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Exhibit 10.3
SPECIAL TERMINATION AGREEMENT
AGREEMENT made as of the 9th day of May, 1986 by and between Lawrence
Savings Bank, a Massachusetts savings bank with its main office in Lawrence,
Massachusetts (the "Bank"), and Xxxxxx X. Xxxxxxxxx, an individual presently
employed by the Bank in the capacity of Senior Vice President and Treasurer (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 Bank and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged by the Bank, the Bank is 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 either of the following events: (i) if there has occurred a change
in control which the Bank would be required to report in response to Item 5(f)
of the Form for Proxy Statement (Form F-5) prescribed by 12 CFR Section 335.212
promulgated under the Securities Exchange Act of 1934, as amended (the "1934
Act"), or, if such regulation is no longer in effect, any regulations
promulgated by the Federal Deposit Insurance Corporation or by the Securities
and Exchange Commission pursuant to the 1934 Act which are 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 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 Bank and, in the case of either (i) or (ii) above, the Bank's Board of
Directors has not consented to such event by a two-thirds vote of all of the
members of the Board of Directors adopted either prior to such event or within
ninety (90) days thereafter, except that if at the time such a consent vote is
adopted after such event, the persons who were directors of the Bank immediately
prior to such event do not constitute a majority of the Board of Directors of
the Bank or of any successor institution, such vote shall not be deemed to
constitute consent for the purposes of this Agreement. In
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addition, a Change in Control shall be deemed to have occurred if, as the
result of, or in connection with, any tender or exchange offer, merger or other
business combination, sale of assets or contested election, or any combination
of the foregoing transactions, the persons who were directors of the Bank
before such transaction shall cease to constitute a majority of the Board of
Directors of the Bank or of any successor institution. Notwithstanding the
other provisions of this Section, the sale of the Bank's stock in connection
with its conversion from mutual to stock form (the "Conversion") shall not
constitute a Change in Control.
3. Terminating Event. A "Terminating Event" shall mean
(a) termination by the Bank of the employment of the Executive with
the Bank for any reason other than (i) death, (ii) deliberate dishonesty of
the Executive with respect to 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 Bank, while
the Executive is not receiving payments or benefits from 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 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
immediately prior to such Change in Control; or
(iii) A decrease in the total annual compensation payable by the Bank to
the Executive other than as a result of a decrease in compensation
payable to the Executive and to all other executive officers of the
Bank on the basis of the Bank's financial performance.
4. Severance Payment. In the event a Terminating Event occurs within
three (3) years after a Change in Control, the Bank shall pay to the Executive
an amount equal to (x) three times the "base amount" (as defined in Section
280G(b)(3) of the Internal Revenue Code of 1954, as amended (the "Code")
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applicable to the Executive, less (y) One Dollar ($1.00), payable in one
lump-sum payment on the date of termination.
5. Limitation on Benefits.
(a) It is the intention of the Executive and of the Bank that no
payments by the Bank 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 Bank 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 Bank, such
payments shall be reduced to the maximum amount which can be deducted by the
Bank. 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 Bank 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 Bank 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 Bank has sent him written
notice of the need for such reduction, the Bank may determine the method of
such reduction in its sole discretion.
(b) If any dispute between the Bank 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 Bank and the Executive, either party
after giving three days written notice to the other, may refer the dispute to a
partner in the Boston office of a firm of independent certified public
accountants selected jointly by the Bank and the Executive. The determination
of such partner as to the amount to be determined under Section 5(a) and the
method of calculating such amounts shall be final and binding on both the Bank
and the Executive. The Bank shall bear the costs of any such determination.
6. 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.
7. Term. Subject to the satisfaction of the conditions set forth in
Sections 16 and 17, this Agreement shall take
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effect one day prior to the effective date of the Conversion, and shall
terminate upon the earlier of (a) the termination by the Bank of the employment
of the Executive because of death, deliberate dishonesty of the Executive with
respect to 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 the Executive for any reason prior to a Change in Control, or (c)
the resignation 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)(i)-(iii) of
this Agreement.
8. Withholding. All payments made by the Bank under this Agreement shall
be net of any tax or other amounts required to be withheld by the Bank under
applicable law.
9. Arbitration of Disputes. Any controversy or claim arising out of or
relating to this Agreement or the breach thereof shall be settled by
arbitration in accordance with the laws of the Commonwealth of Massachusetts
by three arbitrators, one of whom shall be appointed by 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
the City of Boston. Such arbitration shall be conducted in the City of Boston
in accordance with the rules of the American Arbitration Association, except
with respect to the selection of arbitrators which shall be as provided in this
Section 9. Judgment upon the award rendered by the arbitrators may be entered
in any court having jurisdiction thereof. In the event that it shall be
necessary or desirable for the Executive to retain legal counsel and/or incur
other costs and expenses in connection with the enforcement of any or all of
the Executive's rights under this Agreement, the Bank shall pay (or the
Executive shall be entitled to recover from the Bank, as the case may be) the
Executive's reasonable attorneys' fees and other reasonable costs and
expenses in connection with the enforcement of said rights (including the
enforcement of any arbitration award in court) regardless of the final outcome,
unless and to the extent the arbitrators shall determine that under the
circumstances recovery by the Executive of all or a part of any such fees and
costs and expenses would be unjust. This provision shall not apply to Section
5(b), except in the event that the Bank and the Executive cannot agree on the
selection of the accounting partner described in said Section.
10. Assignment. Neither the Bank nor the Executive may make any
assignment of this Agreement or any interest herein, by operation of law or
otherwise, without prior written consent of the other party. This Agreement
shall inure to the benefit of and be binding upon the Bank and the Executive,
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their respective successors, executors, administrators, heirs and permitted
assigns. In the event of the Executive's death prior to the completion by the
Bank of all payments due him under this Agreement, the Bank shall continue such
payments to the Executive's beneficiary designated in writing to the Bank prior
to his death (or to his estate, if he fails to make such designation).
11. 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.
12. 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.
13. 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 the last address the Executive has filed in writing with the Bank
or, in the case of the Bank, at its main office, attention of the Clerk.
14. ELECTION OF REMEDIES. 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 Bank 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 Bank'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 Bank, provided, however, that if there is a
Terminating Event under Section 3 hereof, the Executive may elect either to
receive the severance payment provided under Section 4 or such termination
benefits as he may have under any such employment agreement, but may not elect
to receive both.
15. 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 Bank.
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16. Ratification of Agreement. This Agreement shall be submitted to the
full Board of Directors of the Bank for ratification at the first meeting of
the Board of Directors subsequent to the Conversion.
17. Agreement to be Null and Void. If the Conversion does not take place
for any reason whatsoever, this Agreement shall be null and void.
18. Governing Law. This is a Massachusetts contract and shall be
construed under and be governed in all respects by the laws of the Commonwealth
of Massachusetts.
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.
WITNESS:
/s/ Illegible /s/ XXXXXX X. XXXXXXXXX
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XXXXXX X. XXXXXXXXX
ATTEST: XXXXXXXX SAVINGS BANK
/s/ XXXXXX X. XXXXXXXXX By: /s/ Illegible
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Assistant Clerk Title: President
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[Seal]
VS-6560/c
2/3/86
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