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EXHIBIT 10.2
EMPLOYMENT AGREEMENT
This AGREEMENT (the "Agreement") is made as of September 1, 1999 (the
"Effective Date"), by and between People's Mortgage Corporation, a Massachusetts
corporation with its headquarters located in South Easton (the "Employer"), and
Xxxxxxx X. Xxxxx, Xx. (the "Executive"). In consideration of the mutual
covenants contained in this Agreement, the Employer and the Executive agree as
follows:
1. EMPLOYMENT. The Employer agrees to employ the Executive, and
the Executive agrees to be employed by the Employer on the terms and conditions
set forth in this Agreement.
2. CAPACITY. The Executive shall serve the Employer initially as
Regional Manager. The Executive shall also serve the Employer in such other or
additional offices as the Executive may be requested to serve by the Board of
Directors of the Employer (the "Board of Directors") or the Chief Executive
Officer. In such capacity or capacities, the Executive shall perform such
services and duties in connection with the business, affairs and operations of
the Employer as may be assigned or delegated to the Executive from time to time
by or under the authority of the Board of Directors or the Chief Executive
Officer.
3. TERM. Subject to the provisions of Section 6, the term of
employment pursuant to this Agreement (the "Term") shall be five (5) years and 4
months, beginning on the Effective Date and ending on December 31, 2004.
Thereafter, this Agreement shall automatically be renewed annually for an
additional one year term unless (a) either the Executive or the Employer gives
written notice to the other not less than sixty (60) days prior to the date of
the end of the current term of its or his intent not to renew the Agreement, or
(b) this Agreement is earlier terminated pursuant to Section 6 hereof. The last
day of the initial or any renewal term is herein referred to as the "Expiration
Date."
4. COMPENSATION AND BENEFITS. The regular compensation and
benefits payable to the Executive under this Agreement shall be as follows:
(a) SALARY. For all services rendered by the Executive
under this Agreement, the Employer shall pay the Executive a salary
(the "Salary") at the annual rate of two hundred and forty thousand
dollars ($240,000). The Salary shall be payable in periodic
installments in accordance with the Employer's usual practice for its
senior executives.
(b) ADDITIONAL COMPENSATION. Subject to the provisions of
Sections 6 and 8, for services rendered by the Executive under this
Agreement, the Employer shall pay to the Executive the compensation as
provided in SCHEDULE A attached hereto on such dates as are provided
therein. The Executive shall be deemed to have earned the compensation
as provided in SCHEDULE A only if (i) he is employed by the Employer at
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the time a payment pursuant to SCHEDULE A is due, and (ii) the
Executive has not breached any of his material obligations under this
Agreement; provided that any breach of his obligations under Section 7
shall be deemed material for purposes of this Agreement.
(c) REGULAR BENEFITS. The Executive shall also be
entitled to participate in any employee benefit plans, medical
insurance plans, life insurance plans, disability income plans,
retirement plans, vacation plans, and other benefit plans which the
Employer may from time to time have in effect for all or most of its
senior executives. Such participation shall be subject to the terms of
the applicable plan documents, generally applicable policies of the
Employer, applicable law and the discretion of the Board of Directors,
the Compensation Committee of the Board of Directors or any
administrative or other committee provided for in or contemplated by
any such plan. Nothing contained in this Agreement shall be construed
to create any obligation on the part of the Employer to establish any
such plan or to maintain the effectiveness of any such plan which may
be in effect from time to time.
(d) ADDITIONAL BENEFITS. The Employer shall provide the
following additional benefits to the Executive:
(i) BUSINESS EXPENSES. The Employer shall
reimburse the Executive for his reasonable business expenses
incurred by him in the performance of his duties and
responsibilities, subject to the Employer's usual practice and
such requirements with respect to substantiation and
documentation as may be specified by the Employer.
(ii) AUTOMOBILE. The Employer shall provide the
Executive an automobile allowance of six hundred dollars
($600.00) per month (inclusive of payments relating to leases,
rentals, gas, maintenance, etc.)
(e) TAXATION OF PAYMENTS AND BENEFITS. The Employer shall
undertake to make deductions, withholdings and tax reports with respect
to payments and benefits under this Agreement to the extent that it
reasonably and in good faith believes that it is required to make such
deductions, withholdings and tax reports. Payments under this Agreement
shall be in amounts net of any such deductions or withholdings. Nothing
in this Agreement shall be construed to require the Employer to make
any payments to compensate the Executive for any adverse tax effect
associated with any payments or benefits or for any deduction or
withholding from any payment or benefit.
(f) EXCLUSIVITY OF SALARY AND BENEFITS. The Executive
shall not be entitled to any payments or benefits other than those
provided under this Agreement.
5. EXTENT OF SERVICE. During the Executive's employment under
this Agreement, the Executive shall, subject to the direction and supervision of
the Board of Directors or the
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Chief Executive Officer, devote the Executive's full business time, best efforts
and business judgment, skill and knowledge to the advancement of the Employer's
interests and to the discharge of the Executive's duties and responsibilities
under this Agreement. The Executive shall not engage in any other business
activity, except as may be approved by the Board of Directors; provided that
nothing in this Agreement shall be construed as preventing the Executive from:
(a) investing the Executive's assets in any company or
other entity in a manner not prohibited by Section 7(d) and in such
form or manner as shall not require any material activities on the
Executive's part in connection with the operations or affairs of the
companies or other entities in which such investments are made; or
(b) engaging in religious, charitable or other community
or non-profit activities that do not impair the Executive's ability to
fulfill the Executive's duties and responsibilities under this
Agreement.
6. TERMINATION AND TERMINATION BENEFITS. Notwithstanding the
provisions of Section 3, the Executive's employment under this Agreement shall
terminate under the following circumstances set forth in this Section 6.
(a) DEATH. In the event of Executive's death during his
employment with the Employer, this Agreement shall terminate
automatically effective as of the end of the month during which the
date of death shall have occurred without further liability on the part
of the Employer.
(b) TERMINATION BY THE EMPLOYER FOR CAUSE. The
Executive's employment under this Agreement may be terminated for cause
without further liability on the part of the Employer effective
immediately upon a vote of the Board of Directors and written notice to
the Executive. Only the following shall constitute "cause" for such
termination:
(i) dishonest statements or acts of the
Executive with respect to the Employer or any affiliate of the
Employer;
(ii) the commission by or indictment of the
Executive for (A) a felony or (B) any misdemeanor involving
moral turpitude, deceit, dishonesty or fraud ("indictment,"
for these purposes, meaning an indictment, probable cause
hearing or any other procedure pursuant to which an initial
determination of probable or reasonable cause with respect to
such offense is made);
(iii) failure to perform to the reasonable
satisfaction of the Board of Directors a substantial portion
of the Executive's duties and responsibilities assigned or
delegated under this Agreement, which failure continues, in
the
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reasonable judgment of the Board of Directors, after written
notice given to the Executive by the Board of Directors;
(iv) gross negligence, willful misconduct or
insubordination of the Executive with respect to the Employer
or any affiliate of the Employer;
(v) violation of any law, rule or regulation
applicable to the Employer's business; or
(vi) material breach by the Executive of any of
the Executive's obligations under this Agreement; provided
that any breach of his obligations under Section 7 shall be
deemed material for purposes of this Agreement.
(c) TERMINATION BY THE EXECUTIVE. The Executive's
employment under this Agreement may be terminated by the Executive by
written notice to the Board of Directors at least sixty (60) days prior
to such termination.
(d) TERMINATION BY THE EMPLOYER WITHOUT CAUSE. Subject to
the payment of Termination Benefits pursuant to Section 6(e), the
Executive's employment under this Agreement may be terminated by the
Employer without cause upon written notice to the Executive by a vote
of the Board of Directors.
(e) CERTAIN TERMINATION BENEFITS.
(i) Unless otherwise specifically provided in
this Agreement or otherwise required by law, all compensation
and benefits payable to the Executive under this Agreement
shall terminate on the date of termination of the Executive's
employment under this Agreement.
(ii) Notwithstanding Section 6(e)(i) and subject
to Section 4(b)(ii), in the event (A) a Terminating Event (as
defined in Section 8(b)) occurs within two (2) years after a
Change in Control (as defined in Section 8(a)), or (B) the
Executive is terminated by the Employer for any reason other
than for cause (as defined in Section 6(b)), the Employer
shall pay to the Executive an aggregate amount equal to three
million three hundred thousand dollars ($3,300,000.00);
provided that such amount shall be reduced by all payments
previously made to the Executive pursuant to Section 4(b); and
provided further that such amount shall be payable in one
lump-sum payment on the date of such termination or
resignation.
(iii) Notwithstanding Section 6(e)(i) and (ii), if
at the time the Executive's employment with the Executive
terminates pursuant to either Section 6(e)(ii)(A) or (B) the
Employer has paid to the Executive pursuant to Section
4(b)(ii) an amount equal to or greater than three million
three hundred
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thousand dollars ($3,300,000.00), the Executive shall be
entitled to the Executive's full Salary and benefits under
Section 4(c) (except to the extent that the Executive may be
ineligible for one or more such benefits under applicable plan
terms) for a period of two years subsequent to the date of
such termination.
(f) DISABILITY. If the Executive shall be disabled so as
to be unable to perform the essential functions of the Executive's then
existing position or positions under this Agreement with or without
reasonable accommodation, the Chief Executive Officer or the Board of
Directors may remove the Executive from any responsibilities and/or
reassign the Executive to another position with the Employer for the
remainder of the Term or during the period of such disability.
Notwithstanding any such removal or reassignment, the Executive shall
continue to receive the Executive's full Salary (less any disability
pay or sick pay benefits to which the Executive may be entitled under
the Employer's policies) and benefits under Section 4(c) of this
Agreement (except to the extent that the Executive may be ineligible
for one or more such benefits under applicable plan terms) for a period
of time equal to the lesser of (i) six (6) months; or (ii) the
remainder of the Term. If any question shall arise as to whether during
any period the Executive is disabled so as to be unable to perform the
essential functions of the Executive's then existing position or
positions with or without reasonable accommodation, the Executive may,
and at the request of the Employer shall, submit to the Employer a
certification in reasonable detail by a physician selected by the
Employer to whom the Executive or the Executive's guardian has no
reasonable objection as to whether the Executive is so disabled or how
long such disability is expected to continue, and such certification
shall for the purposes of this Agreement be conclusive of the issue.
The Executive shall cooperate with any reasonable request of the
physician in connection with such certification. If such question shall
arise and the Executive shall fail to submit such certification, the
Employer's determination of such issue shall be binding on the
Executive. Nothing in this Section 6(e) shall be construed to waive the
Executive's rights, if any, under existing law including, without
limitation, the Family and Medical Leave Act of 1993, 29 U.S.C. ss.2601
et seq. and the Americans with Disabilities Act, 42 U.S.C. ss.12101 et
seq.
7. CONFIDENTIAL INFORMATION, NONCOMPETITION AND COOPERATION.
(a) CONFIDENTIAL INFORMATION. As used in this Agreement,
"Confidential Information" means information belonging to the Employer
which is of value to the Employer in the course of conducting its
business and the disclosure of which could result in a competitive or
other disadvantage to the Employer. Confidential Information includes,
without limitation, financial information, reports, and forecasts;
inventions, improvements and other intellectual property; trade
secrets; know-how; designs, processes or formulae; software; market or
sales information or plans; customer lists; and business plans,
prospects and opportunities (such as lending relationships, financial
product developments, or possible acquisitions or dispositions of
businesses or facilities) which have been discussed or considered by
the management of the
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Employer. Confidential Information includes information developed by
the Executive in the course of the Executive's employment by the
Employer, as well as other information to which the Executive may have
access in connection with the Executive's employment. Confidential
Information also includes the confidential information of others with
which the Employer has a business relationship. Notwithstanding the
foregoing, Confidential Information does not include information in the
public domain, unless due to breach of the Executive's duties under
Section 7(b).
(b) CONFIDENTIALITY. The Executive understands and agrees
that the Executive's employment creates a relationship of confidence
and trust between the Executive and the Employer with respect to all
Confidential Information. At all times, both during the Executive's
employment with the Employer and after its termination, the Executive
will keep in confidence and trust all such Confidential Information,
and will not use or disclose any such Confidential Information without
the written consent of the Employer, except as may be necessary in the
ordinary course of performing the Executive's duties to the Employer.
(c) DOCUMENTS, RECORDS, ETC. All documents, records,
data, apparatus, equipment and other physical property, whether or not
pertaining to Confidential Information, which are furnished to the
Executive by the Employer or are produced by the Executive in
connection with the Executive's employment will be and remain the sole
property of the Employer. The Executive will return to the Employer all
such materials and property as and when requested by the Employer. In
any event, the Executive will return all such materials and property
immediately upon termination of the Executive's employment for any
reason. The Executive will not retain with the Executive any such
material or property or any copies thereof after such termination.
(d) NONCOMPETITION AND NONSOLICITATION. During the Term
and for two years thereafter, the Executive (i) will not, directly or
indirectly, whether as owner, partner, shareholder, consultant, agent,
employee, co-venturer or otherwise, engage, participate, assist or
invest in any Competing Business (as hereinafter defined); (ii) will
refrain from directly or indirectly employing, attempting to employ,
recruiting or otherwise soliciting any employee of the Employer (or
anyone who had been employed by the Employer within 3 months prior to
the termination of the Executive's employment), or inducing or
influencing any person to leave employment with the Employer (other
than terminations of employment of subordinate employees undertaken in
the course of the Executive's employment with the Employer); and (iii)
will refrain from soliciting or encouraging any customer, investor or
supplier to terminate or otherwise modify adversely its business
relationship with the Employer. The Executive understands that the
restrictions set forth in this Section 7(d) are intended to protect the
Employer's interest in its Confidential Information and established
employee, customer, investor and supplier relationships and goodwill,
and agrees that such restrictions are reasonable and appropriate for
this purpose. For purposes of this Agreement, the term "Competing
Business" shall mean a business conducted anywhere in the States of
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Maryland and Virginia relating to residential mortgage lending or
brokering or which is competitive with any other business which the
Employer or any of its affiliates conducts or proposes to conduct at
any time during the employment of the Executive. Notwithstanding the
foregoing, the Executive may own up to one percent (1%) of the
outstanding stock of a publicly held corporation which constitutes or
is affiliated with a Competing Business.
(e) THIRD-PARTY AGREEMENTS AND RIGHTS. The Executive
hereby confirms that the Executive is not bound by the terms of any
agreement with any previous employer or other party which restricts in
any way the Executive's use or disclosure of information or the
Executive's engagement in any business. The Executive represents to the
Employer that the Executive's execution of this Agreement, the
Executive's employment with the Employer and the performance of the
Executive's proposed duties for the Employer will not violate any
obligations the Executive may have to any such previous employer or
other party. In the Executive's work for the Employer, the Executive
will not disclose or make use of any information in violation of any
agreements with or rights of any such previous employer or other party,
and the Executive will not bring to the premises of the Employer any
copies or other tangible embodiments of non-public information
belonging to or obtained from any such previous employment or other
party.
(f) LITIGATION AND REGULATORY COOPERATION. During and
after the Executive's employment, the Executive shall cooperate fully
with the Employer in the defense or prosecution of any claims or
actions now in existence or which may be brought in the future against
or on behalf of the Employer which relate to events or occurrences that
transpired while the Executive was employed by the Employer. The
Executive's full cooperation in connection with such claims or actions
shall include, but not be limited to, being available to meet with
counsel to prepare for discovery or trial and to act as a witness on
behalf of the Employer at mutually convenient times. During and after
the Executive's employment, the Executive also shall cooperate fully
with the Employer in connection with any investigation or review of any
federal, state or local regulatory authority as any such investigation
or review relates to events or occurrences that transpired while the
Executive was employed by the Employer. The Employer shall reimburse
the Executive for any reasonable out-of-pocket expenses incurred in
connection with the Executive's performance of obligations pursuant to
this Section 7(f).
(g) INJUNCTION. The Executive agrees that it would be
difficult to measure any damages caused to the Employer which might
result from any breach by the Executive of the promises set forth in
this Section 7, and that in any event money damages would be an
inadequate remedy for any such breach. Accordingly, subject to Section
8 of this Agreement, the Executive agrees that if the Executive
breaches, or proposes to breach, any portion of this Agreement, the
Employer shall be entitled, in addition to all other remedies that it
may have, to an injunction or other appropriate
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equitable relief to restrain any such breach without showing or proving
any actual damage to the Employer.
(h) The restrictions contained in this Section 7 are
reasonable in kind, duration and scope, and, furthermore, the Executive
specifically acknowledges that the duration of the restrictions set
forth in Section 7(d) (i.e., Term and two years thereafter) are
reasonable in light of the fact that, effective until the date of this
Agreement, the Executive was a member of Allied Bancshares Mortgage
Group, LLC, the assets of which company were purchased by the Employer
on the date of this Agreement.
8. SPECIAL TERMINATION.
(a) CHANGE IN CONTROL. A "Change in Control" shall be
deemed to have occurred when any "person" (as such term is used in
Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "1934 Act")) 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 Employer representing twenty-five
percent (25%) or more of the total number of votes that may be cast for
the election of directors of the Employer (other than in the case of
the formation of a holding company by the Employer or the holding
company's ownership of the capital stock of the Employer), and the
Board of Directors of the Employer 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 sixty (60) days thereafter;
provided that if at the time such a consent vote is adopted after such
event, the persons who were directors of the Employer immediately prior
to such event do not constitute a majority of the Board of Directors of
the Employer, or of any successor institution, such vote shall not be
deemed to constitute consent for the purposes of this provision. In
addition, a Change in Control shall be deemed to have occurred if any
tender or exchange offer, merger or other business combination, sale of
assets or contested election, or any combination of the foregoing
transactions has occurred and as the result of, or in connection with,
such transaction the persons who were directors of the Employer before
such transaction cease to constitute a majority of the Board of
Directors of the Employer, or of any successor institution.
(b) TERMINATING EVENT. A "Terminating Event" shall mean
termination by the Employer of the employment of the Executive with the
Employer for any reason other than for cause as defined in Section 6(b)
above, or resignation of the Executive from the employ of the Employer,
subsequent to the occurrence of any of the following events:
(i) A significant change in the nature or scope
of the Executive's stated responsibilities or duties from the
responsibilities or duties exercised by
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the Executive immediately prior to the Change in Control,
which change constitutes a demotion;
(ii) A demotion in title or in the offices held
by the Executive or any removal of the Executive from, or any
failure to reelect the Executive to any of the titles or
offices held by the Executive; or
(iii) A decrease in the base salary and material
change in the method of determining bonuses and commissions
from that provided in the Schedules hereto payable by the
Employer to the Executive, unless (A) other executives
employed by the Employer receive similar treatment, or (B)
such decrease and material change are the result of a material
deterioration of the Employer's operations.
The Executive shall provide the Employer with thirty (30)
days' notice and an opportunity to cure any of the events listed in
this Section 8(b)(i) through (iv) and shall not be entitled to
compensation pursuant to this Section 8 unless the Employer fails to
cure within a reasonable period.
(c) SEVERANCE PAYMENTS. Subject to the provisions of
Section 8(d), in the event a Terminating Event occurs within two (2)
years after a Change in Control, the Employer shall pay to the
Executive as provided in Section 6(e).
(d) LIMITATION ON BENEFITS.
(i) It is the intention of the Executive and the
Employer that no payments by the Employer to or for the
benefit of the Executive under this Agreement and/or any other
agreement or plan pursuant to which the Executive is entitled
to receive payments or benefits shall be non-deductible to the
Employer by reason of the operation of Section 280G of the
Internal Revenue Code of 1986, as amended (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 Employer in the aggregate, such payments shall
be reduced to the maximum amount which can be deducted by the
Employer. To the extent that payments exceeding such maximum
deductible amount have been made to or for the benefit of the
Executive either under this Agreement and/or any other
agreement or plan, such excess payments shall be refunded to
the Employer 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 Employer
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
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Section 280G, the Executive shall determine which method shall
be followed; provided that if the Executive fails to make such
determination within forty-five (45) days after the Employer
has sent him written notice of the need for such reduction,
the Employer may determine the method of such reduction in its
sole discretion.
(ii) If any dispute between the Employer and the
Executive as to any of the amounts to be determined under this
Section 8(d), or the method of calculating such amounts,
cannot be resolved by the Employer and the Executive, either
the Employer or the Executive 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 Employer and the
Executive, which firm must be one of the so-called "big five"
firms. The determination of such partner as to the amount to
be determined under Section 8(d)(i) and the method of
calculating such amounts shall be final and binding on both
the Employer and the Executive. The Employer shall bear the
costs of any such determination.
(e) TERMINATION. The provisions of this Section 8 shall
terminate upon the earliest of (i) the termination by the Employer of
the employment of the Executive because of death or for cause as
defined in Section 6(b), (ii) the resignation of the Executive for any
reason prior to a Change in Control, or (iii) 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 8(b)(i), (ii ),
(iii) and (iv).
9. "KEY MAN" LIFE INSURANCE. The Employer has the right to
purchase a "key man" term life insurance policy, for a term of up to five years,
with respect to the Executive for a beneficial amount of up to five million
dollars ($5,000,000.00), for the benefit of the Employer or the Employer's
successors or assigns.
10. ARBITRATION OF DISPUTES. Any controversy or claim arising out
of or relating to this Agreement or the breach thereof or otherwise arising out
of the Executive's employment or the termination of that employment (including,
without limitation, any claims of unlawful employment discrimination whether
based on age or otherwise) shall, to the fullest extent permitted by law, be
settled by arbitration in any forum and form agreed upon by the parties or, in
the absence of such an agreement, under the auspices of the American Arbitration
Association ("AAA") in Boston, Massachusetts in accordance with the Employment
Dispute Resolution Rules of the AAA, including, but not limited to, the rules
and procedures applicable to the selection of arbitrators. In the event that any
person or entity other than the Executive or the Employer may be a party with
regard to any such controversy or claim, such controversy or claim shall be
submitted to arbitration subject to such other person or entity's agreement.
Judgment upon the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof. This Section 10 shall be specifically enforceable.
Notwithstanding the foregoing, this Section 10 shall not preclude either party
from pursuing a court action for
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the sole purpose of obtaining a temporary restraining order or a preliminary
injunction in circumstances in which such relief is appropriate; provided that
any other relief shall be pursued through an arbitration proceeding pursuant to
this Section 10.
11. CONSENT TO JURISDICTION. To the extent that any court action
is permitted consistent with or to enforce Section 10 of this Agreement, the
parties hereby consent to the jurisdiction of the Superior Court of the
Commonwealth of Massachusetts and the United States District Court for the
District of Massachusetts. Accordingly, with respect to any such court action,
the Executive (a) submits to the personal jurisdiction of such courts; (b)
consents to service of process; and (c) waives any other requirement (whether
imposed by statute, rule of court, or otherwise) with respect to personal
jurisdiction or service of process.
12. INTEGRATION. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior agreements between the parties with respect to any related subject matter.
13. ASSIGNMENT; SUCCESSORS AND ASSIGNS, ETC. Neither the Employer
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; provided that the Employer shall assign its rights under this
Agreement without the consent of the Executive in the event that the Employer
shall effect a reorganization, consolidate with or merge into any other
corporation, partnership, organization or other entity, or transfer all or
substantially all of its properties or assets to any other corporation,
partnership, organization or other entity. This Agreement shall inure to the
benefit of and be binding upon the Employer and the Executive, their respective
successors, executors, administrators, heirs and permitted assigns.
14. ENFORCEABILITY/SEVERABILITY. If any portion or provision of
this Agreement is to any extent be declared illegal or unenforceable by a court
of competent jurisdiction, then the court may amend such portion or provision so
as to comply with the law in a manner consistent with the intention of this
Agreement, and the remainder of this Agreement, or the application of such
illegal or unenforceable portion or provision in circumstances other than those
as to which it is so declared illegal or unenforceable, will not be affected
thereby, and each portion and provision of the Agreement will be valid and
enforceable to the fullest extent permitted by law. In the event that any
provision of this Agreement is determined by any court of competent jurisdiction
to be unenforceable by reason of excessive scope as to geographic, temporal or
functional coverage, such provision will be deemed to extend only over the
maximum geographic, temporal and functional scope as to which it may be
enforceable.
15. WAIVER. No waiver of any provision hereof shall be effective
unless made in writing and signed by the waiving party. 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.
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16. 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, return receipt requested, or by a nationally recognized courier to the
Executive at the last address the Executive has filed in writing with the
Employer or, in the case of the Employer, at its main offices, attention of the
Chief Executive Officer, and shall be effective on the date of delivery in
person or by a nationally recognized courier or three (3) days after the date
mailed.
17. 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 Employer.
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, without giving effect to the conflict of laws principles of
such Commonwealth. With respect to any disputes concerning federal law, such
disputes shall be determined in accordance with the law as it would be
interpreted and applied by the United States Court of Appeals for the First
Circuit.
19. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be taken to be
an original; but such counterparts shall together constitute one and the same
document.
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IN WITNESS WHEREOF, this Agreement has been executed as a sealed
instrument by the Employer, by its duly authorized officer, and by the
Executive, as of the Effective Date.
EMPLOYER:
PEOPLE'S MORTGAGE CORPORATION
By:_________________________________
Name:
Title:
EXECUTIVE:
____________________________________
Xxxxxxx X. Xxxxx, Xx.
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SCHEDULE A
ADDITIONAL COMPENSATION
A. The Executive shall be entitled to the following bonuses, payable in
accordance with Paragraphs B and C below:
1. For the period beginning on September 1, 1999 and ending on
December 31, 1999, and for each of the calendar years ending
on December 31, 2000 and December 31, 2001, the Executive
shall be entitled to an amount equal to twenty-five percent
(25%) of the aggregate pre-tax profits of the regional offices
of the Employer under the managerial control of the Executive;
provided that the identity of such regional offices will be
determined by the Employer's Chief Executive Officer (the
"Regional Offices").
2. For each of the calendar years ending on December 31, 2002,
December 31, 2003, and December 31, 2004, the Executive shall
be entitled to an amount equal to:
2.1 Fifteen percent (15%) of the aggregate pre-tax
profits of the Regional Offices that do not exceed
three million dollars ($3,000,000);
2.2 twenty percent (20%) of the aggregate pre-tax profits
of the Regional Offices that exceed three million
dollars ($3,000,000) but are less than four million
dollars ($4,000,000); and
2.3 twenty-five percent (25%) of the aggregate pre-tax
profits of the Regional Offices that exceed four
million dollars ($4,000,000).
B. For purposes of this Schedule A, the aggregate pre-tax profits of the
Regional Offices shall be calculated by adding the pre-tax profits of
each of the Regional Offices for the relevant time period or calendar
year as set forth in the balance sheets and profit and loss statements
corresponding to each Regional Office as prepared by the Employer on a
monthly basis; provided that such profit and loss statements shall
include reasonable corporate expense allocations that will vary from
time to time.
C. The bonuses provided for in this Schedule A shall be paid as a lump-sum
payment on or before April 15 of the calendar year following the year
to which the bonus is attributable.
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