EXHIBIT 10.6
CHANGE-IN-CONTROL
AND
RESTRICTIVE COVENANT AGREEMENT
FOR CERTAIN OFFICERS
OF ROCKVILLE BANK
Date
PERSONAL AND CONFIDENTIAL
[Name and Home Address]
Dear [Name]:
Rockville Bank (the "Bank") and Rockville Financial, Inc. (the "Company")
consider it essential to the best interests of the Company's stockholders to
xxxxxx the continued employment of key management personnel. In this connection,
the Boards of Directors of the Bank and the Company (the "Board") recognize that
the possibility of a change in ownership or control of the Bank or the Company
may result in the departure or distraction of such personnel to the detriment of
the Bank and the Company and its stockholders. As you are a skilled and
dedicated Bank executive with important management responsibilities and talents,
the Bank and the Company believe that their best interests will be served if you
are encouraged to remain with the Bank.
The Bank and the Company have determined that your ability to perform your
responsibilities and utilize your talents for the benefit of the Bank and the
Company, and the Bank's ability to retain you as an employee, will be
significantly enhanced if you are provided with fair and reasonable protection
from the risks of a change in ownership or control of the Bank or the Company.
Accordingly, in order to induce you to remain in the employ of the Bank, you,
the Bank and the Company agree as follows:
1. Term of Agreement.
(a) Generally. Except as provided in Section 1(b) hereof, (i) this
Agreement shall be effective as of [ ], and shall continue in effect through
December 31, 2005, and (ii) commencing on January 1, 2006, and each January 1
thereafter, this Agreement shall be automatically extended for one additional
year unless, not later than November 30th of the preceding year, either party to
this Agreement gives notice to the other that the Agreement shall not be
extended under this Section 1(a); provided, however, that no such notice by the
Bank or the Company shall be effective if a Change in Control or Potential
Change in Control (both as defined herein) shall have occurred prior to the date
of such notice.
(b) Upon a Change in Control. If a Change in Control shall have
occurred at any time during the period in which this Agreement is effective,
this Agreement shall continue in effect for (i) the remainder of the month in
which the Change in Control occurred and (ii) a term of 24 months beyond the
month in which such Change in Control occurred (such entire period hereinafter
referred to as the "Protected Period").
2. Change in Control; Potential Change in Control.
(a) A "Change in Control" shall be deemed to have occurred if,
during the term of this Agreement:
(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 (2)(a)(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.
(b) A "Potential Change in Control" shall be deemed to have
occurred if:
(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 of directors of the Bank adopts a resolution
to the effect that, for purposes of this Agreement, a Potential Change in
Control has occurred.
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(c) Employee Covenants. You agree that, subject to the terms and
conditions of this Agreement, in the event of a Potential Change in Control, you
will remain in the employ of the Bank until the earliest of (i) a date which is
180 days from the occurrence of such Potential Change in Control, (ii) the
termination of your employment by reason of Disability (as defined herein) or
(iii) the date on which you first become entitled under this Agreement to
receive the benefits provided in Section 3(b) hereof.
(d) Company Covenant Regarding Potential Change in Control. In the
event of a Potential Change in Control or Change in Control, the Bank or the
Company shall, not later than 15 days thereafter, have established one or more
rabbi trusts and shall deposit therein cash in an amount sufficient to provide
for full payment of all potential obligations of the Bank and the Company that
would arise assuming consummation of a Change in Control, or has arisen in the
case of an actual Change in Control, and a subsequent termination of your
employment under Section 3(b). Such rabbi trust(s) shall be irrevocable and
shall provide that neither the Bank nor the Company may, directly or indirectly,
use or recover any assets of the trust(s) until such time as all obligations
which potentially could arise hereunder have been settled and paid in full,
subject only to the claims of creditors of the Bank and the Company in the event
of insolvency or bankruptcy of the Bank or the Company; provided, however, that
if no Change in Control has occurred within two years after such Potential
Change in Control, such rabbi trust(s) shall at the end of such two-year period
become revocable and may thereafter be revoked by the Bank.
3. Termination.
(a) Termination by the Bank for Cause, by You Without Good Reason,
or by Reason of Death or Disability. If during the Protected Period your
employment by the Bank is terminated by the Bank for Cause, by you without Good
Reason, or because of your death or Disability, the Bank and the Company shall
be relieved of their obligation to make any payments to you other than (i)
payment of amounts otherwise accrued and owing but not yet paid and (ii) any
amounts payable under then-existing employee benefit programs at the time such
amounts are due.
(b) Termination by the Bank Without Cause or by You for Good Reason.
If during the Protected Period your employment by the Bank is terminated by the
Bank without Cause or by you for Good Reason, you shall be entitled to the
compensation and benefits described in this Section 3(b). If your employment by
the Bank is terminated prior to a Change in Control at the request of a Person
engaging in a transaction or series of transactions that would result in a
Change in Control, the Protected Period shall commence upon the subsequent
occurrence of a Change in Control, your actual termination shall be deemed a
termination occurring during the Protected Period and covered by this Section
3(b), your Date of Termination shall be deemed to have occurred immediately
following the Change in Control, and Notice of Termination shall be deemed to
have been given by the Bank immediately prior to your actual termination. Your
continued employment shall not constitute consent to, or a waiver of rights with
respect to, any circumstances constituting Good Reason hereunder. The
compensation and benefits provided under this Section 3(b) are as follows:
(i) The Bank shall pay you your full base salary through the
Date of Termination at the rate in effect at the time Notice of Termination is
given, no later than the fifth day following the Date of Termination, and you
shall receive all other amounts to which you are entitled under any compensation
or benefit plan of the Bank, at the time such payments are due.
(ii) At the time specified in Section 3(d) hereof, the Bank
shall pay you, in lieu of any further salary, bonus or severance payments for
periods subsequent to the Date of Termination, a lump sum amount in cash equal
two times the sum of:
(A) the greater of (I) your annual base salary in effect
immediately prior to the Change in Control or (II) your annual base salary
in effect at the time Notice of Termination is given; and
(B) the greater of (I) the portion of your annual target
incentive compensation potentially payable in cash to you (i.e., excluding
the portion payable in stock or
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in other non-cash awards) for the year of termination or (II) the portion
of your annual incentive compensation that became payable in cash to you
(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.
(iii) At the time specified in Section 3(d) hereof, in lieu of
any annual incentive compensation for the year in which your employment is
terminated, the Bank shall pay you an amount equal to the portion of your annual
target incentive compensation potentially payable in cash to you (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 you were 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 you 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) The Bank shall provide you with a cash allowance, at the
time specified in Section 3(d) hereof, for outplacement and job search
activities (including, but not limited to, office and secretarial expenses) in
the amount of 20% of your annual base salary and annual target incentive
compensation taken into account under Section 3(b)(ii) hereof, provided that
such cash allowance shall apply only to those costs or obligations that are
incurred by you during the 24-month period following your termination of
employment.
(vii) If you elect after termination of employment continued
coverage under the Company's health plan in accordance with the applicable
provisions of the Consolidated Omnibus Reconciliation Act of 1985 ("COBRA"), the
Company will pay you on a monthly basis during such COBRA continuation period an
amount equal on an after-tax basis to the total cost of such coverage.
(c) Limitation on Change in Control Payment. In the event that:
(i) the aggregate payments or benefits to be made to you
pursuant to this Agreement, together with other payments and benefits which you
have a right to receive from the Bank, which are deemed to be parachute payments
as defined in Section 280G of the Internal Revenue Code of 1986, as amended (the
"Code") (the "Termination Benefits") would be deemed to include an "excess
parachute payment" under Section 280G of the Code; and
(ii) if such Termination Benefits were reduced to an amount
(the "Non-Triggering Amount"), the value of which is one dollar ($1.00) less
than an amount equal to three times your "base amount", as determined in
accordance with said Section 280G and the Non-Triggering Amount less the product
of the marginal rate of any applicable state and federal income tax and the
Non-Triggering Amount would be greater than the aggregate value of the
Termination Benefits (without such reduction) minus (A) the amount of tax
required to be paid by you by Section 4999 of the Code and further minus (B) the
product of the Termination Benefits and the marginal rate of any applicable
state and federal income tax,
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then the Termination Benefits shall be reduced to the Non-Triggering Amount. You
shall have the right to determine the allocation of the reduction required
hereby among the Termination Benefits.
(d) Time of Payment. The payments provided for in Sections 3(b)(ii)
and 3(b)(iii) hereof shall be made not later than the fifteenth day following
the Date of Termination; provided, however, that if the amount of such payments
cannot be finally determined on or before such day, the Bank shall pay to you 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 Termination. In the event that the amount of the estimated
payments exceeds the amount subsequently determined to have been due, such
excess shall be payable on the fifteenth day after demand by the Bank. The
payments provided in Section 3(b)(vi) hereof shall be made not later than the
fifteenth day following the submission of each receipt to the Bank evidencing
costs or obligations incurred by you in connection with outplacement counseling
and job search activities.
(e) Notice. During the Protected Period, any purported termination
of your employment by the Bank or the Company or by you shall be communicated by
written Notice of Termination to the other party hereto.
(f) Certain Definitions. Except as otherwise indicated in this
Agreement, all definitions in this Section 3(f) shall be applicable during the
Protected Period only.
(i) Disability. "Disability" shall have the meaning provided
in Section 409A of the Code and the regulations thereunder.
(ii) Cause. "Cause" shall mean termination on account of (A)
the willful and continued failure by you to substantially perform your duties
with the Bank (other than any such failure resulting from your incapacity due to
physical or mental illness or Disability or any failure after the issuance of a
Notice of Termination by you 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 you by the
Chief Executive Officer of the Bank, which demand specifically identifies the
manner in which the Chief Executive Officer believes that you have not
substantially performed your duties and the demonstrable and material damage
caused thereby or (B) the willful engaging by you in conduct which is
demonstrably and materially injurious to the Company, the Bank or their
affiliates, monetarily or otherwise. No act, or failure to act, on your part
shall be deemed "willful" unless done, or omitted to be done, by you not in good
faith and without reasonable belief that your action or omission was in the best
interest of the Bank and the Company.
(iii) Good Reason. "Good Reason" shall mean, without your
express written consent, the occurrence upon or after a Change in Control of any
of the following circumstances unless, in the case of Sections 3(f)(iii)(A),
(E), (F) or (G) hereof, such circumstances are fully corrected prior to the Date
of Termination specified in the Notice of Termination given in respect thereof:
(A) the assignment to you of any duties inconsistent with the
position in the Bank that you held immediately prior to the Change in
Control, or an adverse alteration in the nature or status of your
responsibilities or the conditions of your employment from those in effect
immediately prior to such Change in Control (excluding inadvertent actions
which are promptly remedied);
(B) a reduction in your annual base salary or perquisites as in
effect immediately prior to the Change in Control or as the same may be
increased from time to time 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 Bank or the Company;
(C) the relocation of the principle place of your employment to a
location more than 50 miles from the location of such place of employment
on the date of this Agreement; except for
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required travel on the Bank's business to an extent substantially
consistent with your business travel obligations prior to the Change in
Control;
(D) the failure by the Bank to pay to you any portion of your
compensation or to pay to you 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;
(E) the failure by the Bank to continue in effect any material
compensation or benefit plan in which you participated immediately prior
to the 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 your participation therein
(or in such substitute or alternative plan) on a basis not materially less
favorable, both in terms of the amounts of benefits provided and the level
of your participation relative to other participants, as existed at the
time of the Change in Control;
(F) the failure of the Bank to obtain a satisfactory agreement from
any successor to the Bank or the Company to assume and agree to perform
this Agreement, as contemplated in Section 7 hereof; or
(G) any purported termination of your employment that is not
effected pursuant to a Notice of Termination satisfying the requirements
of Section 3(f)(iv) hereof (and, if applicable, the requirements of
Section 3(f)(ii) hereof), which purported termination shall not be
effective for purposes of this Agreement.
(iv) Notice of Termination. "Notice of Termination" shall mean
notice indicating the specific termination provision in this Agreement relied
upon and setting forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of your employment under the provision so
indicated.
(v) Date of Termination. "Date of Termination" shall mean (A)
if your employment is terminated for Disability, 30 days after Notice of
Termination is given (provided that you shall not have returned to the full-time
performance of your duties during such 30-day period) or (B) if your employment
is terminated for any other reason, the date specified in the Notice of
Termination (which, in the case of a termination for Cause, shall not be less
than 30 days from the date such Notice of Termination is given and, in the case
of a termination for Good Reason, shall not be less than 15 nor more than 60
days from the date such Notice of Termination is given).
4. Non-Competition and Non-Disclosure; Executive Cooperation;
Non-Disparagement; Certain Forfeitures.
(a) Non-Competition. In consideration for the compensation and
benefits provided under this Agreement, without the consent in writing of the
Chief Executive Officer of the Bank, you will not, at any time during the term
of this Agreement and for a period of two years following your termination of
employment during the Protected Period, acting alone or in conjunction with
others, directly or indirectly (i) engage (either as owner, investor, partner,
stockholder, employer, employee, consultant, advisor, or director) in any
business of any savings bank, savings and loan association, savings and loan
holding company, bank, bank holding company, or other institution engaged in the
business of accepting deposits or making loans, or any direct or indirect
subsidiary or affiliate of any such entity, that conducts business in any county
in which the Company or the Bank maintains an office as of your date of
termination or in any county in which the Company or the Bank had plans to open
an office within six months after your date of termination; (ii) induce any
customers of the Bank or any of its affiliates with whom you have had contacts
or relationships, directly or indirectly, during and within the scope of your
employment with the Bank, to curtail or cancel their business with the Bank or
any such affiliate; (iii) induce, or attempt to influence, any employee of the
Bank or any of its affiliates to terminate employment; or (iv) solicit, hire or
retain as an employee or independent contractor, or assist any third party in
the solicitation, hire, or retention as an employee or independent contractor,
any person who during the previous twelve months was an employee
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of the Bank or any affiliate; provided, however, that activities engaged in by
or on behalf of the Bank are not restricted by this covenant. The provisions of
subparagraphs (i), (ii), (iii), and (iv) above are separate and distinct
commitments independent of each of the other subparagraphs. It is agreed that
the ownership of not more than one percent of the equity securities of any
company having securities listed on an exchange or regularly traded in the
over-the-counter market shall not, of itself, be deemed inconsistent with clause
(i) of this Section 4(a).
(b) Non-Disclosure; Ownership of Work. You shall not, at any time during
the term of this Agreement and thereafter (including following your termination
of employment for any reason), disclose, use, transfer, or sell, except in the
course of employment with or other service to the Bank or the Company, any
proprietary information, secrets, organizational or employee information, or
other confidential information belonging or relating to the Bank or the Company
and its affiliates and customers so long as such information has not otherwise
been disclosed or is not otherwise in the public domain, except as required by
law or pursuant to legal process. In addition, upon termination of employment
for any reason, you will return to the Bank and the Company or its affiliates
all documents and other media containing information belonging or relating to
the Bank and the Company or its affiliates.
(c) Cooperation With Regard to Litigation. You agree to cooperate with the
Bank and the Company, during the term of this Agreement and thereafter
(including following your termination of employment for any reason), by making
yourself available to testify on behalf of the Bank or the Company or any
subsidiary or affiliate of the Bank or the Company, in any action, suit, or
proceeding, whether civil, criminal, administrative, or investigative, and to
assist the Bank and the Company, or any subsidiary or affiliate of the Company,
in any such action, suit, or proceeding, by providing information and meeting
and consulting with the Board or its representatives or counsel, or
representatives or counsel to the Bank or the Company, or any subsidiary or
affiliate of the Company, as requested. The Bank agrees to reimburse you, on an
after tax basis, for all expenses actually incurred in connection with your
provision of testimony or assistance.
(d) Non-Disparagement. You shall not, at any time during the term of this
Agreement and thereafter, make statements or representations, or otherwise
communicate, directly or indirectly, in writing, orally, or otherwise, or take
any action which may, directly or indirectly, disparage the Bank or the Company
or any of its subsidiaries or affiliates or their respective officers,
directors, employees, advisors, businesses or reputations. Notwithstanding the
foregoing, nothing in this Agreement shall preclude you from making truthful
statements that are required by applicable law, regulation or legal process.
(e) Release of Employment Claims. You agree, as a condition to receipt of
any payments or benefits provided for in Section 3(b) herein (other than
compensation accrued at termination as provided in Section 3(b)(i)), that you
will execute a general release agreement, in substantially the form set forth in
Attachment A to this Agreement, releasing any and all claims arising out of your
employment other than enforcement of this Agreement and rights to
indemnification under any agreement, law, Bank or Company organizational
document or policy, or otherwise.
(f) Forfeiture of Outstanding Options. Anything in this Agreement to the
contrary notwithstanding, if you willfully and materially fail to substantially
comply with any restrictive covenant under this Section 4 or willfully and
materially fail to substantially comply with any material obligation under this
Agreement, all options to purchase common stock granted by the Company and then
held by you or your transferee shall be immediately forfeited and thereupon such
options shall be cancelled. Any such forfeiture shall apply to such options
notwithstanding any term or provision of any option agreement. In addition,
options granted to you and gains resulting from the exercise of such options,
shall be subject to forfeiture in accordance with the Company's standard
policies relating to such forfeitures and clawbacks, as such policies are in
effect at the time of grant of such options.
(h) Forfeiture Due to Regulatory Restrictions. Anything in this Agreement
to the contrary notwithstanding, (i) any payments made pursuant to this
Agreement shall be subject to and conditioned upon compliance with 12 U.S.C.
section 1828(k) and any regulations promulgated thereunder; and (ii) payments
contemplated to be made by the Bank pursuant to this Agreement shall not be
immediately payable to the
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extent such payments are barred or prohibited by an action or order issued by
the Connecticut Banking Commissioner or the Federal Deposit Insurance
Corporation.
(i) Survival. The provisions of this Section 4 shall survive the end of
the term of this Agreement and any termination or expiration of this Agreement.
5. Mitigation. You shall not be required to mitigate the amount of payment
provided for under this Agreement by seeking other employment or otherwise, nor
shall the amount of payment or benefit provided for under this Agreement be
reduced by any compensation earned by you as the result of employment by another
employer, by retirement benefits, by offset against any amount claimed to be
owed by you to the Bank, or otherwise.
6. Costs of Proceedings. The Bank shall pay all costs and expenses,
including all attorneys' fees and disbursements, of the Bank and the Company
and, at least monthly, you, in connection with any legal proceedings undertaken
pursuant to Section 13, whether or not instituted by the Bank, the Company or
you, relating to the interpretation or enforcement of any provision of this
Agreement; provided that if you instituted the proceeding and a finding is
entered that you instituted the proceeding in bad faith, you shall pay all of
your costs and expenses, including attorneys' fees and disbursements. The Bank
or the Company shall pay prejudgment interest on any money judgment obtained by
you as a result of such proceeding, calculated at the prime rate determined by
the Bank as in effect from time to time from the date that payment should have
been made to you under this Agreement.
7. Successors; Binding Agreement.
(a) The Bank and the Company shall require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Bank or the Company to
expressly assume and agree to perform this Agreement in the same manner and to
the same extent that the Bank and the Company would be required to perform it if
no such succession had taken place. As used in this Agreement, "Bank "and
"Company" shall mean the Bank and the Company respectively as hereinbefore
defined and any successor to its or their business and/or assets as aforesaid
which assumes and agrees to perform this Agreement by operation of law, or
otherwise and, in the case of an acquisition of the Bank or the Company in which
the corporate existence of the Bank or the Company, as the case may be,
continues, the ultimate parent company following such acquisition. Subject to
the foregoing, the Bank and the Company may transfer and assign this Agreement
and the Bank's and the Company's rights and obligations hereunder. Neither this
Agreement nor the rights or obligations hereunder of the parties hereto shall be
transferable or assignable by you, except in accordance with the laws of descent
and distribution or as specified in (b) below.
(b) This Agreement shall inure to the benefit of and be enforceable
by you and your personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. In the event of your
death, all amounts otherwise payable to you hereunder shall, unless otherwise
provided herein, be paid in accordance with the terms of this Agreement to your
devisee, legatee or other designee or, if there is no such designee, to your
estate.
8. Notice. Whenever under this Agreement it becomes necessary to give
notice, such notice shall be in writing, signed by the party or parties
giving or making the same, and shall be served on the person or persons for
whom it is intended or who should be advised or notified, by Federal Express
or other similar overnight service or by certified or registered mail, return
receipt requested, postage prepaid and addressed to such party at the address
set forth below or at such other address as may be designated by such party
by like notice:
If to the Bank or the Company:
ROCKVILLE BANK
0000 Xxxxxxxxx Xxxx
Xxxxx Xxxxxxx, XX 00000
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Att: Chief Executive Officer
If to you:
To the address first provided hereinabove.
If the parties by mutual agreement supply each other with telecopier
numbers for the purposes of providing notice by facsimile, such notice shall
also be proper notice under this Agreement. In the case of Federal Express or
other similar overnight service, such notice or advice shall be effective when
sent, and, in the cases of certified or registered mail, shall be effective two
days after deposit into the mails by delivery to the U.S. Post Office.
9. Miscellaneous. No provision of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed to in
writing and signed by you and such officer as may be designated by the Board. No
waiver by either party hereto at any time of any breach by the other party
hereto of, or compliance with, any condition or provision of this Agreement to
be performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the time or at any prior or subsequent
time. The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Connecticut without
regard to its conflicts of law principles. If under the governing law, any
portion of this Agreement is at any time deemed to be in conflict with any
applicable statute, rule, regulation, ordinance, or other principle of law, such
portion shall be deemed to be modified or altered to the extent necessary to
conform thereto or, if that is not possible, to be omitted therefrom . The
invalidity of any such portion shall not affect the force, effect, and validity
of the remaining portion thereof. If any court determines that any provision of
Section 4 of this Agreement is unenforceable because of the duration or
geographic scope of such provision, it is the parties' intent that such court
shall have the power to modify the duration or geographic scope of such
provision, as the case may be, to the extent necessary to render the provision
enforceable and, in its modified form, such provision shall be enforced. Any
payments provided for hereunder shall be paid net of any applicable withholding
required under federal, state or local law. The obligations of the Company and
the Bank under this Agreement shall survive the expiration of this Agreement to
the extent necessary to give effect to this Agreement.
10. Validity. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
11. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
12. Entire Agreement. This Agreement sets forth the entire agreement of
the parties hereto in respect of the subject matter contained herein and during
the term of this Agreement supersedes the provisions of all prior agreements,
promises, covenants, arrangements, communications, representations or
warranties, whether oral or written, by any officer, employee or representative
of any party hereof with respect to the subject matter contained herein. No
agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party which are
not expressly set forth in this Agreement.
13 .Dispute Resolution
(a) Negotiation. The Bank and the Company (collectively, the
"Employer") and you 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 you. Any party may give the other party
written notice of any dispute in accordance with the notice procedures set forth
in Section 8. 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 8, 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
9
they reasonably deem necessary, to attempt to resolve the dispute. All
negotiations pursuant to this clause are confidential and shall be treated as
compromise and settlement negotiations for purposes of applicable rules of
evidence.
(b) 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.
(c) 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. sections 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 you 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 you 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 6 of this Agreement, the Bank shall bear all costs and expenses arising
in connection with any arbitration proceeding pursuant to this Section 13(c).
Notwithstanding any provision in this Section 13(c), you shall be entitled to
seek specific performance of your right to be paid during the pendency of any
dispute or controversy arising under or in connection with this Agreement.
(d) Interest on Unpaid Amounts. Any amount which has become payable
pursuant to the terms of this Agreement or any decision by arbitrators or
judgment by a court of law pursuant to this Section 12 but which has not been
timely paid shall bear interest at the prime rate in effect at the time such
amount first becomes payable, as quoted by the Bank.
If this letter sets forth our agreement on the subject matter hereof,
kindly sign and return to the Bank the enclosed copy of this letter, which will
then constitute our agreement on this subject.
ROCKVILLE BANK
By: __________________________________________
Name:
Title:
ROCKVILLE FINANCIAL, INC.
By: _____________________________________________
Name:
Title:
Agreed to this ____________________ day
of _______________________________,[ ].
______________________________________
Name
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ATTACHMENT A
RELEASE
We advise you to consult an attorney before you sign this Release. You
have until the date which is seven (7) days after the Release is signed and
returned to Rockville Bank to change your mind and revoke your Release. Your
Release shall not become effective or enforceable until after that date.
In consideration for the benefits provided under your Change in Control and
Restrictive Covenant Agreement with Rockville Bank effective [ ] (the
"Agreement"), and more specifically enumerated in Exhibit 1 hereto, by your
signature below, you, for yourself and on behalf of your heirs, executors,
agents, representatives, successors and assigns, hereby release and forever
discharge Rockville Financial, Inc., its past and present parent corporations,
subsidiaries, divisions, subdivisions, affiliates and related companies
(collectively, the "Company") and the Company's past, present and future agents,
directors, officers, employees, representatives, successors and assigns
(hereinafter "those associated with the Company") with respect to any and all
claims, demands, actions and liabilities, whether in law or equity, which you
may have against the Company or those associated with the Company of whatever
kind, including but not limited to those arising out of your employment with the
Company or the termination of that employment. You agree that this release
covers, but is not limited to, claims arising under the Age Discrimination in
Employment Act of 1967, 29 U.S.C. Section 621 et seq., Title VII of the Civil
Rights Act of 1964, 42 U.S.C. Section 2000e et seq., the Americans with
Disabilities Act of 1990, 42 U.S.C. Section 12101 et seq., the Fair Labor
Standards Act, 29 U.S.C. Section 201 et seq., the Employee Retirement Income
Security Act of 1974, 29 U.S.C. Section 1001 et seq., the Connecticut Fair
Employment Practices Act, C.G.S. Section 46a-51 et seq., and any other local,
state or federal law, regulation or order dealing with discrimination in
employment on the basis of sex, race, color, national origin, veteran status,
marital status, religion, disability, handicap, or age. You also agree that this
release includes claims based on wrongful termination of employment, breach of
contract (express or implied), tort, or claims otherwise related to your
employment or termination of employment with the Company and any claim for
attorneys' fees, expenses or costs of litigation.
This Release covers all claims based on any facts or events, whether known or
unknown by you, that occurred on or before the date of this Release. Except to
enforce this Release, you agree that you will never commence, prosecute, or
cause to be commenced or prosecuted any lawsuit or proceeding of any kind
against the Company or those associated with the Company in any forum and agree
to withdraw with prejudice all complaints or charges, if any, that you have
filed against the Company or those associated with the Company.
Anything in this Release to the contrary notwithstanding, this Release does not
include a release of: (i) your rights under the Agreement or your right to
enforce the Agreement; (ii) any rights you may have to indemnification under any
agreement, law, Company organizational document or policy, or otherwise; (iii)
any rights you may have to benefits under the Company's benefit plans; or (iii)
your right to enforce this Release.
By signing this Release, you further agree as follows:
i. You have read this Release carefully and fully understand its terms;
ii. You have had at least twenty-one (21) days to consider the terms of
the Release;
iii. You have seven (7) days from the date you sign this Release to revoke
it by written notification to the Company. After this seven (7) day period, this
Release is final and binding and may not be revoked;
iv. You have been advised to seek legal counsel and have had an
opportunity to do so;
v. You would not otherwise be entitled to the benefits provided under your
Agreement had you not agreed to execute this Release; and
vi. Your agreement to the terms set forth above is voluntary.
Name:__________________________________
Signature:_____________________________ Date:
Received by:___________________________ Date:
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