Exhibit 10.6
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
THIS AGREEMENT is made this day of , 1996
between Xxxxx'x Ferry Trust Company, a Massachusetts trust company, with its
principal place of business in Somerset, Massachusetts, hereafter referred
to as the Employer, or the Bank, and Xxxxxx X. Xxxxxxx of Westport,
Massachusetts, Senior Vice-President of the Bank, hereafter referred to as
the Employee.
Xxxxxx X. Xxxxxxx has been employed by the Bank for a number of
years. During this time, he has performed his duties ably and well, to the
satisfaction and substantial benefit of the Bank. As a result, the Bank
wishes to provide additional incentive to retain the services of Xxxxxx
Xxxxxxx until his retirement.
THEREFORE, in consideration of these premises and the mutual promises
and obligation set forth hereafter, Xxxxxx Xxxxxxx as Employee and the Bank
as Employer agree as follows:
1. The Bank agrees that, if Employee remains continuously employed by the
Bank and/or its subsidiary Bank until his retirement, in such offices and
capacities as he may be elected to by the Board of Directors of either
entity at such compensation as may be mutually agreed upon, the Bank will
pay and the Employee shall be entitled to receive additional compensation in
the amount of $1,500 per month for one hundred twenty (120) months
commencing on the first day of the first month following his retirement.
2. (a) The Bank agrees that the Employee may retire from full-time
employment upon the first day of the month immediately following his 65th
birthday, or at any time prior thereto after completing fifteen years
continuous employment with the Bank if he becomes permanently and totally
disabled as defined in paragraph (b) or at anytime following his 65th
birthday, but not later than the first day of February following his 70th
birthday, hereinafter called the Retirement Date.
(b) Employee shall be deemed to have become permanently and totally
disabled if and when the Board of Directors of the Bank determines, on the
basis of medical or other evidence satisfactory to it, that the Employee
qualifies as disabled under the Social Security Act (42 U.S.C. section 1382)
as amended for the purposes of supplemental security income.
3. The Bank agrees that, in the event of the death of the Employee after
completing fifteen years continuous employment with the Bank and prior to
the Retirement Date while employed by the Bank, it will pay to his surviving
spouse, if any, or, if none, in equal shares to his children then living and
deceased children leaving issue then living by right of representation, or
to such other persons as he may have designated, or if none, to his estate,
$1,500 per month for one hundred and twenty (120) consecutive months
commencing upon the first day of the first month following the date of death
of the Employee. If any beneficiary should die prior to the receipt of all
such payments, any remaining payments shall be made to such beneficiary's
estate.
4. The Bank agrees to pay to or for the benefit of Employee from the date
of his retirement and thereafter for and during the term of his natural life
such amounts as are required for the employer contribution to provide
medical health insurance coverage comparable to that provided immediately
before his retirement, supplemental to Medicare as it may be amended, in
the form of Blue Cross/Blue Shield Medex Gold or its substantial equivalent
according to the schedule of contribution by the Bank and the Employee as
is in effect for the Bank's employees generally at the time of Employee's
retirement.
The Bank agrees to pay to or for the benefit of Employee's wife such
amounts as are required according to the schedule of contribution by the
Bank and the Employee, as amended from time to time, to provide master
medical health insurance in effect at the Bank and available to employees
generally, or its equivalent, for Employee's wife until she attains the age
of 65 years or obtains coverage under the Medicare program, whichever first
occurs, and thereafter to pay such amounts as are required under such
schedule of contribution as is in effect at that time to provide comparable
medical health insurance coverage supplemental to Medicare as it may be
amended, in the form of Blue Cross/Blue Shield Medex Gold, or its
substantial equivalent, for and during the term of her natural life.
5. Employee's rights and benefits under this agreement are in addition to
and not a substitute for Employee's rights and benefits under the Bank's
other retirement, disability or benefit plans. Subject to the terms of the
group life insurance policy in force at the time of retirement, the Bank
will continue to include the Employee in the current group life insurance
policy in force at the time of retirement.
6. In the event that the Employee should die on or after the Retirement
Date but prior to receipt of any amount to which he is entitled hereunder
pursuant to Paragraph 1, or of all such amounts, any amounts remaining
unpaid shall be paid to such beneficiary or beneficiaries as the Employee
may designate by filing with the Bank a notice in writing, but in the
absence of any such designation, such unpaid amounts shall be so paid to his
surviving spouse, if any, or, if none, in equal shares to his children then
living and deceased children leaving issue then living by right of
representation, and if none, then to his estate.
7. Whenever the Employee's beneficiaries (other than his, his spouse's or
any beneficiary's estate) shall be entitled to receive any amount hereunder,
the amount shall be paid to such beneficiaries in monthly installments: (a)
over a period of ten (10) years, in the event that no monthly installment
payments have theretofore commenced to the Employee, or (b) for the balance
of the ten (10) year period (commencing with the first such installment so
received by the Employee), on the same due dates, in the event payment of
monthly installments shall have theretofore commenced to the Employee.
8. Notwithstanding any other provision of this Agreement to the contrary,
the Employee shall have the right, with the consent of the Bank, to elect
that payment of the amounts due hereunder be made (a) over a longer period
than one hundred and twenty (120) months or (b) as a life annuity (with or
without refund).
9. Notwithstanding any other provision of this Agreement to the contrary,
following his retirement, the Employee shall have the right, without the
consent of the Bank, to demand immediate distribution to him in cash or in
kind of an amount equal to the value of the Supplemental Executive
Retirement Account determined as of the date of such demand, following
completion after his retirement of any three (3) successive fiscal years of
the Bank in which the book value of the Bank shall have been successively
decreased or any one or more successive fiscal year(s) in which the book
value of the Bank shall have decreased by a total of more than 33 1/3%.
10. As used herein the term "Value of the Account" shall mean an amount
equal to the sum of the monthly remaining payments for the remaining period
of payment discounted at the prime lending rate as published in the Wall
Street Journal on the first Monday after the event triggering the valuation.
11. Except as otherwise expressly provided in this Agreement, Employee
agrees on behalf of himself and of his executors and administrators, heirs,
legatees, distributees, and any other person or persons claiming any
benefits under him under this Agreement that this Agreement and its rights,
interests, and benefits shall not be assigned, transferred, pledged, or
hypothecated in any way by Employee or any executor, administrators, heir,
legatee, distributee, or other person claiming under Employee by virtue of
this Agreement, and shall not be subject to execution, attachment, or
similar process. Any attempted assignment, transfer, pledge or
hypothecation, or other disposition of this Agreement or of such rights,
interests, and benefits contrary to the above provisions, or the levy of any
attachment or similar process thereupon, shall be null and void and without
effect.
12. This agreement does not constitute an employment agreement. Nothing
contained in this agreement shall be construed to be a contract of
employment for any term of years, nor as conferring upon the Employee the
right to continue to be employed by the Bank in his present capacity, or in
any other capacity. It is expressly understood by the parties hereto that
this Agreement relates exclusively to additional compensation for the
Employee's services, which compensation is payable after his retirement from
full-time service with the Bank or his death, and is not intended to be an
employment contract. The benefits payable under this agreement shall be
independent of, and in addition to, any benefits under any other employment
agreement that may exist from time to time between the parties hereto, or
any other compensation payable by the Bank to the Employee whether as salary
or otherwise. In the event that Employee's employment is terminated for any
reason other than his death or retirement under the provision of paragraphs
2 and 3 hereof, this Agreement shall automatically terminate and the Bank
shall have no further obligation hereunder.
13. The rights of the Employee under this agreement and of any beneficiary
of the Employee shall be solely those of an unsecured creditor of the Bank,
and neither the Employee nor any beneficiary of the Employee shall have or
acquire any interest, rights or claims to any property or assets of the Bank
by virtue of this agreement except as set forth in paragraph 16.B. The
Bank's obligation hereunder, except as set forth in paragraph 16.B., shall
be an unfunded and unsecured promise to pay money in the future.
14. Hereafter, either during his full-time employment or while he is
receiving any benefits under this Agreement, Employee agrees that he will
not enter into competition with the Bank, directly or indirectly, within the
Town of Somerset or a fifty (50) mile radius thereof, either as a director,
officer, employee, agent, consultant, partner or any other capacity with any
business which is in substantial competition with the Bank. The reasonable
judgment of a majority of the Board of Directors that such competition
exists shall be conclusive for the purposes of this Agreement. This
provision shall not be construed to prevent the Employee from owning shares
in any publicly traded corporation for investment purposes.
15. In the event that Employee should violate the provisions of Article 14
hereof, and should he continue to do so without adequate cause for a period
of thirty days after the Bank shall have requested him in writing to refrain
from an action prohibited by said Article 14, Employee agrees that no
further payments shall be due him, his spouse, or any other designated
beneficiary under this Agreement and that the Bank shall have no further
obligation whatsoever hereunder. Any disputes hereunder shall be referred
to arbitration pursuant to Article 17 hereof.
16.A. The Bank agrees that it will not merge or consolidate with any other
Bank or organization, or permit its business to be taken over by any other
organization, unless and until the succeeding or continuing corporation or
other organization shall expressly assume the rights and obligations of the
Bank herein set forth. The Bank further agrees that it will not cease its
business activities or terminate its existence, other than as heretofore set
forth in this Article, without having made adequate provision for the
fulfilling of its obligations hereunder.
16.B. In the event of a change of control (as defined below) of the Bank,
Employee shall have the right (exercisable within 90 days of the change of
control) to require the Bank to immediately fund the unpaid portion of
Employee's compensation hereunder by establishing an irrevocable trust
account with an independent corporate Trustee which is a national or state
charted bank with Trustee powers located in Massachusetts or Rhode Island,
funded with an amount which will be sufficient to meet all of Employer's
obligations hereunder. The terms of the Trust shall meet the requirements
of the Internal Revenue Service for "rabbi trusts" and shall generally
provide as set forth herein modified or expanded as necessary to meet said
IRS requirements. The Trust fund shall be held and managed by the Trustee
for the exclusive purpose of providing the compensation hereunder to
Employee hereunder and the Trustee shall act as agent of the Bank by making
payments of benefits to the Employee in accordance with the terms hereof.
Any and all expenses and taxes incurred by reason of the Trust and its
income shall be paid by the Bank. After all benefits payable hereunder have
been paid to the Employee or his beneficiaries or after this agreement has
otherwise properly terminated under its terms, any amounts remaining in the
Trust account shall revert to Bank. Except for the rights of creditors in
the event of Bank's bankruptcy or receivership, Bank shall have no right to
reclaim amounts contributed to the Trust hereunder until all benefits have
been paid or this agreement has properly terminated under its terms. In the
event of Bank's bankruptcy or receivership, the Trustee shall, upon proper
notice, deliver all assets held hereunder to the Trustee in bankruptcy or
the duly court appointed receiver for the benefit of the general creditors
(including Employee) of Bank.
"Change of Control" as used herein means any merger or consolidation with or
acquisition by any other organization, the sale of substantially all the
assets of the Bank to another person or organization, or the acquisition
directly or indirectly of 20% or more of the common stock of the Bank by one
or more persons or organizations acting in concert.
17. Unless otherwise provided in this agreement, any controversy or claim
arising out of or relating to this contract, or the breach thereof, shall be
settled by arbitration in accordance with the Rules of the American
Arbitration Association, and judgment upon the award rendered by the
Arbitrator(s) may be entered in any Court having jurisdiction thereof. The
Bank agrees that it will pay Employee's costs including reasonable
attorneys' fees in connection with any controversy or claim hereunder in
which Employee prevails or in which the Arbitrator(s) or court determine
that the Bank should pay such costs.
18. This agreement shall be binding upon and inure to the benefit of the
parties, the Bank's successors and assigns, and the Employee's heirs,
beneficiaries, executors and administrators.
IN WITNESS WHEREOF the parties have executed this agreement the day and year
first written above.
Xxxxx'x Ferry Trust Company
Attest: /s/ Xxxxx Xxxxxx By: /s/ Xxxxx X. Xxxxx
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Assistant Secretary (Title: President, CEO)
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
