continues more than 48 hours after a written demand for substantial performance is delivered to Executive by the Board, which demand specifically identifies the manner in which the Board believes that Executive has not substantially performed his duties hereunder and the demonstrable and material damage caused thereby; or

 

(ii)

 

the willful engaging by Executive in conduct which is demonstrably and materially injurious to the Company, the Bank or their affiliates, monetarily or otherwise.

 

(i)

 

the Company, or the mutual holding company parent of the Company, whether it remains a mutual holding company or converts to the stock form of organization (the "Mutual Holding Company"), merges into or consolidates with another corporation, or merges another corporation into the Company or the Mutual Holding Company, and as a result, with respect to the Company, less than a majority of the combined voting power of the resulting corporation immediately after the merger or consolidation is held by "Persons" as such term is used for purposes of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") who were stockholders of the Company immediately before the merger or consolidation or, with respect to the Mutual Holding Company, less than a majority of the directors of the resulting corporation immediately after the merger or consolidation were directors of the Mutual Holding Company immediately before the merger or consolidation;

 

(ii)

 

following a conversion of the Mutual Holding Company to the stock form of organization, any Person (other than any trustee or other fiduciary holding securities under an employee benefit plan of the Bank or the Company), becomes the "Beneficial Owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the resulting corporation representing 25% or more of the combined voting power of the resulting corporation's then-outstanding securities;

 

(iii)

 

during any period of twenty-four months (not including any period prior to the Effective Date of this Agreement), individuals who at the beginning of such period constitute the board of directors of the Company, and any new director (other than (A) a director nominated by a Person who has entered into an agreement with the Company to effect a transaction described in Sections (8)(b)(i), (ii) or (iv) hereof, (B) a director nominated by any Person (including the Company) who publicly announces an intention to take or to consider taking actions (including, but not limited to, an actual or threatened proxy contest) which if consummated would constitute a Change in Control or (C) a director nominated by any Person who is the Beneficial Owner, directly or indirectly, of securities of the Company representing 25% or more of the combined voting power of the Company's securities) whose election by the board of directors of the Company or nomination for election by the Company's stockholders was approved in advance by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority thereof;

 

(iv)

 

the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets; or

 

(v)

 

the board of directors of the Company adopts a resolution to the effect that, for purposes of this Agreement, a Change in Control has occurred.

 

(i)

 

The unpaid portion of annual base salary at the rate payable, in accordance with Section 4(a) hereof, at the date of Executive’s termination of employment, pro rated through such date of termination, payable in accordance with the Company’s regular pay schedule;

 

(ii)

 

All vested, nonforfeitable amounts owing or accrued at the date of Executive’s termination of employment under any compensation and benefit plans, programs, and arrangements set forth or referred to in Sections 4(b) and 5(a) and 5(b) hereof (including any earned and vested annual incentive compensation and long-term incentive award) in which Executive theretofore participated, payable in accordance with the terms and conditions of the plans, programs, and arrangements (and agreements and documents thereunder) pursuant to which such compensation and benefits were granted or accrued; and

 

(iii)

 

Reasonable business expenses and disbursements incurred by Executive prior to Executive’s termination of employment, to be reimbursed to Executive, as authorized under Section 5(f), in accordance the Company’s reimbursement policies as in effect at the date of such termination

 

(i)

 

the assignment to Executive of duties inconsistent with Executive’s position and status as Senior Vice President, or an alteration, adverse to Executive, in Executive’s position and status as Senior Vice President or in the nature of Executive’s duties, responsibilities, and authorities or conditions of Executive’s employment from those relating to Executive position and status as Senior Vice President (excluding changes in assignments permitted under Section 3 and excluding inadvertent actions which are promptly remedied); except the foregoing shall not constitute Good Reason if occurring in connection with the termination of Executive’s employment for Cause, Disability, Retirement, as a result of Executive’s death, or as a result of action by or with the consent of Executive; for purposes of this Section 8(e), references to the Bank or the Company (and to the Board of the Bank or the Company and to the stockholders of the Company) refer to the ultimate parent company (and its board and stockholders) succeeding the Company (or the Mutual Holding Company) following an acquisition in which the corporate existence of the Company (or the Mutual Holding Company) continues, in accordance with Section 12(b);

 

(ii)

 

(A) a reduction by the Bank in Executive’s Base Salary, (B) the setting of Executive’s annual target incentive opportunity or payment of earned annual incentive not in conformity with Section 4 hereof, (C) a change in compensation or benefits not in conformity with Section 5, or (D) a reduction, after a Change in Control, in perquisites from the level of such perquisites as in effect immediately prior to the Change in Control or as the same may have been increased from time to time after the Change in Control, except for across-the-board perquisite reductions similarly affecting all senior executives of the Bank and all senior executives of any Person in control of the Company;

 

(iii)

 

the relocation of the principal place of Executive’s employment to a site that is outside of a fifty mile radius of his principal place of employment prior to such relocation; for this purpose, required travel on the Bank’s business will not constitute a relocation so long as the extent of such travel is substantially consistent with Executive’s customary business travel obligations in periods prior to the Effective Date;

 

(iv)

 

the failure by the Bank to pay to Executive any portion of Executive’s compensation or to pay to Executive any portion of an installment of deferred compensation under any deferred compensation program of the Bank within seven days of the date such compensation is due;

 

(v)

 

the failure by the Bank to continue in effect any material compensation or benefit plan in which Executive participated immediately prior to a Change in Control, unless an equitable arrangement (embodied in an ongoing substitute or alternative plan) has been made with respect to such plan, or the failure by the Bank to continue Executive’s participation therein (or in such substitute or alternative plan) on a basis not materially less favorable, both in terms of the amounts of compensation or benefits provided and the level of Executive’s participation relative to other participants, as existed at the time of the Change in Control;

 

(vi)

 

the failure of the Bank to obtain a satisfactory agreement from any successor to the Bank, the Company or the Mutual Holding Company to fully assume the Bank’s and the Company’s obligations and to perform under this Agreement, as contemplated in Section 12(b) hereof, in a form reasonably acceptable to Executive;

 

(vii)

 

any election by the Bank not to extend the Term of this Agreement at the next possible extension date under Section 2 hereof, unless Executive will have attained Social Security retirement age at or before such extension date; or

 

(viii)

 

any other failure by the Bank or the Company to perform any material obligation under, or breach by the Bank or the Company of any material provision of, this Agreement;

 

(i)

 

the Company enters into an agreement, the consummation of which would result in the occurrence of a Change in Control;

 

(ii)

 

any Person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control; or

 

(iii)

 

the Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control has occurred.

 

(i)

 

For purposes of determining whether any of the Severance Payments will be subject to the Excise Tax and the amount of such Excise Tax:

 

(A) any other payments or benefits received or to be received by Executive in connection with a Change in Control or Executive’s termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Bank, any Person whose actions result in a Change in Control or any Person affiliated with the Bank or such Person) (which, together with the Severance Payments, constitute the “Total Payments”) shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of nationally-recognized tax counsel selected by Executive such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax;

 

(B) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (x) the total amount of the Total Payments and (y) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying Section 9(b)(i)(A) hereof); and

 

(C) the value of any non-cash benefits or any deferred payments or benefit shall be determined by a nationally-recognized accounting firm selected by Executive in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

 

(ii)

 

For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive’s residence on the Date of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of Executive’s employment, Executive shall repay to the Bank within ten days after the time that the amount of such reduction in Excise Tax is finally determined the portion of the Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and federal and state and local income tax imposed on the Gross-Up Payment being repaid by Executive if such repayment results in a reduction in Excise Tax and/or federal and state and local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of Executive’s employment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Bank shall make an additional gross-up payment in respect of such excess within ten days after the time that the amount of such excess is finally determined.

 

(iii)

 

The payments provided for in this Section 9(b) shall be made not later than the fifteenth day following the date of Executive’s termination of employment; provided, however, that if the amount of such payments cannot be finally determined on or before such day, the Bank shall pay to Executive on such day an estimate, as determined in good faith by the Bank, of the minimum amount of such payments and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth day after the date of Executive’s termination of employment. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall be payable by Executive on the fifteenth day after the demand by the Bank.

 

(iv)

 

All determinations under this Section 9(b) shall be made at the expense of the Bank by a nationally recognized public accounting firm selected by Executive, and such determination shall be binding upon Executive and the Bank.

 

(v)

 

Executive hereby agrees with the Bank and the Company and any successor thereto to in good faith consider and take steps commonly used to minimize or eliminate any tax liability or costs that would otherwise be created by the tax indemnification provisions set forth in this Section 9(b) if requested to do so by the Company or the Bank or any successor thereto; provided, however, that the foregoing language shall neither require Executive to take or not take any specific action in furtherance thereof nor contravene, limit or remove any right or privilege provided thereto under this Agreement.

 

(i)

 

Negotiation. The Bank and the Company (collectively, the “Employer”) and Executive shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiation between the Chief Executive Officer of the Bank and Executive. Any party may give the other party written notice of any dispute in accordance with the notice procedures set forth in Section 12(d). Within 15 days after delivery of the notice, the receiving party shall submit to the other, in accordance with the notice procedures set forth in Section 12(d), a written response. The notice and response shall include a statement of that party’s position and summary of arguments supporting that position. Within 30 days after delivery of the initial notice, the parties shall meet at a mutually acceptable time and place, and thereafter as often as they reasonably deem necessary, to attempt to resolve the dispute. All negotiations pursuant to this clause (i) are confidential and shall be treated as compromise and settlement negotiations for purposes of applicable rules of evidence.

 

(ii)

 

Mediation. If the dispute has not been resolved by negotiation as provided herein within 45 days after delivery of the initial notice of negotiation, or if the parties failed to meet within 30 days after delivery, the parties shall endeavor to settle the dispute by mediation under the CPR Mediation Procedure then currently in effect; provided, however, that if one party fails to participate in the negotiation as provided herein, the other party can initiate mediation prior to the expiration of the 45 days. Unless otherwise agreed, the parties will select a mediator from the CPR Panels of Distinguished Neutrals.

 

(iii)

 

Arbitration. Any dispute arising under or in connection with this Agreement which has not been resolved by mediation as provided herein within 45 days after initiation of the mediation procedure, shall be finally resolved by arbitration in accordance with the CPR Rules for Non-Administered Arbitration then currently in effect, by three independent and impartial arbitrators, of whom each party shall designate one; provided, however, that if one party fails to participate in either the negotiation or mediation as agreed herein, the other party can commence arbitration prior to the expiration of the time periods set forth above. The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§1-16, and judgment upon the award rendered by the arbitrators may be entered by any court having jurisdiction thereof. The place of arbitration shall be Hartford, Connecticut. For purposes of entering any judgment upon an award rendered by the arbitrators, the Company, the Bank and Executive hereby consent to the jurisdiction of any or all of the following courts: (i) the United States District Court for the District of Connecticut, (ii) any of the courts of the State of Connecticut, or (iii) any other court having jurisdiction. The Company, the Bank and Executive hereby agree that a judgment upon an award rendered by the arbitrators may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Subject to Section 11(b) of this Agreement, the Bank shall bear all costs and expenses arising in connection with any arbitration proceeding pursuant to this Section 11(c). Notwithstanding any provision in this Section 11(c), Executive shall be entitled to seek specific performance of Executive's right to be paid during the pendency of any dispute or controversy arising under or in connection with this Agreement.

 

If to the Bank or the Company:

 

ROCKVILLE BANK

 

1645 Ellington Road

South Windsor, CT 06074

Att: Chief Executive Officer

 

 

If to Executive:

 

Mr. Christopher Buchholz

49 Coach Road

Glastonbury, CT 06033

Name:

Signature:

Date:

 

Received By:

Date: