Exhibit No. 10.15
Execution copy
AGREEMENT
THIS AGREEMENT is entered into this ___ day of December, 1998, among First
Essex Bancorp, Inc., a Massachusetts corporation (the "Holding Company"), First
Essex Bank, FSB, a federally chartered savings bank (the "Bank"), and Xxxxx X.
Xxxxxx of Billerica, Massachusetts ("Xxxxxx").
WHEREAS, Xxxxxx has been employed by either the Bank or the Holding
Company, or both, since 1991;
WHEREAS, on or about October 9, 1997 each of the Bank and the Holding
Company entered into Amended and Restated Employment Agreements with Xxxxxx
(collectively, the "Employment Agreements"); and
WHEREAS, on or about January 1, 1994, the Holding Company and Xxxxxx
entered into a Special Termination Agreement, which was restated October 9, 1997
(the "Special Termination Agreement"); and
WHEREAS, Xxxxxx has informed the Holding Company and the Bank of his plans
to retire from his employment effective December 31, 1998 (the "Effective Date")
and the Bank and the Holding Company have agreed to such early retirement; and
WHEREAS, the Holding Company and the Bank desire to provide certain
benefits to Xx. Xxxxxx in connection with his retirement;
NOW, THEREFORE, the parties agree as follows:
1. Retirement; Miscellaneous Resignations; Payment of Salary and Bonus for
1998. In connection with his retirement, Xxxxxx hereby resigns from all
positions he currently or formerly held as an employee, officer or Director of
the Holding Company, the Bank and all of their affiliates and subsidiaries. Each
such resignation shall be effective as of the Effective Date. The Bank shall
continue to pay Xxxxxx at his current salary through the Effective Date, and
shall pay Xxxxxx any bonus earned by him under the Bank's bonus plan for the
year ended December 31, 1998 (based on achievement of performance goals
specified in the bonus plan), such bonus payment, if any, to be made at the same
time as similar bonus payments are made to other executives of the Bank.
2. Status of Agreements.
a. Employment Agreements. Upon the Effective Date, the Employment
Agreements will terminate and be of no further force and effect, except that
Paragraph 13 of the Employment Agreements (concerning confidential information)
shall continue in full force and effect without limitation of time, and Xxxxxx
agrees to continue to be bound by and to adhere to the provisions of Paragraph
13 of the Employment Agreements. Xxxxxx will have no
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right to further payments or other benefits under the Employment Agreements, and
the sole continuing right of the Bank and the Holding Company under the
Employment Agreements shall be to enforce the provisions of Paragraph 13. Xxxxxx
agrees that he will submit to the Bank or Holding Company all expense
reimbursement requests under Section 3.3 of the Employment Agreements by no
later than December 30, 1998, and will not incur any reimbursable expenses
thereafter, so that appropriate reimbursement can be made on or prior to
December 31, 1998.
b. Special Termination Agreement. Upon the Effective Date, the Special
Termination Agreement will terminate and be of no further force and effect, and
Xxxxxx will have no right to further payments or other benefits thereunder.
3. Retirement Benefits.
a. Special Payment. On the Effective Date, the Bank will pay to Xxxxxx
a lump sum payment of $237,500 less any required withholding taxes as a benefit
in connection with his retirement.
b. Stock Options. All stock options for the purchase of Holding
Company Common Stock held by Xxxxxx under either the 1997 Stock Incentive Plan
or the 1987 Stock Option Plan will, on January 1, 1999, become immediately
exercisable notwithstanding any vesting schedule contained therein. In addition,
all stock options held by Xxxxxx under either the 1987 Stock Option Plan or the
1997 Stock Incentive Plan will remain exercisable until June 30, 1999,
notwithstanding any earlier termination date set forth therein, it being
understood that such extension of the exercise period will result in
disqualification of such options from treatment as incentive stock options under
the Internal Revenue Code.
This paragraph 3(b) constitutes an amendment of all stock options held by
Xxxxxx.
c. Health Insurance. For a period of six months after the Effective
Date, Xxxxxx shall be entitled to continuation of his medical benefits at the
level in effect on, and at the same out-of-pocket cost to him as of, the
Effective Date (or, if such continuation is not permitted by applicable law or
if the Board so determines in its sole discretion, the Holding Company or the
Bank shall provide the economic equivalent in lieu thereof). Such medical
benefits shall be deemed to have been provided under the provisions of COBRA so
that, at the end of such six-month period, Xxxxxx will be eligible to continue
his medical benefits under the provisions of COBRA for an additional one-year
period at his own expense, without contribution from the Bank or the Holding
Company. Nothing herein shall prevent the Holding Company or the Bank from
making changes in its group health insurance, to the extent that such changes
are generally applicable to employees of the Bank.
d. Vacation Pay. On December 31, 1998, the Bank will pay Xxxxxx the
full amount of his then accrued and unpaid vacation pay.
4. Cooperation; Expense Reimbursement. Xxxxxx agrees that, upon the
reasonable
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request of the Bank or the Holding Company, he will testify at depositions,
hearings or trials, provide consulting services, and otherwise cooperate with
the Bank and the Holding Company to assist in a smooth transition following his
retirement. The Bank will reimburse Xxxxxx'x reasonable travel and other
out-of-pocket expenses incurred in connection with such services.
5. Confidential Information. Xxxxxx understands and agrees that the Holding
Company's and the Bank's confidential information belongs exclusively to the
Holding Company and the Bank, respectively, and that the confidential
information of the Bank's customers or of other organizations with whom the
Holding Company or the Bank do business, remains their exclusive property.
Xxxxxx agrees that he will not disclose or use any such confidential information
for any reason, whether for his benefit or for the benefit of another, and that
he will hold and treat such information as confidential information, unless he
has specific prior written authorization from the Holding Company or the Bank to
disclose it.
6. Release. In return for the payments and benefits to be provided to
Xxxxxx as set forth in paragraph 3 hereof, Xxxxxx will execute a final and
binding Release and Waiver of All Claims against the Holding Company, the Bank,
and their respective officers, directors, employees, agents and representatives,
in the form attached hereto as Exhibit A. The Release and Waiver will include
but not be limited to claims of age discrimination, and all other claims arising
out of or relating to Xxxxxx'x hiring, employment, or retirement from employment
with the Holding Company, Bank or any affiliate thereof. In connection with the
Release and Waiver, Xxxxxx hereby represents and warrants as follows:
a. The Holding Company and the Bank have advised him to consult with
an attorney of his choosing concerning the rights waived in this
Agreement and he has done so. Xxxxxx has carefully read and fully
understand this Agreement, and is voluntarily entering into this
Agreement and providing the Release and Waiver of Claims.
b. He understands that he has 21 days to review this Agreement and the
Release and Waiver prior to their execution. If at any time prior to
the end of the 21 day period he executes this letter agreement and the
attached Release and Waiver, he acknowledges that such early execution
is a knowing and voluntary waiver of his right to consider this letter
agreement at least 21 days and is due to his belief that he has had
ample time in which to consider and understand this letter agreement
and in which to review this letter agreement with an attorney.
c. He understands that for a period of seven days after he executes
this Agreement, he may revoke the Agreement by giving notice in
writing of such revocation to the Holding Company and the Bank,
attention Xxxxx X. Xxxxxxx, President and Chief Operating Officer. If
at any time after the end of the seven-day period he accepts the
payment provided in paragraph 3(a) of this Agreement, such acceptance
will constitute an admission by him that he did not revoke this
agreement during the revocation period and that this letter agreement
has become effective and enforceable.
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d. He understands the effect of his waiver, and that he gives up any
rights he may have, in particular but without limitation, under the
federal Age Discrimination in Employment Act and Chapter 151B of the
Massachusetts General laws.
e. He understands that he would not be entitled to the benefits
described in paragraph 3(a) or 3(b) hereof if he did not enter into
this Agreement.
7. Non-Assignment. Xxxxxx warrants and represents to the Holding Company
and the Bank that he has not assigned or transferred or attempted to assign or
transfer to any person any matter described in the Release and Waiver which is
Exhibit A to this Agreement, or any part or portion thereof.
8. Challenge to Validity of Agreement. After the revocation period of seven
days described in paragraph 6(c) of this Agreement has expired, this Agreement
shall be forever binding, notwithstanding any information Xxxxxx may receive
thereafter, and Xxxxxx shall not bring a proceeding to challenge the validity of
this Agreement. Should he do so notwith standing this paragraph, he will first
be required to pay back to the Bank and Holding Company all payments made by
them pursuant to paragraph 3(a) hereof.
9. Entire Agreement. This Agreement sets forth the full terms of Xxxxxx'x
retirement benefits from the Holding Company and the Bank, and supersedes any
prior oral or written understanding, including, without limitation, any
termination or other benefits described in the Employment Agreements or the
Special Termination Agreement. This Agreement may not be modified, amended or
cancelled by Xxxxxx, the Holding Company or the Bank, except in a writing signed
by all parties.
10. Governing Law. This Agreement will be governed by and interpreted in
accordance with the substantive laws of The Commonwealth of Massachusetts
without giving effect to its principles of conflicts of laws.
11. Signature. This Agreement may be signed on one or more copy, each of
which when so signed will be deemed to an original, and all of which together
will be one and the same document. This document shall be binding on the parties
hereto and their successors and assigns.
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The parties have indicated their consent to this Agreement by signing
below.
Witness:
________________________ _____________________________
Xxxxx X. Xxxxxx
Attest: FIRST ESSEX BANCORP, INC.
________________________ By: _________________________
Title:_______________________
Attest: FIRST ESSEX BANK, FSB
________________________ By: _________________________
Title:_______________________
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Exhibit A
RELEASE AND WAIVER OF ALL CLAIMS (INCLUDING
AGE DISCRIMINATION IN EMPLOYMENT ACT CLAIMS)
In consideration of the payments and benefits to be provided to me as set
forth in paragraph 3 of the Agreement dated December __, 1998 between First
Essex Bancorp, Inc., First Essex Bank, FSB (collectively, "First Essex") and
myself, I hereby voluntarily release First Essex and its affiliates and its
present and former officers, directors, employees, agents, and representatives
from all actions, causes of action, suits, debts, sums of money, accounts,
covenants, contracts, agreements, promises, damages, judgments, demands and
claims whatsoever, whether known or unknown, in law or equity, whether statutory
or common law, whether federal, state, local or otherwise, including but not
limited to claims arising under the Age Discrimination in Employment Act of
1967, as amended, the Civil Rights Act of 1866, Title VII of the Civil Rights
Act of 1964, as amended, the Civil Rights Act of 1991, as amended, the Americans
With Disabilities Act of 1990, as amended, the Family and Medical Leave Act of
1993, the Immigration Reform and Control Act of 1986, all similar Massachusetts
statutes and regulations and the common law of Massachusetts, and all other
claims which I ever had, or now have, or hereafter can, shall or may have, for,
upon or by reason of any matter or cause whatsoever arising from the beginning
of the world to the date of the execution of this Release out of or in any way
related to my hiring or employment by First Essex, or my retirement from that
employment, or any related matters.
____________________________ Date:____________________
Xxxxx X. Xxxxxx
Signed and sealed in the presence of:
___________________________
Notary Public
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