Exhibit 10.3
Execution Copy
SPECIAL TERMINATION AGREEMENT
THIS AGREEMENT is dated as of the 28th day of May, 1998 by and among
Abington Bancorp, Inc., a Massachusetts corporation (the "Company"), its
subsidiary, Abington Savings Bank, a Massachusetts savings bank with its main
office in Abington, Massachusetts (the "Bank"; the Company and Bank are
sometimes collectively referred to herein as the "Employers"), and Xxxx X.
Xxxxx, an individual currently employed by the Bank in the capacity of Senior
Vice President, Consumer Banking (the "Executive").
1. Purpose. In order to allow the Executive to consider the prospect of
a Change in Control (as defined in Section 2) in an objective manner and in
consideration of the services rendered and to be rendered by the Executive to
the Employers, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the Employers, the Employers
are willing to provide, subject to the terms of this Agreement, certain
severance benefits to protect the Executive from the consequences of a
Terminating Event (as defined in Section 3) occurring subsequent to a Change
in Control.
2. Change in Control. A "Change in Control" shall be deemed to have
occurred in any of the following events:
(i) if there has occurred a change in control which the Company would be
required to report in response to Item 1 of Form 8-K promulgated under the
Securities Exchange Act of 1934, as amended (the "1934 Act"), or, if such Form
is no longer in effect in its present form, any Form or regulation promulgated
by the Securities and Exchange Commission pursuant to the 1934 Act which is
intended to serve similar purposes; or
(ii) when any "person" (as such term is used in Sections 13(d) and 14(d)(2)
of the 0000 Xxx) becomes a "beneficial owner" (as such term is defined in Rule
13d-3 promulgated under the 1934 Act), directly or indirectly, of securities of
the Company or the Bank representing twenty-five percent (25%) or more of the
total number of votes that may be cast for the election of directors of the
Company or the Bank; or
(iii) if during any period of two consecutive years (not including any
period prior to the execution of this Agreement), individuals who are Continuing
Directors (as herein defined) cease for any reason to constitute at least a
majority of the Board of Directors of the Company. For this purpose, a
"Continuing Director" shall mean (a) an individual who was a director of the
Company at the beginning of such period or (b) any new director (other than a
director designated by a person who has entered into any agreement with the
Company to effect a transaction described in clause (i) or (ii) of this Section
2 whose election by the Board or nomination for election by the Company's
stockholders was approved 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 such period or whose election or nomination for election was previously so
approved; or
(iv) the stockholders of the Company approve a merger or consolidation of
the Company with any other bank or corporation, other than (a) a merger or
consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) more than 80% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately after
such merger or consolidation, or (b) a merger or consolidation effected to
implement a recapitalization of the Company (or similar transaction) in which no
"person" (as defined above) acquires more than 30% of the combined voting power
of the Company's then outstanding securities; or
(v) 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 its assets.
3. Terminating Event. A "Terminating Event" shall mean either of the
following:
(a) termination by either of the Employers of the employment of the
Executive as Senior Vice President of the Bank for any reason other than (i)
death, (ii) deliberate dishonesty of the Executive with respect to the Company
or the Bank or any subsidiary or affiliate thereof, or (iii) conviction of the
Executive of a crime involving moral turpitude, or
(b) resignation of the Executive from the employ of the Company or the
Bank, while the Executive is not receiving payments or benefits from the Company
or the Bank by reason of the Executive's disability, subsequent to the
occurrence of any of the following events:
(i) a significant change in the nature or scope of the Executive's
responsibilities, authorities, powers, functions or duties from the
responsibilities, authorities, powers, functions or duties exercised by the
Executive at the Company or the Bank immediately prior to the Change in
Control; or
(ii) a reasonable determination by the Executive that, as a result of
a Change in Control, he is unable to exercise the responsibilities,
authorities, powers, functions or duties exercised by the Executive at the
Company or the Bank immediately prior to such Change in Control; or
(iii) a decrease in the total annual compensation payable by the
Company or the Bank to the Executive other than as a result of a salary
reduction similarly affecting the Executive and all other executive
officers of the Company or the Bank on the basis of the Company's or the
Bank's financial performance; or
(iv) the failure by the Company or the Bank to continue in effect any
material compensation, incentive, bonus or benefit plan in which the
Executive participates immediately prior to the Change in Control, unless
an equitable arrangement (embodied
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in an ongoing substitute or alternative plan) has been made with respect
to such plan, or the failure by the Company or the Bank to continue the
Executive's participation therein (or in such substitute or alternative
plan) on a basis not materially less favorable, both in terms of the
amount of benefits provided and the level of the Executive's
participation relative to other participants, than the basis when
existed at the time of the Change of Control; or
(v) the failure of the Company or the Bank to obtain a satisfactory
agreement from any successor to assume and agree to perform this Agreement.
3. Severance Payment. In the event a Terminating Event occurs within three
(3) years after a Change in Control, the Employers shall pay to the Executive an
amount equal to (x) two times the "base amount" (as defined in Section
280G(b)(3) of the Internal Revenue Code of 1986, as amended (the "Code"))
applicable to the Executive, less (y) One Dollar ($1.00), payable in one
lump-sum payment on the date of termination. Notwithstanding the foregoing, if
a Change of Control takes place after the second anniversary of the date on
which the Executive's employment with the Bank commenced and a Terminating Event
occurs within three (3) years after such Change in Control, the Employers shall
pay to the Executive an amount equal to (x) three times such "base amount"
applicable to the Executive, less (y) One Dollar ($1.00), payable in one
lump-sum payment on the date of termination.
4. Limitation on Benefits.
(a) It is the intention of the Executive and of the Employers that no
payments by the Employers to or for the benefit of the Executive under this
Agreement or any other agreement or plan pursuant to which he is entitled to
receive payments or benefits shall be non-deductible to the Employers by reason
of the operation of Section 280G of the Code relating to parachute payments.
Accordingly, and notwithstanding any other provision of this Agreement or any
such agreement or plan, if by reason of the operation of said Section 280G, any
such payments exceed the amount which can be deducted by the Employers, such
payments shall be reduced to the maximum amount which can be deducted by the
Employers. To the extent that payments exceeding such maximum deductible amount
have been made to or for the benefit of the Executive, such excess payments
shall be refunded to the Employers with interest thereon at the applicable
Federal Rate determined under Section 1274(d) of the Code, compounded annually,
or at such other rate as may be required in order that no such payments shall be
non-deductible to the Employers by reason of the operation of said Section 280G.
To the extent that there is more than one method of reducing the payments to
bring them within the limitations of said Section 280G, the Executive shall
determine which method shall be followed, provided that if the Executive fails
to make such determination within forty-five days after the Employers have sent
him written notice of the need for such reduction, the Employers may determine
the method of such reduction in their sole discretion.
(b) If any dispute between the Employers and the Executive as to any of
the amounts to be determined under this Section 5 or the method of calculating
such amounts cannot be resolved by the Employers and the Executive, either party
after giving three days written
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notice to the other, may refer the dispute to a partner in a Massachusetts
office of a firm of independent certified public accountants selected jointly
by the Employers and the Executive. The determination of such partner as to
the amounts to be determined under Section 5(a) and the method of calculating
such amounts shall be final and binding on both the Employers and the
Executive. The Employers shall bear the costs of any such determination.
(c) The Executive confirms that he is aware of the fact that the Federal
Deposit Insurance Corporation has the power to preclude the Bank from making
payments to the Executive under this Agreement under certain circumstances. The
Executive agrees that the Bank shall not be deemed to be in breach of this
Agreement if it is precluded from making a payment otherwise payable hereunder
by reason of regulatory requirements binding on the Bank.
5. Employment Status. This Agreement is not an agreement for the
employment of the Executive and shall confer no rights on the Executive except
as herein expressly provided.
6. Term. This Agreement shall take effect on the date first written above,
and shall terminate upon the earlier of (a) the termination by the Employers of
the employment of the Executive because of death, deliberate dishonesty of the
Executive with respect to the Company or the Bank or any subsidiary or affiliate
thereof, or conviction of the Executive of a crime involving moral turpitude,
(b) the resignation or termination of employment with the Company or the Bank by
the Executive for any reason prior to a Change in Control, or (c) the
resignation from employment of the Executive after a Change in Control for any
reason other than the occurrence of any of the events enumerated in Section 3(b)
of this Agreement.
7. Withholding. All payments made by the Employers under this Agreement
shall be paid net of, and after deduction of, any tax or other amounts required
to be withheld by the Employers under applicable law.
8. Assignment. Neither the Employers nor the Executive may make any
assignment of this Agreement or any interest herein, by operation of law or
otherwise, without the prior written consent of the other party. This Agreement
shall inure to the benefit of, and be binding upon, the Employers and the
Executive, and their respective heirs, legal representatives, successors and
permitted assigns. In the event of the Executive's death prior to the
completion by the Employers of all payments due him under this Agreement, the
Employers shall continue such payments to the Executive's beneficiary designated
in writing to the Employers prior to his death (or to his estate, if he fails to
make such designation).
9. Enforceability. If any portion or provision of this Agreement shall to
any extent be declared illegal or unenforceable by a court of competent
jurisdiction, then the remainder of this Agreement, or the application of such
portion or provision in circumstances other than those as to which it is so
declared illegal or unenforceable, shall not be affected thereby, and each
portion and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
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10. Waiver. No waiver of any provision hereof shall be effective unless
made in writing and signed by the waiving party. The failure of either party to
require the performance of any term or obligation of this Agreement, or the
waiver by either party of any breach of this Agreement, shall not prevent any
subsequent enforcement of such term or obligation or be deemed a waiver of any
subsequent breach.
11. Notices. Any notices, requests, demands and other communications
provided for by this Agreement shall be sufficient if in writing and delivered
in person or sent by registered or certified mail, postage prepaid, to the
Executive at 00 Xxxxxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, or to such
other address as the Executive has filed in writing with the Employers or, in
the case of the Employers, at their main office, attention of the Clerk or the
Secretary.
13. Effect on Other Agreements. An election by the Executive to resign
after a Change in Control under the provisions of this Agreement shall not
constitute a breach by the Executive of any employment agreement between the
Employers and the Executive and shall not be deemed a voluntary termination of
employment by the Executive for the purpose of interpreting the provisions of
any of the Employer's benefit plans, programs or policies. Nothing in this
Agreement shall be construed to limit the rights of the Executive under any
employment agreement he may then have with the Employers.
12. Amendment. This Agreement may be amended or modified only by a written
instrument signed by the Executive and by a duly authorized representative of
the Executive Committee of the Board of Directors of each of the Employers.
13. Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the substantive laws of The Commonwealth of
Massachusetts without regard for its principles of conflicts of laws.
* * * *
IN WITNESS WHEREOF, this Agreement has been executed as a sealed instrument
by the Bank, by its duly authorized officer, and by the Executive, as of the
date first above written.
ATTEST: ABINGTON BANCORP, INC.
By:
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Clerk
Title:
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[Seal]
WITNESS:
ATTEST: ABINGTON SAVINGS BANK
By:
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Clerk
Title:
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[Seal]
WITNESS:
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Xxxx X. Xxxxx
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