Exhibit 10.9
EXECUTIVE SUPPLEMENTAL COMPENSATION AGREEMENT
BETWEEN
FIRST IPSWICH BANCORP
AND
XXXX ST. XXXX XXXXXXX
This agreement is made and entered into this 31st day of March, 2004 by
and between First Ipswich Bancorp, a Massachusetts corporation (hereinafter
referred to as the "Company") and Xxxx St. Xxxx Xxxxxxx of Ipswich,
Massachusetts (hereinafter referred to as the "Executive").
W I T N E S S E T H:
WHEREAS, the Executive has been in the employ of the Company and its
wholly-owned subsidiary, The First National Bank of Ipswich (the "Bank"), and is
now serving as the Chairman of the Bank and this Company; and
WHEREAS, because of the Executive's experience, knowledge of the affairs
of the Bank and this Company and his reputation and contacts in the industry,
the Company deems the Executive's continued employment with the Company
important for its future growth; and
WHEREAS, it is the desire of the Company and in its best interest and that
of the Bank that the Executive's services be retained; and
WHEREAS, in order to induce the Executive to continue in the employ of the
Company and in recognition of his past service, the Company wishes to enter into
an Executive Supplemental Income Agreement to provide him or his beneficiaries
certain benefits.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Company and the Executive hereby agree as follows:
1. Retirement; Payments. Upon termination of Executive's employment due to
Retirement, as provided herein, the Company will pay to the Executive the Net
Retirement Benefit described below. Payment shall be made in monthly
installments beginning the first day of the calendar month following termination
of employment. "Retirement" shall mean the termination of Executive's employment
at any time after the date hereof for any reason (other than the Company's
termination of the Executive for Cause as defined herein), including termination
because of a permanent disability, early retirement or after a Change in Control
(as defined herein).
2. Net Retirement Benefit. The "Net Retirement Benefit" shall be
determined by calculating the Retirement Amount and subtracting therefrom the
amount of Offsets actually paid to the Executive (or which he would have
received upon making appropriate elections) (all such terms as hereinafter
defined).
3. Retirement Amount. The "Retirement Amount" shall be calculated by
multiplying the Benefit Computation Amount by a percentage determined as
follows: two percent (2%) multiplied by the number of full years of service as a
senior executive officer with the Company and/or the Bank up to thirty five
(35). Any year in which Executive was employed as a senior executive office of
both the Company and the Bank shall be considered one year of service. The
"Benefit Computation Amount" shall be the average of the Executive's
compensation during the three (3) consecutive calendar years in which his
compensation, including any bonus, is the highest, as determined by reference to
the W-2 forms issued by the Company. Executive is 100% vested as of the date of
this Agreement.
4. Offsets. The "Offsets" are the Social Security Offset and the 401k
Offset, (as hereinafter defined):
a. The "Social Security Offset" shall be 50% of the single life
annual retirement benefit which the Executive is entitled to receive at age 62,
or at the time of Retirement, if later. In the event the amount the Executive is
entitled to receive as a single life retirement benefit from the Social Security
Administration changes from the amount included in the initial or any succeeding
calculation of the Social Security Offset, the Social Security Offset shall be
recalculated using the new amount.
b. The "401k Offset" shall be equal to the annual benefit payable
from a single life annuity on the Executive's life from a company holding at
least an AA rating from Xxxxx'x, Standard & Poor's or an equivalent rating
service on an assumed investment equal to the total of all employer
contributions to the 401k plan for the benefit of the Executive, including
matching contributions, (plus assumed earnings thereon at 6% per annum).
5. Forms of Payment. The Company shall pay to the Executive or, in the
event of the Executive's death prior to the completion of payments, to the
Executives beneficiaries an annual benefit equal to the Net Retirement Benefit
each year for 15 years, payable in equal monthly installments. In lieu of the 15
year payments of Net Retirement Benefit provided for herein, the Executive may
with the consent of the Company elect an optional form of payment, which shall
be the actuarial equivalent of the lifetime payments provided for hereunder. If
possible, such election shall be made at least three and not more than twelve
months prior to the date payments are to begin, and shall specify the optional
form of payment elected, which shall be a form of payment available to the
Executive under the Company's qualified defined contribution
(401k) plan. In the event the Executive elects a lump sum payment, the Company
may elect to make payment of the actuarial equivalent of the Net Retirement
Benefit in substantially equal monthly payments over a period of up to five
years, together with interest on the unpaid balance at a variable rate equal to
the rate of interest on 90-day U.S. Treasury Bills, payable monthly in arrears.
The interest rate shall be adjusted on the first day of each calendar month to
be the rate of interest on 90-day U.S. Treasury Bills determined at the last
auction of the preceding calendar month.
6. Forfeiture. Anything to the contrary in this Agreement notwithstanding,
benefits under this Agreement shall be forfeited and all rights of the Executive
and his beneficiaries shall become null and void if the Executive's employment
is terminated for Cause. For this purpose, "Cause" shall have the meaning set
forth in the Employment Agreement of Executive and the Company of even date,
whether or not such agreement continues in effect.
7. Alienability. Neither the Executive, nor, if applicable, his widow or
other beneficiary under this Agreement, shall have any power or right to
transfer, assign, anticipate, hypothecate, mortgage, commute, modify, or
otherwise encumber any of the benefits payable hereunder or any rights to
benefits hereunder, nor shall any of said benefits or rights be subject to any
debts, judgments, alimony or separate maintenance owed by the Executive or, if
applicable, any beneficiary, or be transferable by operation of law in the event
of bankruptcy, or otherwise.
8. Participation in Other Plans. Nothing contained in this Agreement shall
be construed to alter, abridge, or in any manner affect the rights and
privileges of the Executive to participate in and be covered by any pension,
profit-sharing, group insurance, bonus or any other employee plan or plans which
the Company or any subsidiary or affiliate may have or hereafter have.
9. Reorganization. The Company shall not merge or consolidate into or with
another Company, or reorganize, or sell substantially all of its assets to
another Company, firm or person unless and until such succeeding or continuing
Company, firm or person agrees to assume and discharge the obligations of the
Company under this Agreement. Upon the occurrence of such event, the term
"Company" as used in this Agreement shall be deemed to refer to such successor
or survivor.
10. Benefits and Burdens. This Agreement shall be binding upon and inure
to the benefit of the Executive and his personal representatives and heirs, and
to the Company and any successor organization which shall succeed to
substantially all of its assets and business without regard to the form of such
succession.
11. Company. As used in this Agreement, Company shall mean First Ipswich
Bancorp and any affiliated entity, successor organization, parent, subsidiary or
holding company, including a successor after reorganization as provided in
Section 9.
12. Notices. Any notice or communication required of either party with
respect to this Agreement shall be made in writing and may either be delivered
personally or sent by first class mail, as the case may be:
To the Company at:
First Ipswich Bancorp
00 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: President
To the Executive at:
Xxxx St. Xxxx Xxxxxxx
00 Xxxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Each party shall have the right by written notice to change the place to
which any notice may be addressed.
13. Arbitration; Costs of Collection. Any dispute or controversy arising
under or in connection with this Agreement shall, after exhaustion of
administrative remedies, including the claims procedure in Section 14 hereof, be
settled exclusively by arbitration in Boston, Massachusetts in accordance with
the rules of the American Arbitration Association then in effect.
Notwithstanding the pendency of any such dispute or controversy, the Company
will continue to pay the Net Retirement Benefit until the dispute is finally
resolved. Judgment may be entered on the arbitrator's award in any court having
jurisdiction; provided, however, that Executive shall be entitled to seek
specific performance of Executive's right to be paid during the pendency of any
dispute or controversy arising under or in connection with this Agreement. In
the event the dispute relates to the amount of the payment, the Company shall
continue to pay the undisputed amount.
The Company shall pay to the Executive all reasonable legal fees and
expenses incurred by him in seeking to obtain or enforce any right or benefit
provided by this Agreement, provided that the final resolution of such matter
principally is in Executive's favor.
14. Claims Procedure. a. The Company will be the "named fiduciary" and
"plan administrator" of the arrangement contemplated herein. The claims
procedure set forth herein may be changed by Company from time to time by
written notice to the Executive, provided no such change shall limit the
protections herein provided to the claimant except as such limitations are
imposed by applicable law, regulation, or case law. The Company may establish
reasonable administrative procedures for applying the Claims Procedures.
b. The Executive or any beneficiary of his may file a request for
benefits with the Company in writing delivered to the Company at its address
provided in Section 12 hereof. If a claim request is wholly or partially denied,
the Company will furnish to the claimant a notice of its decision within ninety
(90) days in writing, and in a manner to be understood by the claimant, which
notice will contain the following information:
i. the specific reason or reasons for the denial;
ii. specific reference to pertinent provisions of this Agreement upon
which the denial is based;
iii. a description of any additional material or information necessary for
the claimant to perfect the claim and an explanation as to why such material or
information is necessary; and
iv. an explanation of the applicable claim-review procedure describing the
steps to be taken by a claimant who wishes to submit his claim for review.
c. A claimant or his authorized representative may, with respect to
any denied claim:
i. request a review upon written application filed within sixty (60) days
after receipt by the claimant of written notice of the denial of his claim;
ii. review pertinent documents; and
iii. submit issues and comments in writing.
d. Any request or submission will be in writing and will be directed
to the Company. The Company will have the sole responsibility for the review of
any denied claim and will take all appropriate steps in light of its findings.
The Company will render a decision upon review of a denied claim within sixty
(60) days after receipt of a request for review. If special circumstances
warrant additional time, the decision will be rendered as soon as possible, but
not later than one hundred twenty (120) days
after receipt of request for review. Written notice of any such extension will
be furnished to the claimant prior to the commencement of the extension. The
decision on review will be in writing and will include specific reasons for the
decision written in a manner to be understood by the claimant, as well as the
specific references of the pertinent provisions on which the decision is based.
If the decision on review is not furnished to the claimant within the time
limits described above, the claim will be deemed denied on review.
15. Entire Agreement; Amendments. This Agreement constitutes the entire
understanding of the parties with respect to its subject matter, supersedes any
prior communication or understanding with respect thereto, and no amendment to
or modification or waiver of any provision hereof shall be valid unless made in
writing and signed by the parties.
19. Jurisdiction. The terms and conditions of this Agreement are subject
to the laws of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
under seal by its duly authorized officer, and the Executive has hereunto set
his hand and seal at Ipswich, Massachusetts on this 31st day of
March, 2004.
WITNESS: FIRST IPSWICH BANCORP
/s/ Xxxxx Xxxxxxxx By /s/ Xxxxxx X. Xxxx
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Title: President
WITNESS:
/s/ Xxxxx X. Xxxxxx /s/ Xxxx St. Xxxx Xxxxxxx
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Xxxx St. Xxxx Xxxxxxx
