Exhibit 10.11
Change-In-Control Severance Agreement
AGREEMENT made as of this 20th day of March, 2003 by and among
Xxxxx'x Ferry Bancorp, a Massachusetts corporation with its principal place
of business in Somerset, Massachusetts (the Corporation), SladesFerry Trust
Company d/b/a Xxxxx'x Ferry Bank of Somerset, a Massachusetts banking
corporation with its principal place of business in Somerset, Massachusetts
(the Bank) and Xxxx Xxxx Xxxx (the Executive), an individual to be employed
as an executive of the Corporation and Bank.
1. Purpose. The Corporation and the Bank considers it essential
to the best interests of its stockholders to xxxxxx the
continuous employment of key management personnel employed by
the Bank. The Board of Directors of the Corporation (the Board)
recognizes, however, that, as is the case with many publicly
held corporations, the possibility of a Change in Control (as
defined in Section 2 hereof) exists and that such possibility,
and the uncertainty and questions which it may raise among
management, may result in the departure or distraction of
management personnel to the detriment of the Corporation and
its stockholders. Therefore, the Board has determined that
appropriate steps should be taken to reinforce and encourage
the continued attention and dedication of members of the
Corporation and the Bank's management, including the Executive,
to their assigned duties without distraction in the face of
potentially disturbing circumstances arising from the
possibility of a Change in Control. Nothing in this Agreement
shall be construed as creating an express or implied contract
of employment and, except as otherwise agreed in writing
between the Executive and the Corporation and/or Bank, the
Executive shall not have any right to be retained in the employ
of the Corporation and/or the Bank.
2. Change in Control. For purposes of this Agreement, a Change in
Control shall mean the occurrence of any one of the following
events:
(a) The acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(D)(2) of
the Securities Exchange Act of 1934, as amended (the
Exchange Act), of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act)
of 20% or more of the then outstanding shares of common
stock of the Corporation (the Outstanding Corporation
Common Stock); provided, however, that any acquisition by
the Corporation or its subsidiaries of 20% or more of
Outstanding Corporation Common Stock shall not constitute
a Change in Control; and provided, further, that any
acquisition by a corporation with respect to which,
following such acquisition, more than 50% of the then
outstanding shares of common stock of such corporation,
is then beneficially owned, directly or indirectly, by
all or substantially all of the individuals and entities
who were the beneficial owners of the Outstanding
Corporation Common Stock immediately prior to such
acquisition in substantially the same
proportion as their ownership, immediately prior to such
acquisition, of the Outstanding Corporation Common Stock,
shall not constitute a change in Control; or
(b) Individuals who, as of the date of this Agreement,
constitute the Board (the Incumbent Board) cease for any
reason to constitute at least a majority of the Board,
provided that any individual becoming a director
subsequent to the date of this Agreement whose election,
or nomination or election by the Corporation's
shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent
Board shall be considered as though such individual were
a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of
office is in connection with either an actual or
threatened election contest (as such terms are used in
Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) or other actual or threatened solicitation
of proxies or consents by or on behalf of a person other
than the Board; or
(c) Consummation by the Corporation of (i) a reorganization,
merger or consolidation, in each case, with respect to
which all or substantially all the individuals and
entities who were the beneficial owners of the
Outstanding Corporation Common Stock immediately prior to
such reorganization, merger or consolidation do not,
following such reorganization, merger or consolidation,
beneficially own, directly or indirectly, more than 40%
of the then outstanding shares of common stock of the
corporation resulting from such a reorganization, merger
or consolidation; (ii) a reorganization, merger or
consolidation, in each case, (A) with respect to which
all or substantially all of the individuals and entities
who were the beneficial owners of the Outstanding
Corporation Common Stock immediately prior to such
reorganization, merger or consolidation, following such
reorganization, merger or consolidation, beneficially
own, directly or indirectly, more than 40% but less than
50% of the then outstanding shares of common stock of the
corporation resulting from such a reorganization, merger
or consolidation, (B) at least a majority of the
directors then constituting the Incumbent Board do not
approve the transaction and do not designate the
transaction as not constituting a Change in Control, and
(C) following the transaction members of the then
Incumbent Board do not continue to comprise at least a
majority of the Board; or (iii) the sale or other
disposition of all substantially all of the assets of the
Corporation, excluding a sale or other disposition of
assets to a subsidiary of the Corporation; or
(d) Consummation by the Bank of (i) a reorganization, merger
or consolidation, in each case, with respect to which,
following such reorganization, merger or consolidation,
the Corporation does not beneficially own, directly or
indirectly, more than 50% of the then outstanding shares
of common stock of the corporation or bank
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resulting from such a reorganization, merger or
consolidation or (ii) the stockholders of the Corporation
approve a plan the sale or other disposition of all or
substantially all of the assets of the Bank, excluding a
sale or other disposition of assets to the Corporation or
a subsidiary of the Corporation.
3. Terminating Event. A Terminating Event shall mean any of the
events set forth in subparagraphs (a), (b), or (c):
(a) Termination of the Executive's employment by the
Corporation and/or Bank within 13 months following a
Change in Control for any reason other than for Cause or
the death or disability of the Executive.
"Disability" shall be deemed the reason for the termination by
the Corporation of the Executive's employment, if, and only if,
as a result of the executive's incapacity due to physical or
mental illness, the Executive shall have been absent from the
full-time performance of the Executive's duties with the
Corporation on a full-time basis for the a period of one-
hundred-eighty (180) consecutive days or for an aggregate
period of two hundred-ten (210), days during a consecutive
period of two hundred-seventy (270) days.
"Cause" shall mean, and shall be limited to, the occurrence of
any one or more of the following events:
(i) Willful fraudulent conduct or breach of fiduciary duty or
trust by the Executive which has had or has a substantial
likelihood of having a demonstrably and materially
injurious effect to the Corporation and/or the Bank;
(ii) The Executive's indictment followed by conviction or
admission to sufficient facts for a crime involving moral
turpitude, or for any crime under Title 18, Sections 215,
656, 657, 1005-1007, 1014, 1032, 1341, 1343, and 1344 of
the United States Code;
(iii) The willful and continued failure by the Executive (other
than any such failure resulting from the Executive's
incapacity due to physical or mental illness or any such
actual or anticipated failure after the Executive gives
notice of termination for Good Reason) to substantially
perform the Executive's duties with the Corporation
and/or the Bank and the continuation of such failure for
a period of 30 days after delivery by the Board to the
Executive of written noticing seeking substantial
performance and specifying the scope and nature of such
failure and intention to terminate the Executive for
Cause.
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For purposes of clauses (i) and (iii) of this Section
3(a), no act, or failure to act, on the Executive's part
shall be considered "willful" unless done, or omitted to
be done, by the Executive not in good faith and without
reasonable belief that the Executive's act, or failure to
act, was in the best interest of the Corporation and/or
the Bank.
A Terminating Event shall not be deemed to have occurred
pursuant to this Section 3 (a) solely as a result of the
Executive being an employee of any direct or indirect
successor to the business or assets of the Corporation
and/or the Bank, rather than continuing as an employee of
the Corporation and/or the Bank following a Change in
Control.
(b) Termination by the Executive of the Executive's
employment with the Corporation and/or the Bank for Good
Reason within 13 months following a Change in Control.
"Good Reason" shall mean the occurrence of any of the
following, without the Executive's express written
consent:
(i) the assignment to the Executive of any duties
inconsistent with the Executive's status as an
executive officer of the Corporation and/or Bank or
any substantial diminution in the Executive's
responsibilities, functions, powers, titles or
offices as in effect immediately prior to the
Change in Control;
(ii) any reduction in Base Salary, except for across-
the-board salary reductions similarly affecting all
executives of the Corporation and/or the Bank and
all executives of any person in control of the
Corporation and/or Bank;
(iii) the failure by the Corporation and/or the Bank to
(A) continue in effect any material compensation or
benefit plan or program (including, without
limitation, any life insurance, medical, health and
accident, disability retirement and/or
supplemental retirement plan, program, policy, or
agreement; any bonus plan, program, policy, or
agreement; and any vacation program or policy) in
which the Executive participates or is entitled or
which is applicable to the Executive immediately
prior to the Change in Control, unless an equitable
arrangement (embodied in an ongoing substitute or
alternate plan) has been made with respect to such
plan, program, policy, or agreement or (B) continue
the Executive's participation therein or
entitlement therein (or in such substitute or
alternate plan, program, or policy) on a basis not
materially less favorable, both in terms of the
amount of benefits provided, target levels, and the
level of the Executive's
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participation relative to other participants, than
the basis existing immediately prior to the Change
in Control; provided, however, this shall not apply
to any change by the Bank or Corporation to any
compensation or benefit plan or program which
similarly affects all executive personnel of the
Corporation and/or Bank and all executives of any
person in control of the corporation,
(iv) the relocation of the Corporation's and/or the
Bank's offices at which the Executive is
principally employed immediately prior to the date
of a Change in Control to a location more than 50
miles from such offices, or the requirement by the
Corporation and/or the Bank for the Executive to be
based anywhere other than the Corporation's and/or
the Bank's business to an extent substantially
inconsistent with the Executive's business travel
obligations immediately prior to the Change in
Control;
(v) any purported termination of the Executive's
employment which is not effected pursuant to a
Notice of Termination satisfying the requirements
of Section 8 hereof; for purposes of the
Agreement, no such purported termination shall be
effective; or
(vi) the failure by the Corporation and/or the Bank to
obtain an effective agreement from any successor to
assume and agree to perform this Agreement, as
required by Section 17.
The Executive's right to terminate the Executive's
employment for Good Reason shall not be affected by
the Executive's incapacity due to physical or
mental illness. The Executive's continued
employment shall not constitute consent to, or a
waiver of rights with respect to, any act or
failure to act constituting Good Reason hereunder.
(c) after 12 months following a Change in Control but within
13 months following a Change in Control, termination by
the Executive of the Executive's employment with the
Corporation and/or the Bank without cause.
4. Special Termination Payments. In the event a Terminating Event
occurs, and in lieu of any other severance benefits to which
the Executive might otherwise be entitled, the Corporation
and/or the Bank shall be jointly and severably responsible to,
and shall pay to the Executive the following:
(a) in the case of a Terminating Event under paragraphs 3(a)
or 3(b)
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(i) 2.99 times the amount of the average annual W-2
Compensation of the Executive over the prior five
years (or such lesser period as the Executive has
been employed), determined prior to any reductions
for pre-tax contributions to a cash or deferred
arrangement, a cafeteria plan, or a deferred
compensation. At the Executive's election, the
foregoing amount may be paid in one lump sum
payment within thirty days after the Date of
Termination, discounted at the then existing prime
rate as quoted by the Wall Street Journal; or in
equal monthly installments over three years; and
(ii) the Corporation and/or the Bank shall continue to
provide health, dental and life insurance to the
Executive, on the same terms and conditions as
though the Executive had remained an active
employee, for 36 months after the Terminating
Event; or until the Executive qualifies for
equivalent coverage under a new employer;
(iii) the Corporation and/or the Bank shall provide the
Executive with 36 months of additional benefit
accrual under the Corporation's and the Bank's
retirement and/or supplemental retirement plans,
programs, policies or agreements, but only to the
extent the Executive was eligible to participate in
such immediately prior to the Change in Control;
and
(iv) the Corporation and/or the Bank shall transfer to
the Executive full unencumbered ownership of the
Corporation automobile provided to the Executive.
(v) Executive shall be 100% vested in any benefits
provided in any Agreement in any Life Insurance
Agreement or Arrangement she has entered into with
the Corporation and/or Bank, including but not
limited to any Split Dollar Life Insurance Plan;
and
(b) In the case of a Terminating Event under paragraph 3(c),
1.0 times the then base compensation of the Executive
plus the amount of the bonus for the year preceding the
termination which, at the Corporation and/or Bank's
election, may be paid in one lump sum payment within
thirty days after the date of termination or in equal
monthly installments over the 12 month period after the
termination date.
(c) The Corporation and/or Bank will promptly reimburse
Executive for any and all reasonable legal fees and
expenses incurred in connection with efforts to obtain or
enforce any benefit or right provided by this Agreement,
including but not limited to contesting or disputing
that the termination of her employment is for Cause or
other than for Good Reason; provided that Employee
obtains or recovers any sum from the Company, whether by
settlement or award.
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Notwithstanding anything herein to the contrary, this Agreement shall
not supersede, eliminate or diminish any payments or benefits that
Executive is entitled to under any stock option, supplemental retirement
plan or other agreement, arrangement or plan and to the extent that any
payment or benefit provided for herein is required to be paid or vested at
any earlier date under the terms of any plan, agreement or arrangement,
such plan, agreement or arrangement shall control.
5. Additional Benefits
(a) Anything in this Agreement to the contrary
notwithstanding, in the event it shall be determined that
any compensation, payment or distribution by the
Corporation and/or the Bank to or for the benefit of the
Executive, whether paid or payable or distributed
pursuant to the terms of this Agreement or otherwise (the
"Severance Payments"), would be subject to the excise tax
imposed by Section 4999 of the Internal Revenue Code of
1986, as amended (the "Code"), or any interest or
penalties are incurred by the Executive with respect to
such excise tax (such excise tax, together with any such
interest and penalties, are hereinafter collectively
referred to as the "Excise Tax"), then the Executive
shall be entitled to receive an additional payment (a
"Gross Payment") such that the net amount retained by the
Executive, after deduction of any Excise Tax and not
after the deduction of any other taxes or amounts, shall
be equal to the Severance Payments. (The Gross-Up
Payment is not intended to compensate the Executive for
any income taxes payable with respect to the Severance
Payments.)
(b) Subject to the provisions of Section 5(c), all
determinations required to be made under this Section 5,
including whether a Gross-Up Payment is required and the
amount of such Gross-Up Payment, shall be made by the
Corporation and/or the Bank's Accounting Firm, which
shall provide detailed supporting calculations both to
the Executive and the Corporation and/or the Bank within
15 business days of the Date of Termination if
applicable, or at such earlier time as is reasonably
requested by the Executive or the Corporation and/or the
Bank. For purposes of determining the amount of the
Gross-Up Payment, the Executive shall be deemed to pay
federal income taxes at the highest marginal rate of the
federal income taxation applicable to individuals for the
calendar year in which the Gross-Up Payment is to be
made, and the state and local income taxes at the
residence on the Date of Termination, net of the maximum
reduction in the federal income taxes which could be
obtained from deduction of such state and local taxes.
The initial Gross-Up Payment, if any, as determined
pursuant to the Section 5(b), shall be paid to the
Executive within five days of the
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receipt of the Accounting Firm's determination. If the
Accounting Firm determines that no Excise Tax is payable
by the Executive, the Corporation and/or the Bank shall
furnish the Executive with an opinion of counsel that the
failure to report the Excise Tax on the Executive's
applicable federal income tax return would not result in
the imposition of a negligence or similar penalty. Any
determination by the Accounting Firm shall be binding
upon the Executive and the Corporation and/or the Bank.
As a result of the uncertainty in the application of
Section 4999 of the Code at the time of the initial
determination by the Accounting firm hereunder, it is
possible that Gross-Up Payments which will not ave been
made by the Corporation and/or the Bank (an
"Underpayment"). In the event that the Corporation
and/or the Bank exhaust its remedies pursuant to Section
5(c) and the Executive thereafter is required to make
payment of any Excise Tax, the Accounting Firm shall
determine the amount of the Underpayment that has
occurred, consistent with the calculations required to be
made hereunder, and any such Underpayment, and any
interest and penalties imposed on the Underpayment and
required to be paid by the Executive in connection with
the proceedings described in Section 5(c), shall be
promptly paid by the Corporation and/or the Bank to or
for the benefit of the Executive.
(c) The Executive shall notify the Corporation and/or the
Bank in writing of any claim by the Internal Revenue
Service that, if successful, would require the payment by
the Corporation and/or the Bank of the Gross-Up Payment,
such notification shall be given as soon as practicable
but no later than 10 business days after the Executive
knows of such claim and shall apprise the Corporation
and/or Bank of the nature of such claim and the date on
which such claim is requested to be paid. The Executive
shall not pay such claim prior to the expiration of the
30-day period following the date on which he gives such
notice to the Corporation and/or the Bank (or such
shorter period ending on the date that any payment of
taxes with respect to such claim is due). If the
Corporation and/or Bank notifies the Executive in writing
prior to the expiration of such period that it desires to
contest such claim, provided that the Corporation and/or
Bank has set aside adequate reserves to cover the
Underpayment and any interest and penalties thereon that
may accrue, the Executive shall:
(i) give the Corporation and/or Bank any information
reasonably requested by the Corporation and/or the
Bank relating to such claim,
(ii) take such action in connection with contesting such
claim as the Corporation and/or the Bank shall
reasonably request in writing from time to time,
including, without limitation,
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accepting legal representation with respect to such
a claim by an attorney selected by the Corporation
and/or the Bank
(iii) cooperate with the Corporation and/or the Bank in
good faith in order effectively to contest such
claim, and
(iv) permit the Corporation and/or the Bank to
participate in any proceedings, relating to such
claim; provided, however, that the Corporation
and/or the Bank shall bear and pay directly all
costs and expenses (including additional interest
and penalties) incurred in connection with such
contest and shall indemnify and hold the Executive
harmless, on an after-tax basis, for any Excise Tax
or income tax, including interest and penalties
with respect thereto, imposed as a result of such
representation and payment of costs and expenses,
Without limitation on the foregoing provisions of
this Section 5(c), the Corporation and/or the Bank
shall control all proceedings taken in connection
with such contest and, at its sole option, may
pursue or forego any and all administrative
appeals, proceedings, hearing and conferences with
the taxing authority in respect of such claim and
may, at its sole option, either direct the
Executive to pay the tax claimed and xxx for a
refund or contest the claim in any permissible
manner , and the Executive agrees to prosecute such
contest to a determination before any
administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts,
as the Corporation and/or the Bank shall determine;
provided, however, that if the Corporation and/or
Bank directs the Executive to pay such claim and
xxx for a refund, the Corporation and/or Bank shall
advance the amount of such payment to the Executive
on an interest-free basis and shall indemnify and
hold the Executive harmless, on an after-tax basis,
from any Excise Tax or income tax, including
interest or penalties with imputed income with
respect to such advance; and further provided that
any extension of the statute of limitations
relating to payment of taxes for the taxable year
of the Executive with respect to which such
contested amount is claimed to be due is limited
solely to such contested amount. Furthermore, the
Corporation's and/or Bank's control of the contest
shall be limited to issues with respect to which a
Gross-Up Payment would be payable hereunder and the
Executive shall be entitled to settle or contest,
as the case may be, any other issues raised by the
Internal Revenue Service or any other taxing
authority.
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6. Term. This Agreement shall take effect on the date first set
forth above and shall terminate upon the earliest of (a) the
termination by the Corporation and/or the Bank of the
employment of the Executive for Cause after a Change of
Control; (b) the resignation or termination of the Executive
for any reason prior to a Change in Control; or (c) the date
which is 13 months and 1 day after a Change in Control.
7. Withholding. All payments made by the Corporation and/or the
Bank under this Agreement shall be net of any tax or other
amounts required to be withheld by the Corporation and/or the
Bank under applicable law.
8. Notice and Date of Termination; Disputes; Etc.
(a) Notice of Termination. After a Change in Control and
during the term of this Agreement, any purported
termination of the Executive's employment (other than by
reason of death) shall be communicated by written Notice
of Termination from one party hereto to the other party
hereto in accordance with this Section 8. For purposes
of this Agreement, a "Notice of Termination" shall mean a
notice which shall indicate the specific termination
provision in this Agreement relied upon and shall set
forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the
Executive's employment under the provision so indicated,
and the Date of Termination. Further, a Notice of
Termination for Cause is required to include a copy of a
resolution duly adopted by the affirmative vote of not
less than two-thirds (2/3) of the entire membership of
the Board at a meeting of the Board (after reasonable
notice to the Executive and an opportunity for the
Executive, accompanied by the Executive's counsel, to be
heard before the Board) finding that, in the good faith
opinion of the Board, the termination met the criteria
for Cause set forth in Section 3(a) hereof.
(b) Date of Termination. "Date of Termination", with respect
to any purported termination of the Executive's
employment after a Change in Control and during the term
of this Agreement, shall mean the date specified in the
Notice of Termination. In the case of termination by the
Corporation and/or the Bank other that a termination for
Cause (which may be effective immediately), the Date of
Termination shall not be less than 30 days after the
Notice of Termination is given. In the case of a
termination by the Executive, the Date of Termination
shall not be less than 15 days, nor more than 60 days,
respectively, from the date such Notice of Termination is
given. Notwithstanding Section 3(a) of this Agreement,
in the event that the Executive gives a Notice of
Termination to the Corporation and/or Bank, the
Corporation and/or Bank may unilaterally accelerate the
Date of Termination and
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such acceleration shall not result in a second
Termination Event for purpose of Section 3(a) of this
Agreement.
(c) Dispute Concerning Termination. If within fifteen (15)
days after any Notice of Termination is given, or, if
later, prior to the Date of Termination (as determined
without regard to this Section 8 (c), the party receiving
such Notice of Termination notifies the other party that
a dispute exists concerning the termination, the Date of
Termination shall be the date on which the dispute is
finally resolved,either by mutual written agreement of
the parties or by a final judgment, order or decree
(which is not appealable or with respect to which the
time for appeal therefrom has expired and no appeal has
been perfected); provided further that the Date of
Termination shall be extended by a notice of dispute only
if such notice is given in good faith and the party
giving such notice pursues the resolution of such dispute
with reasonable diligence.
(d) Compensation During Dispute. If a purported termination
occurs following a Change in Control and during the Term,
and such termination is disputed in accordance with
Section 8(c) hereof, the Corporation and/or Bank shall
continue to pay the Executive the full compensation in
effect when the notice giving rise to the dispute was
given (including, but not limited to salary) and continue
the Executive as a participant in all compensation,
benefit and insurance plans, programs, policies, and/or
agreements in which the Executive was participating when
the notice giving rise to the dispute was given, until
the earlier of the dispute being finally resolved in
accordance with Section 8(c) hereof or six months from
the date of notice giving rise to the dispute is given,
when such continued compensation and benefits shall
cease. Amounts paid under this Section 8(d), however, are
in addition to all other amounts due under this Agreement
and shall not be offset against or reduce any other
amounts due under this Agreement. Provided, however,
that the Executive may be requested to provide reasonable
services to the Corporation and/or Bank until the dispute
is resolved in accordance with Section 8(c) hereof.
(e) Settlement of Disputes; Arbitration. All claims by the
Executive for benefits under this Agreement shall be
directed to and determined by the Board and shall be in
writing. Any denial by the Board of a claim for benefits
under this Agreement shall be delivered to the Executive
in writing and shall set forth the specific reasons for
the
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denial and the specific provisions of this Agreement
relied upon. The Board shall afford a reasonable
opportunity to the Executive for a review of the decision
denying a claim and shall further allow the Executive to
appeal to the Board a decision of the Board within sixty
(60) days after notification by the Board that the
Executive's claim has been denied. To the extent
permitted by applicable law, any further dispute or
controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration in
Boston, Massachusetts. The parties agree there shall be
three arbitrators, one of whom shall be appointed by the
Corporation and/or the Bank, one by the Executive, and
the third by the first two arbitrators. If the first two
arbitrators cannot agree on the appointment of a third
arbitrator, then the third arbitrator shall be appointed
by the American Arbitration Association in Boston,
Massachusetts. Such arbitration shall be conducted in
accordance with the rules of the American Arbitration
Association for commercial arbitrations, except with
respect to the selection of arbitrator, which shall be as
provided in this Section 8(e). Judgement upon the award
rendered by the arbitrators may be entered in any court
having jurisdiction thereof.
9. Assignment; Prior Agreements. Neither the Corporation, the
Bank 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, and without such consent any attempted transfer shall be
null and void and of no effect. This Agreement shall inure to
the benefit of and be binding upon the Corporation and the Bank
and the Executive as well as their respective successors,
executors, administrators, heirs and permitted assigns. In the
event of the Executive's death after a Terminating Event but
prior to the completion by the Corporation and/or the Bank of
all payments due her under Sections 4 and 5 of this Agreement,
the Corporation and/or the Bank shall continue such payments to
the Executive's beneficiary designated in writing to the
Corporation and/or Bank prior to his death (or to his estate,
if the Executive fails to make such a designation).
10. Enforceability. If any provision of this Agreement shall to
any extent be declared illegal or unenforceable by a court of
competent jurisdiction, or any appropriate Federal or State
Banking authority, 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
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provision of this Agreement shall be valid and enforceable to
the fullest extent permitted by law.
11. Waiver. No waiver of any provision hereof shall be effective
unless made in writing and signed by the Executive and such
officer as may be specifically designated by the Board. The
failure of any party to require the performance of any term or
obligation of this Agreement, or the waiver by any 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.
12. Notices. Any Notices, requests, demands, and other
communications provided for by this Agreement shall be
sufficient if in writing and delivered in person by or sent by
registered or certified mail, postage prepaid, to the Executive
at the last address the Executive has filed in writing with the
Corporation and/or the Bank, or to the Corporation and/or the
Bank at its main offices, attention of the Board of Directors,
with the copy to the Secretary of the Corporation and/or the
Bank, or to such other address as either party may have
furnished to the other in writing in accordance herewith,
except the notice of a change of address shall be effective
only upon receipt.
13. Effect on Other Plans, Policies, Agreements. An Election by
the Executive to resign for good reason after a Change in
Control under the provisions of the Agreement shall not be
deemed a voluntary termination of employment by the Executive
for purposes of interpreting the provisions of any of the
Corporation's and/or the Bank's benefit plans, programs,
agreements or policies. Excepts as specifically referenced
herein, nothing in this Agreement shall be construed to limit
the rights of the Executive under the Corporation's and/or the
Bank's benefit plans, programs, agreements or policies.
14. 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 Corporation and/or the Bank.
15. Governing Law. This contract shall be construed under and be
governed in all respects by the laws of the Commonwealth of
Massachusetts.
16. Obligations of Successors. In addition to any obligations
imposed by law upon any successor to the Corporation, the
Corporation and/or the Bank shall require any successor
(whether direct or indirect, by purchase, merger, consolidation
or otherwise) to all or substantially all of the business or
assets of the Corporation and/or the Bank to expressly assume
and agree to perform this Agreement in the same manner and to
the same extent that the Corporation and/or the Bank would be
required to perform
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if no such succession had taken place. Failure of the
Corporation to obtain such assumption of this Agreement prior
to the effectiveness of any such succession shall be a breach
of this Agreement and shall entitle the Executive to
compensation from the Corporation in the same amount and on the
same terms as the Executive would be entitled to hereunder if
the Executive were to terminate the Executive's employment for
Good Reason after a Change in Control, except that, for
purposes of implementing the foregoing, the date on which any
such succession becomes effective shall be deemed the Date of
Termination.
IN WITNESS WHEREOF, this Agreement has been executed as a sealed instrument
by the Corporation and the Bank by their duly authorized officers and by
the Executive, as of the date first above written.
XXXXX'X FERRY BANCORP
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxxx
Chairman of the Board
XXXXX'X FERRY TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxxx
Chairman of the Board
/s/ Xxxx Xxxx X. Xxxx
--------------------------------
Executive
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