EXHIBIT 10.1 (b)
SEVERANCE PAYMENT AGREEMENT
THIS AGREEMENT, dated November 28, 1986, between DERBY SAVINGS BANK (the
"Bank"), a Connecticut corporation having its office and principal place of
business in the City of Derby, County of New Haven, State of Connecticut,
and XXXXXX X. XXXXXXX, of the Town of North Branford, County of New Haven,
State of Connecticut (the "Employee").
WHEREAS, the Employee is currently serving as Vice President-Finance of the
Bank;
WHEREAS, the Board of Directors of the Bank believes that it is in the best
interests of the Bank to encourage the Employee's continued employment with and
dedication to the Bank in the face of potentially distracting circumstances
arising from the possibility of a change in control of the Company, although no
such change is now contemplated;
WHEREAS, the Board of Directors of the Bank has approved and authorized the
entry into this Agreement with the Employee; and
WHEREAS, the parties desire to enter into this agreement setting forth the
terms and conditions for the payment of special compensation to the Employee in
the event of a termination of the Employee's employment in connection with or
as the result of a change in control of the Company;
NOW, THEREFORE, it is AGREED as follows:
1. TERM. The initial term of this Agreement shall be for a one (1) year
period from the date hereof. This Agreement shall be automatically renewed for
one additional year on each anniversary date of this Agreement, unless the Bank
gives contrary written notice to the Employee prior to such anniversary date.
References herein to the term of this Agreement shall include the initial term
and any additional years for which this Agreement is renewed.
2. TERMINATION OF EMPLOYMENT IN CONNECTION WITH A CHANGE IN CONTROL.
(a) If during the term of this Agreement there is a change in control
of the Company, the Employee shall be entitled to receive as a severance payment
from the Bank for services previously rendered to the Bank a lump sum cash
payment as provided for herein (subject to Section 2(c) below) in the event the
Employee's employment is terminated, voluntarily or involuntarily, in connection
with or within two years after a change in control of the Company, unless such
termination occurs by virtue of a normal retirement, permanent and total
disability (as defined in Section 22(e) of the Internal Revenue Code) or death.
Subject to Section 2(c) below, the amount of this payment shall be equal to
three times the Employee's average annual compensation which was payable by the
Bank and was includible in the Employee's gross income for federal income tax
purposes with respect to the five most
recent taxable years of the Bank ending prior to such change in control of the
Company (or such portion of such period during which the Employee was a full-
time employee of the Bank), less one dollar. Payment under this Section 2(a)
shall be in lieu of any amount which may be otherwise owed to the Employee as
damages for such termination. Payment under this Section 2(a) shall not be
reduced by any compensation which the Employee may receive from other employment
with another employer after termination of the Employee's employment with the
Bank. No payment hereunder shall affect the Employee's entitlement to any
vested retirement benefits or other compensation payments.
(b) A "change in control", for purposes of this Agreement, shall be
deemed to have taken place if: (i) any person becomes the beneficial owner of 20
percent or more of the total number of voting shares of the Company; (ii) any
person becomes the beneficial owner of 10 percent or more (but less than 20
percent) of the total number of voting shares of the Company; provided that, if
the Board of Governors of the Federal Reserve System ("FRB") has approved a
rebuttal agreement filed by such person, or such person has filed a
certification with the FRB, a change in control will not be deemed to have
occurred unless the Board of Directors of the Company has made a determination
that such beneficial ownership constitutes or will constitute control of the
Company; (iii) any person (other than the persons named as proxies solicited on
behalf of the Board of Directors of the Company) holds revocable or irrevocable
proxies, as to the election or removal of two or more directors of the Company,
for 20 percent or more of the total number of voting shares of the Company; (iv)
any person has received the approval of the FRB under Section 3 of the Bank
Holding Company Act of 1956, as amended (the "Holding Company Act"), or
regulations issued thereunder, to acquire control of the Company or the Bank;
(v) any person has received approval of the FRB under the Change in Bank Control
Act of 1978 (the "Control Act"), or regulations issued thereunder, to acquire
control of the Company; (vi) any person has commenced a tender or exchange
offer, or entered into an agreement or received an option, to acquire beneficial
ownership of 20 percent or more of the total number of voting shares of the
Company, whether or not the requisite approval for such acquisition has been
received under the Holding Company Act, the Control Act, or the respective
regulations issued thereunder; or (vii) as the result of, or in connection with,
any cash tender or exchange offer, merger, or other business combination, sale
of assets or contested election, or any combination of the foregoing
transactions, the persons who were directors of the Company before such
transaction shall cease to constitute at least two-thirds of the Board of
Directors of the Company or any successor institution. For purposes of this
Section 2(b), a "person" includes an individual, corporation, partnership, trust
or group acting in concert. A person for these purposes shall be deemed to be a
beneficial owner as that term is used in Rule 13d-3 under the Securities
Exchange Act of 1934.
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(c) Notwithstanding any other provisions of this Agreement or of any
other agreement, contract, or understanding heretofore or hereafter entered into
between the employee and the Bank, except an agreement, contract, or
understanding hereafter entered into that expressly modifies or excludes
application of this Section 2(c) (the "Other Agreements"), and notwithstanding
any formal or informal plan or other arrangement heretofore or hereafter adopted
by the Bank for the direct or indirect provision of compensation to the Employee
(including groups or classes of participants or beneficiaries of which the
Employee is a member), whether or not such compensation is deferred, is in cash,
or is in the form of a benefit to or for the Employee (a "Benefit Plan"), the
Employee shall not have any right to receive any payment or other benefit under
this Agreement, any Other Agreement, or any Benefit Plan if such payment or
benefit, taking into account all other payments or benefits to or for the
Employee under this Agreement, all Other Agreements, and all Benefit Plans would
cause any payment to the Employee under this Agreement to be considered a
"parachute payment" within the meaning of Section 280G(b)(2) of the Internal
Revenue Code of 1954, as amended (the "Code") (a "Parachute Payment"). In the
event that the receipt of any such payment or benefit under this Agreement, any
Other Agreement, or any Benefit Plan would cause the Employee to be considered
to have received a Parachute Payment under this Agreement, then the Employee
shall have the right, in the Employee's sole discretion, to designate those
payments or benefits under this Agreement, or Other Agreements, and/or any
Benefit Plans, which should be reduced or eliminated so as to avoid having the
payment to the Employee under this Agreement be deemed to be a Parachute
Payment.
3. NO ASSIGNMENTS. This Agreement is personal to each of the parties
hereto. No party may assign or delegate any rights or obligations hereunder
without first obtaining the written consent of the other party hereto. However,
in the event of the death of the Employee, all rights to receive payments
hereunder shall become rights of the Employee's estate.
4. AMENDMENTS OR ADDITIONS; ACTION BY BOARD OF DIRECTORS. No amendments
or additions to this Agreement shall be binding unless in writing and signed by
both parties hereto. The prior approval by a two-thirds affirmative vote of the
full Board of Directors of the Bank shall be required in order for the Bank to
authorize any amendments or additions to this Agreement.
5. SECTION HEADINGS. The section headings used in this Agreement are
included solely for convenience and shall not affect, or be used in connection
with, the interpretation of this Agreement.
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6. GOVERNING LAW. This Agreement shall be governed by the laws of
United States to the extent applicable and otherwise by the laws of the State of
Connecticut.
DERBY SAVINGS BANK
ATTEST: /s/ Xxxx X. Xxxxxxxx BY: /s/ Xxxxx X. XxXxxxx, Xx.
------------------------ -----------------------------
XXXX X. XXXXXXXX XXXXX X. XxXXXXX, XX.
Secretary President
EMPLOYEE:
/s/ Xxxxxx X. Xxxxxxx
-----------------------------
XXXXXX X. XXXXXXX
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AMENDMENT TO SEVERANCE AGREEMENT
This Amendment to Severance Payment Agreement (this "Amendment") is
made as of August 31, 1987 between DERBY SAVINGS BANK (the "Bank") and Xxxxxx X.
Xxxxxxx (the "Employee").
WHEREAS, the Employee is serving as Senior Vice President, Finance,
and Chief Financial Officer of the Bank;
WHEREAS, effective August 31, 1987 the Bank became a wholly-owned
subsidiary of DS Bancor, Inc. ("Bancor");
WHEREAS, the Employee is also presently serving as Vice President,
Treasurer and Chief Financial Officer of Bancor; and
WHEREAS, the parties hereto desire to make clarifying amendments to
the Severance Payment Agreement of November 28, 1986, between the Employee and
the Bank (the "Agreement") to reflect the formation of Bancor and its
acquisition of the Bank.
NOW, THEREFORE, it is AGREED as follows:
1. CHANGE IN CONTROL. All references to the Company in Section 2(b) of
the Agreement shall be deemed to refer to Bancor. All other references in the
Agreement to a change in control of the Company shall be deemed to refer to a
change in control of Bancor or of the Bank. All references to the Bank in
Section 2(c) of the Agreement shall be deemed to refer to Bancor or the Bank.
In addition, the following paragraph is added at the end of Section 2(b), as
amended:
For purposes of this Agreement, a "change in control" of the Bank
shall be deemed to have taken place if Bancor's beneficial ownership
of the total number of voting shares of the Bank is reduced to less
than 50 percent; provided, however, the foregoing transaction shall
not be deemed to constitute a "change in control" if the transaction
has received the prior approval of two-thirds of the Board of
Directors of the Bank.
2. RECODIFICATION OF THE INTERNAL REVENUE CODE. The reference to the
Internal Revenue Code of 1954, as amended, in Section 2(c) shall be deemed to
refer to the Internal Revenue Code of 1986, as amended.
3. NO OTHER CHANGES. Except as expressly provided herein, the terms and
conditions of the Agreement shall remain in full force and effect and shall be
binding on the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Amendment, or have
caused this amendment to be executed on their behalf, as of the date first above
written.
DERBY SAVINGS BANK
ATTEST: /s/ Xxx X. Xxxxxx By: Illegible
-------------------- -------------------------
Xxx X. Xxxxxx Its Chairman of the Board
-------------------------
EMPLOYEE:
/s/ Xxxxxx X. Xxxxxxx
-----------------------------
XXxxxx X. Xxxxxxx
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